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Supreme Court Half Yearly Digest...

Supreme Court Half Yearly Digest 2024 - Civil Minor Acts

LIVELAW NEWS NETWORK

4 Sept 2024 8:35 AM IST

Animal Birth Control Rules, 2001

Under all circumstances, there cannot be any indiscriminate killings of canines and the authorities have to take action in terms of the mandate and spirit of the prevalent legislation(s) in place. There is no gainsaying in the fact that exhibiting compassion to all living beings, is the enshrined Constitutional value and mandate, and cast obligation on the authorities to maintain. (Para 11) Animal Welfare Board of India v. People For Elimination of Stray Troubles, 2024 LiveLaw (SC) 434

Arbitration and Conciliation Act, 1996

An award could be said to be against the public policy of India in, inter alia, the following circumstances: 1. When an award is, on its face, in patent violation of a statutory provision 2. When the arbitrator/Arbitral Tribunal has failed to adopt a judicial approach in deciding the dispute. 3. When an award is in violation of the principles of natural justice. 4. When an award is unreasonable or perverse. 5. When an award is patently illegal, which would include an award in patent contravention of any substantive law of India or in patent breach of the 1996 Act. 6. When an award is contrary to the interest of India, or against justice or morality, in the sense that it shocks the conscience of the Court. (Para 27) S.V. Samudram v. State of Karnataka, 2024 LiveLaw (SC) 14 : AIR 2024 SC 447 : (2024) 3 SCC 623

Section 25 – Termination of arbitral proceedings – The learned Arbitrator is bound to terminate the proceedings on grounds of failure of the claimant to file his statement of claim in accordance with Section 23, in view of Section 25(a). If the respondent to the proceedings fails to file a statement of defence in accordance with Section 23, in the light of Section 25(b), the learned Arbitrator is bound to proceed further with the arbitral proceedings. Even if the claimant, after filing a statement of claim, fails to appear at an oral hearing or fails to produce documentary evidence, the learned Arbitrator is expected to continue the proceedings as provided in Section 25(c). Held, The fact that clause (c) of Section 25 enables the Arbitral Tribunal to proceed in the absence of the claimant shows the legislature's intention that the claimant's failure to appear after filing the claim cannot be a ground to say that the proceedings have become unnecessary or impossible. (Para 10, 12 & 15) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Section 29A - A High Court which does not have original civil jurisdiction does not have the power to extend the time limit for passing of the arbitral award. Chief Engineer (NH) PWD (Roads) v. BSC & C and C JV, 2024 LiveLaw (SC) 425

Section 32 – Grounds for termination of arbitral proceedings – Section 32 provides for the termination of the arbitral proceedings in the following contingencies: a. On making final arbitral award; b. On the Claimant withdrawing his claim as under Section 32(2)(a); c. Parties agreeing on termination of arbitral proceedings as under Section 32(2)(b); or d. When the Arbitral Tribunal finds that the continuation of proceedings has become unnecessary or impossible for any other reason, as under Section 32(2)(c). Held, Section 32(2)(c) can be invoked for reasons other than those mentioned in Section 32(2)(a) & 32(2)(b). Under Section 32(2)(c), mere existence of a reason for terminating the proceedings is not sufficient and reason must be such that the continuation of the proceedings has become unnecessary or impossible. Further held, if, after filing a claim, the claimant fails to appear at an oral hearing or fails to produce documentary evidence, it cannot be said that the continuation of proceedings has become unnecessary and the learned Arbitrator can proceed with the arbitral proceedings. (Para 14 & 15) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Section 32(2)(c) - Termination of arbitration proceedings on grounds that the continuation of proceedings has become unnecessary or impossible – Abandonment by the claimant of his claim makes the arbitral proceedings unnecessary. Mere absence in proceedings or failure to participate does not, per se, amount to abandonment. Only if the established conduct of a claimant is such that it leads only to one conclusion that the claimant has given up, his/her claim can an inference of abandonment be drawn. Held, there is no material on record to conclude that claimant had abandoned its claim. The finding of the learned Arbitrator that there was abandonment of the claim is not based on any documentary or oral evidence on record. Hence, the finding is entirely illegal. (Para 16 & 20) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Section 32(2)(c) - Termination of arbitration proceedings on grounds that the continuation of proceedings has become unnecessary or impossible – Abandonment by the claimant of his claim makes the arbitral proceedings unnecessary. Only because a claimant, after filing his statement of claim, does not move the Arbitral Tribunal to fix a date for the hearing, the failure of the claimant, per se, will not amount to the abandonment of the claim. Held, the failure of the claimant to request the Arbitral Tribunal to fix a date for hearing, per se, is no ground to conclude that the proceedings have become unnecessary. (Para 21) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Sections 34 and 37 - Modification of Arbitral Award not allowed under Section 34. Court could have at best set aside the award and could not modify the same. (Para 32.8) S.V. Samudram v. State of Karnataka, 2024 LiveLaw (SC) 14 : AIR 2024 SC 447 : (2024) 3 SCC 623

Sections 34 or 37 - Whether the courts have the power to modify the arbitral award ? Referred to a larger Bench. Gayatri Balasamy v. Isg Novasoft Technologies Ltd; 2024 LiveLaw (SC) 149

Section 34 & 37- Scope of interference of courts with arbitral awards – A judgment setting aside or refusing to set aside an arbitral award under Section 34 is appealable under Section 37. The jurisdiction under Section 37 is akin to the jurisdiction of the Court under Section 34 and restricted to the same grounds of challenge as Section 34. As per section 37(3) of Arbitration Act, a recourse to Section 37 is the only appellate remedy available against a decision under Section 34 and no second appeal shall lie from an order passed under Section 37. Held, nothing in the section 37(3) takes away the constitutional right under Article 136 to grant Special Leave to Appeal against a decision rendered in appeal under Section 37. This is the discretionary and exceptional jurisdiction of this Court to grant Special Leave to Appeal and it is a third stage at which this court tests the exercise of jurisdiction by the courts acting under Section 34 and Section 37 of the Arbitration Act. (Para 41, 42) Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd., 2024 LiveLaw (SC) 291 : AIR 2024 SC 2070

Section 34 (2-A) – Grounds for setting aside an arbitral award – A domestic award may be set aside if the Court finds that it vitiated by 'patent illegality' appearing on the face of the award. It is patent illegality, if the decision of the arbitrator is found to be perverse, or so irrational that no reasonable person would have arrived at it; or the construction of the contract is such that no fair or reasonable person would take; or, that the view of the arbitrator is not even a possible view. A 'finding' based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside under the head of 'patent illegality'. An award without reasons would suffer from patent illegality. The arbitrator commits a patent illegality by deciding a matter not within his jurisdiction or violating a fundamental principle of natural justice. (Para 40) Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd., 2024 LiveLaw (SC) 291 : AIR 2024 SC 2070

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 : AIR 2024 SC 2383

Withdrawal of arbitrator – An Arbitrator always has the option to withdraw for any reason. Therefore, he can withdraw because of the parties' noncooperation in the proceedings. But in such a case, his mandate will be terminated, not the arbitral proceedings. (Para 13) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Section 48 – Enforcement of foreign award in India challenged on grounds of arbitral bias – In India, courts must adopt an internationally recognized narrow standard of public policy, when dealing with the aspect of bias. Refusal of enforcement of foreign award should only be in a rare case where, non- adherence to International Standards is clearly demonstrable. Held, cannot infer bias or likelihood of bias of the Presiding Arbitrator, hence there is no violation of the public policy, which would render the foreign award unenforceable in India. The award debtors have failed to substantiate their allegation of bias, conflict of interest or the failure by the Presiding Arbitrator to render disclosure to the parties, as an objection to the enforcement of the award. Courts across the world have applied a higher threshold of bias to prevent enforcement of an Award than the standards set for ordinary judicial review. The award debtors have failed to meet the high threshold for refusal of enforcement of a foreign award under Section 48 of the Indian Arbitration Act. The decision given by the High Court for enforcement/execution of the foreign award stands approved. (Para 22, 25, 36, 42 & 43) Avitel Post Studioz Ltd. v. Hsbc Pi Holdings (Mauritius) Ltd., 2024 LiveLaw (SC) 267

Section 48 – Challenge of Arbitral bias raised at the enforcement stage – Held, challenge of arbitral bias is raised at the enforcement stage, must be discouraged by Courts to send out a clear message that Indian Courts would ensure enforcement of a foreign Award unless it is demonstrable that there is a clear violation of morality and justice. No setting aside challenge based on bias was raised before the Singapore Courts by the appellants within the limitation period. Since the objection of bias was not raised in appropriate proceedings it could not be raised at the post-award Stage. Held, the Award Debtors should have applied for setting aside of the Award before the Singapore Courts at the earliest point of time. (Para 27, 29 & 42) Avitel Post Studioz Ltd. v. Hsbc Pi Holdings (Mauritius) Ltd., 2024 LiveLaw (SC) 267

Section 78(5) – Arbitration clause – Two-Contract Case – When the parties enter into a contract, making a general reference to another contract, such general reference would not have the effect of incorporating the arbitration clause from the referred document into the contract between the parties. The arbitration clause from another contract can be incorporated into the contract only by a specific reference to arbitration clause. A reference to the document in the contract should be such that shows the intention to incorporate the arbitration clause from another document into the contract between the parties. The present case is a 'two-contract' case. Clause 7.0 of the L.O.I. which also forms part of the agreement specifically provides that the redressal of the dispute between the NBCC and the respondent shall 'only' be through civil courts having jurisdiction of Delhi alone. When there is a reference in the second contract to the terms and conditions of the first contract, the arbitration clause would not ipso facto be applicable to the second contract unless there is a specific mention/reference thereto. The present case is not a case of 'incorporation' but a case of 'reference' and a general reference would not have the effect of incorporating the arbitration clause. The learned single judge of the Delhi High Court has erred in allowing the appointed the Sole Arbitrator to adjudicate the dispute between the parties. (Para 10, 12, 13, 21 & 23) Nbcc (India) Ltd. v. Zillion Infraprojects Pvt. Ltd., 2024 LiveLaw (SC) 246 : AIR 2024 SC 1941

The Limitation Act, 1963 is applicable to proceedings for appointment of arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 ("A&C Act"), and a Court may refuse to make a reference if the claims, on the date of commencement of arbitration proceedings, are ex-facie barred. (Para 50) Arif Azim Co. Ltd. v. Aptech Ltd., 2024 LiveLaw (SC) 180 : AIR 2024 SC 1347

The Parliament should consider bringing an amendment to the Act, 1996 prescribing a specific period of limitation within which a party may move the court for making an application for appointment of arbitrators under Section 11 of the Act, 1996. (Para 94) Arif Azim Co. Ltd. v. Aptech Ltd., 2024 LiveLaw (SC) 180 : AIR 2024 SC 1347

Armed Forces Tribunal Act, 2007

Section 31 - The recruitment was not confined to the priority / reserved class rather it was open for general category also in case vacancies remain available. The Recruitment application(s) clearly establishes that the appellants have applied as a general category candidate(s) against the surplus seats/vacancies remaining unfilled after considering the priority/reserved quota for relatives of servicemen/ex-servicemen, etc. In a situation, when they have not claimed any enrollment/recruitment on the basis of relationship with servicemen/ex-servicemen, there was no occasion for them to submit any relationship certificate. The discharge/dismissal of the appellants from service is vitiated on grounds that they have actually not produced any relationship certificate for selection/recruitment as they never applied in the reserved category. The discharge/dismissal order of the appellants is certainly invalid for want of nonconsideration of the plea taken by the appellants. (Para 17, 24) No.2809759H Ex-Recruit Babanna Machched v. Union of India, 2024 LiveLaw (SC) 102 : AIR 2024 SC 921

Section 31 - It was not the case of the respondents ever that the vacancies on which the appellants have been enrolled/recruited were only for the alleged reserved category and not for general category. Subsequent improvement in defence and supplementing reasoning of discharge/dismissal which is not contained in the order impugned is not permissible in law. (Para 23) No.2809759H Ex-Recruit Babanna Machched v. Union of India, 2024 LiveLaw (SC) 102 : AIR 2024 SC 921

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

Cash Transfer of Food Subsidy Rules, 2015

Cash Transfer of Food Subsidy Rules, 2015 – Object – To provide food subsidy in cash directly into the bank accounts of entitled households to purchase the entitled quantity of food grains from the open market. (Para 6) Anun Dhawan v. Union of India, 2024 LiveLaw (SC) 161 : AIR 2024 SC 1248

Central Excise Act, 1944

Section 11B - It entitles any person claiming refund of any duty of excise and interest to make an application for refund of such duty and interest before the expiry of one year from the relevant date (prior to 12.05.2000, it was six months instead of one year). (Para 9.2) Union of India v. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd., 2024 LiveLaw (SC) 90 : AIR 2024 SC 927 : (2024) 3 SCC 645

Section 11BB - It provides for interest on delayed refund. It says that if any duty ordered to be refunded under sub-section (2) of Section 11B to any applicant is not refunded within three months from the date of receipt of the application under subsection (1) of that section, there shall be paid to such applicant interest at such rate not below five percent and not exceeding thirty percent per annum as for the time being fixed by the Central Government, by notification in the Official Gazette. (Para 9.3) Union of India v. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd., 2024 LiveLaw (SC) 90 : AIR 2024 SC 927 : (2024) 3 SCC 645

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 Goods and Services Act, 2017

Section 157 – Defense of 'Good faith' of statutory functionary– A good faith clause, is a provision of immunity to a statutory functionary against prosecution or legal proceedings. This immunity is limited and confined to acts done honestly and in furtherance of achieving the statutory purpose and objective. It is for the court or a judicial body to consider, adjudicate, and determine whether the claim that the action was done in good faith is made out or not depending on the facts and circumstances of each case. Held, observations made by High Court on the principle of good faith, is in the nature of advance rulings. Such tentative opinion of High court, even before the initiation of a suit, prosecution or legal proceeding, will affect the integrity and independence of that adjudication, compromising the prosecution and the defence equally. (Para 8, 9, 10 & 11) State of Gujarat v. Paresh Nathalal Chauhan, 2024 LiveLaw (SC) 295

Failure to implead necessary parties – Court must apply its mind whether the parties who are likely to be affected by an order have been impleaded to the proceedings. On failure to implead them, court must decline to pass an order of disposing of the petition in terms of the “Minutes of Order”. Only if the Court is satisfied that an order in terms of the “Minutes of the Order” would be legal, the Court can pass an order in terms of the “Minutes of Order”. An order passed without hearing the necessary parties would be illegal. While passing an order in terms of the “Minutes of Order”, the Court must record brief reasons indicating the application of mind. Held, on failure to implead the necessary parties, the High Court will be well within its power to dismiss the Writ Petition and pass an order of restoration of status quo. (Para 17, 19 & 22) Ajay Ishwar Ghute v. Meher K. Patel, 2024 LiveLaw (SC) 335

“Minutes of Order” – Object is to assist the Court – An order passed in terms of the “Minutes of Order” tendered on record by the advocates representing the parties to the proceedings is not a consent order. It is an order in invitum for all purposes. Before tendering the “Minutes of Order” to the Court, the advocates must consider whether an order, if passed by the Court in terms of the “Minutes of Order,” would be lawful. After “Minutes of Order” is tendered before the Court, it is the duty of the Court to decide whether an order passed in terms of the “Minutes of Order” would be lawful. (Para 19) Ajay Ishwar Ghute v. Meher K. Patel, 2024 LiveLaw (SC) 335

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 : AIR 2024 SC 2405

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 : AIR 2024 SC 2405

Chartered Accountants Act, 1949

Section 29A and 21A(4), Chartered Accountants (Procedure of Investigation of Professional and Other Misconduct and Conduct of Cases) Rules, 2007; Rule 9(3)(b) - Rule 9(3)(b) of subordinate legislation challenged as being ultra vires, on the ground that it exceeds the Rule making power under Section 29A(2)(c) of the parent Act. The power to make rules generally for carrying out the provisions of the Act is found in Section 29A(1). Section 29A(2) is only illustrative and should not be construed as limiting the scope of the general power of the Central Government to make rules under Section 29A(1). Even if specific topics are not explicitly listed in the statute, the formulation of rules can be justified if it falls within the general power conferred, provided it stays within the overall scope of the Act. The impugned Rule 9(3)(b) falls within the scope of the general delegation of power under Section 29A(1). Hence the Impugned Rule is not ultra vires the Parent Act. (Para 34 & 37) Naresh Chandra Agrawal v. Institute of Chartered Accountants of India, 2024 LiveLaw (SC) 101 : AIR 2024 SC 1139

Principle of 'Generality vs Enumeration' - Where a statute confers particular powers without prejudice to the generality of a general power already conferred, the particular powers are only illustrative of the general power, and do not in any way restrict the general power. The illustrative list of subjects set out in Section 29A(2) cannot be read as exhaustive since the legislature has deployed the expression 'without prejudice to the generality of the foregoing provisions' before enumerating the specific heads for exercising the rule-making power. (Para 32) Naresh Chandra Agrawal v. Institute of Chartered Accountants of India, 2024 LiveLaw (SC) 101 : AIR 2024 SC 1139

Chartered Accountants (Procedure of Investigation of Professional and Other Misconduct and Conduct of Cases) Rules, 2007; Rule 9(3)(b) and The Chartered Accountants Act, 1949; Section 21A(4) and 29A - Rule 9(3)(b) of subordinate legislation challenged on the ground of being 'ultra vires' to Section 21A(4) of the parent Act. In cases where the Board disagrees with the opinion of the Director, under Section 21A(4) the Board may advise the Director to further investigate the matter. However, Rule 9(3) does not limit itself to directions for further investigation. It also enables the Board to straightaway proceed to act by itself or refer the matter to the Disciplinary Committee, depending on whether the alleged misconduct relates to the First Schedule or Second Schedule. The 'prima facie' opinion of the Director will become nothing but a final opinion if the Board will have no option except to direct the Director to further investigate the matter. The impugned Rule falls within the scope of the general delegation of power under Section 29A(1). (Para 19 & 37) Naresh Chandra Agrawal v. Institute of Chartered Accountants of India, 2024 LiveLaw (SC) 101 : AIR 2024 SC 1139

The Supreme Court upheld a rule issued by the Institute of Chartered Accountants of India (ICAI) barring Chartered Accountants from accepting more than the "specified number of tax audit assignments" (at present, the upper limit is set at 60) in a financial year. The rule (para 6.0 of Chapter VI of the Council Guidelines No. 1-CA(7)/02/2008 dt. 08/08/2008 and the subsequent amendments) are not violative of the fundamental right to practise profession guaranteed under Article 19(1)(g) of the Constitution. The clause will be deemed to be effective from 01.04.2024 and quashed the disciplinary proceedings initiated against the members for violation of the clause. The ICAI will be at liberty to enhance the number of audits that a CA can undertake. Shaji Paulose v. Institute of Chartered Accountants of India, 2024 LiveLaw (SC) 397

Institute of Chartered Accountants of India (ICAI) - Role of the ICAI - ICAI has, over time, received recognition as a premier accounting body domestically and globally for maintaining the highest standards. The ICAI has also played a significant role in ensuring the dynamism of the CA course and the credibility of the examination. We commend that the ICAI must be committed towards the convergence of accounting and ethical standards with international standards. The true test, however, lies in enforcement of these standards. (Para 48) Shaji Paulose v. Institute of Chartered Accountants of India, 2024 LiveLaw (SC) 397

Commercial Courts Act, 2015

Section 2(1)(c)(vii) - Merely because the dispute is related to an immovable property wouldn't per se make it a commercial dispute unless the immovable property is 'actually used' exclusively in trade or commerce. S.P. Velayutham v. Emaar Mgf Land Ltd., 2024 LiveLaw (SC) 179

Companies Act, 2013

Section 31(2) - Section 31(2) was thus introduced with the intention to confer validity on any alterations to the articles as if they were originally contained therein. Therefore, any increase in the share capital of the company also shall be valid as if it were originally there when the Articles of Association were first stamped. Legislature has specifically mentioned Articles of Association in Article 10 of Schedule-I of the Stamp Act, where stamp duty is to be charged inter alia on increase in the share capital of a company. Thus, in spite of Section 31(2) of the Companies Act, stamp duty will be payable on increased share capital. (Para 12 & 13) State of Maharashtra v. National Organic Chemical Industries Ltd., 2024 LiveLaw (SC) 285 : AIR 2024 SC 2037

Section 94 & 97 – A company is empowered to increase its share capital, by such amount as it thinks expedient, by passing a resolution in a general meeting. Once a resolution for authorising increase in share capital has been passed in terms of Section 94 of the Companies Act, a notice is required to be sent by the company in Form No.5 to the Registrar, pursuant to Section 97 of the Companies Act. (Para 7) State of Maharashtra v. National Organic Chemical Industries Ltd., 2024 LiveLaw (SC) 285 : AIR 2024 SC 2037

Section 182 and Finance Act 2017; Section 154 – Constitution of India; Article 19(1)(a) – Constitutionality of Section 182(3) of Companies Act as amended by Section 154 of Finance Act – Non-disclosure of particulars of political contribution is violative of Right to Information – After amendment, Section 182(3) only requires the disclosure of the total amount contributed to political parties in a financial year. The deletion of the mandate of disclosing the particulars of contributions violates the right to information of the voter since they would not possess information about the political party to which the contribution was made which, is necessary to identify corruption and quid pro quo transactions in governance. Such information is also necessary for exercising an informed vote. The only purpose of amending Section 182(3) was to bring the provision in tune with the amendment under Section 29C of the RPA exempting disclosure requirements for contributions through electoral bonds. The amendment to Section 182(3) of the Companies Act serves no practical purpose as the Electoral Bond Scheme and relevant amendments to the RPA and the IT Act mandating non-disclosure of particulars on political contributions through electoral bonds is held unconstitutional. Hence, Section 182(3) as amended by the Finance Act 2017 is unconstitutional. Association for Democratic Reforms v. Union of India, 2024 LiveLaw (SC) 118 : AIR 2024 SC 1441

Section 182 – Finance Act 2017; Section 154 – Constitution of India; Article 14 – Unlimited corporate funding – Arbitrariness of Section 182 - Removal of restrictions on political contributions is arbitrary and violates Article 14 of the Constitution – Unlimited contribution by companies to political parties is antithetical to free and fair elections because it allows certain persons/companies (including shell companies) to influence the electoral process and policy making. This is violative of the principle of free and fair elections and political equality captured in the value of “one person one vote”. The ability of a company to influence the electoral process through political contributions is much higher when compared to that of an individual. Companies and individuals cannot be equated for the purpose of political contributions. Companies before the amendment to Section 182 could only contribute a certain percentage of the net aggregate profits and could be classified between loss-making companies and profit-making companies for the purpose of political contributions. The underlying principle of this distinction was that it is more plausible that loss-making companies will contribute to political parties with a quid pro quo and not for the purpose of income tax benefits. The amended provision does not recognize that the harm of contributions by lossmaking companies in the form of quid pro quo is much higher. Thus, the amendment to Section 182 is manifestly arbitrary for (a) treating political contributions by companies and individuals alike; (b) permitting the unregulated influence of companies in the governance and political process violating the principle of free and fair elections; and (c) treating contributions made by profit-making and loss-making companies to political parties alike. The observations means that the law must not treat companies and individual contributors alike because of the variance in the degree of harm on free and fair elections. Association for Democratic Reforms v. Union of India, 2024 LiveLaw (SC) 118 : AIR 2024 SC 1441

Consolidation of Holdings Act, 1953 (U.P.)

Section 49 – The power to declare the ownership in an immovable property can be exercised only by a Civil Court save and except when such jurisdiction is barred expressly or by implication under a law. Section 49 cannot be construed as a bar on the jurisdiction of the Civil Court to determine the ownership rights. It contemplates bar to the jurisdiction of the Civil or Revenue Court for the grant of declaration or adjudication of rights of tenure holders in respect of land lying in an area for which consolidation proceedings have commenced. Hence, the power under Section 49 cannot be exercised to take away the vested title of a tenure holder. Kalyan Singh had acquired ancestral rights as a tenure holder and was co-owner in the suit land much before the consolidation proceedings commenced. Held, the Consolidation Officer could not take away the ownership rights of Kalyan Singh which he had already inherited much before the commencement of the consolidation proceedings. Order passed by the Consolidation Officer has rightly been held to be null and void and without any jurisdiction. (Para 9, 12 & 13) Prashant Singh v. Meena, 2024 LiveLaw (SC) 355

Mesne profits become payable on continuation of possession after 'expiry' of lease – A tenant who once entered the property in question lawfully, continues in possession after his right to do so stands extinguished, is liable to compensate the landlord for such time period after the right of occupancy expires. The effect of the words 'determination', 'expiry', 'forfeiture' and 'termination' would, subject to the facts applicable, be similar, i.e., when any of these three words are applied to a lease, the rights of the lessee/tenant stand extinguished and mesne profit would be payable. Held, the very purpose for which a property is rented out, is to ensure that the landlord by way of the property is able to secure some income. If the income remains static over a long period of time, then such a landlord would be within his rights, subject of course, to the agreement with their tenant, to be aggrieved by the same. Hence, deposit of the amount claimed by the petitioner-applicant is must to ensure complete justice inter se the parties. (Para 19, 20 & 21) Bijay Kumar Manish Kumar Huf v. Ashwin Bhanulal Desai, 2024 LiveLaw (SC) 413

Tenant at sufferance – Such a tenant is a person who enters upon a land by lawful title, but continues in possession after the title has ended without statutory authority and without obtaining consent of the person then entitled. (Para 16.2) Bijay Kumar Manish Kumar Huf v. Ashwin Bhanulal Desai, 2024 LiveLaw (SC) 413

Plea of adverse possession – Ingredients to prove the plea of adverse possession: - (a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner; (b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner; (c) The plaintiff must also plead and establish when he came into possession; and (d) The plaintiff must establish that his possession was open and undisturbed. It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. The plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff. (Para 12) M. Radheshyamlal v. V. Sandhya, 2024 LiveLaw (SC) 245 : AIR 2024 SC 1595

Plea of adverse possession – When a party claims adverse possession, Firstly, he must know who the actual owner of the property is. Secondly, he must plead that he was in open and uninterrupted possession for more than 12 years to the original owner's knowledge. It is not pleaded that even before the year 1947, the plaintiff or his father were in hostile possession to the knowledge of the original owner. Therefore, there is no proper foundation for the plea of adverse possession in the plaint. Further, the plaintiff could not establish that his adverse possession commenced from a particular date. In a complaint filed to police one year before the institution of the suit the plaintiff asserted that he was in possession of the suit property for 35 years before filing the complaint. In the plaint, the plaintiff claimed to have been in possession since 1950. The plaintiff's own complaint defeats the case made out in the plaint. The plaintiff failed to prove his adverse possession. (Para 13, 15 & 16) M. Radheshyamlal v. V. Sandhya, 2024 LiveLaw (SC) 245 : AIR 2024 SC 1595

Consumer Protection Act, 1986

Section 2(1) (m) and Consumer Protection Act, 2019 – Maintainability of the complaint filed by Insured Company (registered under the Companies Act, 1956) before the National Consumer Disputes Redressal Commission is in question – Whether 'company' is covered by the definition of 'person' under the Consumer Protection Act, 1986? – Held, the definition of 'person' as provided in the Act of 1986 is inclusive and not exhaustive. Consumer Protection Act being a beneficial legislation, a liberal interpretation has to be given to the statute. The very fact that in the Consumer Protection Act, 2019, a body corporate has been brought within the definition of 'person', by itself indicates that the legislature realized the incongruity in the unamended provision and has rectified the anomaly by including the word 'company' in the definition of 'person'. (Para 15) Kozyflex Mattresses Pvt. Ltd. v. SBI General Insurance Company Ltd., 2024 LiveLaw (SC) 255

Observation made by the Consumer Commission that Apple India has the duty to trace stolen iPhone with the help of a unique identity number was unwarranted. Apple India Pvt Ltd v. Harish Chandra Mohanty, 2024 LiveLaw (SC) 138

Compensation in cases of medical negligence – The idea of compensation is based on restitutio in integrum, which means, make good the loss suffered, so far as money is able to do so, or, take the receiver of such compensation, back to a position, as if the loss/injury suffered by them hadn't occurred. Further, what qualifies as just compensation, as noticed above, has to be considered in the facts of each case. Held, compensation awarded is too less for the suffering caused due to medical negligence and deficient services. Hence, compensation is enhanced. (Para 12.3.2, 12.3.3, 16 & 18) Jyoti Devi v. Suket Hospital, 2024 LiveLaw (SC) 320

Eggshell Skull Rule – A person who has an eggshell skull is one who would be more severely impacted by an act, which an otherwise “normal person” would be able to withstand. It is otherwise termed as “taking the victim as one finds them” and, therefore, a doer of an act would be liable for the otherwise more severe impact that such an act may have on the victim. Held, claimant-appellant not proved to have an eggshell skull, i.e. a pre-existing vulnerability or medical condition, because of which the claimant may have suffered 'unusual damage' is not found. (Para 12.4 & 17) Jyoti Devi v. Suket Hospital, 2024 LiveLaw (SC) 320

Maintainability of commercial disputes – Appropriate remedy in commercial disputes – Investment made by the complainant was for deriving benefit, therefore, it would be an investment for profit/gain and such commercial transactions would be outside the purview of the 1986 Act. Commercial disputes cannot be decided in summary proceeding under the 1986 Act but the appropriate remedy for recovery of the said amount, would be before the Civil Court. The complaint was thus not maintainable. The District Forum, the State and the National Commissions fell in error in allowing the complaint. (Para 7) Annapurna B. Uppin v. Malsiddappa, 2024 LiveLaw (SC) 284 : AIR 2024 SC 2015

Maintainability of complaint when complainant deemed partner of firm – There was a registered partnership deed of the firm and there is no further document placed on record by the complainant regarding dissolution of the said registered deed. The said registered deed continued till the time when the investment was made by the complainant, hence, the complainant would be deemed to be partner of the firm. Once the complainant himself was a partner as per the registered partnership deed, he could not have maintained the complaint for settling the dispute with respect to the partnership firm. (Para 4.5 & 6) Annapurna B. Uppin v. Malsiddappa, 2024 LiveLaw (SC) 284 : AIR 2024 SC 2015

Section 2(1)(c) – Consumer complaint alleging 'deficiency of service' and 'unfair trade practice'– On grounds that a song that is shown in the promotional trailer is not played in the film – Held, a promotional trailer is unilateral and is only meant to encourage a viewer to purchase the ticket to the movie, which is an independent transaction and contract from the promotional trailer. A promotional trailer by itself is not an offer and neither intends to nor can create a contractual relationship. Therefore, there is no offer, much less a contract, between the appellant and the complainant to the effect that the song contained in the trailer would be played in the movie and if not played, it will amount to deficiency in the service. (Para 14) Yash Raj Films Pvt. Ltd. v. Afreen Fatima Zaidi, 2024 LiveLaw (SC) 319 : AIR 2024 SC 2333

Section 2(1)(g) – 'Deficiency' – There is deficiency when there is a fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance that is required to be maintained either in terms of a law or in terms of a contract. Held, there is no contract between the complainant and appellant. Hence, no question of deficiency in service arises. (Para 11) Yash Raj Films Pvt. Ltd. v. Afreen Fatima Zaidi, 2024 LiveLaw (SC) 319 : AIR 2024 SC 2333

Section 2(1)(r)(1) – 'Unfair trade practice' – The promotional trailer does not make any false statement or does not intend to mislead the viewers. Burden is on the complainant to produce cogent evidence that proves unfair trade practice. No such evidence produced. Hence, no case for unfair trade practice is made out in the present case. (Para 18) Yash Raj Films Pvt. Ltd. v. Afreen Fatima Zaidi, 2024 LiveLaw (SC) 319 : AIR 2024 SC 2333

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 : AIR 2024 SC 2444

(i) The very purpose and object of the CP Act 1986 as re-enacted in 2019 was to provide protection to the consumers from unfair trade practices and unethical business practices, and the Legislature never intended to include either the Professions or the services rendered by the Professionals within the purview of the said Act of 1986/2019. (ii) The Legal Profession is sui generis i.e. unique in nature and cannot be compared with any other Profession. (iii) A service hired or availed of an Advocate is a service under “a contract of personal service,” and therefore would fall within the exclusionary part of thedefinition of “Service” contained in Section 2 (42) of the CP Act 2019. (iv) A complaint alleging “deficiency in service” against Advocates practising Legal Profession would not be maintainable under the CP Act, 2019. (Para 42) Bar of Indian Lawyers v. D.K.Gandhi PS National Institute of Communicable Diseases, 2024 LiveLaw (SC) 372

Section 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 : AIR 2024 SC 2444

Contempt of Courts Act, 1971

It is a matter of serious concern that nowadays there has been a profuse misuse of social media platforms on which the messages, comments, articles etc. are being posted in respect of the matters pending in the Court. Though, our shoulders are broad enough to bear any blame or criticism, the comments or posts published in respect of the matters pending in the Court, through social media platforms under the guise of right to freedom of speech and expression, which have the tendency of undermining the authority of the Courts or of interfering with the course of justice, deserves serious consideration. It is very usual that the Judges do react during the course of arguments being made by the lawyers, sometimes in favour of and sometimes against a party to the proceeding. However, that does not give any right or leeway to either of the parties or their lawyers to the proceedings to post comments or messages on the social media distorting the facts or not disclosing the correct facts of the proceedings. The matter is required to be taken up more seriously when any such attempt is sought to be made by the party to the proceedings to cause prejudice to the proceedings or interfere with the course of administration of justice. Aminul Haque Laskar v. Karim Uddin Barbhuiya, 2024 LiveLaw (SC) 292

Maintainability of contempt petition – Even consent terms incorporated in the Court's order when breached would give rise to allegations of contempt, but by mere filing of a civil suit asserting certain legal rights over the lands in question, it cannot be stated that the plaintiffs have breached the consent terms. Filing of the suit for asserting the rights of the plaintiffs/respondents could not be said to be amounting to contempt of the Court. Hence, no interference is warranted in the impugned order. (Para 10 & 25) Shah Enterprises v. Vaijayantiben Ranjitsingh Sawant, 2024 LiveLaw (SC) 224

Substantially the same cause of action – The cause of action for filing the Contempt Petition and the alleged cause of action for filing the complaint case was substantially the same. Taking cognizance in a substantially same complaint case, after the dismissal of the Contempt Petition by a detailed order is an abuse of the process of law. The first respondent did not challenge the dismissal of the Contempt Petition and came up with a complaint case. Further, though the Contempt Petition was already filed in 2016, the said fact has not been mentioned in the complaint filed by the first respondent in the year 2017. Hence, prosecution of the complaint was itself an abuse of the process of law and ought to be quashed. (Para 9 & 10) Murari Lal Chhari v. Munishwar Singh Tomar, 2024 LiveLaw (SC) 192 : AIR 2024 SC 1437

Mere delay in complying with the order, unless there is a deliberate or wilful act on the part of the alleged contemnors would not attract the provisions of Contempt of Courts Act. L.V. Subrahmanyam, IAS v. Registrar General, High Court of Judicature At Hyderabad, 2024 LiveLaw (SC) 104

An apology must evidence remorse with respect to the contemptuous acts and is not to be used as a weapon to purge the guilty of their offence. Further, an apology lacking in sincerity and not evidencing contriteness, cannot be accepted. (Para 22) Gulshan Bajwa v. Registrar, High Court of Delhi, 2024 LiveLaw (SC) 69 : AIR 2024 SC 1060

'Civil Contempt' - An act that violates a status quo order constitutes 'civil contempt'. When a party violates a status quo order, contempt proceedings must be initiated instead of merely vacating the interim order. (Para 16 & 17) Amit Kumar Das v. Shrimati Hutheesingh Tagore Charitable Trust, 2024 LiveLaw (SC) 73

Conviction of Advocate - The appellant's conduct before the High Court and for that matter, even before this Court, amounts to undermining the system of the law and interfering with the course of justice administration. The High Court observed a pattern in the behaviour of the appellant. He has had a habit of misbehaving with a Bench which is not agreeing with him. The misbehaviour goes to the extent of casting aspersions and threatening the Judges hearing the matters. The High Court correctly rejected the apology. (Para 21 & 22) Gulshan Bajwa v. Registrar, High Court of Delhi, 2024 LiveLaw (SC) 69 : AIR 2024 SC 1060

There is a need to maintain the dignity and reputation of judicial officers and to protect them from motivated, libellous and unfounded allegations. The High Court was correct in not accepting the apology tendered by the appellant since it was not bonafide and lacked sincerity, apart from being belated and a mere 'lip service'. (Para 17) Gulshan Bajwa v. Registrar, High Court of Delhi, 2024 LiveLaw (SC) 69 : AIR 2024 SC 1060

'Civil Contempt' and 'Criminal Contempt' - The Act makes a clear distinction between two types of contempt. 'Wilful disobedience' of a judgement, decree, direction, order, writ, or process of a court or wilful breach of an undertaking given to a court amounts to 'civil contempt'. On the other hand, the threshold for 'criminal contempt' is higher and more stringent. It involves 'scandalising' or 'lowering' the authority of any court; prejudicing or interfering with judicial proceedings; or interfering with or obstructing the administration of justice. (Para 32) State of Uttar Pradesh v. Association of Retired Judges, 2024 LiveLaw (SC) 3 : (2024) 3 SCC 1

Criminal Contempt cannot be initiated against a party for availing legal remedies and raising a legal challenge to an order. (Para 31 – 37) State of Uttar Pradesh v. Association of Retired Judges, 2024 LiveLaw (SC) 3 : (2024) 3 SCC 1

The power of the High Courts to initiate contempt proceedings cannot be used to obstruct parties or their counsel from availing legal remedies. (Para 34) State of Uttar Pradesh v. Association of Retired Judges, 2024 LiveLaw (SC) 3 : (2024) 3 SCC 1

The Standard Operating Procedure (SOP) on personal appearance of government officials in court proceedings framed by this Court in Para 45 of this Judgement must be followed by all courts across the country. All High Courts shall consider framing rules to regulate the appearance of Government officials in court, after taking into account the SOP. (Para 45) State of Uttar Pradesh v. Association of Retired Judges, 2024 LiveLaw (SC) 3 : (2024) 3 SCC 1

Section 14 - Summoning of Government Officials before Courts - The use of the power to summon the presence of government officials must not be used as a tool to pressurize the government, particularly, under the threat of contempt. (Para 38) State of Uttar Pradesh v. Association of Retired Judges, 2024 LiveLaw (SC) 3 : (2024) 3 SCC 1

Section 14 - Summoning of Government Officials before Courts - Law officers act as the primary point of contact between the courts and the government. Courts must refrain from summoning officials as the first resort. While the actions and decisions of public officials are subject to judicial review, summoning officials frequently without just cause is not permissible. Exercising restraint, avoiding unwarranted remarks against public officials, and recognizing the functions of law officers contribute to a fair and balanced judicial system. Courts across the country must foster an environment of respect and professionalism, duly considering the constitutional or professional mandate of law officers, who represent the government and its officials before the courts. Constantly summoning officials of the government instead of relying on the law officers representing the government, runs contrary to the scheme envisaged by the Constitution. (Para 41 & 44) State of Uttar Pradesh v. Association of Retired Judges, 2024 LiveLaw (SC) 3 : (2024) 3 SCC 1

Contract Act, 1872

Section 182 - Distributor, not agent: independent contractor. Bharti Cellular Ltd. v. Assistant Commissioner, 2024 LiveLaw (SC) 176

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

Novation – As it was not open to one of the parties, to unilaterally change the agreed terms and conditions, there was no novation in contract. Mere exchange of correspondence between the parties prior to expiry of the grace period, cannot be held against them by treating it as an act in acceptance of or acquiescence with the change impliedly suggested by the respondent-company. Hence, the action of the appellants in terminating the Agreement immediately after expiry of the grace period, by getting a legal notice issued, cannot be found fault with. (Para 19) Venkataraman Krishnamurthy v. Lodha Crown Buildmart Pvt. Ltd., 2024 LiveLaw (SC) 184 : AIR 2024 SC 1218

Once the parties committed themselves to a written contract, whereby they reduced the terms and conditions agreed upon by them to writing, the same would be binding upon them. The National Consumer Disputes Redressal Commission (NCDRC) cannot rewrite the terms and conditions of the contract between the parties and apply its own subjective criteria to determine the course of action to be adopted by either of them. The right of election of the appellants to either continue or to terminate the Agreement within ninety days from the expiry of the grace period was absolute and it was not open to the NCDRC to apply its own standards. The NCDRC overstepped its power and jurisdiction in ignoring the binding covenants in the Agreement and in introducing its own logic and rationale to decide as to what the future course of action of the parties. (Para 15 & 22) Venkataraman Krishnamurthy v. Lodha Crown Buildmart Pvt. Ltd., 2024 LiveLaw (SC) 184 : AIR 2024 SC 1218

Pre-contractual correspondence – As per English jurisprudence, pre-contractual correspondence loses its significance once the contract comes into existence. When the parties have signed the agreement, the terms agreed therein would bind the parties and the email exchanged between the parties prior to the agreement, cannot override the policy decisions. In order to contend that the appellant has been misled, the appellant ought to have raised such contention when the agreement was to be signed. Further, the appellant having repaid the loan amount with interest as per the terms of agreement cannot make out a grievance in hindsight and seek refund of the amount paid. No error has been committed so as to call for interference. (Para 13 & 14) Rajesh Monga v. Housing Development Finance Corporation Ltd; 2024 LiveLaw (SC) 186 : AIR 2024 SC 1305

Sections 37 and 40 - In the case of a personal obligation imposed on a person under the contract and on the demise of such person, his estate does not become liable and therefore, the legal representatives who represent the estate of a deceased would obviously not be liable and cannot be directed to discharge the contractual obligations of the deceased. (Para 27) Vinayak Purushottam Dube v. Jayashree Padamkar Bhat, 2024 LiveLaw (SC) 181

Control of National Highways (Land and Traffic) Act, 2002

Effective Implementation – Machinery for Oversight and Grievance Redressal – Survey of Highways – Removal of unauthorized encroachments on highway land – Compliance with Amendments – Directions Issued. Gyan Prakash v. Union of India, 2024 LiveLaw (SC) 164

Convention on Biological Diversity, 1992

Article 8 – Principle of Ecological Restitution – Article 8(f) requires the contracting parties to, as far as possible and as appropriate, to rehabilitate and restore the degraded ecosystems and promote the recovery of threatened species. The focus has to be on restoration of the ecosystem as close and similar as possible to the specific one that was damaged. The State, apart from preventing such acts in the future, should take immediate steps for restoration of the damage already done; undertake an exercise for determining the valuation of the damage done and recover it from the persons found responsible for causing such a damage. (Para 150, 156 & 158) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 198 : AIR 2024 SC 1955

Customs Act, 1962

Appeal – The transaction value in the bills of entry of the subsequent goods can be discarded if it is found that the importer has earlier brought/imported an identical goods or similar goods at a higher price from the same seller/exporter. Whether the previously imported goods identical or similar to the subsequently imported goods? – The court disbelieved the statement made by the appellant that the two goods aren't identical/similar to each other due to a little difference in the hardware and software functions in the disputed goods as compared to the earlier versions. In the order-in-original and in the impugned judgment of CESTAT on facts, it was found that Item nos. 1 and 3 were identical goods, and Item no. 2 was of similar goods. Detailed reasons have been recorded in the order-inoriginal as to why the transaction value of the imported goods has been discarded. Hence, there no error in the findings recorded by the CESTAT. (Para 8, 9 & 10) Global Technologies and Research v. Principal Commissioner of Customs, 2024 LiveLaw (SC) 239 : AIR 2024 SC 1571

The Importer's Bill of Entry of subsequent imported goods can be discarded if the subsequent imported goods are undervalued to the previously imported identical or similar goods. (Para 8 - 10) Global Technologies and Research v. Principal Commissioner of Customs, 2024 LiveLaw (SC) 239 : AIR 2024 SC 1571

Section 28AB, 71 & 72 – Applicability of custom duty – In 264 cases which were never placed inside the notified public bonded warehouse, custom duty is no applicable. Since the imported goods (264 cases) were never warehoused inside the notified public bonded warehouse but were unloaded outside the notified area but within the factory premises of the appellant and kept under a shed on permission granted by the Superintendent which permission was neither cancelled nor revoked, question of warehousing the goods covered by the 264 cases within the notified public bonded warehouse did not arise. As a corollary, the further question of improperly or unauthorisedly removing the 264 cases from the notified warehouse to outside the said area but within the factory premises of the appellant attracting Section 71 and the consequences following the same did not arise. Held, the demand raised by the respondent against the appellant as affirmed by the CESTAT qua the 264 cases including levy of customs duty and interest (under section 71 & 28AB) cannot be sustained. (Para 53, 58) Bisco v. Commissioner of Customs and Central Excise, 2024 LiveLaw (SC) 257 : AIR 2024 SC 1638

Section 28AB, 71 & 72 – Applicability of custom duty – In respect of the missing 27 cases which were found neither inside nor outside the notified warehouse and for which no explanation was given by the Appellant, the CESTAT had correctly held that those 27 cases were improperly or unauthorisedly removed from the notified public bonded warehouse. The demand of customs duty and interest (under section 71 & 28AB) on the 27 cases has been sustained. (Para 54, 58) Bisco v. Commissioner of Customs and Central Excise, 2024 LiveLaw (SC) 257 : AIR 2024 SC 1638

Section 129A(2) – Limitation – Powers of the Committee of Commissioners of Customs – If the said Committee is of the opinion that an order passed by the Appellate Commissioner of Customs or Commissioner of Customs (Appeals) under Section 128 or 128A of the Customs Act is not legal and proper, it can direct the appropriate officer to file an appeal before the CESTAT and there is no prescribed period of limitation for passing such an order but the authority must take action within a reasonable time. The review order passed after 10 months was held to be reasonable time considering the extraordinary circumstances prevailing in those days due to COVID-19. (Para 7) Global Technologies and Research v. Principal Commissioner of Customs, 2024 LiveLaw (SC) 239 : AIR 2024 SC 1571

Section 27 - Deals with claim for refund of duty. As per subsection (1), any person claiming refund of any duty or interest paid by him or borne by him, may make an application in the prescribed form and manner, for such refund addressed to the designated authority before the expiry of one year from the date of payment of such duty or interest. Explanation below sub-section (1) clarifies that for the purpose of sub-section (1), the date of payment of duty or interest in relation to a person, other than an importer, shall be construed as the date of purchase of goods by such person. (Para 10) Union of India v. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd., 2024 LiveLaw (SC) 90 : AIR 2024 SC 927 : (2024) 3 SCC 645

Section 27 (2) - It says that if on the receipt of such application the designated authority is satisfied that the whole or any part of the duty and interest, if any, paid on such duty, paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Consumer Welfare Fund established under Section 12C of the Central Excise Act. However, as per the proviso, the amount of duty and interest so determined shall be paid to the applicant instead of being credited to the Consumer Welfare Fund if such amount is relatable, amongst others, to drawback of duty payable under Sections 74 and 75 of the Customs Act. (Para 10.1) Union of India v. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd., 2024 LiveLaw (SC) 90 : AIR 2024 SC 927 : (2024) 3 SCC 645

Section 27A - Provides for interest on delayed refund. It says that, if any duty ordered to be refunded under sub-section (2) of Section 27 to an applicant is not refunded within three months from the date of receipt of the application, there shall be paid to that applicant interest at such rate not below five percent and not exceeding thirty percent per annum as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty. (Para 11) Union of India v. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd., 2024 LiveLaw (SC) 90 : AIR 2024 SC 927 : (2024) 3 SCC 645

Section 75A - Deals with interest on drawback. Sub-section (1) of Section 75A says that, where any drawback payable to a claimant under Section 74 or Section 75 is not paid within a period of one month (earlier it was two months and prior thereto it was three months) from the date of filing a claim for payment of such drawback, there shall be paid to that claimant in addition to the amount of drawback, interest at the rate fixed under Section 27A from the date after the expiry of the said period of one month till the date of payment of such drawback. (Para 12) Union of India v. B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd., 2024 LiveLaw (SC) 90 : AIR 2024 SC 927 : (2024) 3 SCC 645

Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954

Rules, 1955; Section 3 (d) - Contempt of Court Proceedings – Violation of Undertaking – The Court restrained Patanjali Ayurved Limited from advertising products intended to cure diseases specified in relevant laws and cautioned against making statements against any system of medicine in the media, as previously undertaken. Indian Medical Association v. Union of India, 2024 LiveLaw (SC) 229

Easements Act, 1882

Acquiring easementary right under Sale Deed – Easementary right could only be transferred via sale deed if the predecessor-in-interest had acquired or purchased the said property with any easementary right over the rasta in dispute. No evidence has been adduced to prove that, predecessor-in-interest, had perfected easementary rights over the disputed rasta and thus was legally entitled to transfer the same. Hence, failed to prove that easementary right is acquired under the sale deed. (Para 30, 36) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301 : AIR 2024 SC 1947

Section 4 – 'Easement' – A right which the owner or occupier of a land possesses for the beneficial enjoyment of his land on the other land which is not owned by him, to do and continue to do something or to prevent and continue to prevent something being done on the said land. The land which is to be enjoyed by the beneficiary is called 'Dominant Heritage' and the land on which the easement is claimed is called 'Servient Heritage'. The easementary right, therefore, is essentially a right claimed by the owner of a land upon another land owned by someone else so that he may enjoy his property in the most beneficial manner. (Para 19) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301 : AIR 2024 SC 1947

Section 13 – Acquiring easementary right by necessity – Such easementary right would arise if it is necessary for enjoying the Dominant Heritage. Held, if there is an alternative way to access the Dominant Heritage, which may be a little far away or longer, it demolishes the easement of necessity. Hence, not entitled to any easementary right by necessity. Easementary right under the Sale Deed would not stand extinguished even if the necessity has ceased to exist. (Para 32, 33 & 34) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301 : AIR 2024 SC 1947

Section 15 – Acquiring easementary right by prescription – For acquiring any easementary right by prescription, the said right must have been peaceably enjoyed in respect of the servient heritage without any interruption for over 20 years. The use of the term “last many years” is not sufficient to mean that they have been enjoying the same for the last 20 years. The pleadings fail to plead the essential legal requirement for establishing easementary right through prescription, hence, the same cannot be so construed as to impliedly include what actually has not been pleaded. A fact which is not specifically pleaded cannot be proved by evidence as evidence cannot travel beyond the pleadings. (Para 22 & 23) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301 : AIR 2024 SC 1947

Electricity Act, 2003

The State Electricity Regulatory Commission has the power to reject the adoption of tariff if it is not aligned with market prices. While adopting the tariff, the Commission is bound to take into consideration the protection of consumer interest. Jaipur Vidyut Vitran Nigam Ltd. v. MB Power (Madhya Pradesh) Ltd., 2024 LiveLaw (SC) 24

Section 14(b) and Electricity Licence (Additional Requirements of Capital Adequacy, Creditworthiness and Code of Conduct) Rules, 2005; Rule 3 and Andhra Pradesh Electricity Regulatory Commission (Distribution Licence) Regulations, 2013; Regulation 12 – Whether a deemed distribution licensee is conditional upon the appellant satisfying the requirements of section 14 of the Electricity Act which provides for compliance with additional requirements like capital adequacy? – Held, application of Regulation 12 does not extend to applicants who are otherwise deemed licensees. The interpretation of regulation 12 as requiring additional capital infusion for an applicant for acceptance of a deemed licensee status appears to be at odds with the language and intent of the 2013 Regulations. Hence, Telangana State Electricity Regulatory Commission (TSERC) in interpreting regulation 12 that it applies to a person who is a deemed licensee, has aimed to achieve indirectly what it could not directly. Regulation 12 does not apply to a deemed licensee because the primary legislation, the Electricity Act, under section 14(b), confers deemed licensee status upon Special Economic Zone (SEZ) developers without imposing any specific conditions and the 2013 Regulations make a clear distinction between an applicant seeking a licence [as defined under regulation 2(d)] and a deemed distribution licensee seeking recognition as such [as defined under regulation 2(h)]. Regulation 12 pertains solely to regular distribution licensees as defined under regulation 2(h), not to deemed licensees. Therefore, the recognition of the status of a deemed distribution licensee cannot hinge on compliance with rule 3(2) of the 2005 Rules read with regulation 12 of the 2013 Regulations. (Para 26, 29 & 34) Sundew Properties Ltd. v. Telangana State Electricity Regulatory Commission, 2024 LiveLaw (SC) 393

Section 181 – Power on the State Commissions to make Regulations – Such regulations must be consistent with the provisions of the primary enactment and the rules framed thereunder generally. (Para 33) Sundew Properties Ltd. v. Telangana State Electricity Regulatory Commission, 2024 LiveLaw (SC) 393

Electricity Regulatory Commission (Distribution Licence) Regulations, 2013 (Andhra Pradesh); Regulation 49 – Regulation 49, situated within Chapter-4 [General Conditions of Distribution Licence] of the 2013 Regulations, specifies that “these general conditions shall apply to distribution licensees and to all deemed distribution licensees”. A straightforward reading reveals that the term 'general conditions' in regulation 49 pertains exclusively to the general conditions outlined in Chapter-4. Held, TSERC's reliance on regulation 49 to enforce the applicability of regulation 12 appears to be flawed and by no stretch of imagination could the scope of this provision be widened so as to include within its ambit regulation 12, which forms part of Chapter-3 [Procedure for Grant of Distribution Licence] of the 2013 Regulations. (Para 36) Sundew Properties Ltd. v. Telangana State Electricity Regulatory Commission, 2024 LiveLaw (SC) 393

Enemy Property Act, 1968

Union of India cannot assume ownership of the enemy properties once the said property is vested in the Custodian. This is because, there is no transfer of ownership from the owner of the enemy property to the Custodian and consequently, there is no ownership rights transferred to the Union of India. Therefore, the enemy properties which vest in the Custodian are not Union properties. (Para 22) Lucknow Nagar Nigam v. Kohli Brothers Colour Lab. Pvt. Ltd., 2024 LiveLaw (SC) 156

Environment

Delhi Preservation of Trees Act, 1994 - The Forest Department of the Delhi Government and the Tree Authority to keep a constant vigil in the entire area of the National Capital Territory of Delhi about the activities of illegal felling or damaging of trees. Unless these two Authorities do so, the very purpose of enacting various forest and tree laws will be completely frustrated. (Para 11) Bindu Kapurea v. Subhasish Panda, 2024 LiveLaw (SC) 433

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

Fundamental right to a healthy environment – Sustainable development – All human beings have a fundamental right to a healthy environment, commensurate with their well-being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that the present as well as future generations will be aware of them equally. (Para 77) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 198 : AIR 2024 SC 1955

Order of closure of industry – The closure of the industry is a matter of last option and that an opportunity for remediation ought to be granted. The nature of the violations and severity of breach of environmental norms, left neither the statutory authorities nor the High Court with the option to take any other view. The TNPCB would be acting within the scope of its statutory powers while directing closure of plant, for the protection of the environment in accordance with law. (Para 21 & 24) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Polluter pays principle – Those who pollute or degrade the environment should bear the costs of mitigation and restoration. Economic activities should not come at the expense of environmental degradation or the health of the population. (Para 24) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Principle of Sustainable Development – The concept of intergenerational equity – The “present residents of the earth hold the earth in trust for future generations and at the same time the present generation is entitled to reap benefits from it.” The planet and its invaluable resources must be conscientiously conserved and responsibly managed for the use and enjoyment of future generations, emphasising the enduring obligation to safeguard the environmental heritage for the well-being of all. (Para 27) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Right to a clean environment – All persons have the right to breathe clean air, drink clean water, live a life free from disease and sickness, and for those who till the earth, have access to uncontaminated soil. These rights are not only recognized as essential components of human rights but are also enshrined in various international treaties and agreements, such as the Universal Declaration of Human Rights, the Convention on Biological Diversity, and the Paris Agreement. These rights must be protected and upheld by governments and institutions worldwide, recognizing that they are essential for sustainable progress. (Para 26 & 28) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Environment (Protection) Act, 1986; Section 3 (3) - Central Empowered Committee (CEC) - Effective functioning of environmental bodies is imperative for the protection, restitution, and development of the ecology. The court directed the CEC to adopt measures to promote institutional transparency, efficiency and accountability - Issued Guidelines. (Para 21 & 31) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 74

Role of Constitutional Courts - The role of the constitutional courts is to ensure that such environmental bodies function vibrantly, and are assisted by robust infrastructure and human resources. The constitutional courts will monitor the functioning of these institutions so that the environment and ecology is not only protected but also enriched. (Para 32) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 74

Town and Country Planning Act, 1977 (Himachal Pradesh) - The first order of NGT is liable to be set aside on the short ground that it has transgressed its limitations and attempted to encroach upon the field reserved for the delegatee to enact a piece of delegated legislation. When the TCP Act empowers the State Government and the Director to exercise the powers to enact a piece of delegated legislation, the NGT could not have imposed fetters on such powers and directed it to exercise its powers in a particular manner. (Para 70) State of Himachal Pradesh v. Yogendera Mohan Sengupta, 2024 LiveLaw (SC) 32 : AIR 2024 SC 859

Town and Country Planning Act, 1977 (Himachal Pradesh) - The exercise of power for the preparation, finalization and approval of development plan is a power exercised by the delegatee for enacting a subordinate piece of legislation. (Para 61) State of Himachal Pradesh v. Yogendera Mohan Sengupta, 2024 LiveLaw (SC) 32 : AIR 2024 SC 859

The National Green Tribunal (NGT) is not supposed to apply strict rigors of the Code of Civil Procedure, 1908 when a citizen approaches with a grievance. Nabendu Kumar Bandyopadhyay v. Additional Chief Secretary, 2024 LiveLaw (SC) 29

The National Green Tribunal's recurrent engagement in unilateral decision making, provisioning ex post facto review hearing and routinely dismissing it has regrettably become a prevailing norm. In its zealous quest for justice, the Tribunal must tread carefully to avoid the oversight of propriety. The practice of ex parte orders and the imposition of damages amounting to crores of rupees, have proven to be a counterproductive force in the broader mission of environmental safeguarding. It is imperative for the Tribunal to infuse a renewed sense of procedural integrity, ensuring that its actions resonate with a harmonious balance between justice and due process. Only then can it reclaim its standing as a beacon of environmental protection, where well-intentioned endeavors are not simply washed away. (Para 4 & 5) Veena Gupta v. Central Pollution Control Board, 2024 LiveLaw (SC) 97

The Union of India should formulate a policy of phasing out heavy-duty diesel vehicles and replacing them with BS VI vehicles. Container Corporation of India Ltd. v. Ajay Khera, 2024 LiveLaw (SC) 31 : AIR 2024 SC 1153 :: (2024) 3 SCC 216

Environment (Protection) Rules, 1986

Rule 5(3) and Constitution of India; Article 21 – Procedure of inviting objections to the draft Environmental clearance (EC) notification – Held, before the issue of the second EC notification, the procedure of inviting objections to the draft notification was followed, and the objections were considered. Hence, there is no reason to dispense with the requirement of inviting objections before publishing the impugned notification. Article 21 guarantees a right to live in a pollution-free environment and therefore, the participation of the citizens is very important by allowing them to raise objections to the proposed notification. Hence, their participation cannot be prevented by casually exercising the power under sub-rule (4) of Rule 5. (Para 22) Noble M. Paikada v. Union of India, 2024 LiveLaw (SC) 252 : AIR 2024 SC 1871

Rule 5(4) – Requirement of public notice for modifying EC notifications can be dispensed with in 'public interest' – The Central Government for modifying EC notifications came to the conclusion that in the public interest, the requirement of prior publication of notice was required to be dispensed with. The document recording the satisfaction of the competent authority about the existence of public interest and the nature of the public interest ought to have been produced by the Ministry. As no such document was produced it can be concluded that the drastic decision to invoke Rule 5(4) was made without any application of the mind. Hence, the decision-making process has been vitiated. Therefore, the inclusion of item 6 of the substituted Appendix-IX will have to be held illegal. (Para 23 & 24) Noble M. Paikada v. Union of India, 2024 LiveLaw (SC) 252 : AIR 2024 SC 1871

Environment (Protection) Act, 1986 and Environment (Protection) Rules, 1986 – Object – The object of the EP Act is to provide for the protection and improvement of the environment. Object of mandatory requirement of obtaining environmental clearance notification for projects was to minimize the damage to environment while implementing projects. (Para 9 & 25) Noble M. Paikada v. Union of India, 2024 LiveLaw (SC) 252 : AIR 2024 SC 1871

Foreign Liquor Rules, 1996 (Madhya Pradesh)

Rule 19 – Penalty imposed as per the old Rule 19 is challenged to be invalid – Rule 19 amended by way of substitution – Process of substitution consists of two steps: first, the old rule is repealed, and next, a new rule is brought into existence in its place – A repealed provision will cease to operate from the date of repeal and the substituted provision will commence to operate from the date of its substitution subject to specific statutory prescription. Substituted Rule 19 is not been notified to operate from any other date by the Government. Held, the old Rule stood repealed from the statute book and only the substituted Rule applies to all pending and future proceedings. If the amendment by way of a substitution is intended to reduce the quantum of penalty for better administration and regulation there is no justification to ignore the subject and context of amendment and permit the State to recover the penalty as per the unamended Rule. (Para 7, 9, 12, 13, 17 & 32) Pernod Ricard India (P) Ltd. v. State of Madhya Pradesh, 2024 LiveLaw (SC) 321

Forest Conservation Act, 1980

The existing criteria for identification of private forests in the State of Goa are adequate and valid, hence, they require no alteration. (Para 69) Goa Foundation v. State of Goa, 2024 LiveLaw (SC) 61

States/UTs must follow the definition of 'forest' given by Godavarman Judgment till forests are identified as per 2023 rules. Ashok Kumar Sharma IFS (Retd) v. Union of India, 2024 LiveLaw (SC) 170

Interim Order restricting zoos / safaris within forests will operate only till final Judgment of coordinate Bench. Ashok Kumar Sharma IFS (Retd) v. Union of India, 2024 LiveLaw (SC) 170

Forest Act, 1967 (Andhra Pradesh); Section 15 & 16 – Maintainability of a suit for the relief of declaration of title – Suit filed after finality of proceedings under Section 15 & 16 declaring the land as reserved forest – The State Government would declare the proposed land as a reserved forest by issuing a notification under Section 15, thereafter, the vesting of the land takes place giving the land the status of a reserved forest. Any right not claimed with respect to the land, shall stand extinguished after the publication under Section 15 as declared expressly under Section 16, by way of a reinforcement. The completion of the process as prescribed under Section 15 would result in changing the character of land, including a forest land into a reserved forest. Held, the suit filed is not maintainable as the plaintiff has not challenged the proceedings under Section 15, hence, the proceedings became final and conclusive in view of the express declaration provided under Section 16. (Para 12, 13 & 57) State of Telangana v. Mohd. Abdul Qasim, 2024 LiveLaw (SC) 314 : AIR 2024 SC 2466

Forest Act, 1967 (Andhra Pradesh) – Object – Enacted with a laudable objective of conserving, protecting and extending the forest cover, with a sound mechanism to deal with all the disputes arising thereunder while declaring land as reserved forest. (Para 6) State of Telangana v. Mohd. Abdul Qasim, 2024 LiveLaw (SC) 314 : AIR 2024 SC 2466

General Clauses Act, 1897

Section 3(22) – Good faith – Is an act done honestly, whether it is done negligently or not. (Para 8) State of Gujarat v. Paresh Nathalal Chauhan, 2024 LiveLaw (SC) 295

Guardianship

Habeas Corpus - There is no legal right of an elder sister to exercise guardianship over her sister except when there is an order from a Court of competent jurisdiction. Rita Dwivedi v. State of Himachal Pradesh, 2024 LiveLaw (SC) 124

Section 17(3) – Guardianship – Importance of preference indicated by minor children – The desire / preference of the children to continue to reside with the Appellant, although in itself cannot be determinative of custody of the children, but it must be given due consideration on account of it being a factor of utmost importance. (Para 14) Col. Ramneesh Pal Singhv v. Sugandhi Aggarwal, 2024 LiveLaw (SC) 356

Hindu Marriage Act, 1955

Section 7 – Ceremonies for Hindu marriage – Held, Hindu marriage is a sacrament – Section 7 of the Act uses the word “solemnised” which means to perform the marriage with ceremonies and unless the marriage is performed with appropriate ceremonies and in due form, it cannot be said to be “solemnised”. In the absence of any solemnisation of a marriage as per the provisions of the Act, a man and a woman cannot acquire the status of being a husband and a wife to each other. For a valid Hindu marriage, the requisite ceremonies have to be performed and there must be proof of performance of the said ceremony when an issue/controversy arise. Unless the parties have undergone such ceremony, there would be no Hindu marriage according to Section 7 of the Act and a mere issuance of a certificate by an entity in the absence of the requisite ceremonies having been performed, would neither confirm any marital status to the parties nor establish a marriage under Hindu law. Dolly Rani v. Manish Kumar Chanchal, 2024 LiveLaw (SC) 334

Section 8 – Registration of marriage – Held, it is only when the marriage is solemnised in accordance with Section 7, there can be a marriage registered under Section 8. If there has been no marriage in accordance with Section 7, the registration would not confer legitimacy to the marriage. Dolly Rani v. Manish Kumar Chanchal, 2024 LiveLaw (SC) 334

Hindu Succession Act, 1956

Admission of the common ancestor to treat the children born out of a void marriage as his legitimate children would be also considered as evidence against his legitimate child, who is claiming through the common ancestor. (Para 16) Raja Gounder v. M. Sengodan, 2024 LiveLaw (SC) 48 : AIR 2024 SC 644

Children born out of a void and voidable marriage shall be considered as legitimate children and be treated as an extended family of the common ancestor for the purpose of deciding a valid share in the property of the common ancestor. (Para 17) Raja Gounder v. M. Sengodan, 2024 LiveLaw (SC) 48 : AIR 2024 SC 644

Once the common ancestor has admittedly considered the children born of void and voidable marriage as his legitimate children, then such children would be entitled to the same share as the successors in the property of the common ancestor as that of children born out of a valid marriage. (Para 16) Raja Gounder v. M. Sengodan, 2024 LiveLaw (SC) 48 : AIR 2024 SC 644

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 : AIR 2024 SC 2809

Hindu Widow's Remarriage Act, 1856

Section 2 – Right of widow in deceased husband's property to cease on marriage – Hence she could not convey any property over which she did not have any right or title. Held, the plaintiff who is the son of the widow and her second husband cannot claim share in suit property through the widow as the widow had lost her right over the subject property on her contracting second marriage. (Para 17 & 19) Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki, 2024 LiveLaw (SC) 293

Section 2 – Validity of lease deed – The validity of lease deed executed by the widow and her two sons is accepted to the extent it was made by the sons (sons of widow and deceased). Held, even if subsistence of a deed is proved in evidence, the title of the executing person does not automatically stand confirmed. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. (Para 18) Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki, 2024 LiveLaw (SC) 293

Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu)

Section 3 – Workmen eligible for permanent status under Section 3 of the Act – Applicability of the Act – Held, both requirements, of the establishment being covered under the definition of industrial establishment as provided and that of the employee having uninterruptedly continued in service for 480 days or more for 24 months, having been met. Held, the Act would apply to the parties to dispute. Further held, there is no reason to disturb the finding of the Inspector of Labour which concluded that the members of the respondent-Union be given permanent employment. When an issue stands already decided then putting those who enjoy an order in their favour, once more of having to re-establish their claim, would be unjustified. Hence, the order of Inspector of Labour be complied with. (Para 27 & 28) Tamil Nadu Medical Services Corporation Ltd. v. Tamil Nadu Medical Services Corporation Employees Welfare Union, 2024 LiveLaw (SC) 402

Section 7 – Applicability of Act – Exemption of establishments and their workmen engaged exclusively in the construction of buildings and the like or other construction work be it structural, mechanical, or electrical. Held, the construction to be undertaken by the Corporation, is only one of the many activities to be undertaken by it. Hence, it would not allow the Corporation to wash its hands off the responsibilities or obligations under the Act. (Para 23 & 24) Tamil Nadu Medical Services Corporation Ltd. v. Tamil Nadu Medical Services Corporation Employees Welfare Union, 2024 LiveLaw (SC) 402

Income Tax Act, 1961

Section 17(2)(viii) and Income Tax Rules, 1962; Rule 3(7)(i) – Delegation of powers – Residuary clause – The residuary leaves it to the rule-making authority to tax 'any other fringe benefit or amenity' within the ambit of 'perquisites', not already covered by clauses (i) to (viia) of Section 17(2), by promulgating a rule. Held, the enactment of subordinate legislation for levying tax on interest free/concessional loans as a fringe benefit is within the rulemaking power under Section 17(2) (viii) of the Act. Section 17(2) (viii) itself, and the enactment of Rule 3(7) (i) is not a case of excessive delegation of the 'essential legislative function' and falls within the parameters of permissible delegation. Hence, Rule 3(7) (i) is intra vires Section 17(2) (viii) of the Act. (Para 10 & 31) All India Bank Officers' Confederation v. Central Bank of India, 2024 LiveLaw (SC) 352

Section 17(2) (viii) and Income Tax Rules, 1962; Rule 3(7) (i) – The value of interest-free or concessional loans made available to an employee or a member of his household by the employer or any person on his behalf, is to be treated as 'other fringe benefit or amenity' for the purpose of Section 17(2) (viii) and, therefore, taxable as a 'perquisite'. (Para 19) All India Bank Officers' Confederation v. Central Bank of India, 2024 LiveLaw (SC) 352

Sections 147 & 148 - For the purposes of tax assessment, an assessee's obligation is limited to making a "full and true" disclosure of all "material" or primary facts, and thereafter, the burden shifts on the assessing officer. If a return is defective, it is upto the officer that he intimate the assessee in order that defects may be cured. But if the officer fails to do so, the return cannot be called defective. (Para 43) Mangalam Publications v. Commissioner of Income Tax, 2024 LiveLaw (SC) 55 : AIR 2024 SC 813

Section 194H - the assessees would not be under a legal obligation to deduct tax at source on the income/profit component in the payments received by the distributors / franchisees from the third parties/customers, or while selling/transferring the pre-paid coupons or starter-kits to the distributors. (Para 42) Bharti Cellular Ltd. v. Assistant Commissioner, 2024 LiveLaw (SC) 176

Insolvency and Bankruptcy Code, 2016

Pointing out the ambiguities or lack of specific details or data, post acceptance of the resolution plan by the Committee of Creditors, should be rejected, except in an egregious case were data and facts are fudged or concealed. Absence or ambiguity of details and particulars should put the parties to caution, and it is for them to ascertain details, and exercise discretion to submit or not submit resolution plan. (Para 15) Deccan Value Investors L.P. v. Dinkar Venkatasubramanian, 2024 LiveLaw (SC) 265

Records of corporate debtor, who are in financial distress, may suffer from data asymmetry, debatable or even wrong data. Thus, the provision for transactional audit etc, but this takes time and is not necessary before information memorandum7 or virtual data room is set up. Financial experts being aware, do tread with caution. Information memorandum is not to be tested applying “the true picture of risk” obligation, albeit as observed by the NCLAT the resolution professional's obligation to provide information has to be understood on “best effort” basis. (Para 16) Deccan Value Investors L.P. v. Dinkar Venkatasubramanian, 2024 LiveLaw (SC) 265

Resolution plans are not prepared and submitted by lay persons. They are submitted after the financial statements and data are examined by domain and financial experts, who scan, appraise evaluate the material as available for its usefulness, with caution and scepticism. Inadequacies and paltriness of data are accounted and chronicled for valuations and the risk involved. It is rather strange to argue that the superspecialists and financial experts were gullible and misunderstood the details, figures or data. The assumption is that the resolution applicant would submit the revival/resolution plan specifying the monetary amount and other obligations, after in-depth analysis of the fiscal and commercial viability of the corporate debtor. (Para 15) Deccan Value Investors L.P. v. Dinkar Venkatasubramanian, 2024 LiveLaw (SC) 265

Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - Statutory set off or insolvency set off is not applicable to Corporate Insolvency Resolution Process (CIRP) proceedings. Regulation 29 of the Liquidation Regulations which provides for mutual dealing and set off, does not apply to Part II of the IBC which deals with CIRP. Bharti Airtel v. Vijaykumar V. Iyer, 2024 LiveLaw (SC) 11 : (2024) 4 SCC 668

Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - The principle of Set-off recognizes the right of a debtor to adjust the smaller claim owed to him against the larger claim payable to his creditor. There are two exceptions to the application of statutory or insolvency set off to CIRP proceedings. First being, when a party is entitled to contractual set-off, on the date which is effective before or on the date of commencement of CIRP. Secondly, in cases of 'equitable set-off' when the claim and counter claim in the form of set-off are linked and connected on account of one or more transactions that can be treated as one. (Para 3 – 10) Bharti Airtel v. Vijaykumar V. Iyer, 2024 LiveLaw (SC) 11 : (2024) 4 SCC 668

Section 5(7) & 5(8) – Financial debt and financial creditor – Test to determine – The transaction must have the commercial effect of borrowing – Held, the amount raised under the said two agreements has the commercial effect of borrowing. Therefore, the amounts covered by security deposits under the agreements constitute financial debt. Further held, as it is a financial debt owed by the first respondent, Section 5(7) of the IBC makes the first respondent a financial creditor. (Para 16, 17 & 18) Global Credit Capital Ltd. v. Sach Marketing Pvt. Ltd; 2024 LiveLaw (SC) 331

Section 5(21) – Operational debt – Where one party owes a debt to another and when the creditor is claiming under a written agreement/arrangement providing for rendering 'service', the debt is an operational debt only if the claim subject matter of the debt has some connection or co-relation with the 'service' subject matter of the transaction. It is necessary to determine the real nature of the transaction on a plain reading of the agreements. Held, the payment of the amount mentioned has no relation with the service supposed to be rendered by the first respondent. Therefore, by no stretch of imagination, the debt claimed by the first respondent can be an operational debt. (Para 14 & 15) Global Credit Capital Ltd. v. Sach Marketing Pvt. Ltd; 2024 LiveLaw (SC) 331

Section 30(2)(b) does not support the plea of insolvency set-off, since the provision deals with the amounts to be paid to creditors and not amount payable by creditors to Corporate Debtor. Further, the specific legislative mandate given in Chapter II Part II of IBC, the provisions of IBC relating to CIRP do not recognize the principle of insolvency set-off. The Court would not extend it by implication, when the legislature has not accepted applicability of mutual set-off at the initial stage, that is, the Corporate Insolvency Resolution Process stage. Bharti Airtel v. Vijaykumar V. Iyer, 2024 LiveLaw (SC) 11 : (2024) 4 SCC 668

Section 53(1) is referred to in Section 30(2)(b)(ii) with the purpose and objective that the dissenting financial creditor is not denied the amount which is payable to it being equal to the amount of value of the security interest. The entire Section 53 is not made applicable. (Para 43) DBS Bank Ltd. Singapore v. Ruchi Soya Industries Ltd; 2024 LiveLaw (SC) 6

The IBC is an Act to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interest of stakeholders, etc. The IBC codifies the law of insolvency and bankruptcy. The IBC is a complete code in itself, except where it refers and permits application of the provisions of other enactments. (Para 27) Bharti Airtel v. Vijaykumar V. Iyer, 2024 LiveLaw (SC) 11 : (2024) 4 SCC 668

Section 14 - The imposition of moratorium under Section 14 of the IBC has no effect on the execution of a decree against the Directors or Officers of the Company (Corporate Debtor), which is undergoing Corporate Insolvency Resolution Process (CIRP) under IBC. The protection of moratorium under Section 14 of IBC is only available to the Company and not to its Directors or Officers, thus the execution of decree can be done against them even during moratorium. (Para 11) Ansal Crown Heights Flat Buyers Association (Regd.) v. Ansal Crown Infrabuild Pvt. Ltd., 2024 LiveLaw (SC) 63

Section 30(2)(b)(ii) - Whether a dissenting financial creditor is to be paid the minimum value of its security interest? – The issue referred to a Larger Bench. (Para 49) DBS Bank Ltd. Singapore v. Ruchi Soya Industries Ltd; 2024 LiveLaw (SC) 6

Section 53 - The dissenting financial creditor cannot object to the resolution plan, but can object to the distribution of the proceeds under the resolution plan, when the proceeds are less than what the dissenting financial creditor would be entitled to in terms of Section 53(1) if the corporate debtor had gone into liquidation. This is the statutory option or choice given by law to the dissenting financial creditor. The option/choice should be respected. (Para 45) DBS Bank Ltd. Singapore v. Ruchi Soya Industries Ltd; 2024 LiveLaw (SC) 6

Section 24 (3) (c) - Notice of COC meeting needs to be served on operational creditor having more than 10% dues. (Para 54) Greater Noida Industrial Development Authority v. Prabhjit Singh Soni, 2024 LiveLaw (SC) 111 : AIR 2024 SC 1227

Ordinarily feasibility and viability of a resolution plan is best decided by the commercial wisdom of the Committee of Creditors (“CoC”), however when the resolution plan envisages the use of asset/land not owned by the Corporate Debtor but by a third party, which is a statutory body, bound by its own rules and regulations having statutory flavor, then there has to be a closer examination of the plan's feasibility. (Para 54) Greater Noida Industrial Development Authority v. Prabhjit Singh Soni, 2024 LiveLaw (SC) 111 : AIR 2024 SC 1227

The Adjudicating Authority (“AA”) i.e., NCLT under Insolvency and Bankruptcy Code, 2016 (“IBC”) has the power to recall its order approving the resolution plan if the resolution plan is not submitted as per the mandate of the Code. (Para 52) Greater Noida Industrial Development Authority v. Prabhjit Singh Soni, 2024 LiveLaw (SC) 111 : AIR 2024 SC 1227

The claim submitted by the Resolution Applicant (“RA”) under the Corporate Insolvency Resolution Process (“CIRP”) cannot be rejected/overlooked merely on the fact that the claim submitted appears to be in a different form other than the form in which the claim needs to be submitted. (Para 54) Greater Noida Industrial Development Authority v. Prabhjit Singh Soni, 2024 LiveLaw (SC) 111 : AIR 2024 SC 1227

When charge is created, resolution applicant to be placed as secured creditor in the plan. (Para 54) Greater Noida Industrial Development Authority v. Prabhjit Singh Soni, 2024 LiveLaw (SC) 111 : AIR 2024 SC 1227

Insurance Act, 1938

Contract of Indemnity – Insurance contract – Insurance is a contract of indemnification, being a contract for a specific purpose, which is to cover defined losses. Essentially, the insurer cannot be asked to cover a loss that is not mentioned. (Para 16) United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd., 2024 LiveLaw (SC) 409 : AIR 2024 SC 2868

Insurance contract – Exclusion clause of Insurance contract – Exclusion clauses in insurance contracts are interpreted strictly and against the insurer as they have the effect of completely exempting the insurer of its liabilities. Such a clause cannot be interpreted so that it conflicts with the main intention of the insurance. (Para 17) United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd., 2024 LiveLaw (SC) 409 : AIR 2024 SC 2868

Insurance contract – Burden of proof for an exclusionary – The burden of proving the applicability of an exclusionary clause lies on the insurer. It is the duty of the insurer to plead and lead cogent evidence to establish the application of such a clause. The evidence must unequivocally establish that the event sought to be excluded is specifically covered by the exclusionary clause. (Para 17) United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd., 2024 LiveLaw (SC) 409 : AIR 2024 SC 2868

Section 45 – Repudiation of insurance claim on ground of material suppression of information in Proposal Form – The insurer cannot question the policy after the expiry of the time period and if it does, then the burden rests on the insurer to establish materiality of the fact suppressed and the knowledge of the insured about such suppression, so that the repudiation of the claim could be justified by the insurer. (Para 5 & 16) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300 : AIR 2024 SC 2019

Section 45 and Indian Evidence Act, 1872 – Burden of Proof in insurance contracts – In the context of insurance contracts, the burden is on the insurer to prove the allegation of non-disclosure of a material fact and that the non-disclosure was fraudulent. Held, the onus was on the insurer to show that the insured had fraudulently given false information and the said information was related to a material fact. Held, mere mentioning of certain details in an affidavit of evidence is not proof of the facts unless that is supported either by other documentary and/or oral evidence. The respondents have failed to prove the fact that the insured-deceased had fraudulently suppressed the information about the existing policies with other insurance companies while entering into the insurance contracts. Therefore, the repudiation of the policy was without any basis or justification. (Para 17, 38, 45, 51) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300 : AIR 2024 SC 2019

Section 45 – Suppression of material fact – In order to seek specific information from the insured, the proposal form must have specific questions so as to obtain clarity as to the underlying risks in the policy, which are greater than the normal risks – Held, no suppression of material fact as the query in proposal form was not clear regarding the nature of information that was sought. (Para 31 & 40) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300 : AIR 2024 SC 2019

Insurance Contract – Principle of “uberrimae fidei”, i.e., utmost good faith – Law demands a higher standard of good faith in matters of insurance contracts – Insurance contracts are special contracts based on the general principles of full disclosure – When a specific fact is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information which is within the best of his knowledge. Held, whilst the proposer can only disclose what is known to him, the proposer's duty of disclosure is not confined to his actual knowledge, it also extends to those material facts which, in the ordinary course of business, he ought to know. However, the assured is not under a duty to disclose facts which he did not know and which he could not reasonably be expected to know at the material time. (Para 9, 18 & 29) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300 : AIR 2024 SC 2019

Insurance Regulatory and Development Authority (Protection of Policyholders' Interests) Regulations, 2002; Section 2(d) – Definition of material – Any fact which has a bearing on the very foundation of the contract of insurance and the risk to be covered under the policy would be a “material fact”. Test of material fact – Any fact which would influence the judgment of a prudent insurer and not a particular insurer is a material fact. The materiality of a particular fact is determined by the circumstances of each case and is a question of fact. Held, insured has a duty to disclose all material facts. (Para 20, 21, 22 & 24 & 26) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300 : AIR 2024 SC 2019

Insurer's burden to prove insured suppressed material facts. Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300 : AIR 2024 SC 2019

Date of issuance of the policy would be the relevant date for all the purposes and not the date of proposal or the date of issuance of the receipt. (Para 15) Reliance Life Insurance Company Ltd v. Jaya Wadhwani, 2024 LiveLaw (SC) 19 : AIR 2024 SC 234 : (2024) 2 SCC 427

The date of proposal cannot be treated to be the date of policy until and unless on the date of proposal, initial deposit as also the issuance of policy happens on the same date where, for example, the premium is paid in cash then, immediately, the policy could be issued. Merely, tendering a cheque may not be enough as till such time the cheque is encashed, the contract would not become effective. The drawer of the cheque may, at any time, after issuing, stop its payment or there may not be enough funds in the account of which the cheque is issued and there could be many other reasons for which the cheque could be returned without being encashed. (Para 11) Reliance Life Insurance Company Ltd v. Jaya Wadhwani, 2024 LiveLaw (SC) 19 : AIR 2024 SC 234 : (2024) 2 SCC 427

Judiciary

Judicial Impropriety - Judgment released after retirement - A judge retaining the case file after demitting office is a gross impropriety - Remitted the appeal to the High Court for fresh consideration. State through CBI v. Naresh Prasad Agarwal, 2024 LiveLaw (SC) 133 : (2024) 3 SCC 515

Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001 (Jharkhand); Rule 14, 18 and 21, Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Regulation, 2017 – “No change in the rule midway” - The High Court administration is seeking to deviate from the Rules guiding the selection process itself - Rule 14, empowers the High Court administration in specific cases to reassess the suitability and eligibility of a candidate and not to take a blanket decision for making departure from the selection criteria specified in the 2001 Rules. Precluding a candidate from appointment is in violation of the recruitment rules without there being a finding on such candidate's unsuitability, such an action would fail the Article 14 test and shall be held to be arbitrary. If the High Court is permitted to alter the selection criteria after the performance of individual candidates is assessed, that would constitute alteration of the laid down Rules. The reasoning behind the Full Court Resolution of (securing 50 per cent marks in aggregate) is that better candidates ought to be found, is different from a candidate excluded from the appointment process being found to be unsuitable. This deviation from Statutory Rules is impermissible. (Para 20 & 24) Sushil Kumar Pandey v. High Court of Jharkhand, 2024 LiveLaw (SC) 109

Due weightage must be given to protect the purity of the judicial process, particularly when departure from the usual process of assignment of case by the Chief Justice is noticed. As is rightly said, justice should not only be done but seen to have been done. The fairness and the transparency in the functioning of the courts must be discernible to all stakeholders in the justice delivery system. Thiru. K.K.S.S.R. Ramachandran v. State, 2024 LiveLaw (SC) 91

Judges are not comparable with the administrative executive. They discharge sovereign state functions and just like the Council of Ministers or the political executive and their service is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive, judges are distinct from judicial staff, and are thus comparable with the political executive and legislature. It would be wholly inappropriate to equate judicial service with the service of other officers of the State. The functions, duties, restrictions and restraints operating during and after service are entirely distinct for members of the judicial service. Consequently, the plea of equivalence has been consistently rejected in the judgments of this Court. We affirmatively do so again. (Para 18) All India Judges Association v. Union of India, 2024 LiveLaw (SC) 25 : AIR 2024 SC 1110

Judicial service is an integral and significant component of the functions of the State and contributes to the constitutional obligation to sustain the rule of law. Judicial service is distinct in its characteristics and in terms of the responsibilities which are cast upon the officers of the District Judiciary to render objective dispensation of justice to citizens. The State is duty bound to ensure that the conditions of service, both during the tenure of office and after retirement, are commensurate with the need to maintain dignified working conditions for serving judicial officers and in the post-retirement emoluments made available to former members of the judicial service. Members of the district judiciary are the first point of engagement for citizens who are confronted with the need for dispute resolution. The conditions in which judicial officers across the country are required to work are arduous. The work of a judicial officer is not confined merely to the working hours rendered in the course of judicial duties in the court. Every judicial officer is required to work both before and after the court working hours. The judicial work of each day requires preparation before cases are called out. A judicial officer continues to work on cases which may have been dealt with in court, in terms of preparing the judgment and attending to other administrative aspects of the judicial record. That apart, members of the district judiciary have wide ranging administrative functions which take place beyond working hours, especially on week-ends including the discharge of numerous duties in relation to prison establishments, juvenile justice institutions, legal service camps and in general, work associated with the Legal Services Act 1987. All India Judges Association v. Union of India, 2024 LiveLaw (SC) 25 : AIR 2024 SC 1110

Registry – The Supreme Court expressed displeasure at members of the Registry staff for violating a judicial order regarding the listing of the matters on Regular list. Commander N. Rajesh Kumar v. Union of India, 2024 LiveLaw (SC) 49

The High Courts shall constitute a committee named 'Committee for Service Conditions of the District Judiciary' to oversee the implementation. The composition of the committee shall be: (i) Two Judges of the High Court to be nominated by the Chief Justice of which one should be a Judge who has previously served as a member of the district judiciary; (ii) The Law Secretary/Legal Remembrancer; (iii) The Registrar General of the High Court who shall serve as an ex officio Secretary of the Committee; and (iv) A retired judicial officer in the cadre of District Judge to be nominated by the Chief Justice who shall act as a nodal officer for the day to day redressal of grievances. All India Judges Association v. Union of India, 2024 LiveLaw (SC) 25 : AIR 2024 SC 1110

The state governments pay the arrears to judges in terms of enhanced pay scales as per the recommendations of the Second National Judicial Pay Commission (SNJPC). All India Judges Association v. Union of India, 2024 LiveLaw (SC) 25 : AIR 2024 SC 1110

The work of a Judge cannot be assessed solely in terms of their duties during court working hours. The State is under an affirmative obligation to ensure dignified conditions of work for its judicial officers and it cannot raise the defense of an increase in financial burden or expenditure. Judicial officers spend the largest part of their working life in service of the institution. The nature of the office often renders the incumbent incapacitated in availing of opportunities for legal work which may otherwise be available to a member of the Bar. That furnishes an additional reason why post-retirement, it is necessary for the State to ensure that judicial officers are able to live in conditions of human dignity. It needs to be emphasized that providing for judges, both during their tenure and upon retirement, is correlated with the independence of the judiciary. Judicial independence, which is necessary to preserve the faith and confidence of common citizens in the rule of law, can be ensured and enhanced only so long as judges are able to lead their life with a sense of financial dignity. The conditions of service while a judge is in service must ensure a dignified existence. The post-retirement conditions of service have a crucial bearing on the dignity and independence of the office of a judge and how it is perceived by the society. If the service of the judiciary is to be a viable career option so as to attract talent, conditions of service, both for working and retired officers, must offer security and dignity. All India Judges Association v. Union of India, 2024 LiveLaw (SC) 25 : AIR 2024 SC 1110

In the current case, the High Court's judgment from the initial round dated 30.03.1990, noted that the disputed property included 8 cents of land, not just the building structure on it. As per the Doctrine of Merger, the judgments of the Trial Court and the First Appellate Court from the first round of litigation are absorbed into the High Court's judgment dated 30.03.1990. This 1990 judgment should be regarded as the conclusive and binding order from the initial litigation. Following the principles of judicial discipline, lower or subordinate Courts do not have the authority to contradict the decisions of higher Courts. In the current case, the Trial Court and the High Court, in the second round of litigation, violated this judicial discipline by adopting a position contrary to the High Court's final judgment dated 30.03.1990, from the first round of litigation. (Para 20) Mary Pushpam v. Telvi Curusumary, 2024 LiveLaw (SC) 12 : AIR 2024 SC 714 : (2024) 3 SCC 224

The rule of 'Judicial Discipline and Propriety' and the Doctrine of precedents has a merit of promoting certainty and consistency in judicial decisions providing assurance to individuals as to the consequences of their actions. The Constitution benches of this court have time and again reiterated the rules emerging from Judicial Discipline. Accordingly, when a decision of a coordinate Bench of same High court is brought to the notice of the bench, it is to be respected and is binding subject to right of the bench of such co-equal quorum to take a different view and refer the question to a larger bench. It is the only course of action open to a bench of co-equal strength, when faced with the previous decision taken by a bench with same strength. (Para 1) Mary Pushpam v. Telvi Curusumary, 2024 LiveLaw (SC) 12 : AIR 2024 SC 714 : (2024) 3 SCC 224

Land Law

Land Revenue Code; Section 36A and Registration Act, 2008; Section 17 – Restriction in conveyance of land by tribal in favour of non-tribal – Under Section 36A, restriction is only in case of transfer by way of sale, gift, exchange, mortgage, lease or otherwise and there is no bar for a tribal to enter into an agreement to sell and seeking advance sale consideration. Previous sanction is to be taken before conveyance could be made and conveyance by way of sale would take place only at the time of registration of a sale deed in accordance with Section 17 of the Registration Act, 2008. Babasaheb Dhondiba Kute v. Radhu Vithoba Barde, 2024 LiveLaw (SC) 225 : (2024) 4 SCC 310

The tenant holding possession of the Watan property under the Maharashtra Hereditary Offices Act, 1874, on the 'Tiller's Day', which is not subjected to payment of land revenue to the State Government, would be entitled to exercise their right of statutory purchase for purchasing the tenanted Watan property under the Maharashtra Revenue Patels (Abolition of Offices) Act, 1962. Baban Balaji More v. Babaji Hari Shelar, 2024 LiveLaw (SC) 234

Limitation Act, 1963

Plea of limitation – Held, even if the plea of limitation is not set up as a defence, the Court has to dismiss the suit if it is barred by limitation. (Para 16) Shivraj Reddy v. S. Raghuraj Reddy, 2024 LiveLaw (SC) 411

Suit of specific performance preferred on the last date of limitation – Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. Held, the suit having been preferred after a long delay, the plaintiff is not entitled for specific performance. (Para 16 & 18) Rajesh Kumar v. Anand Kumar, 2024 LiveLaw (SC) 407

The period of limitation for filing a suit for rendition of account is three years from the date of dissolution. Held, the firm dissolved in year 1984 by virtue of death of the partner and the suit came to be filed in the year 1996 which was not within a period of three years hence, time-barred, Further held, the learned Single Judge was justified in rejecting the suit on grounds of being barred by limitation. (Para 20) Shivraj Reddy v. S. Raghuraj Reddy, 2024 LiveLaw (SC) 411

Limitation period of one year for filing of suit for preemption — Held, the issue regarding limitation for filing of the suit is misconceived and it was not raised by the appellants before the lower Appellate Court or the High Court. (Para 18) Jagmohan v. Badri Nath, 2024 LiveLaw (SC) 95 : AIR 2024 SC 900 : (2024) 3 SCC 588

The bar of limitation cannot be obviated or circumvented by taking recourse of proceedings under Article 136 of the Constitution when a statutory appeal is available. Gopal Krishnan MS v. Ravindra Beleyur, 2024 LiveLaw (SC) 5

Section 3 – Bar of limitation – Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The use of the word 'shall' in the aforesaid provision connotes that the dismissal is mandatory subject to the exceptions in Section 4 to 24. Section 3 of the Act is peremptory and had to be given effect to even though no objection regarding limitation is taken by the other side or referred to in the pleadings. Hence, it is an obligation upon the court to dismiss an appeal which is presented beyond limitation. Section 3, being a substantive law of mandatory nature has to be interpreted in a strict sense. (Para 10 & 12) Pathapati Subba Reddy v. Special Deputy Collector, 2024 LiveLaw (SC) 288

Section 5 – Exception to general rule of limitation in section 3 – Section 5 empowers the courts to admit an appeal even if it is preferred after the prescribed period provided the proposed appellant gives 'sufficient cause' for not preferring the appeal within the period prescribed. The courts are conferred with discretionary powers to condone the delay or to admit the appeal preferred after the expiry of time. Such power may not be exercised even if sufficient cause is shown based upon host of other factors such as negligence, failure to exercise due diligence etc. Section 5 of the Limitation Act is to be construed liberally. (Para 12) Pathapati Subba Reddy v. Special Deputy Collector, 2024 LiveLaw (SC) 288

Section 3 & 5 – Application for condoning delay in filing appeal – The High Court, has not found it fit to exercise its discretionary jurisdiction of condoning the delay. Held, merely because some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal. Sufficient cause has not been shown for condoning the delay hence, there is no occasion for us to interfere with the decision of High Court. (Para 26 & 32) Pathapati Subba Reddy v. Special Deputy Collector, 2024 LiveLaw (SC) 288

Object – The law of limitation is founded on public policy – It is enshrined in the legal maxim “interest reipublicae ut sit finis litium” i.e. it is for the general welfare that a period of limitation be put to litigation. The object is to put an end to every legal remedy and to have a fixed period of life for every litigation as it is futile to keep any litigation or dispute pending indefinitely. (Para 7) Pathapati Subba Reddy v. Special Deputy Collector, 2024 LiveLaw (SC) 288

Section 14 – Exclusion of time in computing the period of limitation – Execution application dismissed on grounds of being barred by limitation – Article 14 (2) carves out an exception excluding the period of limitation when the proceedings are being pursued with due diligence and good faith in a Court “which from defect of jurisdiction or other cause of a like nature, is unable to entertain it”. Held, it is apparent that the Plaintiff has pursued the matter bonafidely and diligently and in good faith before what it believed to be the appropriate forum and, therefore, such time period is bound to be excluded when computing limitation before the Court having competent jurisdiction. All conditions stipulated for invocation of Section 14 are fulfilled. (Para 27 & 38) Purni Devi v. Babu Ram, 2024 LiveLaw (SC) 273

J&K Limitation Act; Article 182 and Civil Procedure Code; Section 48 – Article 182 deals with period of Limitation of 3 years for filing an execution application for the first-time seeking enforcement of a decree. Meanwhile, Section 48 of the CPC deals with subsequent applications and fixes an outer limit of 12 years when execution remains unsatisfied. Held, the period from 'when the execution application was filed' to 'when the prior proceeding was dismissed', has to be excluded while computing period of limitation, which results in the execution application filed by the Plaintiff, being within the limitation period prescribed under Article 182 of the Limitation Act, which is 3 years. (Para 7 & 39) Purni Devi v. Babu Ram, 2024 LiveLaw (SC) 273

Condonation of delay – To condone delay of 12 years and 158 days in filing application for restoration of the Writ Petition – The High Court vide the impugned order declined to condone the delay. Held, the length of the delay is a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. Further, while considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. The appellants have failed to prove that they were reasonably diligent in prosecuting the matter and the vital test for condoning the delay is not satisfied. The High Court committed no error of law in passing the impugned order. (Para 26 & 34) Union of India v. Jahangir Byramji Jeejeebhoy, 2024 LiveLaw (SC) 276 : AIR 2024 SC 1884

Limitation – The rules of limitation are based on the principles of sound public policy and principles of equity and the 'Sword of Damocles' cannot be kept hanging over the head of the respondent for indefinite period of time to be determined at the whims and fancies of the appellants. Held, it appears that the appellants want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation. (Para 26 & 27) Union of India v. Jahangir Byramji Jeejeebhoy, 2024 LiveLaw (SC) 276 : AIR 2024 SC 1884

Medical Termination Act, 1971

Section 3(2)(b)(i) r/w (3) and 5 - Medical Termination of Pregnancy Rules, 2003; Rule 3B - Petitioner is having pregnancy of over 32 weeks by now, it is not advisable to accept her prayer as prayed for. (Para 5) R. v. Union of India, 2024 LiveLaw (SC) 92

Section 3(1) – Opinion of the Registered Medical Practitioner (RMP) and medical board under the MTP Act – Section 3(1) protects the registered medical practitioner from penal provisions against abortion, under the Indian Penal Code, if it is carried out as per the MTP Act. The MTP Act requires and empowers the RMP to form an opinion, in good faith, on whether a pregnancy may be terminated. The medical board, in forming its opinion on the termination of pregnancies must not restrict itself to the criteria under Section 3(2-B) of the MTP Act and must also evaluate the physical and emotional wellbeing of the pregnant person furnishing full details to the court. Further, while issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances – Held, the medical board in its clarificatory report restricted itself to the criteria under Section 3(2-B) of the MTP Act and failed to form an opinion on the impact of the pregnancy on the physical and mental health of the pregnant person. Further held, the delays caused by a change in the opinion of the medical board or the procedures of the court must not frustrate the fundamental rights of pregnant people. (Para 21, 22, 23, 25, 26, 29 & 31) A (Mother of X) v. State of Maharashtra, 2024 LiveLaw (SC) 349 : AIR 2024 SC 2499

Section 3(4)(a) – Consent of guardian in case of abortion of a minor – The guardians of 'X', namely her parents, have consented for taking the pregnancy to term. This is permissible as 'X' is a minor and the consent of the guardian is prescribed under Section 3(4)(a) of the MTP Act. The order of this court allowing 'X' to terminate her pregnancy is recalled. (Para 32, & 33) A (Mother of X) v. State of Maharashtra, 2024 LiveLaw (SC) 349 : AIR 2024 SC 2499

Mines and Minerals

The immutable geology of the area has limestone formation of the Vindhyan age, and as per geological study and assessment, the limestone is located in Nimbahera city. The mineral reserve of this stone occurs between Nimbahera shales and Suket shales. The limestone is a valuable mineral resource from the perspective of the State exchequer and is a material or a raw material used in more than one sense. The State Government granted prospective mining leases of small, medium and large areas in and around the hillock and the surrounding areas of the Chittorgarh Fort to individuals/industrial houses. The exploitation of minerals available in the surrounding area by the lessees to the State Government, particularly in an unscientific manner or disproportionate exploitation of minerals in hard and rude mining activities, was seen as a threat to the existential utility of the Chittorgarh Fort and the structures. (Para 3 & 4) Birla Corporation Ltd. v. Bhanwar Singh, 2024 LiveLaw (SC) 38 : AIR 2024 SC 833

The Supreme Court directed a survey of Karnataka mines for which rehabilitation and reclamation plans are not in place. Samaj Parivartana Samudaya v. State of Karnataka, 2024 LiveLaw (SC) 268

Motor Vehicles Act, 1988

Motor accident compensation – Assessment of compensation on the basis of income of deceased – The Motor Vehicles Act, 1988 provides for assessment of just and fair compensation. Assessment of compensation cannot be done with mathematical precision. The assessment of income of the deceased by the High Court was done on a very conservative basis. Considering the material placed on record, income of the deceased deserves to be re-assessed as it is established that he was multi-tasking and was not engaged in a 9.00 to 5.00 P.M. job. Considering the age of deceased at the time of accident as 52 years, the applicable multiplier for computation of compensation would be 11 times the sum of total dependency, as per the judgment of this Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121, approved by the Supreme Court in National Insurance Company Ltd. v. Pranay Sethi and others, (2017) 16 SCC 680. (Para 14 & 15) Vethambal v. Oriental Insurance Company, 2024 LiveLaw (SC) 206 : AIR 2024 SC 1377

Is deemed transfer of motor insurance policy on sale of vehicle applicable only to third party risks ? The Supreme Court refers to a larger bench. Jaswinder Singh v. New India Assurance Company Ltd., 2024 LiveLaw (SC) 190

Section 161 - Compensation of Victims of Hit and Run Motor Accidents Scheme, 2022 - If the Police conclude that it is a case of hit and run accident, the Police must inform the victim or the legal representatives of the victim, as the case may be, about the availability of the Scheme. (Para 6) S. Rajaseekaran v. Union of India, 2024 LiveLaw (SC) 35 : AIR 2024 SC 583

Section 166 - Compassionate Assistance to Dependents of Deceased Government Employees, Rules, 2006 (Haryana) - The family of a deceased in a motor accident cannot seek "double benefits". If the family has received benefits from the State Government on account of the death of the deceased, then such benefits are liable to be deducted from the compensation payable under the Motor Vehicles Act. There cannot be a duplication in payments or a windfall owing to a misfortune. On the death of the person in harness, owing to a road traffic accident the dependents of a deceased cannot be doubly benefited as opposed to those who are dependents of a deceased who dies owing to illness or any other reason under the Rules formulated by the Haryana Government. (Para 6) Krishna v. Tek Chand, 2024 LiveLaw (SC) 116

Section 166 - Homemaker's deemed income cannot be less than minimum wages notified for daily wager. The role of a homemaker is as important as that of a family member whose income is tangible as a source of livelihood for the family. The activities performed by a home-maker, if counted one by one, there will hardly be any doubt that the contribution of a home-maker is of a high order and invaluable. In fact, it is difficult to assess such a contribution in monetary terms. (Para 8) Arvind Kumar Pandey v. Girish Pandey, 2024 LiveLaw (SC) 152

Section 173 – Appeal – A person dissatisfied with the amount of compensation received can file an appeal. (Para 12) Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi, 2024 LiveLaw (SC) 414

Municipal Corporation

Municipal Corporation (Procedure and Conduct of Business) Regulations, 1996 (Chandigarh) - Regulation 6(10) – Regulation 6(10) stipulates the three eventualities when the ballot paper can be treated as invalid namely: (i) Where a member has voted for more than one candidate; (ii) Where a member places any mark on the paper by which he may be identified; and (iii) If the mark indicating the vote is placed on the ballot paper in such a manner as to make it doubtful over which candidate the vote has been cast. None of the above eventualities are fulfilled in the present case. In each of the eight ballots the vote was cast for one person, there is no mark on the ballot which would indicate that the person who cast the vote would be identified and the ballots left no manner of doubt about the candidate for whom the ballot was cast. Even if the mark which was placed by the Presiding Officer is taken into consideration, that mark does not create any doubt about the candidate in favour of whom the vote was cast. (Para 28) Kuldeep Kumar v. U.T. Chandigarh, 2024 LiveLaw (SC) 146 : (2024) 3 SCC 526

Municipal Corporation (Procedure and Conduct of Business) Regulations, 1996 (Chandigarh) - Regulation 6(1) – Regulation 6(1) requires the nomination of a councillor who is not a candidate at the election to preside over the meeting. This provision has been made to ensure that the person who acts as Presiding Officer would do so with objectivity. It is evident that the Presiding Officer in the present case has made a deliberate effort to deface the eight ballots evidently put his own mark on the bottom half of the ballots to create a ground for treating the ballot to have been invalidly cast. In doing so, the Presiding Officer has clearly acted beyond the terms of his remit under the statutory regulations. The Presiding Officer is guilty of a serious misdemeanour in doing what he did in his role and capacity as Presiding Officer. The result declared by the Presiding Officer is plainly contrary to law and shall stand quashed and set aside. (Para 31) Kuldeep Kumar v. U.T. Chandigarh, 2024 LiveLaw (SC) 146 : (2024) 3 SCC 526

Municipal Corporation Act, 1980 (Kolkata) – 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

Municipal Corporation Act, 1980 (Kolkata) – 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

Municipal Corporation Act, 1980 (Kolkata) – 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

National Food Security Act, 2013

There being a systematic legal framework provided under the NFSA for the implementation of the schemes and programmes for providing food and nutritional security, no direction is required to implement the concept of Community Kitchens as prayed for by the petitioners in the instant petition. It is open for the States/UTs to explore such alternative welfare schemes as may be permissible under the NFSA. (Para 7 & 9) Anun Dhawan v. Union of India, 2024 LiveLaw (SC) 161 : AIR 2024 SC 1248

Object - To provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto. With the enactment of the NFSA there was a paradigm shift in the approach to food security from “welfare to rights based approach.” (Para 6) Anun Dhawan v. Union of India, 2024 LiveLaw (SC) 161 : AIR 2024 SC 1248

Panchayat

Maharashtra Temporary Extension of Period for Submitting Validity Certificate (for certain elections to Village Panchayats, Zilla Parishads and Panchayat Samitis) Act, 2023; Section 3(1) and 3(2) (b) - Section 3 provides an extended time to submit Validity Certificate within a period of twelve months from the date of commencement of this Act. The idea was that such elected candidates ought not to be deprived merely because of non-issuance of Validity Certificates when the applications are long pending before the scrutiny committee. Rejection of application by the scrutiny committee under Section 3(2)(b) would dis-entitle Appellant 1 from the benefit of Section 3. Rejection will also include cases in which applications are rejected on account of defaults committed by the applicants themselves. The application of appellant 1 was rejected by the scrutiny committee. Since there was no valid application filed by appellant before the nomination to the Scrutiny Committee, the protective umbrella of Section 3 does not apply to the appellant. (Para 40) Sudhir Vilas Kalel v. Bapu Rajaram Kalel, 2024 LiveLaw (SC) 99 : AIR 2024 SC 1010 : (2024) 3 SCC 679

Maharashtra Village Panchayats Act, 1959; Section 10-1A provides, every person desirous of contesting election to a membership in the reserved category, shall submit alongwith the Nomination paper & Caste Certificate, a 'Validity Certificate' issued by the Scrutiny Committee. If such person fails to produce the Validity Certificate within a period of twelve months from the date on which he is declared elected, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a member. In violation of producing the validity certificate, the Appellant No.1 stood automatically disqualified as a Member with retrospective effect from the date of his election. (Para 36) Sudhir Vilas Kalel v. Bapu Rajaram Kalel, 2024 LiveLaw (SC) 99 : AIR 2024 SC 1010 : (2024) 3 SCC 679

Maharashtra Village Panchayats Act, 1958; Section 35 - Validity of No-Confidence motion. A Motion of No Confidence is to be carried by not less than three-fourth of the total number of members who are entitled, to 'sit' and 'vote 'at any meeting. Held, the 3/4th member requirement for coming up with a no-confidence motion was fulfilled as appellant 1 has ceased to be a member because of automatic disqualification. (Para 42 & 43) Sudhir Vilas Kalel v. Bapu Rajaram Kalel, 2024 LiveLaw (SC) 99 : AIR 2024 SC 1010 : (2024) 3 SCC 679

Partnership Act, 1932

Liability of legal heirs on death of partner of firm – Held, legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner. (Para 8) Annapurna B. Uppin v. Malsiddappa, 2024 LiveLaw (SC) 284 : AIR 2024 SC 2015

Section 42(c) – Dissolution of partnership on death of partner – Partnership would stand dissolved automatically on the death of the partner unless and until there was a contract between the remaining partners of the firm to the contrary. Held, there is no such averment by the respondents. Hence, the business activities even if carried on by the remaining partners of the firm, would be deemed to be carried in their individual capacity. (Para 17, 19) S. Shivraj Reddy v. S. Raghuraj Reddy, 2024 LiveLaw (SC) 411

Panchayat (General) Rules, 1961 (Rajasthan)

Rule 266 – Only in certain specified situation, the land could be transferred by way of sale on private negotiation, namely, where any person has a plausible claim of title to the land and auction may not fetch reasonable price or it may not be the convenient mode for disposal of land or where such a course is regarded by the Panchayat necessary for advancement of Scheduled Castes and Scheduled Tribes or other Backward Classes. Another situation envisaged is where the person is in possession of land for more than 20 years but less than 42 years. Nothing was produced on record to show that the due process required for leasing out/sale of the land in favour of the respondents/plaintiffs by private negotiation was followed. Gram Panchayat from whom the land was taken was not impleaded as party to admit or deny the allegations made by the respondents/plaintiffs in the plaint. The alleged lease deed/sale deed has been issued in favour of the respondents/plaintiffs is clearly violative of Rule 266. (Para 29) Tehsildar, Urban Improvement Trust v. Ganga Bai Menariya, 2024 LiveLaw (SC) 153

Pre-emption Act, 1913 (Punjab)

Section 16, 8(2) and 3(3) - 'Land' and 'Immovable property' are two different terms. As per Section 3(3), immovable property is more than the land on which certain construction has been made. Notification dated 08.10.1985 limits its application for taking away the right of pre-emption only with reference to sale of 'land' falling in the areas of any municipality. In the present case, it is sale of immovable property, which is more than the land as a rolling mill had already been set up on the land. Held, notification is not applicable to property in dispute. (Para 17) Jagmohan v. Badri Nath, 2024 LiveLaw (SC) 95 : AIR 2024 SC 900 : (2024) 3 SCC 588

Section 8(2) - Notification issued in exercise of powers under Section 8(2) enables the State Government to exclude any transaction of sale of any land or property for exercise of right of pre-emption. Notification exempts right of pre-emption in respect of sale of land falling in the area of municipalities in Haryana. (Para 8) Jagmohan v. Badri Nath, 2024 LiveLaw (SC) 95 : AIR 2024 SC 900 : (2024) 3 SCC 588

Railways Act, 1989

Section 106(3) – Applicability of Section 106(3) – Whether the present case is one of 'Overcharge' or 'Illegal Charge'? – Primary challenge is to the chargeable distance of 444 km in itself. The case of the respondent company is not that it has paid anything in excess of what was at the time of booking of the consignment required by law, rather, the respondent's case is that the charge which was required to be paid by the law as prevailing at the time of booking of the consignment was wrong. Held, as the same was admittedly charged as per the prevailing law and not due to any misapplication or mistake i.e., as per the old local distance table, this clearly is not a case of overcharge and would not fall within the four corners of Section 106(3) of the Act, 1989. Further held, the chargeable distance of 444 km was illegal. No infirmity with the impugned judgement and order passed by the High Court. The freight had been paid as per the notified chargeable distance which was later found to be incorrect, it was a case of “illegal charge” and not that of “overcharge”. (Para 105 & 107) Union of India v. Indian Oil Corporation Ltd., 2024 LiveLaw (SC) 256 : AIR 2024 SC 1820

Section 106 and Railways Act, 1890; Section 78B – Scope of Section 106(3) – Section 106 deals with notice for claim of compensation and refund of overcharge. Under Section 106(3) a statutory time-period of 6-months has been provided for making a notice of claim for a refund of an 'overcharge' and if the notice of claim is not made within the stipulated period, then the claim becomes time-barred. The rigours of Section 106(3) of the Act, 1989 will only be applicable where the claim is for a refund of an 'overcharge'. (Para 59) Union of India v. Indian Oil Corporation Ltd., 2024 LiveLaw (SC) 256 : AIR 2024 SC 1820

Section 106(3) – Condition for Notice for Claim for Refund of Overcharge is: Claim must be for refund of an 'Overcharge', Overcharge must have been paid to the Railway Administration in respect of the goods carried by the railway, notice must be issued within 6-months from the date of payment or delivery of goods for which overcharge was paid, and Notice must be served to the concerned railway administration to whom the overcharge was paid. (Para 43) Union of India v. Indian Oil Corporation Ltd., 2024 LiveLaw (SC) 256 : AIR 2024 SC 1820

Difference between 'overcharge' and 'illegal charge' – An 'overcharge' is any sum charged in excess or more than what was payable as per law. Whereas, for an illegal charge, the sum must not have been payable by law. An Overcharge is effectively concerned with the error in the quantum of what was or should be payable, whereas an illegal charge is solely concerned with whether a particular thing was payable by the law / in conformity with the law or not. (Para 60, 70 & 74) Union of India v. Indian Oil Corporation Ltd., 2024 LiveLaw (SC) 256 : AIR 2024 SC 1820

Registration Act, 1908

Section 47 - A registered sale deed operates from the date of execution when the entire consideration is paid. Changes made in a sale deed by one party unilaterally, after the registration of the deed and without the knowledge of the other party, have to be ignored. (Para 11) Kanwar Raj Singh v Gejo, 2024 LiveLaw (SC) 4 : AIR 2024 SC 238 : (2024) 2 SCC 416

Rent Control Act, 1999 (Maharashtra)

Section 16(1)(k) - Eviction of a tenant cannot be ordered merely based on a demolition notice issued by the Municipal body. The Court has to examine the "immediate urgency" of the need for demolition. (Para 13) Baitulla Ismail Shaikh v. Khatija Ismail Panhalkar, 2024 LiveLaw (SC) 79 : AIR 2024 SC 846

Representation of Peoples Act, 1951

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

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

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

Section 100(1)(b), 100(1)(d)(i), 123(2) & 83(1)(b) – Election petition – Invalidation of election – On grounds that the appellant has committed corrupt practice and the result of the election was materially affected by the improper acceptance of nomination. Held, none of the allegations with regard to the false statements, and suppression and misrepresentation of facts with regard to his educational qualification or with regard to his liability in respect of the loan availed by him for his partnership firm or with regard to his default in depositing the employer's contribution to provident fund, would fall within the definition of “Corrupt practice” of “undue influence” as envisaged in Section 123(2) of the RP Act. (Para 16 & 19) Karim Uddin Barbhuiya v. Aminul Haque Laskar, 2024 LiveLaw (SC) 287 : AIR 2024 SC 2193

Section 83(1) (a) & 87 and Civil Procedure Code, 1908 Order VII Rule 11 – Rejection of election petition on grounds of incomplete contents of the petition – Lack of cause of action – The pleadings with regard to the allegation of corrupt practice have to be precise, specific and unambiguous. The Election petition lacks concise statement of “material facts” as contemplated in Section 83(a), and lacks “full particulars” of the alleged Corrupt practice as contemplated in Section 83(b) of the RP Act. Held, mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of making a concise statement of the “material facts” in the Election Petition. If the allegations contained in Election Petition do not set out grounds as contemplated in Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the Election Petition is liable to be rejected under Order VII, Rule 11 of CPC. An omission of a single material fact leading to an incomplete cause of action or omission to contain a concise statement of material facts on which the Election petitioner relies for establishing a cause of action, would entail rejection of Election Petition. (Para 19. 20, 21 & 24) Karim Uddin Barbhuiya v. Aminul Haque Laskar, 2024 LiveLaw (SC) 287 : AIR 2024 SC 2193

Election Petition – Right to contest election or to question the election by means of an Election Petition is neither common law nor fundamental right. It is a statutory right governed by the statutory provisions of the RP Act. (Para 12) Karim Uddin Barbhuiya v. Aminul Haque Laskar, 2024 LiveLaw (SC) 287 : AIR 2024 SC 2193

Section 100(1)(d)(iv) – Invalidation of election on grounds of non-compliance of Section 100(1)(d)(iv) – Candidates failure in disclosing the fact that he had occupied government accommodation and in filing the 'No Dues Certificate' in that regard, with his nomination form, cannot be said to be a defect of any real import as there were no actual outstanding dues payable by him in relation to the government accommodation occupied by him earlier. Every defect in the nomination cannot straightaway be termed to be of such character as to render its acceptance improper and each case would have to turn on its own individual facts, insofar as that aspect is concerned. There must be a distinction between non-disclosure of substantial issues as opposed to insubstantial issues, which may not impact one's candidature or the result of an election. Held, plaintiff did not sufficiently plead or prove a specific breach or how it materially affected the result of the election. (Para 40, 42, 48) Karikho Kri v. Nuney Tayang, 2024 LiveLaw (SC) 290 : AIR 2024 SC 2121

Section 123(2), Motor Vehicles Act, 1988; Section 2(30) and Sale of Goods Act, 1930; Section 19 – Invalidation of election on grounds of corrupt practices by candidate – Non-disclosure of 3 vehicles – As per Section 2(30) of Act of 1988, an “Owner” is a person in whose name a motor vehicle stands registered. As per Section 19 of Act of 1930, where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Held, mere failure to get registered the name of the new owner of an already registered vehicle does not mean that the sale/gift transaction would stand invalidated and such a vehicle, despite being physically handed over to the new owner, cannot, by any stretch of imagination, be treated as still being in the possession and control of the former owner. Held, once it is accepted that the three vehicles in question were either gifted or sold before the filing of the nomination by candidate, the said vehicles cannot be considered to be still owned by candidate's wife and son for purposes other than those covered by the Act of 1988. Non-disclosure of the three vehicles registered in the names of the wife and son of candidate, could not be treated as an attempt of candidate to unduly influence the voters. Such non-disclosure cannot lead to invalidation of election on grounds of corrupt practices under Section 123(2). (Para 22, 27 & 28) Karikho Kri v. Nuney Tayang, 2024 LiveLaw (SC) 290 : AIR 2024 SC 2121

Constitution of India – Voters right to know – Candidates non-disclosure of fact of substantial character – Held, 'right to privacy' of the candidate would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, non-disclosure of each and every asset owned by a candidate would not amount to a defect of a substantial character. Every case would have to turn on its own peculiarities and there can be no hard and fast or straitjacketed rule as to when the non-disclosure of a particular movable asset by a candidate would amount to a defect of a substantial character. (Para 44) Karikho Kri v. Nuney Tayang, 2024 LiveLaw (SC) 290 : AIR 2024 SC 2121

EVMs can't be tampered with, return to ballot paper will undo electoral reforms. Association of Democratic Reforms v. Election Commission of India, 2024 LiveLaw (SC) 328

VVPAT Case - Supreme Court allows runner-up candidates to seek verification of burnt memory of 5% EVMs per assembly segment. Association of Democratic Reforms v. Election Commission of India, 2024 LiveLaw (SC) 328

Supreme Court rejects plea for 100% EVM-VVPAT verification, issues directions to seal symbol loading unit. Association of Democratic Reforms v. Election Commission of India, 2024 LiveLaw (SC) 328

The Supreme Court declined to entertain a petition seeking voting arrangements for approximately 18,000 who got displaced from Manipur due to the ethnic clash to cast their votes in their home constituency in the Lok Sabha General Elections scheduled to take place on April 19 and 26. It would not be practical to direct the Election Commission of India (ECI) to make accommodations for the Internally Displaced Persons (IDPs) located in nearby areas of Shillong, Kolkata, Guwahati, Hyderabad, Delhi NCR, Bangalore, Kohima three days before the commencement of the General Elections in Manipur. Naulak Khamsuanthang v. Election Commission of India, 2024 LiveLaw (SC) 311

Rights of Persons with Disabilities Act 2016

The RPWD Act came into force on 19 April 2017. Though over seven years have elapsed since the enactment of the law, the implementation across the country is still in a dismal state. Many States had not framed the rules under the RPWD Act, which under Section 101(1), they were required to frame within six months from the date of commencement. Seema Girija v. Union of India, 2024 LiveLaw (SC) 322

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Though, the Right to Property is no more a Fundamental Right, still it is recognized as a Constitutional Right under Article 300A of the Constitution of India. Depriving a citizen of his Constitutional Right to use the land for 20 years and then showing graciousness by paying the compensation and beating drums that the State has been gracious is unacceptable. The state is not doing charity by paying compensation to the citizens for acquisition of land. (Para 25 & 26) Sudha Bhalla @ Sudha Punchi v. Rakesh Kumar Singh, 2024 LiveLaw (SC) 167

SARFAESI Act

Principle underlying Sections 73 and 74 of the Indian Contract Act 1872 - that the compensation payable due to a breach of contract is limited to the losses suffered by the other party due to the breach - did not apply to an auction purchase under the SARFAESI Act. (Para 68) Authorised Officer, Central Bank of India v. Shanmugavelu, 2024 LiveLaw (SC) 85 : AIR 2024 SC 962

The SARFAESI Act is a special legislation with an overriding effect on the general law more particularly the Indian Contract Act, 1872. (Para 68) Authorised Officer, Central Bank of India v. Shanmugavelu, 2024 LiveLaw (SC) 85 : AIR 2024 SC 962

The underlying principle envisaged under Section(s) 73 & 74 of the 1872 Act which is a general law will have no application, when it comes to the SARFAESI Act more particularly the forfeiture of earnest-money deposit which has been statutorily provided under Rule 9(5) of the SARFAESI Rules as a consequence of the auction purchaser's failure to deposit the balance amount. (Para 68) Authorised Officer, Central Bank of India v. Shanmugavelu, 2024 LiveLaw (SC) 85 : AIR 2024 SC 962

Security Interest (Enforcement) Rules, 2002; Rule 9 (5) - Consequence of forfeiture of 25% of the deposit under Rule 9(5) of the SARFAESI Rules is a legal consequence that has been statutorily provided in the event of default in payment of the balance amount. The consequence envisaged under Rule 9(5) follows irrespective of whether a subsequent sale takes place at a higher price or not, and this forfeiture is not subject to any recovery already made or to the extent of the debt owed. In such cases, no extent of equity can either substitute or dilute the statutory consequence of forfeiture of 25% of deposit under Rule 9(5) of the SARFAESI Rules. (Para 111) Authorised Officer, Central Bank of India v. Shanmugavelu, 2024 LiveLaw (SC) 85 : AIR 2024 SC 962

Security Interest (Enforcement) Rules, 2002; Rule 9 (5) - Entire earnest money deposited by an auction purchaser would be forfeited as per Rule 9(5) of the SARFAESI Rules on the failure to deposit the remaining amount within the stipulated period. (Para 68) Authorised Officer, Central Bank of India v. Shanmugavelu, 2024 LiveLaw (SC) 85 : AIR 2024 SC 962

Security Interest (Enforcement) Rules, 2002; Rule 9(5) of the SARFAESI Rules puts a mandatory requirement on the successful auction purchaser to deposit a 25% amount after the sale is confirmed by the secured creditor in favor of the auction purchaser. Moreover, the Rule makes it clear that in default of payment of the remaining 75% amount by the auction purchaser within the period mentioned in Rule 9(4) i.e., 15 days, the deposit shall be forfeited by the secured creditor and the auction purchaser would not be entitled to receive the 25% deposited earnest money. Authorised Officer, Central Bank of India v. Shanmugavelu, 2024 LiveLaw (SC) 85 : AIR 2024 SC 962

Security Interest (Enforcement) Rules, 2002; Rule 9 (5) - Secured creditor's right to forfeit the earnest deposit amount by the auction purchaser doesn't arise due to loss or damage suffered due to a breach of contract but under a statutory requirement mentioned under SARFAESI Rules. (Para 111) Authorised Officer, Central Bank of India v. Shanmugavelu, 2024 LiveLaw (SC) 85 : AIR 2024 SC 962

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

Section 17 and Security Interest (Enforcement) Rules, 20024; Rule 8(6) & 8(7) – Auction sale set aside on grounds of non-compliance of the statutory provisions in conducting the sale – Mandatory notice of 30 days was not given to the Borrower before holding the auction/sale proceedings. Hence, auction sale is set aside. Bank is directed to refund the auction sale money to the appellants. (Para 4 & 12) Govind Kumar Sharma v. Bank of Baroda, 2024 LiveLaw (SC) 325

Right of bank to claim possession of property – Held, once the auction sale is set aside, the status of the appellants as owners would automatically revert to that of tenants (as it was before the auction sale) and the Bank would have no right to claim actual physical possession from the appellants nor would the appellants be under any obligation to handover physical possession to the Bank. (Para 12) Govind Kumar Sharma v. Bank of Baroda, 2024 LiveLaw (SC) 325

SEBI

SEBI's wide powers, coupled with its expertise and robust information gathering mechanism, lend a high level of credibility to its decisions as a regulatory, adjudicatory and prosecuting agency. (Para 17 (d)) Vishal Tiwari v. Union of India, 2024 LiveLaw (SC) 2 : AIR 2024 SC 414

The Court must be mindful of the public interest that guides the functioning of SEBI and refrain from substituting its own wisdom in place of the actions of SEBI. (Para 17 (e)) Vishal Tiwari v. Union of India, 2024 LiveLaw (SC) 2 : AIR 2024 SC 414

The power of the Court to enter the regulatory domain of SEBI in framing delegated legislation is limited. The court must refrain from substituting its own wisdom over the regulatory policies of SEBI. The scope of judicial review when examining a policy framed by a specialized regulator is to scrutinise whether it violates fundamental rights, any provision of the Constitution, any statutory provision or is manifestly arbitrary. (Para 67 (a)) Vishal Tiwari v. Union of India, 2024 LiveLaw (SC) 2 : AIR 2024 SC 414

Service Laws

Entitlement of post-retiral benefits and terminal dues – The appellant(s) have continued to work initially as seasonal/daily wage employees but thereafter regularized and have continued to work till their superannuation. Held, considering the fact that the appellant(s) have worked for a long period (over 30 years), it would be unreasonable and unfair to deny them post retiral benefits or terminal dues as may be admissible to the regular government employees. Hence, the appellant(s) would be entitled to all consequential benefits. (Para 3, 5 & 9) Anand Prakash Mani Tripathi v. State of U.P., 2024 LiveLaw (SC) 417

Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 (Madhya Pradesh); Rule 7A – Recruitment rule challenged – Denial of Appointment in question – The State Government exercising powers conferred upon it by Section 95(1) r.w. Section 70(2) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 promulgated recruitment rules – In spite of having passed the selection exam, the State Government took the shield of an amended rule i.e. Rule 7-A, issued on 29th July, 2009 for denying relief to the appellant herein, even when the said rule had no retrospective application. Further, in spite of the High Court having struck down the said rule and passing repeated orders in favour of the appellant, another notification dated 21st March, 2018 was issued making the amended rule effective from 1st January, 2008 i.e. prior to the date of recruitment. Hence, this was clearly a mala fide action in an attempt to circumvent the orders passed by the High Court by hook or by crook so as to prevent the appellant and her peers of their lawful claim to appointment which stood crystalized long back. Held, the appointment order will be effective from the date on which the first appointment order pursuant to the selection process dated 31st August, 2008 came to be issued. (Para 8 & 11) Smita Shrivastava v. State of Madhya Pradesh, 2024 LiveLaw (SC) 424 : AIR 2024 SC 2292

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 : AIR 2024 SC 2145

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 : AIR 2024 SC 2145

State Service Examination Rules, 2015 (Madhya Pradesh); Rule 4(3)(d)(III) – Amended Rule 4(3)(d)(III) is challenged to be ultravires– The amended Rule 4(3)(d)(III) read as, that meritorious reservation category candidates, who did not avail any benefit of relaxation, are not to be clubbed with meritorious unreserved category candidates at the time of declaring the result of the preliminary examination itself. Such adjustment will only be at the time of final selection, not at the time of preliminary/main examination – Held, amended Rule 4(3)(d)(III) patently harmed the interests of the reservation category candidates, as even meritorious candidates from such categories, who had not availed any reservation benefit/relaxation, continued to occupy the reservation category slots which would have otherwise gone to deserving reservation category candidates lower down in the merit list of that category, had they been included with meritorious unreserved category candidates on the strength of their marks. Further held, the State of Madhya Pradesh itself realized the harm that it was doing to the reservation category candidates and chose to restore Rule 4, as it stood earlier, which enabled drawing up the result of the preliminary examination by segregating deserving meritorious reservation category candidates with meritorious unreserved category candidates at the preliminary examination stage itself. (Para 8, 30 & 32) Deependra Yadav v. State of Madhya Pradesh, 2024 LiveLaw (SC) 342 : AIR 2024 SC 2147

State Service Examination Rules, 2015 (Madhya Pradesh) – Normalization of marks – Normalization was undertaken in the context of the marks obtained by candidates in the two main examinations by applying a formula, so as to bring them all on an even keel so as to finalize the list of candidates eligible to be interviewed. This was done by applying a formula uniformly to the marks secured by all the candidates who appeared in the two main examinations, so that their marks would become comparable and enable preparation of a unified marks list. Held, the process of normalization and the consequential merger of the marks secured by the candidates who appeared in the two main examinations cannot be found fault with. (Para 26 & 29) Deependra Yadav v. State of Madhya Pradesh, 2024 LiveLaw (SC) 342 : AIR 2024 SC 2147

Consumer Protection (Qualification for Appointment, Method of Recruitment, Procedure for Appointment, Term of Office, Resignation and Removal of the President and Members of the State Commission and District Commission) Rules 2020 - No written test would be either feasible or practicable for the appointment of the President of the SCDRC for which a former Judge of the High Court is eligible for appointment. Hence, insofar as appointments to the post of President of the SCDRC are concerned, we direct that the requirement of holding a written examination and viva voce in the terms as envisaged shall stand relaxed for the present. At the same time, it is clarified that the appointments to the office of President of the SCDRC shall be made in consultation with and subject to the concurrence of the Chief Justice of the High Court. (Para 4) Ganeshkumar Rajeshwarrao Selukar v. Mahendra Bhaskar Limaye, 2024 LiveLaw (SC) 236

It is not open for an employer to change the qualifications prescribed in the advertisement midstream, during the course of the ongoing selection process. Any such action would be hit by the vice of arbitrariness as it would tantamount to denial of an opportunity to those candidates who are eligible in terms of the advertisement but would stand disqualified on the basis of a change in the eligibility criteria after the same is announced by the employer. (Para 8) Anil Kishore Pandit v. State of Bihar, 2024 LiveLaw (SC) 233

PAR Rules; Rule 5(1) – Mandatory nature of timelines – Outcome of contravention of timelines prescribed under the schedule in view of Rule 5(1) of the PAR Rules – The previous performance appraisal report(s) of Respondent were admittedly beyond the timelines prescribed under the Schedule, however within the period prescribed under Rule 5(1) of the PAR Rules. The High Court observed that the timelines prescribed under the Schedule were not water-tight and in fact, were flexible. Admittedly, the Accepting Authority has met the timelines prescribed under Rule 5(1) of the PAR Rules and accordingly, there is no reason to expunge the remarks and overall grades awarded to Respondent by the Accepting Authority on the PAR on account of a contravention of the timelines prescribed under the Schedule. (Para 19, 20 & 21) State of Haryana v. Ashok Khemka, 2024 LiveLaw (SC) 220 : AIR 2024 SC 1397

Reduction of grade by accepting authority challenged on grounds of prejudice – Contention of prejudice caused cannot be accepted on account of the fact that Respondent was awarded an overall grade '9' which undisputedly forms a part of the 'outstanding' grade i.e., the highest category awarded to an IAS officer. There can be no qualm that the said overall grade is more than sufficient for the purposes of empanelment / promotion vis-à-vis Respondent. (Para 24) State of Haryana v. Ashok Khemka, 2024 LiveLaw (SC) 220 : AIR 2024 SC 1397

Validity of transfer order – Absence of malafide intention – Even if transfer order was made on the recommendation of an MLA, that by itself would not vitiate the transfer order. It is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. (Para 9.3) Pubi Lombi v. State of Arunachal Pradesh, 2024 LiveLaw (SC) 231

Police Subordinate Service Rules, 1989 (Rajasthan); Rule 24(4) which provides that no candidate shall be eligible for appointment to the service who has more than two children on or after 01.06.2002 is non-discriminatory and does not violate the Constitution. Ramji Lal Jat v. State of Rajasthan, 2024 LiveLaw (SC) 175

Central Industrial Security Forces (CISF) Rules, 2010; Rule 61 - Free Accommodation - All CISF personnel entitled to House Rent Allowance (HRA) if they are not provided accommodation. Union of India v. Paramisivan M., 2024 LiveLaw (SC) 134

Military Nursing Service - Terminating women officer on ground of marriage - Such rule was exfacie manifestly arbitrary, as terminating employment because the woman has got married is a coarse case of gender discrimination and inequality. Acceptance of such patriarchal rule undermines human dignity, right to non-discrimination and fair treatment. Laws and regulations based on gender-based bias are constitutionally impermissible. Rules making marriage of women employees and their domestic involvement a ground for disentitlement would be unconstitutional. Union of India v. Ex. Lt. Selina John, 2024 LiveLaw (SC) 135

Civil Services (Pension) Rules, 2022 (Gujarat); Rule 25 - Qualifying service of a government employee - Qualifying service for the purpose of calculating terminal benefits / pensionary benefits under the Pension Rules would include prior services rendered by such person under inter alia the Central Government provided that (i) the employment of such person under the Central Government encompassed an underlying pension scheme; and (ii) such person came to be absorbed by the State Government. The Appellant has most certainly, 'implicitly' been absorbed by the State Government i.e., the Appellants' participation in the selection process was prefaced by an NOC from the Central Government; and subsequently was followed by the tender of a technical resignation to the Central Government upon securing employment with the State Government. The interpretation sought to limit the benefit of Rule 25(ix) only to such person(s) who may have 'explicitly' been absorbed by the State Government is narrow and restrictive. (Para 14 & 18) Vinod Kanjibhai Bhagora v. State of Gujarat, 2024 LiveLaw (SC) 108

Constitution of India – Special leave Petition against order of High Court – To set aside impugned termination order – Class-IV employee, when in financial hardship, may represent directly to the superior but that by itself cannot amount to major misconduct for which punishment of termination from service should be imposed. It is trite law that ordinarily the findings recorded by the Inquiry Officer should not be interfered by the appellate authority or by the writ court. However, when the finding of guilt recorded by the Inquiry Officer is based on perverse finding the same can always be interfered. Termination from service order is liable to be set aside. Chatrapal v. State of Uttar Pradesh, 2024 LiveLaw (SC) 120 : AIR 2024 SC 948

Pension – Objective - Pension is earned by a government servant in lieu of tireless service rendered by him / her during the course of their employment; and often is an important consideration for person(s) seeking government employment. The raison d'etre qua the grant of pension by the State Government would inextricably be linked to a concentrated effort by the State Government to enable its former employee(s) to tide over the vagaries and vicissitudes associated with old age vide a pension scheme. (Para 10) Vinod Kanjibhai Bhagora v. State of Gujarat, 2024 LiveLaw (SC) 108

Pension – Delegated Beneficial legislation - Pension scheme(s) floated by the State Government form a part of delegated beneficial legislation; and ought to be interpreted widely subject to such interpretation not running contrary to the express provisions of the Pension Rules. (Para 17) Vinod Kanjibhai Bhagora v. State of Gujarat, 2024 LiveLaw (SC) 108

The state government is entitled to do the recovery of entitlements received by the officer as the entitlement so received were granted pursuant to the order dated 4th August 2011 issued by the Principal Secretary that was not consistent with the orders issued by the Government orders of the Finance Department. Dr. Balbir Singh Bhandari v. State of Uttarakhand, 2024 LiveLaw (SC) 30 : AIR 2024 SC 701

Stoppage of Salary - While the State sanctioned two vacancies, the school went ahead and recruited three. The State has no proof of commission of any malpractice by the teachers. The State approved their appointments, and the approval order till date has not been cancelled. The appointments have not been terminated. No action has been taken against the school and the school continues to receive the aid. Held, the teachers were not at fault and the State could not have abruptly stopped their salaries. (Para 22 & 34) Radhey Shyam Yadav v. State of U.P., 2024 LiveLaw (SC) 9 : AIR 2024 SC 260

Employees of Private Schools (Condition of Service) Act, 1977 (Maharashtra); Section 7 and Employees of Private Schools (Condition of Service) Rules, 1981 (Maharashtra); Rule 40 – Termination of service challenged – On grounds of non-compliance of MEPS Act and Rules while accepting the resignation – Power of school committee to accept resignation – Held, the appellant himself had addressed his resignation letter to the school committee, which placed it before the management, upon which the management committee passed a resolution accepting the resignation. Further held, the School Committee consists of four representatives of the management, making it evident that management was involved in the process of considering and accepting the resignation letter. Hence, the appellant failed to prove any error in the findings of the High Court that the acceptance of resignation was in compliance with the requirements of MEPS Act and Rules. (Para 15) Shriram Manohar Bande v. Uktranti Mandal, 2024 LiveLaw (SC) 329 : AIR 2024 SC 2325

Regularization of employment – Change in nature of employment through continuous service – Held, the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. Continuous service in capacities of regular employees, performing duties indistinguishable from those in permanent posts, and selection through a process that mirrors that of regular recruitment, constitutes a substantive departure from the temporary nature of the initial engagement. Reliance on procedural formalities cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Further, promotion was based on a specific notification for vacancies, followed by a selection process involving written tests and interviews. Hence, the service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The appellants are entitled to be considered for regularization in their respective posts. (Para 5 & 6) Vinod Kumar v. Union of India, 2024 LiveLaw (SC) 330

Prospective Application of Judgment - B.Ed. Qualification for Primary School Teachers - Review Petition - Equitable Retention of Employment - Bridge Course Requirement - The Judgment delivered on 11th August, 2023, concerning the eligibility criteria for B.Ed. candidates to be appointed as primary school teachers, shall have prospective operation. Candidates appointed prior to this date, based on B.Ed. qualification without any disqualification imposed by a court of law or without a stipulation that their appointment was subject to the final outcome of a case, shall retain their employment. However, such candidates must undergo a bridge course within a year from the date of the judgment to validate their appointments. The National Council for Teacher Education, under the supervision of the Ministry of Education, is directed to devise this course, applicable nationwide. Failure to complete the course within the specified timeframe will invalidate the appointment. The court further extends these directions to cover all similar cases pending in different judicial fora across states and union territories. Devesh Sharma v. Union of India, 2024 LiveLaw (SC) 297 : AIR 2023 SC 3895

Regularization of service – UGC directions must be followed by universities – UGC's letter to University directing regularization of the teachers who were selected through a regular selection process and possessed required qualifications was not followed by university. Appellants' appointments were made according to a regular selection process. Held, considering the statutory position of UGC, there was no reason for the University not to follow directions of UGC. The University's action of not continuing them and starting a fresh selection process is unjust, arbitrary and violative of Article 14 of the Constitution of India. Therefore, the employment of the appellants will have to be continued after merger with the regular establishment of the University. Respondents directed to reinstate the appellants. (Para 20, 23 & 28) Meher Fatima Hussain v. Jamia Milia Islamia, 2024 LiveLaw (SC) 303 : AIR 2024 SC 2097

Termination from service – Violation of principles of natural justice – Termination of the services of the appellant without holding disciplinary enquiry was unjustified and dehors the requirements of law and in gross violation of principles of natural justice. Termination order declared illegal and appellant reinstated in service. (Para 19 & 20) Sandeep Kumar v. GB Pant Institute of Engineering and Technology, 2024 LiveLaw (SC) 308 : AIR 2024 SC 1916

Shops and Establishments Act, 1947 (Tamil Nadu)

Section 2(3) & 2(6) – Industrial establishment – For an establishment to be covered under the definition of establishment under the 1947 Act, unless it is one of those specifically mentioned, it must satisfy being a commercial establishment. For any establishment to be commercial, it has to be established that the activities undertaken by it are for making some monetary gain. (Para 19 & 21) Tamil Nadu Medical Services Corporation Ltd. v. Tamil Nadu Medical Services Corporation Employees Welfare Union, 2024 LiveLaw (SC) 402

Sick Industrial Companies (Special Provisions) Act, 1985

Section 22(1) - If the recovery proceedings against the Sick Company do not pose a threat to its properties or have adversely impacted the scheme of the revival of the Sick Company, then there wouldn't be a bar for filing a suit for the recovery of the dues against the Sick Company. Fertilizer Corporation of India Ltd. v. Coromandal Sacks Pvt. Ltd., 2024 LiveLaw (SC) 338

Societies Registration Act, 1860

Section 15 - Such members in default of membership fee would not be entitled to vote and would not be counted as members of the Society. If they were not entitled to vote and they were not to be counted as members, there would be no illegality or for that matter any prejudice being caused by not issuing any notice as the same would be an exercise in futility. (Para 22) Adv. Babasaheb Wasade v. Manohar Gangadhar Muddeshwar, 2024 LiveLaw (SC) 59 : AIR 2024 SC 768

Special Economic Zones Act, 2005

Section 49(1)(b) and Electricity Act, 2003; Section 14(b) – Deemed to be a distribution licensee – The Ministry of Commerce & Industry (MoCI), vide the 2010 Notification has specified that the 'developer' of the SEZ shall be deemed to be a 'distribution licensee' under the provisions of the Electricity Act. The proviso inserted vide the 2010 Notification, in section 14(b) of the Electricity Act, Provided that the Developer of a SEZ shall be deemed to be a licensee with effect from the date of notification of such SPZ – Held, the proviso to section 14(b) of the Electricity Act is to confer upon an entity like the appellant a status which is otherwise available in accordance with the Electricity Act. With this inclusion it is evident that a SEZ developer is deemed to be a distribution licensee. Once the appellant is a (deemed) distribution licensee, certain benefits and/or privileges do enure in its favour. Accordingly, if CSS is payable by a distribution licensee, the deemed distribution licensee is equally liable to pay the same. (Para 13 & 14, 20) Sundew Properties Ltd. v. Telangana State Electricity Regulatory Commission, 2024 LiveLaw (SC) 393

Specific Relief Act, 1963

Section 12 – Admissibility of deposition of a Power of Attorney Holder – Power of Attorney Holder cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which the principal is liable to be cross-examined – It is necessary for the plaintiff to step into the witness box and depose the said fact and subject himself to cross-examination on that issue. Held, the plaintiff/appellant has failed to enter into the witness box and subject himself to cross-examination, he has not been able to prove the prerequisites of Section 12 of the Specific Relief Act, 1963. (Para 9, 12 & 13) Rajesh Kumar v. Anand Kumar, 2024 LiveLaw (SC) 407

Section 20 – Specific Performance – The grant of decree for specific performance is always discretionary and depends on the conduct of the person. Considering the plaintiffs' conduct of making false and/or incorrect statements in the plaint, which were very material, we hold that the plaintiffs are disentitled to relief of specific performance. The relief of specific performance is an equitable relief, hence a person who seeks equity must do equity. (Para 9 & 14) Major Gen. Darshan Singh v. Brij Bhushan Chaudhary, 2024 LiveLaw (SC) 182 : AIR 2024 SC 1330 : (2024) 3 SCC 489

Land Revenue Code; Section 36A – Specific performance of agreement to sell –The stage of taking previous sanction under Section 36A of the Maharashtra Land Revenue Code, 1959 had not arisen in the present case, for the reason that the defendant did not come forward to execute the sale deed. Courts could not have declined to grant the decree for specific performance on the basis of non-compliance of Section 36A inasmuch as the considerations under the provisions of the Specific Relief Act, 1963 only had to be made for the purpose of adjudicating the suit between the parties. As the plaintiff has performed his part of the agreement as required under the provisions of the Specific Relief Act, 1963, the plaintiff is entitled to the relief specific performance of the agreement to sell. On grant of the decree of specific performance, the appellant-plaintiff shall proceed under Section 36A of Act of 1959 before seeking conveyance of the subject land in his favour in case the defendant is a tribal. Babasaheb Dhondiba Kute v. Radhu Vithoba Barde, 2024 LiveLaw (SC) 225 : (2024) 4 SCC 310

Where there is no reason to decline a decree for specific performance, the Courts ought to grant the same rather than give an alternative relief. Babasaheb Dhondiba Kute v. Radhu Vithoba Barde, 2024 LiveLaw (SC) 225 : (2024) 4 SCC 310

Section 34 - A suit for declaration of title without seeking recovery of possession is not maintainable when the plaintiff is not in possession. In this regard, a plaint could be amended at any suit stage, even at the second appellate stage. (Para 33) Vasantha v. Rajalakshmi @ Rajam, 2024 LiveLaw (SC) 117

The person who claims adverse possession must show the following: (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party; (d) how long his possession has continued; and (e) his possession was open and undisturbed. (Para 20) Vasantha v. Rajalakshmi @ Rajam, 2024 LiveLaw (SC) 117

When a contract stipulates a specific time frame within which the consideration needs to be paid by the 'buyer' to execute the 'agreement to sale' by the 'seller', then the buyer must strictly adhere to such condition, otherwise, the 'buyer' can not avail a remedy of specific performance of the sale deed. Alagammal v. Ganesan, 2024 LiveLaw (SC) 27 : AIR 2024 SC 683 : (2024) 3 SCC 232

Stamp Act

Section 2(l) & Article 10 of Schedule-I – Form No. 5 is not an instrument. It is only the articles which are an instrument within the meaning of Section 2(l) of the Stamp Act and accordingly have been mentioned in Article 10 of Schedule-I of the Stamp Act. Stamp Duty is affixed on Form No. 5 only as a matter of practical convenience because a company itself cannot carry out the alterations and record the increase in share capital in its Articles of Association. (Para 9) State of Maharashtra v. National Organic Chemical Industries Ltd., 2024 LiveLaw (SC) 285 : AIR 2024 SC 2037

Stamp Act, 1958 (Bombay); Article 10 of Schedule-I – After amendment of Article 10, “increased share capital” is a part of Article 10 – The effect of adding “increased share capital” is that stamp duty will be charged on subsequent increases in the authorised share capital, subject to the maximum cap. The ceiling of Rs. 25 lakhs is applicable on Articles of Association and the increased share capital therein, not on every increase individually. Even if the amendment does not have retrospective effect and the increase was initiated by the respondent after the cap was introduced, since the instrument 'Articles of Association' remains the same, the duty already paid on the same instrument will have to be considered. In case stamp duty equivalent to or more than the cap has already been paid, no further stamp duty can be levied. (Para 15 & 18) State of Maharashtra v. National Organic Chemical Industries Ltd., 2024 LiveLaw (SC) 285 : AIR 2024 SC 2037

Stamp Act, 1958 (Maharashtra); Section 47 & 48 and Bombay Stamp Rules, 1939; Rule 21 & 22A – Limitation – The appellant's case was rejected on the ground that the application filed by her was beyond the limitation period. The application seeking a refund of the stamp duty needs to be preferred within six months from the date of the instrument as stated in Section 48. Held, the application for relief under Section 47 to be made within six months of the date of the instrument prima facie appeared to have been done by the appellant. Hence, the appellant's application was within time and the same could not have been rejected as barred by limitation. (Para 12) Bano Saiyed Parwaz v. Chief Controlling Revenue Authority, 2024 LiveLaw (SC) 426

Stamp Act, 1958 (Maharashtra); Section 47 & 48 – Demand for refund of Stamp Duty paid towards an un-executed conveyance deed – Rights of a bonafide purchaser – It is settled law that the period of expiry of limitation prescribed under any law may bar the remedy but not the right. Held, the appellant is entitled to claim the refund of stamp duty amount on grounds that the appellant has been pursuing her case as per remedies available to her in law and should not be denied refund merely on technicalities. Further held, the appellant being a bonafide purchaser is a victim of fraud played upon her by the vendor which led to the cancellation of the conveyance deed. Hence, the case of the appellant is fit for refund of stamp duty. State is directed to refund the stamp duty. (Para 10 & 16) Bano Saiyed Parwaz v. Chief Controlling Revenue Authority, 2024 LiveLaw (SC) 426

Supreme Court Rules, 2013

Curative Petitions - Registry shouldn't exercise judicial function, can't refuse curative petition saying review was dismissed in open court. Brahmaputra Concrete Pipe Industries v. Assam State Electricity Board, 2024 LiveLaw (SC) 163

Miscellaneous application – The maintainability of Post-Disposal miscellaneous applications “for clarification, modification or recall – Miscellaneous application seeking clarification of the order passed by the court couldn't be entertained after the disposal of the matter. Post disposal application for modification and clarification of the order of disposal shall lie only in rare cases, where the order passed by this Court is executory in nature and the directions of the Court may become impossible to be implemented because of subsequent events or developments. The factual background of this Application does not fit into that description. The attempt in the present miscellaneous application is clearly to seek a substantive modification of the judgment of this Court. Such an attempt is not permissible in a miscellaneous application which was described in the course of hearing as an application for clarification. By taking out a Miscellaneous Application, the applicant cannot ask for reliefs which were not granted in the main judgment itself. There is a growing tendency of indirectly seeking review of the orders of this Court by filing applications either seeking modifications or clarifications of the orders passed by this Court. Such applications are a total abuse of process of law. Multiple attempts to reopen a judgment of the Court should not be permitted. (Para 11 & 20) Jaipur Vidyut Vitran Nigam Ltd. v. Adani Power Rajasthan Ltd., 2024 LiveLaw (SC) 241

Order LV Rule 6 – Under Order LV Rule 6 of the Supreme Court Rules, 2013, the Supreme Court has inherent powers to make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the Court. Order LV Rule 6 cannot be inverted to bypass the provisions for review in Order XLVII of the Supreme Court Rules, 2013. The maintainability of the present application cannot be explained by invoking the inherent power of this Court either. The applicant has not applied for review of the main judgment. In the contempt action, it failed to establish any willful disobedience of the main judgment and order on account of non-payment of LPS. Now the applicant cannot continue to hitchhike on the same judgment by relying on the inherent power or jurisdiction of this Court. The miscellaneous application is an abuse of the process. (Para 12 & 13) Jaipur Vidyut Vitran Nigam Ltd. v. Adani Power Rajasthan Ltd., 2024 LiveLaw (SC) 241

Order XII Rule 3 - A post disposal application for modification and clarification of the order of disposal shall lie only in rare cases, where the order passed by this Court is executory in nature and the directions of the Court may become impossible to be implemented because of subsequent events or developments. (Para 20) Jaipur Vidyut Vitran Nigam Ltd. v. Adani Power Rajasthan Ltd., 2024 LiveLaw (SC) 241

Tax

Condonation of Delay - Taxpayer is entitled to hearing on the merits, if appeals were dismissed by the High Court due to a delay in filing the paper-book. Herbicides India Ltd. v. Assistant Commissioner of Income Tax, 2024 LiveLaw (SC) 44

The hiring of motor vehicles/cranes from a contractor is a service and would not attract Sales Tax or Value Added Tax (VAT) assuming the transaction to be sale of goods. The transfer of right to use the goods not only includes possession but also control over goods by the user. If the control over the goods remains with the contractor during the hire period, then it cannot be termed as sale of goods and only service tax can be levied. K.P. Mozika v. Oil and Natural Gas Corporation Ltd., 2024 LiveLaw (SC) 26 : AIR 2024 SC 667

Value Added Tax Act, 2004 (Delhi); Section 38(3) & 42 – Timeline for refund – As per Section 38(3)(a)(ii), the refund should have been processed within two months from when the returns were filed. Held, the language of Section 38(3) is mandatory and the department must adhere to the timeline stipulated therein. The appellant-department is not justified in retaining the refund amount beyond the stipulated period and then adjusting the refund amount against the amounts due under default notices that were issued subsequent to the refund period. The impugned judgment directing the refund of amounts along with interest as provided under Section 42 of the Act is affirmed. (Para 8, 9, 10 & 11) Commissioner of Trade and Taxes v. Femc Pratibha Joint Venture, 2024 LiveLaw (SC) 348 : AIR 2024 SC 2537

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

Transfer of Property Act, 1882

Section 41 – Doctrine of transfer by Ostensible owner – Bonafide purchaser for valuable Consideration – Held, once it has been held that the transactions executed by the respondents are illegal due to the doctrine of lis pendens the defence of the respondents that they are bonafide purchasers for valuable consideration and thus, entitled to protection under Section 41 is liable to be rejected. The Release Deed is held to be without any legal sanctity. (Para 21, 24) Chander Bhan v. Mukhtiar Singh, 2024 LiveLaw (SC) 347 : AIR 2024 SC 2267

Section 52 – Doctrine of lis pendens – Object – The object underlying the doctrine of lis pendens is for maintaining status quo that cannot be affected by an act of any party in a pending litigation. The objective is also to prevent multiple proceedings by parties in different forums. The principle is based on equity and good conscience. (Para 16) Chander Bhan v. Mukhtiar Singh, 2024 LiveLaw (SC) 347 : AIR 2024 SC 2267

Section 52 – Doctrine of lis pendens – Pendency of a suit shall be deemed to have commenced from the date on which the plaintiff presents the suit and extends till a final decree is passed and is realised. The appellant filed a suit for permanent injunction on 21.07.2003 from which the doctrine of lis pendens would take its effect. The release deed executed is of 28.07.2003, which is subsequent to the filing of the suit. Since the release deed is executed after the suit for temporary injunction was filed by the appellant, the alienation made by release deed would be covered by the doctrine of lis pendens. (Para 18, 19, 20) Chander Bhan v. Mukhtiar Singh, 2024 LiveLaw (SC) 347 : AIR 2024 SC 2267

Section 52 – Doctrine of lis pendens – Applicability States of Punjab, Delhi or Bombay – Held, even if Section 52 of T.P Act is not applicable in its strict sense in the present case, the principles of lis-pendens, which are based on justice, equity and good conscience, would certainly be applicable. (Para 17) Chander Bhan v. Mukhtiar Singh, 2024 LiveLaw (SC) 347 : AIR 2024 SC 2267

Waqf Act, 1995

The original jurisdiction to decide the issue pertaining to Mutawalliship vests with the Waqf board and not the Waqf Tribunal. S V Cheriyakoya Thangal v. S.V P Pookoya, 2024 LiveLaw (SC) 309

Wildlife Protection Act, 1972

Section 33(a) & 38V(4) – Tiger Safari permissible in buffer zone – Although it will not be permissible to establish a 'Tiger Safari' in a core or critical tiger habitat area without obtaining the prior approval of the National Board, such an activity would be permissible in the buffer or peripheral area. (Para 101) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 198 : AIR 2024 SC 1955

NTCA guidelines 2012, 2016 & 2019 and Wildlife Protection Act, 1972; Chapter IVB – Validity and purpose of the guidelines – NTCA issued Guidelines in 2012, 2016 & 2019 for establishment of 'Tiger Safaris' in the buffer and fringe areas of tiger reserves. There is no infirmity in the 2012 & 2016 Guidelines for establishing the 'Tiger Safaris' in the buffer and fringe areas and emphasizing on the rehabilitation of injured tigers (after suitable treatment), conflict tigers, and orphaned tiger cubs which are unfit for rewilding and release into the wild. However, the 2019 Guidelines, departing from the aforesaid purpose, provide for sourcing of animals from zoos in the Tiger Safaris which is contrary to the purpose of Tiger Conservation. Similarly, as per the 2019 guidelines, vesting of final authority for selection in the CZA and not in the NTCA, is not in tune with the emphasis on tiger conservation as provided under Chapter IVB of the WLP Act. Since undertaking of establishment of such a 'Tiger Safari' would be basically for the 'in-situ' conservation and protection of the tiger, it is the NTCA that shall have the final authority. A 'safari' can be established only for the purposes specified in clause 9 of the 2016 Guidelines and not as per the 2019 Guidelines. (Para 100 & 103) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 198 : AIR 2024 SC 1955

NTCA Guidelines, 2016; Clause 10 – Location of Tiger Safari – Clause 10 requires recommendations of the Committee comprising of the members from NTCA, CZA, Forest Department of concerned State, an experienced tiger biologist/scientist/conservationist, and a representative, nominated by the Chief Wildlife Warden of the concerned State. Technically there is non-compliance with the requirement of clause 10 as such committee was not constituted for the purpose of determining the location of the 'Tiger Safari' at Pakhrau. However, since most of the authorities mentioned therein have participated in the decision and the concerned authorities, who have expertise in the matter, have approved establishment of 'Tiger Safari' at Pakhrau, the decision requires no interference. Held, the provisions of the 2016 Guidelines are scrupulously followed. (Para 111 & 112) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 198 : AIR 2024 SC 1955