Supreme Court Monthly Digest: September 2021 [Citation LL 2021 SC 409 To LL 2021 SC 524]

1. Principle Of Equal Pay For Equal Work Cannot Be Applied Merely On Basis Of Designation

[Case: Union of India v. Manoj Kumar; Citation: LL 2021 SC 409]

The Supreme Court has observed that the principle of equal pay for equal work cannot be applied merely on basis of designation. In this case, the court had to examine the claims made by Private Secretaries (Grade-II) ("PS-II") employed in the Eastern Central Railways (Field Office/Zonal Railways),for parity in pay with their counterparts working in the Central Secretariat Stenographers Service ("CSSS")/Railway Board Secretariat Stenographers Service ("RBSSS")/Central Administrative Tribunal ("CAT"). Interpreting the Sixth Central Pay Commission report, the Court noticed that the aspect of disparity between the Secretariat and the field offices was a matter taken note of by the Commission itself while making the recommendations.

A Bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy observed, "we are fortified in the view we are seeking to adopt in interpreting the aforesaid paragraphs of the Pay Commission by the observations in Union of India v. Tarit Ranjan Das, where it was opined that the principle of equal pay for equal work cannot be applied merely on basis of designation. While dealing with the 5th Pay Commission recommendations with respect to functional requirements, it was held that there was no question of any equivalence on that basis. The said case dealt with Stenographers of the Geological Survey of India. While observing that as a general statement it was correct to state that the basic nature of work of a Stenographer remained by and large the same whether they were working for an officer in the Secretariat or for an officer in a subordinate office; it was held that Courts ought not to interfere if the Commission itself had considered all aspects and after due consideration opined that absolute equality ought not to be given."

2. Supreme Court Reduces Sentence To Period Already Undergone As Man Convicted U/s 498A IPC Agrees To Pay Compensation To His Wife & Children

[Case: Samaul SK v. State of Jharkhand; Citation: LL 2021 SC 410]

The Supreme Court has reduced sentence awarded to a man convicted under section 498A of IPC to period already undergone after he agreed to pay compensation to his wife and children. The object of any criminal jurisprudence is reformative in character and to take care of the victim, the bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed. In this case, the second wife of the accused filed a complaint under Section 498A IPC alleging mental and physical torture and demands of dowry by the accused. The Trial Court held him guilty and sentenced to three years of rigorous imprisonment with a fine of Rs.10,000/-. The First Appellate Court dismissed the appeal filed by him and later the revision petition filed by him was also dismissed by the High Court. Before the Apex Court, the man said he was willing to pay compensation of Rs.3.00 lakhs the wife and the children and requested for about six months' time to raise the money.

"It is towards this objective that Section 357 of the Code of Criminal Procedure is enacted in the statute. The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case, it is one of voluntarily offering the amount albeit to seek a reduction of sentence", the Court noted. Taking note of the fact that the accused has now undergone about seven months of sentence, the bench reduced the sentence to the period undergone in case he pays a sum of Rs.3.00 lakh as compensation.

3. Second Appeal- Question Of Law Doesn't Arise In Abstract; Mere Reference To Facts Does Not Amount To Reappreciation Of Evidence

[Case: Balasubramanian v. M. Arockiasamy (dead); Citation: LL 2021 SC 411]

The Supreme Court has observed that merely because the High Court, while considering a second appeal, refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been re-appreciated. Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula, the bench of Chief Justice of India NV Ramana, Justices AS Bopanna and Hrishikesh Roy said.

In this case, the plaintiff filed a suit seeking the relief of perpetual injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property. The Trial Court held that the plaintiff failed to prove possession over the suit schedule property and thus dismissed the suit. The First appellate court reversed these findings and decreed the suit. In second appeal filed by the defendant, the High Court restored the Trial Court order dismissing the suit. In appeal before the Supreme Court, the plaintiff contended that the High court had indulged in re-appreciation of the evidence which is impermissible at second appeal stage.

"Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula. Therefore, merely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated. As already noted, the divergent view of the courts below on the same set of facts was available before the High Court", the bench observed.

4. Repeat Of OBC Reservation In Mayor Post Before SC Reservation Not Violation Of Rotation Policy As Per Maharashtra Act

[Case: Sanjay Ramdas Patil v. Sanjay and Others; Citation: LL 2021 SC 412]

The Supreme Court has set aside a judgment delivered by the Bombay High Court (Aurangabad Bench) which had quashed a notification issued by the Maharashtra Government to reserve the post of Mayor in Dhule Municipal Corporation to candidate belonging to Other Backward Class (OBC) category. The High Court, in its judgment delivered on May 7 this year, had observed that the OBC reservation was repeated for the second term without providing reservation for Scheduled Caste and hence it violation the policy of rotation.

Disagreeing with the High Court's opinion, the Bench comprising Justices L Nageswara Rao and BR Gavai observed that given the number of municipal corporations in the State of Maharashtra, it was possible that there will be repeat of OBC reservation in Mayor post even before the turn for SC reservation occurs, and this by itself cannot be termed as violation of rotation policy as per the Maharashtra law. The Supreme Court said that the High Court's view that until reservation is provided to each category by rotation same reservation cannot be applied twice was untenable. "... taking into consideration the fact that the number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of Citizens, they are 7 i.e. more than twice, it is quite probable that the post of Mayor could be reserved for two earlier terms for Backward Class of Citizens and whereas no reservation is provided for Scheduled Castes", the Court observed.

5. Repeated Inquiries For Verification Of Caste Certificate Detrimental To SC-ST Members

[Case: J. Chitra v. District Collector and Chairman State Level Vigilance Committee; Citation: LL 2021 SC 413]

Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes, the Supreme Court has observed. The bench of Justices L. Nageswara Rao and Aniruddha Bose said that the purpose of verification of caste certificates by Scrutiny Committees is to avoid false and bogus claims and reopening of inquiry can be only in case they are vitiated by fraud or when they were issued without proper inquiry. In this case, one J. Chitra had filed a Writ Petition before the High court challenging the order passed by the Chennai District Vigilance Committee cancelling the community certificate. The High Court refused to interfere with the order passed by the committee.

In appeal, the Supreme Court noted that an inquiry was conducted by the District Level Vigilance Committee which upheld the community certificate in her favour and that was not challenged in any forum. The recognition of the community certificate issued in favour of the Appellant by the District Vigilance Committee having become final, the State Level Scrutiny Committee did not have jurisdiction to reopen the matter and remand for fresh consideration by the District Level Vigilance Committee, the court said. "The purpose of verification of caste certificates by Scrutiny Committees is to avoid false and bogus claims. Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes. Reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry", the bench further observed.

6. Employee Not Estopped From Challenging Terms & Conditions Of Employment If It Violates Statutory Requirement

[Case: Somesh Thapliyal v. Vice Chancellor, H.N.B. Garhwal University; Citation: LL 2021 SC 414]

The Supreme Court has observed that employee is not estopped from questioning terms and condition of employment at a stage where he finds himself aggrieved. "It is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved", the bench of Justices Uday Umesh Lalit and Ajay Rastogi has observed.

In this case, the teachers who were substantively appointed after going through the process of selection provided under the Uttar Pradesh State Universities Act, had challenged the arbitrary conditions of the letter of appointment restricting it to be on contract basis limited for a period of three years in contravention to the statutory scheme of the Act. They filed a writ petition seeking a declaration that they are substantively appointed teachers(Associate Professor/Assistant Professor) and members of service of the Central University HNB Garhwal University for all practical purposes, entitled for a pay scale and notional consequential benefits admissible to a regularly appointed teacher in the service of the Central University under the Act. 

The bench observed that it is not open for a person appointed in public employment to ordinary choose the terms and conditions of which he is required to served. "It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself.. The bargaining power is vested with the employer itself and the employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved", the court further said.

7. Conditions To Attract Presumption As To Abetment Of Suicide By Married Woman U/s 113A Evidence Act

[Case: Gumansinh @ Raju Bhikhabhai Chauhan v. State Of Gujarat; Citation: LL 2021 SC 415]

The Supreme Court has observed that to attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled- 1) The woman has committed suicide 2) Such suicide has been committed within a period of seven years from the date of her marriage 3) The charged-accused had subjected her to cruelty. If all the three conditions stand fulfilled, presumption can be drawn against the accused and if he could not rebut the presumption by leading evidence, he can be convicted, the bench comprising Justices S. Abdul Nazeer and Krishna Murari has observed.

The prosecution case against the accused was that his wife committed suicide by consuming poison at her matrimonial home for the sole reason that she was unable to bear the continuous mental and physical cruelty meted out to her by him and his relatives. This happened within a short span of eight months of marriage. The Trial Court convicted the accused under Section 498A (Cruelty) and 306 (Abetment to suicide) of Indian Penal Code. The conviction was upheld by the High court. The Supreme Court upheld the conviction by observing, "Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption exists. Admittedly the appellants have led no evidence to rebut the presumption."

8. Magistrate While Accepting Chargesheet Has To Invariably Issue Summons And Not Arrest Warrant

[Case: Aman Preet Singh v. CBI; Citation: LL 2021 SC 416]

The Supreme Court has observed that, while accepting charge-sheet, the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. The bench comprising Justices Sanjay Kishan Kaul and M Sundresh also observed that, if an accused in a non-bailable offence has been enlarged and free for many years and has not even been arrested during investigation, it would be contrary to the governing principles for grant of bail to suddenly direct his arrest merely because charge sheet has been filed. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him, the Court further observed.

In the instant case, the Chief Judicial Magistrate (CBI), Bhubaneshwar, in his order, observed that since the accused persons had been charge sheeted for Economic offences, it was appropriate to issue non-bailable warrants of arrest against the accused. Placing reliance on directions issued by the Delhi High Court in Court on its own Motion v. Central Bureau of Investigation, the Court observed, "Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) 8 of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this"

9. 'Well Established Process With Sufficient Safeguards Exists For Judges Appointment' : Supreme Court Dismisses Plea Challenging Collegium Proposal For HC Judgeship With Rs 5 Lakh Costs

[Case: B. Sailesh Saxena v. Union of India; Citation: LL 2021 SC 417]

Sufficient safeguards exist in the system, the Supreme Court has said while it dismissed a lawyer's plea against proposal to appoint a judicial officer as a judge of the High Court for the State of Telangana. Advocate B. Sailesh Saxena filed a writ petition seeking a direction to consider the representation submitted by him in this regard. The bench of Justices Sanjay Kishan Kaul and MM Sundresh observed that this writ petition is a gross abuse of law filed to harass the concerned judicial officer and for abusing the court proceedings. Therefore, costs of Rs. 5 lakhs was imposed.

"The process of appointment of judges to the High Court is under a well known established process where the collegium of the High Court considers recommending the names and in case of judicial officers by seniority and on merits. Thereafter, the proposed IB inputs and other inputs are obtained and the Government processes the names. The collegium of the Supreme Court has the benefit of all the material before taking a call on whether to recommend the name or not. The appointment takes place thereafter by issuance of warrants of appointment. Thus sufficient safeguards exist in the system", the bench observed. Referring to the background facts, the bench noted that, the judicial officer had in the capacity as the then Registrar (Judicial) filed complaint against the lawyer, following the direction passed by the High Court and this is the real reason for him to file this writ petition.

Saxena had allegedly filed the writ petitions in the names of fictitious persons and taking note of this the High court had directed the Registrar to file complaints against him. "We also think it appropriate that the Bar Council of Telangana examines the conduct of the petitioner as a member of the "Noble Profession" and for that purpose a copy of the order be sent to the Bar Council of Telangana", the bench added.

10. Presiding Deity Is Owner Of Land Attached To Temple, Not Pujari: Supreme Court Upholds MP Govt. Circulars

[Case: State of Madhya Pradesh v. Pujari Utthan Avam Kalyan Samiti; Citation: LL 2021 SC 418]

Presiding deity of the temple is the owner of the land attached to the temple and Pujari is only to perform puja and to maintain the properties of the deity, the Supreme Court has observed while upholding the circulars issued by the Madhya Pradesh Government to delete the names of Pujari from revenue record pertaining to temple properties. These circulars issued by the Government under M.P. Land Revenue Code, 1959, were earlier quashed by the Madhya Pradesh High Court. In appeal, the state contended that such executive instructions were issued so to protect the temple properties from unauthorized sale by the Pujaris. On the other hand, the Pujaris contended that they have been conferred Bhumiswami (ownership) rights and that cannot be taken away by executive instructions Thus the issue considered was whether a priest can be treated as Bhumiswami under the Revenue Code.

"The Law is clear on the distinction that the Pujari is not a Kashtkar Mourushi, i.e., tenant in cultivation or a government lessee or an ordinary tenant of the maufi lands but holds such land on behalf of the Aukaf Department for the purpose of management. The Pujari is only a grantee to manage the property of the deity and such grant can be reassumed if the Pujari fails to do the task assigned to him, i.e., to offer prayers and manage the land. He cannot be thus treated as a Bhumiswami", the bench of Justices Hemant Gupta and AS Bopanna said referring to earlier judgments including its 'Ayodhya' judgment. Allowing the appeal, the court clarified that the name of the Collector as manager cannot be recorded in respect of property vested in the deity as the Collector cannot be a manager of all temples unless it is a temple vested with the State.

11. Rule Or Law Cannot Be Construed As Retrospective Unless It Expresses A Clear Or Manifest Intention To The Contrary

[Case: Assistant Excise Commissioner, Kottayam v. Esthappan Cherian; Citation: LL 2021 SC 419]

The Supreme Court has observed that a rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention to the contrary. In the absence of express statutory authorization, delegated legislation in the form of rules or regulations, cannot operate retrospectively, the bench of Justices L. Nageswara Rao and S. Ravindra Bhat observed. In this case, the High Court of Kerala, relying on an earlier judgment in Lucka v State of Kerala, held that the amended Rule 13 of Abkari Shops Departmental Management Rules, 1972, is inapplicable to contracts awarded or entered into before the amendment came into force. The Rule provided that the Departmental Management fee collected from a shop while it was under Departmental Management due to default of payment of security, kist, excise duty etc., shall be liable to forfeiture. The High Court had allowed a writ petition filed by a liquor licencee challenging a demand in respect of a certain amount towards the balance sought to be recovered after a country liquor license was cancelled.

In appeal, the Apex Court bench noted that there is no indication that Rule 13 applied retrospectively and that retrospectivity cannot be presumed, unless there is clear intention in the new rule or amendment. "There is profusion of judicial authority on the proposition that a rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention, to the contrary...Another equally important principle applies: in the absence of express statutory authorization, delegated legislation in the form of rules or regulations, cannot operate retrospectively", the Court observed.

12. Adjudicatory Function Of National Green Tribunal Cannot Be Assigned To Expert Committees

[Case: Sanghar Zuber Ismail v. Ministry of Environment, Forests and Climate Change; Citation: LL 2021 SC 420]

The Supreme Court has observed that adjudicatory function of the National Green Tribunal cannot be assigned to committees. "The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal", the bench of Justices DY Chandrachud, MR Shah and Hima Kohli observed. In this case, an appeal before the NGT challenged grant of environmental clearance to a project proponent for the expansion of the capacity of its refinery situated in the petrochemical complex at Vadinar, District Devbhumi Dwarka, Gujarat. The main ground of challenge was that the expansion was likely to cause an adverse impact on the marine environment, both in terms of the mangroves and marine biology. While disposing of the appeal, the NGT recorded the submission of the project proponent that all the EC conditions would be duly complied with and due mitigation measures would be taken to ensure the safety of mangroves and marine environment. It also constituted a three member Committee and directed the project proponent to ensure that all necessary safeguards are adopted and EC conditions are duly complied with.

The bench observed that the NGT has not dealt with the substantive grounds of challenge in the exercise of its appellate jurisdiction. "Constitution of an expert committee does not absolve the NGT of its duty to adjudicate. The adjudicatory function of the NGT cannot be assigned to committees, even expert committees. The decision has to be that of the NGT. The NGT has been constituted as an expert adjudicatory authority under an Act of Parliament. The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal", the Court said while allowing the appeal and directing the NGT to reconsider the appeal afresh.

13. Difference Between 'Royalty' & 'Tax' : Supreme Court Explains

[Case: M/s INDSIL Hydro Power and Manganese Ltd v. State of Kerala and others; Citation: LL 2021 SC 421]

The Supreme Court has explained the differences between the concepts of 'royalty' and 'tax' in a recent decision. A division bench comprising Justices UU Lalit and Vineet Saran observed that 'Royalty' has its basis in an agreement entered into between parties and has a nexus with the benefit or privilege conferred on a grantee. Tax is imposed under a statutory power without reference to any special benefit conferred on the payer of the tax. The judgment authored by Justice Lalit stated : "...the expression 'Royalty' has consistently been construed to be compensation paid for rights and privileges enjoyed by the grantee and normally has its genesis in the agreement entered into between the grantor and the grantee. As against tax which is imposed under a statutory power without reference to any special benefit to be conferred on the payer of the tax, the royalty would be in terms of the agreement between the parties and normally has direct relationship with the benefit or privilege conferred upon the grantee".

The Court made these observations while deciding a dispute raised by two companies from Kerala against the demand of royalty made by the Kerala State Electricity Board for allowing the companies to use the water released from hydel power plants to generate electricity for their own use. The companies had approached the Supreme Court appealing against the judgments of the Kerala High Court which rejected their claims.

14. What The Court Says, And How It Says It, Is Equally Important As What It Decides': Supreme Court Explains Purpose & Importance Of Judgment

[Case: Shakuntala Shukla v. State of Uttar Pradesh; Citation: LL 2021 SC 422]

The Supreme Court, while setting aside a High Court order that granted bail to a murder accused, explained the 'importance of judgment; purpose of judgment and what should be contained in the judgment'. The Court said that a judgment should have a clarity, both on facts and law and on submissions, findings, reasoning's and the ultimate relief granted. What the court says, and how it says it, is equally important as what the court decides, the bench of Justices DY Chandrachud and MR Shah observed. The observations have been made while allowing an appeal filed by widow of deceased against the Allahabad High Court order granting bail pending appeal to murder accused.

"The judgment replicates the individuality of the judge and therefore it is indispensable that it should be written with care and caution. The reasoning in the judgment should be intelligible and logical. Clarity and precision should be the goal. All conclusions should be supported by reasons duly recorded. The findings and directions should be precise and specific. Writing judgments is an art, though it involves skilful application of law and logic. We are conscious of the fact that the judges may be overburdened with the pending cases and the arrears, but at the same time, quality can never be sacrificed for quantity. Unless judgment is not in a precise manner, it would not have a sweeping impact. There are some judgments that eventually get overruled because of lack of clarity. Therefore, whenever a judgment is written, it should have clarity on facts; on submissions made on behalf of the rival parties; discussion on law points and thereafter reasoning and thereafter the ultimate conclusion and the findings and thereafter the operative portion of the order", the Bench observed. 

15. Suit Simpliciter For Injunction Without Claiming Declaration Of Title Not Maintainable If Plaintiff's Title Is Disputed

[Case: T.V. Ramakrishna Reddy v.  M. Mallappa; Kayalulla Parambath Moidu Haji v. Namboodiyil Vinodan; Citation: LL 2021 SC 423; LL 2021 SC 423A]

The Supreme Court has observed that a suit simpliciter for permanent injunction without claiming declaration of title is maintainable only in cases where the plaintiff's title is not in dispute or under a cloud. The bench of Justices L. Nageswara Rao and B.R. Gavai observed that if the matter involves complicated questions of fact and law relating to title, the court has to relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. In this case, the Trial Court filed a suit filed by plaintiff for grant of perpetual injunction against the defendants restraining them or anybody claiming through them from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. In appeal filed by the defendants, the Karnataka High Court set aside the decree, holding that, the suit simpliciter for permanent injunction without seeking a declaration of title was not tenable and as such. Therefore, the issue raised before the Apex Court was whether, in this case, the suit simpliciter for permanent injunction without claiming declaration of title, as filed by the plaintiff, was not maintainable.

"It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction", the Court said.

16. Fraudulent Practice To Gain Public Employment Cannot Be Countenanced: Supreme Court Upholds Termination Of 38 Workmen By BCCL

[Case: Employers In Relation To The Management Of Bhalgora Area v. Workmen; Citation: LL 2021 SC 424]

The Supreme Court has observed that fraudulent practice to gain public employment cannot be countenanced to be permitted by a Court of law. The sanctity of public employment, as a measure of social welfare and a significant source of social mobility, must be protected against such fraudulent process which manipulates and corrupts the selection process, the bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed. In this case, the Management of Bhalgora Area of M/s Bharat Coking Coal Limited terminated 38 workmen on the ground that they, in connivance with a Dealing Assistant and a Personnel Manager of the Bhalgora Area of BCCL, dishonestly secured appointments. Central Government Industrial Tribunal No.1 Dhanbad, answering the reference raised before it, concluded that the Management failed to substantiate the charge of manipulated appointment. The concerned workmen were directed to be reinstated with 50% back wages. Challenging this order, the management approached the High Court. The Single bench set aside the order of Tribunal. The Union approached the Division Bench by filing intra Court appeal. The Division Bench restored the Tribunal order.

"Fraudulent practice to gain public employment cannot be countenanced to be permitted by a Court of law. The workmen here, having hoodwinked the Government Undertaking in a fraudulent manner, must be prevented from enjoying the fruits of their illgotten advantage. The sanctity of public employment, as a measure of social welfare and a significant source of social mobility, must be protected against such fraudulent process which manipulates and corrupts the selection process. Employment schemes floated by the State for targeted groups, can absorb a finite number of workmen. To abuse the legitimate process therefore would mean deprivation of employment benefits to rightful beneficiaries. The Courts as sentinel of justice must strive to ensure that such employment programmes are not manipulated by deceitful middlemen, thereby setting up a parallel mechanism of Faustian Bargain. Often, desperate job aspirants' resort to such measures to compete for limited vacancies, but this Court cannot condone false projections so as to circumvent the statutorily prescribed procedure for appointments. Such illegal practices must be interdicted by the Courts", the Court said while allowing the appeal.

17. Medical Professionals Cannot Be Held Negligent Merely Because The Treatment Is Not Successful Or Patient Dies During Surgery

[Case: Dr. Harish Kumar Khurana v. Joginder Singh; Citation: LL 2021 SC 425]

The Supreme Court has observed that a medical professional cannot be held negligent merely because the treatment is not successful or the patient dies during surgery. To indicate negligence, the bench of Justices Hemant Gupta and AS Bopanna said, there should be material available on record or else appropriate medical evidence should be tendered. The court said that the principle of res ipsa loquitur (mere occurrence of some types of accident is sufficient to imply negligence) can be applied when the negligence alleged is so glaring and not based on perception. In this case, the claimant's wife, who was admitted in the Hospital after diagnosed with kidney stone, died after a surgery performed on her. Alleging medical negligence, the approached the National Consumer Disputes Redressal Commission. The NCDRC held the Doctor and Hospital guilty of medical negligence and has directed payment of Rupees Seventeen Lakhs only with interest as compensation. In appeal, the bench noted that in this case, apart from the allegations made by the claimants before the NCDRC, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors.

"It is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical Page 13 of 27 professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception. In the instant case, apart from the allegations made by the claimants before the NCDRC both in the complaint and in the affidavit filed in the proceedings, there is no other medical evidence tendered by the complainant to indicate negligence on the part of the doctors who, on their own behalf had explained their position relating to the medical process in their affidavit to explain there was no negligence", the Court observed. 

18. Supreme Court Upholds Dismissal Of A Title Suit Filed 54 Years Ago

[Case: Rakesh Bhushan Prasad Alias Rakesh Prasad v. Radha Devi; Citation: LL 2021 SC 426]

The Supreme Court, in a judgment upheld the dismissal of a 'Title' suit filed 54 years ago on 5th August 1967. "We find that the judgment of the trial court dismissing the suit is correct", the bench of Justices AM Khanwilkar and Sanjiv Khanna observed while setting aside the Patna High Court order and first appellate court order that had decreed the suit. The 'Title' suit in this case was filed before the court of Subordinate Judge, Sitamarhi, was dismissed by it on 31st May, 1986. The first appellate court, on 7th December, 1988, allowed the appeal preferred by plaintiffs and decreed the suit. The second appeal preferred by the legal heirs of the defendant was dismissed by a single Judge of the High Court on 25th May, 1989, by a short order recording that the findings of facts observed by the first appellate court were final finding of facts and no substantial question of law arose. They thus approached the Supreme Court, which observed that the High Court was not correct in dismissing the appeal in limine as there was a serious dispute concerning title of the land. Vide order dated 23rd February, 2000, the case was remanded for de novo consideration by the High Court. On 20th March, 2009, the High Court, after considering the matter afresh dismissed the second appeal. 

In appeal, the Apex Court bench considered whether the plaintiffs have established their title over the suit land and hence were entitled to a decree of possession against legal heirs of the deceased defendant. The High Court had that the plaintiffs had title over the suit land. Taking note of the evidence on record, the court found that the plaintiffs were not owners of the property on the date they had filed the present suit for title and possession on 5th August, 1967. Therefore, it set aside the judgments of first appellate court and High Court and upheld the dismissal of the suit by the Trial Court.

19. Railways Liable To Pay Compensation For Late Arrival Of Trains If Delay Is Not Explained Or Justifiable

[Case: Northern Western Railway and Another v. Sanjay Shukla; Citation: LL 2021 SC 427]

The Supreme Court has held that until and unless the railways provide evidence and explain the late arrival of a train to establish and prove that delay occurred because of the reasons beyond their control, they would be liable to pay compensation for such delay. "Therefore, unless and until the evidence is laid explaining the delay and it is established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains", a bench of Justice MR Shah and Justice Aniruddha Bose observed. 

With this view the Court, upheld the order passed by the National Consumer Disputes Redressal Commission, New Delhi whereby it had confirmed the original order passed by the District Consumer Disputes Redressal Forum, Alwar allowing the complaint filed by the respondent in the present matter and directing the Northern Western Railway to pay Rs. 15,000/- for taxi expenses, Rs.10,000/- towards booking expenses along with Rs. 5,000/- each towards mental agony and litigation expenses. The District Forum thus passed an order in favour of the respondent which came to be confirmed by the State Commission in an appeal and thereafter by the National Commission by the impugned judgment and order passed in the revision petition. In the facts and circumstances of the case and in the absence of any evidence led to explain the delay, the District Forum, the State Commission and the National Commission were held to have rightly observed that there was deficiency in service on part of railways for which they were liable to pay the compensation to the passenger.

20. Reinstatement Not Automatic In Cases Of Violation Of Retrenchment Conditions U/s 25F Industrial Disputes Act

[Case: Ranbir Singh v. Executive Eng PWD; Citation: LL 2021 SC 428]

The Supreme Court has observed that the reinstatement of terminated workmen cannot be automatic in cases of violation of retrenchment conditions under Section 25F of the Industrial Disputes Act, 1947. "We find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy", the bench of Justices KM Joseph and PS Narasimha observed in an appeal against a High Court Judgment which interfered with a Labour Court order to the extent it awarded reinstatement of a workman with 25 per cent back wages. 

Placing reliance on the judgment in Ajaypal Singh v. Haryana Warehousing Corporation, the Bench observed, "This Court, in fact, went on also to note that unlike a private body, in the case of a public body, while it may be open to resort to retrenchment of the workmen on the score that there is non-compliance of Articles 14 and 16 in the appointment, in which case, in the order terminating the services, this must be alluded to, it would still not absolve the public authority from complying with the provisions of Section 25F of the Act and, should it contravene Section 25F, it would amount to an unfair trade practice. We find that reinstatement cannot be automatic, and the transgression of Section 25F being established, suitable compensation would be the appropriate remedy", the Court added further. 

21. Director Of Enforcement Can Be Appointed For A Period Of More Than Two Years

[Case: Common Cause (A Registered Society) v. Union of India; Citation: LL 2021 SC 429]

The Supreme Court has held that a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed Section 25 of the Central Vigilance Commission Act, 2003. The bench of Justices L. Nageswara Rao and BR Gavai also upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years. It clarified that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases. The bench observed thus in its judgment refusing to interfere with the extension of tenure given to the Director of Enforcement Directorate Sanjay Kumar Mishra. Though the bench did not interfere with the extension of tenure, it observed that no further extension shall be granted to him. Mishra was appointed as Director of Enforcement for a period of two years from the date of his assumption of charge of the post. By an office order dated 13.11.2020, the President of India approved the modification of the order dated 19.11.2018, by amending the period of appointment from two years to three years. Challenging this order, the NGO Common cause contended that the extension of tenure to three years is contrary to Section 25 of the CVC Act. 

"Prescription of a minimum period of two years is to ensure that the Director of Enforcement is not transferred or shifted from the said post during the course of investigation of serious offences. There is no ambiguity in Section 25 (d) of CVC Act and the words 'not less than two years' simply mean a minimum of two years. There is no scope for reading the words to mean not more than two years. Reading such a restriction would be contrary to the recommendations of the Independent Review Committee and the judgment of this Court in Vineet Narain. Curtailment of the tenure of a Director Enforcement would be detrimental to the interests of officers who are appointed to the post and have service of more than two years before they attain the age of superannuation. Therefore, we hold that a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed under Section 25 of the CVC Act", the Court said.

22. Mutation Entry Does Not Confer Any Right, Title Or Interest In Favour Of Any Person

[Case: Jitendra Singh v. State of Madhya Pradesh; Citation:  LL 2021 SC 430]

The Supreme Court has observed that mutation entry in the revenue record is only for fiscal purposes and does not confer any right, title or interest in favour of a person. "If there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made", the bench of Justices MR Shah and Aniruddha Bose observed. 

In this case, the Additional Commissioner, Rewa Division, Rewa, directed to mutate the name of the petitioner in the revenue records, on the basis of the a will produced by him. The Madhya Pradesh High Court, in a petition filed by some parties, set aside the order and directed the petitioner to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998. The petitioner therefore filed Special Leave Petition before the Apex Court. Upholding the High Court judgment, the bench dismissed the Special Leave Petition.

23. Use Of Gauchar Land By State Or Any Third Party Contrary To What Is Permitted Cannot Go On

[Case: Rameshbhai Virabhai Chaudhari v The State of Gujarat; Citation: LL 2021 SC 431]

While directing the State of Gujarat to bring Gauchar Land (grazing land) of Village Bhandu in conformity with its use, the Supreme Court observed that use of gauchar land, whether by State of any third party, contrary to what was permitted could not go on. "It is trite to say that gauchar land can be used only for purposes for which it is permitted to be used. If there is a user contrary to the permissible user, whether by the State or by any third party, the same cannot go on," the division bench of Justice SK Kaul and Justice MM Sundresh observed. 

The Top Court granted the State three months time to take appropriate action of bringing the land in conformity with its use and directed the state to file a compliance report within two weeks thereafter. Noting that out of the 72 persons who were found to have made encroachment in the land, 3 persons in the scheduled caste category and 2 persons belonged to socially economically backward class were entitled to alternative accommodation, the bench said that rehabilitation of persons was not really required as only 3 persons were entitled to the alternative site as per rules.

24. Contravention Of A Statute Not Linked To Public Policy Or Public Interest Cannot Be A Ground To Set Aside An Arbitral Award

[Case: Delhi Airport Metro Express Pvt. Ltd. v. Delhi Metro Rail Corporation Ltd; Citation: LL 2021 SC 432]

The Supreme Court has observed that contravention of a statute which is not linked to public policy or public interest cannot be a ground to set aside an arbitration award. "There is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention and thereafter, dubbing the award to be vitiated by either perversity or patent illegality, apart from the other grounds available for annulment of the award", the bench of Justices L. Nageswara Rao and S. Ravindra Bhat observed. The Court examined the contours of the Court's power to review arbitral awards while allowing appeal against the judgment of Delhi High Court which had set aside the award passed by Arbitral Tribunal in favour of the Delhi Airport Metro Express Pvt. Ltd. The Court also allowed the appeal filed by DAMEPL setting aside the High Court judgment.

"Contravention of a statute not linked to public policy or public interest cannot be a ground to set at naught an arbitral award as being discordant with the fundamental policy of Indian law and neither can it be brought within the confines of 'patent illegality' as discussed above. In other words, contravention of a statute only if it is linked to public policy or public interest is cause for setting aside the award as being at odds with the fundamental policy of Indian law. If an arbitral award shocks the conscience of the court, it can be set aside as being in conflict with the most basic notions of justice. The ground of morality in this context has been interpreted by this Court to encompass awards involving elements of sexual morality, such as prostitution, or awards seeking to validate agreements which are not illegal but would not be enforced given the prevailing mores of the day", the Court observed. 

25. Second Appeal- High Courts Can Exercise Limited Factual Review Under Section 103 CPC

[Case: K.N. Nagarajappa v. H. Narasimha Reddy; Citation: LL 2021 SC 433]

The Supreme Court  has observed that High Courts are empowered to exercise limited factual review under Section 103 of the Code of Civil Procedure. The bench of Justices L. Nageswara Rao and S. Ravindra Bhat observed that the rule that sans a substantial question of law, the High Courts cannot interfere with findings of the lower Court or concurrent findings of fact, is subject to the following two important caveats. First, if the findings of fact are palpably perverse or outrage the conscience of the court; in other words, it flies on the face of logic that given the facts on the record, interference would be justified. Second, where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103 CPC. In this appeal, before the Apex Court against a High Court judgment allowing second appeal, the appellants contended that the High Court's jurisdiction is limited to examining only substantial questions of law. In this case, the court proceeded to appreciate the evidence, and differ with the findings of the first appellate court, which is the final court of facts, they contended.

"Undoubtedly, the jurisdiction which a High Court derives under Section 100 is based upon its framing of a substantial question of law. As a matter of law, it is axiomatic that the findings of the first appellate court are final. However, the rule that sans a substantial question of law, the High Courts cannot interfere with findings of the lower Court or concurrent findings of fact, is subject to two important caveats. The first is that, if the findings of fact are palpably perverse or outrage the conscience of the court; in other words, it flies on the face of logic that given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103 CPC", the Court observed. 

26. Magistrates Cannot Extend Time To Complete Investigation In UAPA Cases

[Case: Sadique v. State of Madhya Pradesh; Citation: LL 2021 SC 434]

The Supreme Court held that magistrates would not be competent to extend the time to complete investigations in UAPA cases. The only competent authority to consider such request would be "the Court" as specified in the proviso in Section 43-D (2)(b) of the UAPA, the bench of Justices Uday Umesh Lalit, S. Ravindra Bhat and Belam M Trivedi held. In this case, Chief Judicial Magistrate, Bhopal had granted extension sought in an application moved by the Investigating Machinery under Section 43-D(2)(b) of the UAPA. Also, the accused's application seeking bail on the ground that no charge-sheet was filed by the Investigating Agency within 90 days was dismissed. The High Court upheld these orders observing that since the CJM, Bhopal had passed an appropriate order, the period available for the Investigating Machinery to complete the investigation stood extended to 180 days and as such the applications preferred by the appellants under Section 167(2) of the Code were not maintainable.

"After considering various provisions of the relevant statues, it was concluded that "so far as all offences under the UAPA are concerned, the Magistrate's jurisdiction to extend time under the first proviso in Section 43-D (2)(b) is nonexistent". Consequently, in so far as "Extension of time to complete investigation" is concerned, the Magistrate would not be competent to consider the request and the only competent authority to consider such request would be "the Court" as specified in the proviso in Section 43-D (2)(b) of the UAPA", the Bench observed. Holding that the accused are entitled to default bail, the court allowed the appeal.

27. Government Should Keep Taxation System Convenient & Simple, Says Supreme Court

[Case: South Indian Bank Ltd. v. Commissioner of Income Tax; Citation: LL 2021 SC 435]

The Supreme Court has observed that it is the responsibility of the Government should endeavour to keep taxation regime convenient and simple. "Just as the Government does not wish for avoidance of tax equally it is the responsibility of the regime to design a tax system for which a subject can budget and plan", the bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed. The Court said that if proper balance is achieved between these, unnecessary litigation can be avoided without compromising on generation of revenue. The court was considering the appeals filed by various banks in which the issue raised was whether Section 14A of the Income Tax Act enables the Department to make disallowance on expenditure incurred for earning tax free income in cases where assesses do not maintain separate accounts for the investments and other expenditures incurred for earning the tax-free income. In this case, the Assessing Officer made proportionate disallowance of interest attributable to the funds invested to earn tax free income. The ITAT, allowing assessee's appeal, held that disallowance under Section 14A is not warranted, in absence of clear identity of funds. This was reversed by the Commissioner of Income Tax (Appeals) and later by the High Court and thus the assessee banks approached the Apex Court.

"Echoing what was said by the 18th century economist, it needs to be observed here that in taxation regime, there is no room for presumption and nothing can be taken to be implied. The tax an individual or a corporate is required to pay, is a matter of planning for a tax payer and the Government should endeavour to keep it convenient and simple to achieve maximization of compliance. Just as the Government does not wish for avoidance of tax equally it is the responsibility of the regime to design a tax system for which a subject can budget and plan. If proper balance is achieved between these, unnecessary litigation can be avoided without compromising on generation of revenue", the Bench further observed. 

Also Read: Income Tax Act - Disallowance Under Section 14A Can't Be Made Just Because Assessee Has Not Maintained Separate Accounts For Expenditures Incurred For Tax-Free Income

28. Delay In Conducting Disciplinary Enquiry Does Not Ipso Facto Vitiate It

[Case: State of Madhya Pradesh v. Akhilesh Jha; Citation: LL 2021 SC 436]

Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated, the Supreme Court observed. The bench of Justices D.Y. Chandrachud, Vikram Nath and Hima Kohli has observed that the prejudice caused by the delay must be demonstrated to have been caused and cannot be a matter of surmise. In this case, a departmental inquiry was initiated against a police officer who allegedly constituted, supervised and operated a gunda squad, after it was revealed that some members of such a squad arrested a person who later died in police custody. A magisterial enquiry was conducted into the custodial death and a report was submitted on 10 October 2014. On 8 June 2016, a departmental enquiry was convened against the officer and a charge-sheet was issued. Central Administrative Tribunal, on his application, quashed the chargesheet on the ground that there was a delay of nearly two years and that the charges were ambiguous. 

"Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry", the Court said. Allowing the appeal, the court said that since chargesheet was issued to the officer while he was in service, the disciplinary enquiry can proceed to its logical conclusion. It should be concluded expeditiously, preferably by 31 July 2022, the bench said.

29. In A Democratic Setup, The Will Of The Majority Has To Prevail

[Case: Sau. Sangeeta w/o Sunil Shinde v. The State of Maharashtra and others; Citation: LL 2021 SC 437]

The Supreme Court has observed in a judgment that "in a democratic set up, the will of the majority has to prevail". A bench comprising Justices L Nageswara Rao and BR Gavai made this observation in a case related to the approval of the group leader of a party in Panchayat Samiti elections. The Court was considering an appeal filed against a judgment of the Bombay High Court (Aurangabad Bench) which upheld the decision of District Collector, Ahmednagar, to grant approval to the selection of respondent no.3,Dr. Vandana Dnyaneshwar Murkute as Gatneta (Group Leader) of the Indian National Congress, Shrirampur Panchayat Samiti Party ('INCPS Party'). 

"As soon as such a person loses the confidence of the majority, he becomes unwanted. In a democratic set up, the will of the majority has to prevail", the Bench said. The Court observed that it was the appellant who has acted contrary to the wishes of the Party and chose to contest the election of the Chairman of the Panchayat Samiti with the support of the rival group. "We are amazed to hear the argument of horse trading from the mouth of the appellant. It is the appellant who has acted contrary to the wishes of the Party and chose to contest the election of the Chairman of the Panchayat Samiti with the support of the rival group. It is for anybody to guess as to who has indulged in horse trading", the judgment stated.

30. Writ Petition Can Be Entertained Only In Exceptional Circumstances When Alternate Remedy Is Available

[Case: Assistant Commissioner of State Tax v. Commercial Steel Limited; Citation: LL 2021 SC 438]

The Supreme Court has observed that, when an alternate remedy is available, a writ petition under Article 226 of the Constitution can be entertained by a High Court only in following exceptional circumstances: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. In this case, the Telangana High Court in the exercise of its writ jurisdiction under Article 226 of the Constitution set aside the action of the Assistant Commissioner of State Tax in collecting an amount of Rs 4,16,447 from a proprietary concern towards tax and penalty under the Central Goods and Services Tax Act 2017 (CGST) and State Goods and Services Tax Act (SGST).

In the present case, the court said that none of the above exceptions was established. "There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises", the bench of Justices DY Chandrachud, Vikram Nath and Hima Kohli said while allowing the appeal. 

31. Trees To Be Valued Separately When Acquired Land Value Is Determined With Reference To Sales Statistics

[Case: Bhupendra Ramdhan Pawar v. Vidarbha Irrigation Development Corporation; Citation: LL 2021 SC 439]

The Supreme Court has observed that the trees have to be valued separately in a case where the land value for the purpose of its acquisition is determined with reference to the sales statistics. In this case, the appellant's land was acquired under the proceedings initiated under Land Acquisition Act, 1894. Dissatisfied with the compensation awarded, he approached the High Court in appeal. His claim in respect of 100 mango trees at the rate of Rs. 1000/­ per tree was rejected by the High Court. 

The Bench of Justices Ajay Rastogi and Abhay S. Oka noted the following observations in Ambya Kalya Mhatre(Dead) v. State of Maharashtra, "If the land value had been determined with reference to the sale statistics or compensation awarded for a nearby vacant land, then necessarily, the trees will have to be valued separately. But if the value of the land has been determined on the basis of the sale statistics or compensation awarded for an orchard, that is land with fruit­-bearing trees, then there is no question of again adding the value of the trees. Further, if the market value has been determined by capitalising the income with reference to yield, then also the question of making any addition either for the land or for the trees separately does not arise. In this case, the determination of market value was not with reference to the yield. Nor was the determination of market value in regard to the land with reference to the value of any orchard but was with reference to vacant agricultural land. In the circumstances, the value of the trees could be added to the value of the land." In this case, the court noted, admittedly, for 2 hectares of land, compensation has not been awarded and it is not disputed that the land value has been determined with reference to sales statistics.

32. PC Act Is A Code By Itself- Bank Account Of A Person Accused of Prevention of Corruption Act Cannot Be Attached U/S 102 CrPC

[Case: Ratan Babulal Lath v. The State Of Karnataka; Citation: LL 2021 SC 440]

The Supreme Court has observed that bank account of a person accused under Prevention of Corruption Act cannot be attached invoking Section 102 of Code of Criminal Procedure. "It is not possible to sustain the freezing of the bank account of the appellant taking recourse to Section 102 Cr.P.C. as the Prevention of Corruption Act is a Code by itself", the bench of Justices Sanjay Kishan Kaul and MM Sundresh observed while allowing an appeal against a Karnataka High Court judgment. In this case, a charge sheet was filed against 14 accused persons alleging commission of offences punishable under Sections 13(1) (a) read with 13(2) of Prevention of Corruption Act 1988, Sections 420, 465, 468, 471, 120B r/w.34 of Indian Penal Code. They were accused of large scale fraud to the tune of Rs.56.37 crores was alleged to have been committed by the accused in connivance with the officials of Bruhat Bengaluru Mahanagara Palike (BBMP) as well as the private individuals. The Additional City Civil and Sessions Judge, Bengaluru dismissed the applications filed by the accused under Section 451 and 457 of Cr.P.C. seeking to defreeze the bank accounts frozen under Section 102 of Cr.P.C. Some of the accused challenged this order before the High Court on two grounds. One, that the allegations made in the charge sheet, on the face of it, indicate that neither the BBMP nor the State has sustained any loss in respect of the alleged transaction. Two, requisite formalities have not been followed by the investigating officer in effecting the seizure under section 102 of Cr.P.C. The High Court rejected both these contentions and upheld the order of the court below refusing to order de-freezing of the bank accounts.

Before the Apex Court, the sole issue raised was whether the attachment of bank account of the appellant is sustainable in exercise of powers under Section 102 Cr.P.C? "Be that as it may, on that account, it is not possible to sustain the freezing of the bank account of the appellant taking recourse to Section 102 Cr.P.C. as the Prevention of Corruption Act is a Code by itself. In view of the aforesaid position, the freezing of the account of the appellant cannot be sustained and is, accordingly, set aside", the Court said allowing the appeal. 

33. Consumer Complaints Alleging Deficiency In Service Related To Transfer Of Title Of Immovable Property Not Maintainable

[Case: Estate Officer v. Charanjit Kaur; Citation: LL 2021 SC 441]

The Supreme Court has observed that consumer complaints on the ground of deficiency in service related to transfer of title of the immovable property is not maintainable. The expression 'service' includes housing construction and not allotment of a site or a plot, the bench of Justices Hemant Gupta and A.S.Bopanna observed. In this case, the complainant before District Consumer Forum sought conversion of a Plot allotted by Chandigarh administration from leasehold to freehold site on acceptance of the requisite conversion fee. The District Forum directed the Estate Officer under Chandigarh administration to convert the said plot from leasehold to freehold site on acceptance of requisite conversion fee and to pay an amount of Rs. 10,000/- as compensation for mental agony and physical harassment; and to also pay Rs.5,000/- as costs of litigation. This order was affirmed by State and National Consumer Disputes Redressal Commissions.

Before the Apex Court in appeal, the Estate Officer questioned the findings recorded by the NCDRC that the complainants are consumers as charges have been paid for conversion. It was contended that such a finding is not tenable for the reason that the charges deposited were not for any services to be rendered but to grant complete title to the allottees. The bench, agreeing with the said contention, noted that expression 'service' includes housing construction and not allotment of a site or a plot. It observed : "In terms of Section 14(e) of the Consumer Act, the District Forum can inter-alia direct removal of deficiency in the services. The deficiency in service however does not include the transfer of title in favour of the allottee who was earlier granted leasehold rights. As noted above, appellant is not providing any services within the meaning of Section 2(o) of the Consumer Act. The expression 'service' includes housing construction and not allotment of a site or a plot. Since the respondents are already in possession of the sites as lessee on 99 years basis, it cannot be said that the appellant was deficient in providing any service, which even if used in a liberal sense would not include transfer of title in an immovable property. Thus, the consumer fora under the Act would not have jurisdiction to entertain the consumer complaints on the ground of deficiency in service related to transfer of title of the immovable property."

Also Read: Typical Case Of 'You Show Me Face, I Will Show The Rule': Supreme Court Pulls Up Chandigarh Estate Officers For Harassing Residents

34. Compassionate Appointment - Policy Prevailing At The Time When Employee Died/Application Was Made Is Only To Be Considered

[Case: Seema Kausar v. The State Of Maharashtra & Ors; Citation: LL 2021 SC 442]

The Supreme Court on September 6, 2021 while upholding Bombay High Court's order of rejecting compassionate appointment, observed that it can be made only as per the Government's policy, and only in case where eligibility criteria under the Scheme has been satisfied. Dismissing the special leave petition, the bench of Justices MR Shah and Aniruddha Bose also observed that, "It also cannot be disputed that the policy which was prevailing at the time when the deceased employee died/the application was made only is required to be considered."

In the instant case, petitioner's (Seema Kausar) father Mohammed Nasiruddin was working as an Assistant Teacher from June 1, 1988 in a school run by Urdu Education Society. He died on July 7, 2013, due to heart attack. Upon petitioner's mother's and siblings' consent, the petitioner sought a compassionate appointment for the post of Assistant Primary Teacher since the same was vacant, by approaching the High Court. Kausar's petition was opposed by the Urdu Education Society on the ground that compassionate appointments could not be made when the family was having sufficient sources of income. The Bombay High Court while taking note of the fact that the compassionate appointments were governed by the Government Resolution dated December 31, 2002 and Schedule A of the Resolution disclosed the rules for such appointments, dismissed the writ on the ground that the family was financially sound and that petitioner as per the Rules was ineligible for being appointed on compassionate ground. 

35. Writ Court Cannot Adjudicate Factual Disputes Arising Out Of Pure Contractual Matters Having No Statutory Flavour

[Case: Union of India v. M/s Puna Hinda; Citation: LL 2021 SC 443]

The Supreme Court has observed that writ court cannot adjudicate factual disputes arising out of pure contractual matters in the field of private law having no statutory flavour. In this case, the bid of the writ petitioner was accepted for construction and improvement of road between Lumla and Tashigong under Special Accelerated Rural Development Programme (SARDP). The bills submitted by the petitioner was rejected by the authorities. He approached the High Court of Gauhati by filing a writ petition. The High Court allowing the writ petition directed the authority to approve the Detailed Project Report and pay the pending bills on the basis of Final Joint Survey/Measurement Report. 

In appeal, one of the contentions raised was that there are serious disputes about the facts in respect of authenticity of the Joint Final Report and the work done. Such disputed question of facts could not have been adjudicated by the Writ Court as disputed question of facts relating to recovery of money could not have been entertained, the centre contended. Agreeing with the said contention, the bench noted that, in this case, the dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. "Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized", the bench of Justices Hemant Gupta and AS Bopanna said while allowing the appeal. 

36. Employee Cannot Insist On Transfer To A Particular Place; It's For Employer To Decide

[Case: Namrata Verma v. State of UP; Citation: LL 2021 SC 444]

The Supreme Court on September 6, 2021 has observed that it was not for the employee to insist the transfer or non-transfer to a particular place but it was for the employer to do the same considering the requirement. The observations were made by the division bench of Justices MR Shah and Aniruddha Bose while dismissing the special leave petition assailing Allahabad High Court's order of refusing to interfere with the petitioner's representation that rejected transfer to another college. "It is not for the employee to insist on transferring him/her and/or not to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement," the bench had observed.

The petitioner was working as a Lecturer (Psychology) at Rajkiya Mahavidyalaya, Amroha and was represented for her transfer to a Post Graduate College, Noida. Her representation was rejected on September 14, 2017, which the petitioner challenged before the High Court. The petitioner's counsel had submitted that she was working at Amroha for the last 4 years and was therefore entitled for a transfer under the Government policy. 

37. Requirement To Frame Substantial Question Of Law In Second Appeal Not A Mere Formality, But Meant To Be Adhered To

[Case: Singaram v. Ramanathan; Citation: LL 2021 SC 445]

The Supreme Court has observed that the requirement to frame substantial question of law in a second appeal is not a mere formality, but is meant to be adhered to. The limitation on the exercise of power by the High Court in the Second Appeal interfering with the judgment of the First Appellate Court is premised on high public policy, the bench of Justices KM Joseph and S. Ravindra Bhat observed. In this case, the plaintiff filed a suit to declare that he has easementary right through defendant's property. The suit was dismissed by the Trial Court and the First Appellate Court dismissed the appeal. The High Court, allowed the second appeal, and decreed the suit.

Perusing the judgment, the bench observed that the High Court has not framed any substantial question of law. In this regard, the bench observed: "The scheme of the Code of Civil Procedure accords finality to the findings of fact rendered by the First Appellate Court. This is undoubtedly subject to various well known exceptions which, however, cannot permit the Second Appellate Court to interfere with the findings of fact as a matter of course. Such restrictions are placed on the High Court in order that there is finality to litigation at a particular level in the hierarchy of Courts. The limitation on the exercise of power by the High Court in the Second Appeal interfering with the judgment of the First Appellate Court is premised on high public policy. This limitation is sought to be secured by insisting upon the requirement that a Second Appeal is considered only when there is a substantial question of law. Therefore, the existence of substantial question of law and the judgment which revolves around answering the substantial questions of law are not mere formalities. They are meant to be adhered to."

38. Refund For Unutilised Input Tax Credit Can't Be Claimed On Account Of Input Services: Supreme Court Upholds Validity Of Section 54(3) CGST Act

[Case: Union of India v. VKC Footsteps India Pvt Ltd; Citation: LL 2021 SC 446]

The Supreme Court has held that Section 54(3) of the Central Goods and Services Act excludes unutilised input tax credit that accumulated on account of input services. "When there is neither a constitutional guarantee nor a statutory entitlement to refund, the submission that goods and services must necessarily be treated at par on a matter of a refund of unutilized ITC cannot be accepted", the court observed while rejecting the challenge against Section 54(3) on the ground that it violates equality doctrine under Article 14 of the Constitution. The bench of Justices DY Chandrachud and MR Shah set aside the Gujarat High Court judgment which held that Rule 89(5) of Central Goods and Service Tax Rules, 2017, by restricting the refund only to input goods, had acted ultra vires Section 54(3) of the CGST Act. It approved a Madras High Court judgment which upheld the Rule.

"While the CGST Act defines the expression 'input' in Section 2(59) by bracketing it with goods other than capital goods, it is true that the plural expression 'inputs' has not been specifically defined. But there is no reason why the ordinary principle of construing the plural in the same plane as the singular should not be applied. To construe 'inputs' so as to include both input goods and input services would do violence to the provisions of Section 54(3) and would run contrary to the terms of Explanation-I which have been noted earlier. Consequently, it is not open to the Court to accept the argument of the assessee that in the process of construing Section 54(3) contextually, the Court should broaden the expression 'inputs' to cover both goods and services", the Bench further observed. 

Also Read: Practical Effect Might Result In Certain Inequities': Supreme Court Points Out Anomalies In GST Refund Formula; Urges GST Council To Reconsider 

39. NCLT/NCLAT Should Strictly Adhere To IBC Timelines; Delays Cause Commercial Uncertainty

[Case: Ebix Singapore Private Limited v. Committee of Creditors of Educomp Solutions Limited; Citation: LL 2021 SC 447]

The Supreme Court has urged NCLT/NCLAT, the adjudicating and appellate authorities under Insolvency and Bankruptcy Code, to strictly adhere to the timelines stipulated under the IBC and clear pending resolution plans forthwith. The court said that inordinate delays cause commercial uncertainty, degradation in the value of the Corporate Debtor and makes the insolvency process inefficient and expensive. The bench of Justices DY Chandrachud and MR Shah made these observations in the judgment viz. Ebix Singapore Private Limited v. Committee of Creditors of Educomp Solutions Limited in which it held that NCLT cannot permit modifications or withdrawals of CoC-approved Resolution Plans, at the behest of the successful Resolution Applicant, once the plan has been submitted to it. "It would also be sobering for us to recognize that whilst this Court has declared the position in law to not enable a withdrawal or modification to a successful Resolution Applicant after its submission to the Adjudicating Authority, long delays in approving the Resolution Plan by the Adjudicating Authority affect the subsequent implementation of the plan. These delays, if systemic and frequent, will have an undeniable impact on the commercial assessment that the parties undertake during the course of the negotiation", the court said while concluding the judgment.

"We urge the NCLT and NCLAT to be sensitive to the effect of such delays on the insolvency resolution process and be cognizant that adjournments hamper the efficacy of the judicial process. The NCLT and the NCLAT should endeavor, on a best effort basis, to strictly adhere to the timelines stipulated under the IBC and clear pending resolution plans forthwith. Judicial delay was one of the major reasons for the failure of the insolvency regime that was in effect prior to the IBC. We cannot let the present insolvency regime meet the same fate", the Bench observed further. 

40. Repeated Filing Of Cases & Complaints Against Spouse Can Amount To 'Cruelty' For Granting Divorce

[Case: Sivasankaran v. Santhimeenal; Citation: LL 2021 SC 448]

The Supreme Court has observed that repeated filing of cases and complaints against a spouse can amount to 'cruelty' for the purpose of granting divorce under Hindu Marriage Act. The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy, in a case, referred to such conducts, even if they were subsequent to filing of the divorce petition, to grant divorce to a 'husband' on the ground of irretrievable breakdown of marriage and the ground of cruelty. In this case, the 'wife' left the company of the 'husband' on the first day of marriage itself. As she refused his plea to live with him, the husband issued notice seeking divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. Later, the Trial Court, allowed his divorce petition, on the ground of irretrievable breakdown of marriage. The appellate court set aside the decree of divorce while allowing the petition filed by wife for restitution of conjugal rights. The High Court restored the decree of divorce, allowing the appeal filed by husband. The wife filed review petition inter alia on the ground that it was not within the jurisdiction of the High Court or the trial court to grant a decree of divorce on the ground of irretrievable breakdown of marriage. The same was allowed.

The court noticed that, after filing of divorce petition, the wife had (1) resorted to filing multiple cases in courts (2) approached the High Court to initiate disciplinary action against the husband, who was working as an Asst. Professor (3) made representations to the college authorities seeking initiation of disciplinary proceedings against him (4) sought information about her husband's remarriage or whether he was living with somebody else, well known to her, and the proceedings were found to be an abuse of the process of the RTI Act (5) lodged a criminal complaint against him under Section 494 IPC (6) complained to the his employer threatening to file a criminal complaint against him, etc. "These continuing acts of the respondent would amount to cruelty even if the same had not arisen as a cause prior to the institution of the petition, as was found by the Trial Court. This conduct shows disintegration of marital unity and thus disintegration of the marriage. In fact, there was no initial integration itself which would allow disintegration afterwards. The fact that there have been continued allegations and litigative proceedings and that can amount to cruelty is an aspect taken note of by this court", the court observed.

41. Compassionate Appointment: 'Divorced' Daughter Cannot Be Treated At Par With 'Widowed' Or 'Unmarried' Daughter

[Case: Director of Treasuries in Karnataka v. V. Somyashree; Citation: LL 2021 SC 449]

The Supreme Court has set aside a Karnataka High Court judgment that held that a divorced daughter would fall in the same class of an unmarried or widowed daughter for the purpose of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. The bench of Justices MR Shah and Aniruddha Bose reiterated that norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. In this case, the writ petitioner's mother was employed with the Government of Karnataka as Second Division Assistant at Mandya District Treasury. After she died, the writ petitioner filed an application for appointment on compassionate appointment. That was rejected on the ground that there is no provision provided under Rule 3(2)(ii) of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996 for divorced daughter. Later, the Karnataka High Court directed to consider the application. The High Court interpreted Rule 3 and observed that a divorced daughter would fall in the same class of an unmarried or widowed daughter and therefore, a divorced daughter has to be considered on par with 'unmarried' or 'widowed daughter'.

Placing reliance on the case of  N.C. Santhosh v. State of Karnataka, the Court observed, As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word 'divorced daughter' has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner – respondent herein made an application for appointment on compassionate ground the 'divorced daughter' were not eligible for appointment on compassionate ground and the 'divorced daughter' was not within the definition of 'dependent."

42. Judicial Discipline Demand To Respect Order Passed By Coordinate Bench: Supreme Court On Comments By Uttarakhand HC On Allahabad HC Order

[Case: Uttar Pradesh Jal Vidyut (S) Nigam Limited v. Balbir Singh; Citation: LL 2021 SC 450]

"Judicial discipline/propriety demand to respect the order passed by the Coordinate Bench", the Supreme Court observed while it set aside observations made by Uttarakhand High Court on an order passed by Allahabad High Court. In this case, a writ petition challenging an award passed by the labour court of Dehradun was filed before Allahabad High Court in the year 1997. Later state of Uttarakhand was formed in the year 2000 with Dehradun as its capital. In view of Section 35 of the Uttar Pradesh Reorganization Act, 2000, the proceedings pending before the High Court at Allahabad were required to be transferred to the High Court having jurisdiction, in the present case the High Court of Uttarakhand. However, this was not done and writ petition remained pending before the Allahabad High Court. When the matter came up for hearing (in the year 2014) before the Allahabad High Court, it observed that since the award has been passed by the Labour Court, Dehradun and therefore the jurisdiction does not lie with the High Court of Allahabad. Thus it permitted the petitioners to withdraw the writ petition with liberty to file fresh petition before the appropriate court i.e. High Court of Uttarakhand. Dismissing the writ petition filed before it, the Uttarakhand High Court observed that the power to transfer the case lie with the Chief Justice of the High Court of Allahabad and therefore the Coordinate Bench of Allahabad High Court was not justified in granting liberty to the writ petitioner to withdraw the writ petition with liberty to file fresh writ petition before the Uttarakhand High Court.

In appeal, the Apex Court bench of Justices MR Shah and Aniruddha Bose observed, "Even otherwise once a judicial order was passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before the appropriate court (the High Court of Uttarakhand) and thereafter when the appellants preferred the writ petition before the High Court of Uttarakhand, the learned Single Judge of the High Court of Uttarakhand is not at all justified in making comments upon the judicial order passed by the Coordinate Bench of the Allahabad High Court. The Single Judge of the High Court of Uttarakhand was not acting as an appellate court against the judicial order passed by the High Court of Allahabad permitting the appellants to withdraw the writ petition with liberty to file a writ petition before an appropriate court. Judicial discipline/propriety demand to respect the order passed by the Coordinate Bench and more particularly the judicial order passed by the Coordinate Bench of the High Court, in the present case the Allahabad High Court which as such was not under challenge before it. Therefore the observations made by the High Court of Uttarakhand in the impugned order on the judicial order passed by the learned Single Judge of Allahabad High Court permitting the appellants to withdraw the writ petition pending before it with liberty to file fresh writ petition before the appropriate court (the High Court of Uttarakhand) is absolutely unwarranted and is unsustainable."

43. Amicable Settlement' : Supreme Court Reduces Sentence Awarded To Man Convicted U/s 307 IPC For 'Attempt To Murder'

[Case: Sy. Azhar Sy. Kalandar v. State of Maharashtra; Citation: LL 2021 SC 451]

The Supreme Court has reduced the sentence awarded to a man accused of attempt to murder taking note of the amicable settlement between the accused and the victim. The bench of Justices Ajay Rastogi and Abhay S. Oka noted that in earlier judgments, the court has taken note of the compromise between the parties to reduce the sentence of the convicts even in serious non­-compoundable offences. In this case, the Trial Court had convicted the accused under Section 307 Indian Penal Code and directed him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-. This judgment was upheld the High Court dismissing the appeal. 

Before the Apex Court, a joint affidavit was filed in which the accused stated that he has apologized for his fault and has taken responsibility for his action and sought forgiveness from the victim. In return, the victim has also voluntarily accepted the apology while considering the age of the appellant at the time of the incident and has forgiven him and has come forward without any reservation to settle the dispute, the court noted. The bench observed: "The joint affidavit inspires confidence that the apology as tendered by the appellant has voluntarily been accepted given the efflux of time and is not a result of any coercion or inducement. Considering that they are residing in the same village and are peacefully residing after the uncalled for incident has taken place, in our view, this appears to be a fit case for reduction of sentence."

44. Sentence Of Life Imprisonment Means Rigorous Imprisonment For Life

[Case: Md. Alfaz Ali v State of Assam; Citation: LL 2021 SC 452]

The Supreme Court has reiterated that a sentence of imprisonment for life means rigorous imprisonment for life. A bench comprising Justices L Nageswara Rao and BR Gavai held so while disposing two special leave petitions, in which the court had issued a limited notice on the question of propriety of specifying rigorous imprisonment while imposing life sentence.

The bench noted that the issue has been settled in Naib Singh v. State of Punjab & Ors (1983) 2 SCC 454. "In view of the authoritative pronouncements of this Court on the issues that arise for consideration in these SLPs, there is no need to re-examine the limited point for which notice was issued", the bench observed while dismissing the SLPs.

45. NCLAT Has No Jurisdiction To Condone Delay Exceeding 15 Days From Period Of 30 Days, Contemplated U/s 61(2) IBC

[Case: National Spot Exchange Limited v. Anil Kohli; Citation: LL 2021 SC 453]

The Supreme Court observed that the National Company Law Appellate Tribunal (NCLAT) has no jurisdiction to condone the delay exceeding 15 days from the period of 30 days, as contemplated under Section 61(2) of the Insolvency and Bankruptcy Code. In this case, referring to sub-section (2) of Section 61 of the IBC which provides for powers to the Appellate Tribunal to condone the delay of only 15 days which it can condone over the period of 30 days, if there is a sufficient cause, the Appellate Tribunal dismissed an appeal. In this case, the appeal before the NCLAT was filed with a further delay of 44 days beyond a total period of 45 days.

The bench of Justices MR Shah and Aniruddha Bose, referring to the relevant provisions of IBC observed: "The appeal preferred before the NCLAT was under Section 61(2) of the IB Code. As per Section 61(2) of the IB Code, the appeal was required to be preferred within a period of thirty days. Therefore, the limitation period prescribed to prefer an appeal was 30 days. However, as per the proviso to Section 61(2) of the Code, the Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing the appeal, but such period shall not exceed 15 days. Therefore, the Appellate Tribunal has no jurisdiction at all to condone the delay exceeding 15 days from the period of 30 days, as contemplated under Section 61(2) of the IB Code."

46. Bar U/s 9(3) Arbitration Act Not Applicable If Application Was Taken Up By Court Before Constitution Of Arbitration Tribunal

[Case: Arcelor Mittal Nippon Steel India Ltd v. Essar Bulk Terminal Ltd; Citation: 2021 SC 454]

The Supreme Court has observed that the bar under Section 9(3) of the Arbitration and Conciliation Act operates only when the application under Section 9(1) had not been entertained till the constitution of the Arbitral Tribunal. "Once an Arbitral Tribunal is constituted the Court cannot take up an application under Section 9 for consideration, unless the remedy under Section 17 is inefficacious. However, once an application is entertained in the sense it is taken up for consideration, and the Court has applied its mind to the Court can certainly proceed to adjudicate the application", the bench comprising Justices Indira Banerjee and JK Maheshwari observed. The court added that when an application has already been taken up by the court for consideration and is in the process of consideration or has already been considered, the question of examining whether remedy under Section 17 is efficacious or not would not arise.

In this case, the Commercial Court heard the applications filed by parties under Section 9(1) of the Arbitration Act and reserved the same for orders on 7th June, 2021. On 9th July 2021, a three-member Arbitral Tribunal was appointed. Before the High Court, the jurisdiction of the Commercial Court to proceed with the applications was challenged. The High Court held that the Commercial Court has the power to consider whether the remedy under Section 17 of the Arbitration Act is inefficacious and pass necessary orders under Section 9 of the Act. "With the law as it stands today, the Arbitral Tribunal has the same power to grant interim relief as the Court and the remedy under Section 17 is as efficacious as the remedy under Section 9(1). There is, therefore, no reason why the Court should continue to take up applications for interim relief, once the Arbitral Tribunal is constituted and is in seisin of the dispute between the parties, unless there is some impediment in approaching the Arbitral Tribunal, or the interim relief sought cannot expeditiously be obtained from the Arbitral Tribunal", the Court added further. 

47. No Point In Persuading Them To Live Together : Supreme Court Dissolves An 'Emotionally Dead' Marriage Invoking Article 142 Powers

[Case: Subhransu Sarkar v. Indrani Sarkar; Citation: LL 2021 SC 455]

The marriage between the parties is emotionally dead and there is no point in persuading them to live together any more, the Supreme Court has remarked while it dissolved a marriage invoking its powers Article 142 of the Constitution. In this case, the husband had filed divorce petition on the ground of cruelty and desertion by wife. The Trial Court dismissed the petition holding that no case of cruelty is made out. The High Court also upheld the dismissal. Before the Apex Court, the husband submitted that they have been living separately for more than 16 years and for all practical purposes the marriage is dead.

"The marriage between the parties is emotionally dead and there is no point in persuading them to live together any more. Therefore, this is a fit case for exercise of jurisdiction under Article 142 of the Constitution of India", the bench comprising Justices L. Nageswara Rao and BR Gavai observed and then declared that the marriage between the parties is dissolved.

48. Mere Quarrel On The Day Of Occurrence Does Not Attract Offence Of Abetment Of Suicide U/s 306 IPC

[Case: Velladurai v. State; Citation: LL 2021 SC 456]

The Supreme Court has observed that mere quarrel on the day of occurrence cannot attract the offence of abetment of suicide under section 306 of the Indian Penal Code. The bench of Justices MR Shah and Aniruddha Bose reiterated that mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306. Following some quarrel, both the accused and his wife consumed pesticide. The accused survived, but his wife died due to consuming the pesticide. Following a complaint filed by brother of the deceased, a chargesheet was filed against the accused for the offence under Section 306 IPC. The Trial Court convicted him under Section 306 IPC and sentenced him to undergo 7 years RI and to pay a fine of Rs. 2500/-, and also for the offence under Section 4(b) of the Tamil Nadu Prohibition of Harassment of Women Act and sentenced him to undergo three years RI and to pay a fine of Rs.2500. The Madras High Court upheld the conviction.

"In the instant case, the allegation against the appellant is that there was a quarrel on the day of occurrence. There is no other material on record which indicates abetment. There is no material on record that the appellant-accused played an active role by an act of instigating the deceased to facilitate the commission of suicide. On the contrary, in the present case, even the appellant-accused also tried to commit suicide and consumed pesticide. Under the circumstances and in the facts and circumstances of the case and there is no other material on record which indicates abetment, both the High Court as well as the learned trial Court have committed an error in convicting the accused for the offence under Section 306 IPC", the court said while allowing the appeal. 

49. Evidence Act - Failure Of Accused To Discharge Burden U/S 106 Irrelevant If Prosecution Is Unable To Establish Chain Of Circumstances

[Case: Nagendra Sah v. State of Bihar; Citation: LL 2021 SC 457]

The Supreme Court has observed that the failure of accused to discharge burden under Section 106 of the Evidence Act, 1872 is not relevant in a case governed by circumstantial evidence if the prosecution is unable to establish a chain of circumstance. "When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, the falsity of the defence is no ground to convict the accused," the bench of Justices Ajay Rastogi and Abhay S Oka remarked. Section 106 of the Evidence Act states that the burden of proving things within the special knowledge of a person is on that person.

Nagendra Sha's(appellant in the present case) wife died due to burn injuries on November 18, 2011 and based on an information furnished by Mahesh Sah, a case of unnatural death was registered. However, since the cause of death after conducting an autopsy was "asphyxia due to pressure around neck by hand and blunt substance", an FIR was registered against the appellant under section 302 of IPC. When the case was committed to the Court of Sessions, a charge under Section 201 was also added and thereafter charges under Sections 302 and 201 were framed against the appellant. Sah was convicted under Sections 302 and 201 by the trial court and was sentenced to life imprisonment and fine of Rs 5,000 for offence u/s 302 and rigorous imprisonment for 3 years and fine of Rs 5000 for offence u/s 201. Both the sentences had to run concurrently and upon default in payment of either fine, the Trial Court directed Sah to undergo rigorous imprisonment for three months. Aggrieved by the Trial Court's verdict, Sha had preferred an appeal before Patna High Court which was dismissed on April 22, 2019. Sah thereafter approached the Top Court assailing the lower court verdicts. "Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference", the Bench added further. 

50. Commercial Suits & Requirement Of Establishing Reasonable Cause For Non Disclosure Of Documents Under Order XI Rule 1 (4) CPC

[Case: Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B; Citation: LL 2021 SC 458]

The Supreme Court has observed that the requirement under Order XI Rule 1(4) of Code of Civil Procedure (as applicable to commercial suits) of establishing the reasonable cause for non disclosure of the documents along with the plaint under shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed. In this case, the Commercial Court dismissed the application filed by the plaintiff seeking its leave to file additional documents on the ground of lack of reasonable cause in non disclosure along with plaint. The High Court dismissed the plea challenging the dismissal.

The Apex Court bench of Justices MR Shah and Aniruddha Bose observed, "However, at the same time, the requirement of establishing the reasonable cause for non disclosure of the documents along with the plaint shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed. Therefore Order XI Rule 1 (4) and Order XI Rule 1 (5) applicable to the commercial suit shall be applicable only with respect to the documents which were in plaintiff's power, possession, control or custody and not disclosed along with plaint. Therefore, the rigour of establishing the reasonable cause in non disclosure along with plaint may not arise in the case where the additional documents sought to be produced/relied upon are discovered subsequent to the filing of the plaint"

51. IBC- Every Attempt Has To Be First Made To Revive The Concern And Make It A Going Concern, Liquidation Being The Last Resort

[Case: K.N. Rajakumar v. V. Nagarajan; Citation: LL 2021 SC 459]

Every attempt has to be first made to revive the concern and make it a going concern, liquidation being the last resort, the Supreme Court has observed while upholding NCLT order permitting withdrawal of Corporate Insolvency Resolution Process. The bench of Justices L Nageswara Rao, BR Gavai and BV Nagarathna observed that an adjudicating authority under Insolvency and Bankruptcy Code can allow withdrawal of CIRP proceedings on an application made by the applicant with the approval of 90% voting share of the Committee of Creditors. In this case, an ex ­employee of M/s Aruna Hotels Ltd. (Corporate Debtor') had challenged the resolution passed in the 8th Committee of Creditors permitting withdrawal of Corporate Insolvency Resolution Process in respect of the Corporate Debtor; and the order passed by the Adjudicating Authority/NCLT thereby closing the proceedings.

The court noted that the Corporate Debtor has already settled the issue with the erstwhile financial creditors, who have resolved to withdraw the CIRP proceedings and by virtue of withdrawal of CIRP proceedings, the Corporate Debtor now is a going concern. Referring to Ghanashyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited, the Court observed, "It could thus be seen that one of the principal objects of the IBC is providing for revival of the Corporate Debtor and to make it a going concern. Every attempt has to be first made to revive the concern and make it a going concern, liquidation being the last resort."

52. Chairman Of Company In Arbitration Ineligible To Be Arbitrator; Disqualification Conditions Have To Be Read As A Whole

[Case: Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited v. M/s Ajay Sales & Suppliers; Citation: LL 2021 SC 460]

The Supreme Court has observed that non­-independence and non-impartiality of an arbitrator would make him ineligible to conduct arbitration. The bench of Justices MR Shah and Aniruddha Bose observed that the ineligibility of an arbitrator can be removed only by an 'express agreement'. In this case , the distributorship agreement between various firms and Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited contained an arbitrator clause, as per which all disputes and differences arising out of or in any way touching or concerning the agreement, had to be referred to the sole Arbitrator, the Chairman of the said Sahkari Sangh. Following a dispute between the firm and sangh, the arbitration proceedings were initiated by the Chairman. During the pendency of the said arbitration proceedings, the firms approached the High Court for appointment of an arbitrator in exercise of powers under Section 11 of the Act. The High Court allowed the said application and appointed a former District and Sessions Judge to act as an arbitrator.

The Bench rejected the contention that since the party participated in the arbitration proceedings before the sole arbitrator – Chairman, it ought not to have approached the High Court for appointment of arbitrator under Section 11. "Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non­ obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The subsection then declares that such person shall be "ineligible" to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this subsection by an "express agreement in writing". Obviously, the "express agreement in writing" has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule", the Court observed. 

53. Difference Lies In The Degree Of The Act: Supreme Court Explains Subtle Distinction Between Culpable Homicide U/s 304 IPC & Murder

[Case: Mohd. Rafiq @ Kallu v. State Of Madhya Pradesh; Citation: LL 2021 SC 461]

In a judgment delivered on September 15,  2021,  the Supreme Court has explained the difference between culpable homicide under Section 304 of the Indian Penal Code and murder under Section 300 IPC. The Court observed that, though it difficult to distinguish between culpable homicide and murder as both involve death, there is a subtle distinction of intention and knowledge involved in both the crimes. "This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes", the bench of Justices KM Joseph and S. Ravindra Bhat observed. In this case, a police officer, SI Tiwari, tried to board a running truck since the truck did not stop on his instructions. The driver allegedly pushed him, as a result of which SI Tiwari fell off the truck and he was run over by the rear wheels of the truck which resulted in his death. Thereafter the accused fled with the truck, but was later caught, arrested and charged with committing murder of SI Tiwari. The Trial Court convicted him for murder. The High Court dismissed his appeal.

"The question of whether in a given case, a homicide is murder punishable under Section 302 IPC, or culpable homicide, of either description, punishable under Section 304 IPC has engaged the attention of courts in this country for over one and a half century, since the enactment of the IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes", the Court observed while concluding that the conviction of accused under Section 302 could not be sustained.

54. Moratorium Ordered U/Sec.14 IBC Does Not Apply To Proceedings In Respect Of Directors/Management Of Corporate Debtor

[Case: Anjali Rathi v. Today Homes & Infrastructure Pvt. Ltd; Citation: LL 2021 SC 462]

The Supreme Court has observed that the moratorium ordered under Section 14 of the Insolvency and Bankruptcy Code does not apply in respect of the directors/management of the Corporate Debtor. It applies only in relation to the Corporate Debtor and against its directors/management, proceedings could continue, the bench of Justices DY Chandrachud, Vikram Nath and Hima Kohli observed. In this case, the petitioners, who were home buyers in a group housing project, had approached the National Consumer Dispute Redressal Commission against Today Homes & Infrastructure Pvt. Ltd. seeking refund of their moneys with interest. The NCDRC allowed their claim. In the execution proceedings, NCDRC required the personal presence of the Managing Director. Against this, it approached the Delhi High Court which directed no coercive steps shall be taken against the Managing Director. Challenging this order of the High Court, the home buyers approached the Apex Court. Thereafter, the NCDRC passed certain orders in the Execution Petition, which were assailed before the Apex Court in connected appeals.

"At this juncture, we must however clarify the right of the petitioners to move against the promoters of the first respondent Corporate Debtor, even though a moratorium has been declared under Section 14 of the IBC. In the judgment in P. Mohanraj v. Shah Bros. Ispat (P) Ltd., a three judge Bench of this Court held that proceedings under Section 138 and 141 of the Negotiable Instruments Act 1881 against the Corporate Debtor would be covered by the moratorium provision under Section 14 of the IBC. However, it clarified that the moratorium was only in relation to the Corporate Debtor (as highlighted above) and not in respect of the directors/management of the Corporate Debtor, against whom proceedings could continue", the Court opined. The court thus clarified that the petitioners would not be prevented by the moratorium under Section 14 of the IBC from initiating proceedings against the promoters of the Corporate Debtor in relation to honoring the settlements reached before it.

55. 'Extension Of Time Of Joining' Cannot Be Claimed As Matter Of Right

[Case: Nilesh Kumar Pandey v. State of Chhattisgarh; Citation: LL 2021 SC 463]

While upholding Chhattisgarh High Court's order of not granting extension of time for joining a post of Presiding Officer, Labour Court, the Supreme Court observed that extension of time of joining cannot be claimed as a matter of right. The division bench of Justices Vineet Saran and Aniruddha Bose in their order noted that, "Appointment letter was categorical to the effect that the petitioner had to join within 30 days. Admittedly, life of select list expired on January 5, 2011 & petitioner did not join even after expiry of period of select list. Petitioner not joining within a period of 30 days disentitles him to be appointed for the post. Extension of time of joining cannot be claimed as a matter of right."

Pursuant to the advertisement dated March 27, 2008, Nilesh Kumar Pandey (petitioner in the present case) had applied for the post of Presiding Officer Labour Court. Upon publication of select list, Pandey's name was recommended by the Chhattisgarh Public Service Commission on July 9, 2009. However on account of ongoing litigation, Pandey's appointment could not be made immediately and upon State Government's request, the validity of the select list was extended till January 5, 2011. During the period of select list, an appointment order was issued in Pandey's favour on August 28, 2010 with a stipulation that he had to join the post within a period of 30 days from the date of issuance of appointment order, failing which the appointment automatically had to come to an end. On account of pendency of writ petitions filed by unsuccessful candidates who were not selected, Pandey didn't join the post presumably.

On April 28, 2014, Pandey made an application to the State of Chhattisgarh for extending his period of joining the post, however the same was rejected on June 12, 2014 ("Impugned Order") on the ground that the validity of the original select list had come to an end and that the joining period could not be extended in absence of any specific provision. Aggrieved by the State Government's order, Pandey approached Chhattisgarh High Court seeking quashing of the 2014 order on the ground that Pandey's appointment was subject to the outcome of the writ petitions. Observing that Pandey's writ held no water, the Single Judge of the High Court dismissed his writ on the ground that he was an uninterested person and failed to join on the post of Presiding Officer, Labour Court despite the expiry of the peremptory period.

56. Statutory Tenant Cannot Seek Repossession After Demolition Of Building Under Section 108B(e) Of Transfer Of Property Act

[Case: Abdul Khuddus v. H.M. Chandiramani (Dead); Citation: LL 2021 SC 464]

The Supreme Court has observed that the rights and liabilities of a statutory tenant have to be found under the Rent Act alone and not under Transfer of Property Act. The bench of Justices Hemant Gupta and AS Bopanna observed that a statutory tenant cannot seek repossession after the demolition of building under Section 108(B)(e) of the TP Act. In this case, the tenant filed a suit in which he claimed mandatory injunction and possession after the building he occupied got demolished in pursuant to proceedings under Section 322 of the Karnataka Municipal Corporation Act. He also filed on another suit claiming damages. The Trial Court decreed the suit and directed to grant quantified damages and to pay Rs. 10,000/- per month till such time, the possession is handed over to the plaintiff. In appeal, the High Court held that the building in question was demolished in haste and the plaintiff was thus entitled to possession of the building as he was unlawfully dispossessed of the same.

"The plaintiff filed first suit claiming right over the land after demolition of the building but being a statutory tenant, he had to avail the remedy under the Rent Act as the provisions of the TP Act are not applicable to the building and land situated within urban area. In view of the provisions of the Act, the terms of the TP Act cannot be applied for in respect of statutory tenants. The High Court has returned a finding that the plaintiff was a statutory tenant. In view of the said fact, the remedy of the tenant, if any, has to be found within four corners of the Rent Act and not under the TP Act", the bench said while setting aside the High Court judgment and dismissing the suit.

Also Read: Rent Control Act Will Not Bar Demolition Of Building As Per Municipal Law

57. Ground Reality Today Is That Almost No Tender Remains Unchallenged': Supreme Court Reemphasizes Limited Scope Of 'Tender Jurisdiction'

[Case: UFLEX Ltd. v. Govt. Of Tamil Nadu; Citation: LL 2021 SC 465]

"The ground reality today is that almost no tender remains unchallenged", the Supreme Court has remarked. The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that the enlarged role of the Government in economic activity and its corresponding ability to give economic 'largesse' was the bedrock of creating what is commonly called the 'tender jurisdiction'. The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, the court said. In this case, the Government of Tamil Nadu had invited a tender in the matter of production and supply of polyester based hologram excise labels on turnkey basis. The stickers were to be pasted across the caps of bottles of liquor sold by the State Government through one of its instrumentalities, the Tamil Nadu State Marketing Corporation. Two of the prospective tendering parties, viz., M/s. Kumbhat Holographics and M/s. Alpha Lasertek India LLP (for short 'Alpha') filed writ petitions in this matter. Though the single bench dismissed the writ petition, the division bench allowed it. The Division bench found that that tender conditions were tailor-made in favour of some companies.

Allowing the appeal, the Supreme Court observed that the Division Bench has fallen into an error in almost sitting as an appellate authority on technology and commercial expediency which is not the role which a Court ought to play. "The enlarged role of the Government in economic activity and its corresponding ability to give economic 'largesse' was the bedrock of creating what is commonly called the 'tender jurisdiction'. The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India (hereinafter referred to as the 'Constitution'), beyond the issue of strict enforcement of contractual rights under the civil jurisdiction. However, the ground reality today is that almost no tender remains unchallenged. Unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The Public Interest Litigation ('PIL') jurisdiction is also invoked towards the same objective, an aspect normally deterred by the Court because this causes proxy litigation in purely contractual matters", the Bench observed further. 

Also Read: Imposition Of Costs Not A Reflection On Counsel; Costs Must Follow Cause In Commercial Matters Including Writ Petitions

58. Employee Who Made False Declaration/ Suppressed Involvement In Criminal Case Not Entitled To Appointment/Continue In Service As A Matter Of Right

[Case: Rajasthan Rajya Vidyut Prasaran Nigam Limited v. Anil Kanwariya; Citation: LL 2021 SC 466]

The Supreme Court observed that an employee who made a false declaration and/or suppressed the material fact of his involvement in a criminal case shall not be entitled to an appointment or to continue in service as a matter of right. "Where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer", the bench of Justices MR Shah and AS Bopanna observed. 

In this case, the employee of Rajasthan Rajya Vidyut Prasaran Nigam Limited had submitted a declaration during documents verification that neither criminal case is pending against him nor he has suffered any conviction by any court of law in any criminal case. His services were terminated by the employer after it found that he was convicted in a criminal case. The employee approached the High Court challenging the termination order. The High Court relying on the judgment of Avtar Singh v. Union of India, reported in (2016) 8 SCC 471, allowed the writ petition and quashed and set aside the order of termination and directed reinstatement of the employee with all consequential benefits.

One of the contentions raised by the employee was that he was granted the benefit of Section 12 of the Act 1958 which provides that a person shall not suffer disqualification attaching to the conviction. In this regard, the court said: "Subsequently getting the benefit of Section 12 of the Act 1958 shall not be helpful to the respondent inasmuch as the question is about filing a false declaration on 14.04.2015 that neither any criminal case is pending against him nor he has been convicted by any court of law, which was much prior to the order passed by the learned Sessions Court granting the benefit of Section 12 of the Act 1958. As observed hereinabove, even in case of subsequent acquittal, the employee once made a false declaration and/or suppressed the material fact of pending criminal case shall not be entitled to an appointment as a matter of right."

59. 'No Positive Act': Supreme Court Quashes Criminal Case Against Girl Accused Of Abetting Suicide Of A Man By Refusing Marriage

[Case: Kanchan Sharma v. State of Uttar Pradesh; Citation: LL 2021 SC 467]

The Supreme Court has quashed criminal proceedings against a girl accused of abetting suicide of a man by allegedly refusing to marry him. The bench of Justices R. Subhash Reddy and Hrishikesh Roy reiterated that Section 306 of the Indian Penal Code will not be attracted if there was no positive act on the part of the accused to instigate or aid in committing suicide. The court said that it would be travesty of justice to compel the accused to face a criminal trial without any credible material whatsoever. It requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide, the bench added.

The case against the accused was that, on the day of incident, the deceased came to her house and started shouting that if she did not marry him, he would consume poison. Within no time thereafter he consumed poison from a small bottle which he was holding in his hand and fell unconscious and thereafter died in the hospital. After investigation in this matter, final report was filed against the accused for the offence under Section 306 IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Thereafter, the accused approached the High Court by filing a petition under Section 482 of the Code of Criminal Procedure with a prayer to quash the criminal proceedings against her. The High Court dismissed the petition. 

The Apex Court noticed that, except the self­-serving statements of the complainant and other witnesses stating that deceased was in love with the accused, there is no other material to show that she was maintaining any relation with the deceased. "Abetment' involves mental process of instigating a person or intentionally aiding a person in doing of a thing. Without positive act on the part of the accused to instigate or aid in committing suicide, no one can be convicted for offence under Section 306, IPC. To proceed against any person for the offence under Section 306 IPC it requires an active act or direct act which led the deceased to commit suicide, seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. There is nothing on record to show that appellant was maintaining relation with the deceased and further there is absolutely no material to allege that appellant abetted for suicide of the deceased within the meaning of Section 306, IPC", the Bench added further. 

60. Section 319 CrPC: Summoning Power Should Be Exercised Only When Strong And Cogent Evidence Occurs Against A Person

[Case: Ramesh Chandra Srivastava v. State of UP; Citation: LL 2021 SC 468]

The Supreme Court has observed that the power under Section 319 of the Criminal Procedure Code should be exercised only when strong and cogent evidence occurs against a person from the evidence. The bench of Justices KM Joseph and PS Narasimha reiterated that the power under Section 319 CrPC cannot be exercised in a casual and cavalier manner. The test to be applied is one which is more than prima facie case which is applied at the time of framing of charge, the bench added. Taking note of the deposition made by a witness in murder case, the Trial Court allowed the application filed under Section 319 CrPC and summoned the employer of the deceased. The High Court upheld this order of the Trial Court. Before the Apex Court, the appellant contended the courts erred in law in invoking power under Section 319 Cr.P.C. solely based on the deposition. 

"The test as laid down by the Constitution Bench of this Court for invoking power under Section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges", the Bench observed and accordingly directed the Trial Court to consider the matter afresh. 

61. Single Bench Hearing Transfer Petitions Cannot Pass Mutual Consent Divorce Decree Invoking Article 142

[Case: Neha @ Pooja Alizad v. Vaibhav Kumar @ Chetan Sancheti; Citation: LL 2021 SC 469]

The Supreme Court has observed that a single bench hearing Transfer petition cannot pass a decree divorce by mutual consent under Section under Section 13 B of the Hindu Marriage Act, 1955 read with Article 142 of the Constitution of India. In a recent order, Justice Abhay S. Oka, referring to Supreme Court Rules 2013, said he could not pass a decree of divorce 'sitting singly'. Before the single bench, the parties to a transfer petition submitted that in terms of the settlement arrived before the Mediator, they have complied with all the agreed terms and conditions. Justice Oka, while considering their prayer to pass a decree of divorce, referred to Proviso to Rule 1 of Order VI of the Supreme Court Rules, as per which, the jurisdiction of a Judge sitting singly is confined to grant relief under Section 25 of the Code of Civil Procedure, 1908. Therefore, the judge directed the registry to place the petition before the Chief Justice for necessary directions. Unless Hon'ble the Chief Justice exercises his powers under Clause (iv) of Proviso to Rule 1 of Order VI of the said Rules, I cannot pass a decree of divorce sitting singly, the judge said.

62. 'Concurrent' Life Imprisonments Can Be Imposed On Accused Convicted For Multiple Murders

[Case: Mahavir v. State of Madhya Pradesh; Citation: LL 2021 SC 470]

There is no bar in imposing concurrent life imprisonments on accused convicted for murder of more than one persons, the Supreme Court observed in a recent order. The court observed thus while considering a writ petition filed by a prisoner claiming his release for the reason that he has undergone more than 21 years of sentence including 16 years of actual sentence. In this case, the remission policy applicable had a clause (5) which provided that life convicts who have been sentenced for one or more life imprisonment besides the life imprisonment and who have undergone 20 years sentence including the trial period, they will be released after completion of 26 years of sentence including the remission. The petitioner was convicted for killing two persons and was awarded life imprisonment twice, one for each murder.

"In terms of the policy of sentencing, there cannot be consecutive life imprisonment one after the another. But the fact remains that for each of the death of the victim, the petitioner has been convicted for an offence under Section 302 IPC. It is not a case of imposition of life imprisonment consecutively. It is a case of imposition of concurrent life imprisonment", the bench of Justices Hemant Gupta and V. Ramasubramanian said. Therefore, the court said that Clause (5) will be applicable to consider the premature release case of the petitioner as he has been sentenced for more than one life imprisonment for causing death of two persons. The Competent Authority has therefore rightly declined the case of remission on relying upon Clause (5), the court said.

63. Assessee Not Liable To Pay Interest On Short Payment Of Advance Tax Due To Default Of Payer In Deducting TDS Before 2012-2013 FY

[Case: Director of Income Tax, New Delhi v. M/s Mitsubishi Corporation; Citation: LL 2021 SC 471]

The Supreme Court has held that the amount of income tax which is deductible or collectible at source can be reduced by the assessee while calculating advance tax before 2012-2013 Financial Year. Therefore, the assessee cannot be held liable for interest under Section 234B of Income Tax for short-fall of advance tax which arises due to reducing the income tax deductible or collectible at source from the advance tax. In other words, the assessee cannot be held liable to pay interest on the short-payment of advance tax due to the default of the payer in deducting TDS. However, the Court also noted that this scenario changed after the amendment made to the Income Tax Act 1961 by the Finance Act 2012. After the said amendment, a proviso was added to Section 209(1)(d) of the Income Tax Act to provide that where a person has received any income without deduction or collection of tax, he shall be liable to pay advance tax in respect of such income.

A bench comprising Justices L Nageswara Rao and Aniruddha Bose pronounced the judgment in a batch of appeals filed by the Director of Income Tax, New Delhi against the Mitsubishi Corporation. Referring to the proviso introduced by the 2012 amendment, the Bench observed, "If the construction of the words "would be deductible or collectible" as placed by the Revenue is accepted, the amendment made to Section 209 (1) (d) by insertion of the proviso would be meaningless and an exercise in futility. To give the intended effect to the proviso, Section 209 (1) (d) of the Act has to be understood to entitle the assessee, for all assessments prior to the financial year 2012-13, to reduce the amount of income- tax which would be deductible or collectible, in computation of its advance tax liability, notwithstanding the fact that the assessee has received the full amount without deduction".

64. Summoning And Detaining A Person Without There Being Any Crime Registered Against Him Illegal

[Case: M.A Khaliq v. Ashok Kumar; Citation: LL 2021 SC 472]

The Supreme Court observed that summoning and detaining a person without there being any crime registered against him would be violative of basic principles. The directions issued in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, would be applicable even if no crime was registered, the bench of Justices UU Lalit, S. Ravindra Bhat and Bela M. Trivedi observed. In this case, a man approached the Andhra Pradesh High Court seeking a direction not to arrest him without giving due notice under Section 41A of Code of Criminal Procedure. His wife had filed a complaint alleging offences under Section 498A of the Indian Penal Code. The single Judge thus directed the police to strictly follow the guidelines laid down by the Supreme Court in Arnesh Kumar Vs. State of Bihar. Later, he filed a Contempt Case alleging that in spite of the order passed by the High Court, he was forcibly taken away by the police officer to Akividu police station and detained him there. The single bench took note of the enquiry report filed bu Metropolitan Sessions Judge in this matter which stated that the petitioner was not only summoned to Akividu Police Station in the name of counseling but was also detained. The bench thus held that the police officer is guilty of contempt of court. He was sentenced to suffer three months imprisonment. Setting aside this order, the Division bench observed that since no crime was registered, the directions issued in Arnesh Kumar v. State of Bihar would not come into play.

The Apex Court bench , taking note of the enquiry report, observed that there was clear violation of the directions issued by this Court not only in Arnesh Kumar but also in the case in D.K. Basu v. State of West Bengal. "The mere fact that no crime was registered, could not be a defence, nor would it be an escape from the rigour of the decisions rendered by this Court. As a matter of fact, summoning the person without there being any crime registered against him and detaining him would itself be violative of basic principles", the Court observed. Restoring the single bench order, the Court modified the substantive sentence of three months to 15 days.

65. Conversion To Christianity: Supreme Court Quashes Criminal Case Against Man Accused Under MP Freedom Of Religion Act

[Case: George Mangalapilly v. State of Madhya Pradesh; Citation: LL 2021 SC 473]

The Supreme Court quashed criminal case against a man accused of forcibly converting a person to Christianity. According to the prosecution, the George Mangalapilly had converted one Dharmendar Dohar to Christianity. He was charged for offences punishable under Sections 153(B)(1) and 295-A of the Indian Penal Code and Sections 3 and 4 of the M.P. Freedom of Religion Act, 1968. In the trial that followed, Dharmendar Dohar in his examination-in chief denied that he was converted by the accused. He stated that his signatures were obtained on a piece of paper by certain persons, on the basis of which the prosecution was launched against the accused. The witness was declared hostile and was extensively cross-examined by the Public Prosecutor. Following this development, George approached the Madhya Pradesh High Court seeking to quash criminal proceedings against him. Partly allowing his petition filed under Section 482 CrPC, the court observed that as far as the case pertained to the offences punishable under Sections 153-B(1) and 295-A IPC, in the absence of requisite sanction, he could not be prosecuted in respect of said offences. However, with regard to the offences punishable under Section 3 & 4 of the M.P. Freedom of Religion Act, the High Court observed that the evidence led before the trial court could not be relied upon to grant any benefit in terms of Section 482 of the Code.

The Apex Court bench of Justices UU Lalit, S. Ravindra Bhat and CT Ravikumar, in appeal filed by the accused, held that the testimony of the witness is significant in this case. "In the peculiar facts and circumstances of the case and especially when the entire fulcrum of the prosecution rests upon the version of the man who was stated to be forcibly converted, in our view, the testimony of said person assumes great significance. According to his own version neither was he forcibly converted nor had the appellant contacted him at any juncture", the bench observed while allowing the appeal.

66. Unilateral Cancellation Of Registered Sale Deed Can't Be An Anticipatory Bail Condition

[Case: Syed Afsar Pasha Quadri v. The State of Telangana; Citation: LL 2021 SC 474]

The Supreme Court has observed that a registered sale deed cannot be cancelled unilaterally by one party to the said document in purported compliance of the direction given by the High Court, since that adversely affects the rights of the purchasers who are not a party before the High Court. The bench of Chief Justice NV Ramana, Justice Surya Kant and Justice Hima Kohli in the present matter was hearing a special leave petition filed assailing the order dated June 8, 2021 by the High Court of Telangana wherein the High Court while granting anticipatory bail had directed the accused to cancel the registered sale deed executed by him and return the money received from the complainant. Aggrieved by the said condition, the accused had approached the Top Court.

Opining that ends of justice would be met if the said condition was deleted from the impugned order, the bench noted while modifying the order, "We are, prima facie, of the considered view that the High Court ought not to have imposed the said Condition No.(iii), while granting anticipatory bail to the petitioner, as it would tantamount to adversely affect the rights of the parties to the registered documents, which can be adjudicated upon by a Civil Court only." While disposing the SLP, the bench also made clear that the other remaining conditions regarding anticipatory bail had to remain intact.

67. Consumer Complaint On Behalf Of Numerous Consumers Having Same Interest Can Be Filed Only With Permission Of Consumer Forum

[Case: Yogesh Aggarwal v. Aneja Consultancy; Citation: LL 2021 SC 475]

The Supreme Court has observed that a consumer complaint on behalf of one or two consumers having same interest can be filed only with the permission of the consumer forum of which the jurisdiction is invoked. In this case, the National Consumer Disputes Redressal Commission had allowed a complaint filed by Investor Forum Aneja Group. In appeal, it was contended that the investor forum could not have invoked the jurisdiction of the NCDRC in view of the fact that a complainant in terms of Section 2(1)(b) of the Consumer Protection Act, 1986 means either a consumer or any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force.

The court noted that the complainant before the NCDRC is neither a voluntary consumer association. It was contended that the complaint is maintainable on behalf of the numerous consumers having the same interest in terms of clause (iv) of Section 2(1)(b) of the Act "The complaint on behalf of one or two consumers having same interest can be filed only with the permission of the forum of which the jurisdiction is invoked. Since the complainant is neither a voluntary consumer association nor a registered body, nor the permission of the appropriate forum has been sought, therefore, the complaint itself was not maintainable", the bench of Justices Hemant Gupta and V. Ramasubramanian said allowing the appeal.

68. Order VII Rule 11 CPC - Plaint Can't Be Rejected If Limitation Is A Mixed Question Of Law & Fact

[Case: Salim D.Agboatwala and others v.Shamalji Oddavji Thakkar and others; Citation: LL 2021 SC 476]

The Supreme Court has held that a plaint cannot be rejected under Order VII Rule 11(d) of the Code of Civil Procedure if the issue of limitation is a mixed question of law and fact. A bench comprising Justices Hemant Gupta and V Ramasubramaniam observed so while reversing a Bombay High Court's judgment which had upheld a civil court's order to reject a plaint. The suit in question was filed essentially to set aside an order passed by the Agricultural Land Tribunal to issue sale certificate in respect of a tenancy under the Maharashtra Tenancy and Agricultural Lands Act, 1948. 

"The rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11", the Bench observed. "Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to emphasis that limitation is a mixed question of fact and law", the judgment authored by Justice Ramasubramanian stated.

69. Delay In Intimating Insurance Company About Theft Not A Ground To Deny Claim

[Case: Dharamender v. United India Insurance Co. Ltd; Citation: LL 2021 SC 477]

The Supreme Court has observed that mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the insurance claim. In this case, the National Consumer Disputes Redressal Commission, set aside the claim of compensation on account of theft of vehicle on the ground that the delay of 78 days in not informing the Insurance Company of the theft is fatal.The complainant had purchased a Mahindra & Mahindra Major Jeep which was stolen outside the office of a liquor shop, in which he was a partner. The vehicle was insured with the |United India Insurance Co. Ltd. According to the complainant, he informed the Insurance Company about the theft of vehicle on phone, but the written complaint was made later. The complaint was allowed by the District Consumer Redressal Forum and an award was passed to pay the insured amount, i.e. Rs. 3,40,000/- to the complainant with 12% interest. The appeal filed by the Insurance Company against the said order was dismissed by the State Consumer Disputes Redressal Commission.

The bench of Justices Hemant Gupta and V. Ramasubramanian noted that the case of Insurance Company throughout was based upon delay in intimation to the Insurance Company. Therefore, in respect of the argument that the FIR was delayed, the said arguments need not be examined in this case, the court said while allowing the appeal and restoring the order passed by the District Forum. 

70. 'Karta' Of Joint Hindu Family Cannot File Consumer Complaint In Respect Of Deficiency In Service Regarding Treatment Given To His Pregnant Sister-in-law

[Case: Jaganarayan Lal v. Doctor Girija Tiwari; Citation: LL 2021 SC 478]

The Supreme Court observed that a Karta of a Joint Hindu Family cannot file a consumer complaint in respect of deficiency in service on part of the Hospital/Doctor regarding the treatment given to his pregnant sister-in-law. The concept of Joint Hindu Family does not extend to the treatment of a pregnant sister-in-law, the bench of Justices Hemant Gupta and V. Ramasubramanian observed. In this case, a 'karta' of a Joint Hindu Family filed a consumer complaint against a clinic alleging deficiency in service regarding the treatment given to his pregnant sister-in-law Kiran Srivastava. He stated in the complaint that he availed the services for consideration on behalf of his sister-in-law, being the Karta of Joint Hindu Family. The dismissal of complaint was upheld by the National Consumer Disputes Redressal Commission.

Referring to the provisions of the Consumer Protection Act, 1986, the bench noted that a complainant means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised and includes a beneficiary of services. "The brother-in-law of a pregnant woman would not be a beneficiary of any services rendered by the respondent. There is no allegation that he has paid or promised any consideration for engaging the services of the respondent. The only assertion in the complaint is that he is the 'Karta' of a Joint Hindu Family, therefore, he is entitled to file a complaint on account of the alleged deficiency of service by the respondent", the court noted. "The appellant herein is the 'Karta' of a Joint Hindu Family. He cannot be said to be availing the services of a medical practitioner in respect of the pregnancy of his sister-in-law. The concept of Joint Hindu Family does not extend to the treatment of a pregnant sister-in-law", the bench observed further. 

71. Compromise Between Accused & Victim Cannot Be The Solitary Basis For Reduction Of Sentence Awarded In Non-Compoundable Cases

[Case: Bhagwan Narayan Gaikwad v. State Of Maharashtra; Citation: LL 2021 SC 478A]

The Supreme Court observed that compromise between accused and victim cannot be the solitary basis to reduce sentence awarded for non-­compoundable offences. Other aggravating and mitigating factors has to be examined for the said purpose, the bench of Justices Ajay Rastogi and Abhay S. Oka observed. The case against the appellant was that on 13th December 1993, he attacked the victim with a sword on his right leg below the knee and due to the brutal blow, it was almost mutilated. That while trying to avoid the blow of sickle, the injured tried to avoid by raising his right hand and the blow hit his right arm below the elbow due to which it was detached and there was profuse bleeding. That, without immediate medical intervention, the cumulative effect of all the injuries suffered by the victim would have resulted into death. The Trial Court convicted him under Section 326 of the Indian Penal Code and sentenced him to suffer 7 years Rigorous Imprisonment. The High Court upheld the conviction but modified the sentence to 5 years RI and directed him to pay Rs. 2 lakhs as a monetary compensation to the victim.

"The compromise if entered at the later stage of the incident or even after conviction can indeed be one of the factor in interfering the sentence awarded to commensurate with the nature of offence being committed to avoid bitterness in the families of the accused and the victim and it will always be better to restore their relation, if possible, but the compromise cannot be taken to be a solitary basis until the other aggravating and mitigating factors also support and are favourable to the accused for molding the sentence which always has to be examined in the facts and circumstances of the case on hand", the Bench observed. "We have not be able to record our satisfaction in reference to the kind of compromise which has now been obtained and placed on record after 28 years of the incident and this Court cannot be oblivious of the sufferings which the victim has suffered for such a long time and being crippled for life and the leg and arm of the victim are amputated in the alleged incident dated 13th December, 1993 and since then he has been fighting for life and is pursuing his daily chores with a prosthetic arm and leg and has lost his vital organs of his body and became permanently disabled and such act of the appellant is unpardonable", the court said while dismissing the appeal.

72. A Caretaker/Servant Can Never Acquire Interest In Property Irrespective Of His Long Possession

[Case: Himalaya Vintrade Pvt. Ltd. v. Md. Zahid; Citation: LL 2021 SC 479]

The Supreme Court observed that a caretaker/servant can never acquire interest in the property irrespective of his long possession. In this case, the plaintiff sought a declaration that he is a lawful occupier as caretaker/servant of the sole owner of the suit property. He also sought a permanent injunction restraining defendant to disturb or evict his peaceful possession of the suit property. In this suit, the defendant filed an application under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of plaint on the ground that suit proceedings at the instance of the caretaker/servant is not maintainable as he acquired no interest in the subject property irrespective of his long possession. The Trial Court dismissed this application and the said order was upheld by the High Court.

In appeal, the bench of Justices Ajay Rastogi and Abhay S. Oka disagreed with this view and observed thus: "After we heard counsel for the parties and taking into consideration the material on record, in our considered view, the Trail Court has committed a manifest error in appreciating the pleadings on record from the plaint filed at the instance of respondent no.1-plaintiff who as a caretaker/servant can never acquire interest in the property irrespective of his long possession and the caretaker/servant has to give possession forthwith on demand and so far as the plea of adverse possession is concerned as it lacks material particulars and the plaint does not discloses the cause of action for institution of the suit."

73. Reinstatement With Full Back Wages Is Not Automatic In Every Case Of Illegal Termination / Dismissal

[Case: Allahabad Bank v. Krishan Pal Singh; Citation: LL 2021 SC 480]

The Supreme Court reiterated that reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law. In this case, an employee appointed as Clerk-cum-Cashier was dismissed from service by the Allahabad Bank alleging his involvement in the incident relating to burning of bank records. The Industrial Tribunal found that though there was a strong suspicion, but there was no sufficient evidence to prove his misconduct to dismiss from service. The Tribunal found that the Bank has lost confidence on the respondent and ordered payment of monetary compensation of Rs.30,000/- in lieu of reinstatement. The High Court, while disposing an appeal against this award passed by the Tribunal, directed the employer to reinstate the workman with all consequential benefits.

During the pendency of appeal before the Apex Court, the employee attained age of superannuation. "The reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991, and in the meantime, respondent had attained age of superannuation, we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation", the bench of Justices R. Subhash Reddy and Sanjiv Khanna observed.

74. Motor Accident Compensation- Multiplier Which Is Relevant To The Deceased Has To Be Applied

[Case: Chandra v. Branch Manager, Oriental Insurance Company Limited; Citation: LL 2021 SC 481]

The Supreme Court has observed that, while computing Motor Accident Compensation, the multiplier which is relevant to the deceased has to be applied. Following the death of one J. Jeyachandran in an accident, his parents filed a compensation claim. MACT, took the multiplier at 16 since the deceased was aged 33 at the time of accident, and arrived at a sum of Rs.30,81,577/-. The reasoning of the MACT was that the deceased was employed in a job in Saudi Arabia where he was earning 3,500 Riyals. The Madras High Court while allowing the appeal filed by the insurer, found that it may not be safe to arrive at the income of the deceased on the basis of the monthly salary of 3,500 Riyals. Instead, the Court substituted the income of the deceased with the sum of Rs.15,000/- per month. It also took the view that the multiplier should be on the basis of age of the parents of the deceased, (being 65 and 61, the average age was taken, which was fixed as 63 years.) On the said basis, the multiplier was reduced from 16 to 7.

In appeal, the Apex Court bench of Justices KM Joseph and PS Narasimha observed that the claimants should be granted increase by 40 per cent having regard to the admitted age of the deceased being below 40 years on the basis of the salary which we have arrived upon based on the order of the appointment. The court noticed that the deceased was aged 33 years and was a graduate qualified in a course in computer. Applying 40 per cent increase to the basic salary, the income was fixed at Rs.21,000/- per month. The court awarded compensation of 20 Lakhs. There is hardly any dispute that it is the multiplier which is relevant to the deceased, which shall apply, the bench observed further. 

75. 'Fraud Vitiates Every Solemn Act': Supreme Court Upholds A Trial Court Judgment Which Declared A Registered Gift Deed Void

[Case: Sonamati Devi v. Mahendra Vishwakarma; Citation: LL 2021 SC 482]

Fraud vitiates every solemn act, remarked the Supreme Court while it upheld a Trial Court judgment which declared a registered gift deed void on the ground of fraud and undue influence. In this case, by a registered gift deed, one Yadunandan Mistri, who was issue-less, gifted an extent of 2.92 acres of land in favour of the wife of his nephew, on the assumption that his nephew would take care of Yadunandan and his wife in their old age. However, he immediately sought to cancel the gift vide cancellation deed. Later, he filed a suit seeking a declaration that the gift deed was obtained by practicing fraud and undue influence and therefore, be declared to be void. The Trial Court found that the defendant taking undue benefit of his close relation and blind trust and exercising undue influence on the plaintiff got a gift deed executed in his favour.

It was also observed that the acceptance of a gift by the donee is an essential ingredient and there was no evidence at all adduced at the trial to prove acceptance of gift. The court also noticed that the deed of gift was not in possession of the defendants rather the same was produced as an exhibit by the plaintiff. The First Appellate Court allowed the appeal filed by defendant. Dismissing the second appeal filed by wife and other successors in interest of Yadunandan, the High Court observed that once the gift was complete, it could not be revoked. of. The High Court also observed that express acceptance is not necessary for completing the transaction of gift.

The Apex Court bench of Justices Uday Umesh Lalit, S. Ravindra Bhat and Bela M. Trivedi, taking note of the evidence on record, came to a conclusion that the gift deed was brought about as a result of fraud and undue influence. "It is well known that fraud vitiates every solemn act . The finding rendered by the Trial Court that the gift deed was brought about by practicing fraud and undue influence is unassailable", the Court observed while allowing the appeal and restoring the Trial Court judgment.

76. Order VII Rule 11 CPC: Plaint Has To Be Rejected If Reliefs Claimed In It Cannot Be Granted Under Law

[Case: Rajendra Bajoria v. Hemant Kumar Jalan; Citation: LL 2021 SC 483]

The Supreme Court observed that a court has to reject a plaint if it finds that none of the reliefs sought in it can be granted to the plaintiff under the law. In such a case, it will be necessary to put an end to the sham litigation so that further judicial time is not wasted, the bench of Justices L. Nageswara Rao and BR Gavai observed. The court added that underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the court would not permit the plaintiff to unnecessarily protract the proceedings. In this case, a civil suit was filed by the plaintiffs before the Calcutta High Court claiming various reliefs in connection with assets and properties of the firm "Soorajmull Nagarmull". The case of the plaintiffs is that in spite of demise of the three original partners of the partnership firm, through whom the plaintiffs were claiming, the defendants have been carrying on the business of the partnership firm. The defendants filed application seeking rejection of the plaint on the ground that the plaint does not disclose any cause of action, and the relief as claimed in the plaint could not be granted. Though the single bench dismissed these applications, they were allowed by the Division Bench.

The court said that it is in agreement with the Division Bench of the Calcutta High Court which came to the conclusion that the reliefs as sought in the plaint, cannot be granted. While dismissing the appeal, the court further observed: "It could thus be seen that this Court has held that the power conferred on the court to terminate a civil action is a drastic one, and the conditions enumerated under Order VII Rule 11 of CPC are required to be strictly adhered to. However, under Order VII Rule 11 of CPC, the duty is cast upon the court to determine whether the plaint discloses a cause of action, by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. This Court has held that the underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the court would not permit the plaintiff to unnecessarily protract the proceedings. It has been held that in such a case, it will be necessary to put an end to the sham litigation so that further judicial time is not wasted."

77. Successful Allottee/ Bidder Free To Decide Whether To Continue Any Existing Contracts In Relation To Coal Mining Operation

[Case: Punjab State Power Corporation Limited v. Emta Coal Ltd; Citation: LL 2021 SC 484]

The Supreme Court observed that a successful allottee or bidder has complete freedom to decide as to whether he desires to continue or adopt any such existing contracts in relation to coal mining operation. "In the event the successful bidder or allottee elects not to adopt or continue with the existing contracts, all such contracts shall cease to be enforceable against the successful bidder or allottee in relation to Schedule I coal mines", the bench of Justices L. Nageswara Rao, BR Gavai and BV Nagarathna observed. Punjab State Power Corporation Limited was allotted Captive Coal Mines by the Union of India. On . On 16th February 1999, it issued a tender inviting bids for the purpose of development of Captive Coal Mines. In the said bid, EMTA Coal Ltd., emerged successful. On 25th August 2014, the Supreme Court held that the entire allocation of Coal Blocks made between 1993 and 2011, except those which were made through competitive bidding, were invalid, unfair, arbitrary and violative of Article 14 of the Constitution of India. The Central Government vide Allotment Order dated 31st March 2015, again allocated Pachhwara Captive Coal Block in favour of PSPCL. PSPCL issued a Request For Proposal (RFP), to invite Global Bids for the selection of Mine Developer­ cum ­Operator for Pachhwara Coal Block through competitive reverse bidding process. This was challenged by EMTA before the Punjab and Haryana High Court. The High Court allowed the writ petition.

Section 11 of the Coal Mines (Special Provisions) Act, 2015 provides that a successful bidder or allottee, as the case may be, in respect of Schedule I coal mines, may elect, to adopt and continue such contracts which may be existing with any of the prior allottees in relation to coal mining operations and the same shall constitute a novation for the residual term or residual performance of such contract. Interpreting Section 11 of the Act, the bench observed thus: "The words "may elect" would clearly show that the legislature has given complete discretion to a successful bidder or allottee to elect. The words "may elect" would also mean a discretion not to elect. Only in the event, a successful bidder or allottee decides to adopt and continue such contract, which may be existing with any of the prior allottees in relation to coal mining operations, the same shall constitute a novation for residual term or residual performance of such contract. In the event, the successful allottee does not elect to adopt or continue such contract, there is no question of novation for residual term or residual performance of such contract. Perusal of subsection (2) of Section 11 of the said Act would also make it clear that, it provides that in the event a successful bidder or allottee elects not to adopt or continue with the existing contract which had been entered into by the prior allottees with third parties, all such contracts which have not been adopted or continued shall cease to be enforceable against the successful bidder or allottee in relation to Schedule I coal mines and the remedy of such contracting parties shall be against the prior allottees."

78. Change Of Date Of Birth In Service Records Cannot Be Claimed As Of Right; Can Be Rejected For Delay & Latches

[Case: Karnataka Rural Infrastructure Development Limited v. T.P. Natarajan; Citation: LL 2021 SC 485]

The Supreme Court has observed that change of date of birth in the service record cannot be claimed as of right, even if there is cogent evidence. Such applications, the court said, can only be processed as per the relevant provisions/regulations applicable. They can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation, the bench of Justices MR Shah and AS Bopanna observed. In this case, an employee of the Karnataka Rural Infrastructure Development Limited requested for change of date of birth. Thereafter, he filed a suit for declaration that his date of birth is 24.01.1961. The said suit was dismissed by the Trial Court. The High Court allowed the appeal and decreed the suit.

Referring to earlier judgments in this regard, the court observed: (i) application for change of date of birth can only be as per the relevant provisions/regulations applicable; (ii) even if there is cogent evidence, the same cannot be claimed as a matter of right; (iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation. Thus, in this case, the court observed that the employee was not entitled to the decree of declaration. The court noted that the High Court judgment was implemented in this case and the employee had retired. So it clarified that this judgment will not affect him.

79. Burden Of Proof In Departmental Proceedings Is Of 'Probabilities Of Misconduct': Supreme Court

[Case: Union of India v. Dalbir Singh; Citation: LL 2021 SC 486]

The burden of proof in the departmental proceedings is of probabilities of the misconduct, the Supreme Court observed while upholding dismissal of a CRPF Constable. The bench of Justices Hemant Gupta and V. Ramasubramanian observed that the departmental inquiry is to maintain discipline in the service and efficiency of public service. Dalbir Singh was a General Duty Constable in the Central Reserve Police Force (CRPF). He had allegedly fired from his service revolver on Head Constable Harish Chander and Deputy Commandant Hari Singh resulting in the death of Harish Chander and injuries to Hari Singh. He was convicted by the Trial Court in this court, but the High Court acquitted him granting benefit of doubt. In the departmental proceedings that followed, the Commandant, punishing authority, returned a finding considering the evidence led by the Department that Singh misused his service weapon and is thus not entitled to be retained in the disciplinary force. Such order was affirmed by the appellate and the revisional authority. The High Court set aside these orders.

"The allegations in the chargesheet that the writ petitioner has fired from the official weapon is a reliable finding returned by the Departmental Authorities on the basis of evidence placed before them. It is not a case of no evidence, which alone would warrant interference by the High Court in exercise of power of judicial review. It is not the case of the writ petitioner that there was any infraction of any rule or regulations or the violation of the principles of natural justice. The best available evidence had been produced by the appellants in the course of enquiry conducted after long lapse of time", the bench observed while allowing the appeal.

80. Educational Qualification A Valid Ground For Classification Between Persons Of Same Class In Matters Of Promotion

[Case: Chandan Banerjee & Ors v. Krishna Prosad Ghosh & Ors; Citation: LL 2021 SC 487]

The Supreme Court has held that educational qualification is a valid ground for classification between persons of the same class in matters of promotion. In the judgment delivered, a bench comprising Justices DY Chandrachud, Vikram Nath and Hima Kohli held that such classification on the basis of educational qualification is not violative of Articles 14 and 16 of the Constitution. Holding so, the Court upheld the validity of separate eligibility conditions for promotion to Supernumerary Assistant Engineers having diploma and degrees in Kolkata Municipal Corporation.

Relying on a host of judgments, the Bench promulgated the following principles- (i) Classification between persons must not produce artificial inequalities. The classification must be founded on a reasonable basis and must bear nexus to the object and purpose sought to be achieved to pass the muster of Articles 14 and 16; (ii) Judicial review in matters of classification is limited to a determination of whether the classification is reasonable and bears a nexus to the object sought to be achieved. Courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature or its delegate with their own; (iii) Generally speaking, educational qualification is a valid ground for classification between persons of the same class in matters of promotion and is not violative of Articles 14 and 16 of the Constitution (iv) Persons drawn from different sources and integrated into a common class can be differentiated on grounds of educational qualification for the purpose of promotion, where this bears a nexus with the efficiency required in the promotional post; v) Educational qualification may be used for introducing quotas for promotion for a certain class of persons; or may even be used to restrict promotion entirely to one class, to the exclusion of others; (vi) Educational qualification may be used as a criterion for classification for promotion to increase administrative efficiency at the higher posts; and (vii) However, a classification made on grounds of educational qualification should bear nexus to the purpose of the classification or the extent of differences in qualifications

81. 'No Intention': Supreme Court Reduces Jail Sentence Awarded To Man Accused Of Killing A Person For Stealing Pigeon

[Case: Kala Singh @ Gurnam Singh v. State of Punjab; Citation: LL 2021 SC 488]

The Supreme Court reduced jail sentence awarded to an accused who allegedly killed a person for 'stealing' his pigeon. The court said that the killing was not a pre-­meditated one and there was no intention on the part of the accused to cause death or cause such bodily injury as is likely to cause death. The prosecution case was that the accused and the deceased had a sudden fight as the deceased had stolen his pigeon and in the heat of passion upon a sudden quarrel, the co­-accused (Kehar Singh) who had rod with him, gave a blow with the rod on the right side of the head of the deceased resulting in his death. It is further alleged that, thereafter the accused and co­-accused had thrown the dead body of the deceased in the minor canal. The Sessions Court convicted both of them under Section 302 of the Indian Penal Code and they were sentenced to rigorous imprisonment for life. In appeal, the High Court modified the conviction from Section 302 IPC to 304 Part­ I IPC and imposed the sentence of 12 years' rigorous imprisonment and to pay a fine of Rs.10,000/­-.

"It is clear from the evidence on record that the scuffle had taken place on the spur of the moment and a sudden fight had taken place in the heat of passion upon a sudden quarrel. It was not a pre­-meditated one and as there was no intention on the part of the appellant and co­-accused either to cause death or cause such bodily injury as is likely to cause death, the High Court ought not to have convicted the appellant for the offence under Section 304 Part ­I IPC. In absence of any intention on the part of the appellant, we are of the view that it is a clear case where the conviction of the appellant is to be modified to one under Section 304 Part­ II IPC by maintaining the conviction for the offence under Section 201 IPC", the bench of Justices R. Subhash Reddy and Hrishikesh Roy observed. Modifying the conviction to one under Section 304 Part ­II/34 IPC, the court sentenced him to undergo rigorous imprisonment for a period of seven years. However, conviction for the offence under Section 201 IPC and sentence of three years' rigorous imprisonment and the fine of Rs.500/­- was upheld.

82. NDPS: Absence Of Recovery Of Contraband From Possession Of Accused By Itself Not A Ground To Grant Bail

[Case: Union of India v. Md. Nawaz Khan; Citation: LL 2021 SC 489]

The Supreme Court observed that bail cannot be granted to an accused under Narcotic Drugs and Psychotropic Substances Act, merely on a finding of the absence of possession of the contraband on the person of the accused. Such a finding does not absolve the court of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act, the bench of Justices DY Chandrachud and BV Nagarathna observed. The court reiterated that the test to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. In this case, the High Court had granted after noticing that a search was conducted in the presence of a gazetted officer in view of the provisions of Section 50 of the NDPS Act but nothing objectionable was recovered from the accused in the course of the personal search. However, it was on search of the car revealed two polythene packets hidden under the place where the wiper is connected to the front bonnet of the car.

"As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik, a two-judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the 'possession' of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non-application of mind by the High Court. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act", the Bench observed while setting aside the High Court order. 

83. Arbitration Reference Can Be Declined If Dispute In Question Does Not Correlate To Arbitration Agreement

[Case: DLF Home Developers Limited v. Rajapura Homes Private Limited; Citation: LL 2021 SC 490]

The Supreme Court has observed that prayer for reference to Arbitration under Section 11 of the Arbitration and Conciliation Act can be declined if the dispute in question does not correlate to the arbitration agreement. The bench of Chief Justice of India NV Ramana and Justice Surya Kant observed that it is not expected to act mechanically merely to deliver a purported dispute raised by an applicant at the doors of the chosen Arbitrator. The bench observed thus while considering the petition filed by DLF Home Developers Limited under Section 11(6) read with Section 11(12) of the Arbitration and Conciliation Act, for appointment of sole arbitrator to adjudicate the differences between itself and other parties.

"To say it differently, this Court or a High Court, as the case may be, are not expected to act mechanically merely to deliver a purported dispute raised by an applicant at the doors of the chosen Arbitrator. On the contrary, the Court(s) are obliged to apply their mind to the core preliminary issues, albeit, within the framework of Section 11(6-A) of the Act. Such a review, as already clarified by this Court, is not intended to usurp the jurisdiction of the Arbitral Tribunal but is aimed at streamlining the process of arbitration. Therefore, even when an arbitration agreement exists, it would not prevent the Court to decline a prayer for reference if the dispute in question does not correlate to the said agreement", the Bench observed further. 

84. Section 92 CPC- Judgment In Representative Suit Binds All Parties Interested In The Trust

[Case: Jamia Masjid v. K V Rudrappa; Citation: LL 2021 SC 491]

The Supreme Court observed that a suit under section 92 CPC is of a representative character and all persons interested in the Trust would be bound by the judgment in the suit. Such persons interested would be barred by the principle of res judicata from instituting a subsequent suit on the same or substantially the same issue, the bench of Justices DY Chandrachud, Vikram Nath and Hima Kohli observed. The court added that while deciding on a scheme for administration in a representative suit filed under Section 92 of the CPC the court may, if the title is contested, have to decide if the property in respect of which the scheme for administration and management is sought belongs to the Trust. In this case, Jamia Masjid Gubbi filed a suit seeking inter alia a declaration that the State Wakf Board is the owner in possession of the suit schedule property. The Defendants, in their written statement, raised the issue of Res Judicata. They contended that the issue is already decided in earlier suits. The Trial Court heard the parties by taking issue of Res Judicata as a preliminary issue. It held that the suit is barred by Res Judicata. This order was upheld by the First Appellate Court and the High Court.

On the applicability of Res Judicata, the court referred to judgments in Raje Anandrao v. Shamrao, Ahmad Adam Sait v. M E Makhri, Shiromani Gurdwara Parbhandhak Committee v. Mahant Harnam Singh C. (Dead) M.N. Singh and R. Venugopala Naidu v. Venkatarayulu Naidu Charities and observed: "It is evident that a representative suit is binding on all the interested parties. Therefore, the judgment of the court in the first suit would be binding on Jamia Masjid and would preclude it from instituting another suit on the same issue if it has been conclusively decided. It is now to be analysed if the substantive issue in the instant suit was conclusively decided in the first suit."

Also Read: Plea Of Res Judicata Can Be Determined As A Preliminary Issue When It Only Involves Adjudication Of Question Of Law

85. Gravity Of Complaint Under Negotiable Instruments Act Cannot Be Equated With An Offence Under IPC Or Other Criminal Offence

[Case: Triyambak S. Hegde v. Sripad; Citation: LL 2021 SC 492]

The Supreme Court has observed that the gravity of complaint under Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offence. The court reiterated that that the presumption under Section 139 of the Negotiable Instruments Act would remain, until the contrary is proved. Whether there is rebuttal or not would depend on the facts and circumstances of each case, the bench of CJI NV Ramana, Justices Surya Kant and AS Bopanna said. The Supreme Court observed that the gravity of complaint under Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offence. The Court reiterated that that the presumption under Section 139 of the Negotiable Instruments Act would remain, until the contrary is proved. Whether there is rebuttal or not would depend on the facts and circumstances of each case, the bench of CJI NV Ramana, Justices Surya Kant and AS Bopanna said.

While upholding the conviction, the bench modified the sentenced part. Instead of imprisonment, he was directed to pay the fine of Rs. 2,50,000 within three months. In this regard, the court said: "The subject cheque has been issued towards repayment of a portion of the advance amount since the sale transaction could not be taken forward. In that background, what cannot also be lost sight of is that more than two and half decades have passed from the date on which the transaction had taken place. During this period there would be a lot of social and economic change in the status of the parties. Further, as observed by this Court in Kaushalya Devi Massand vs. Roopkishore Khore (2011) 4 SCC 593, the gravity of complaint under N.I. Act cannot be equated with an offence under the provisions of the Indian Penal Code, 1860 or other criminal offences. In that view, in our opinion, in the facts and circumstances of the instant case, if an enhanced fine is imposed it would meet the ends of justice. Only in the event the respondent-­accused not taking the benefit of the same to pay the fine but committing default instead, he would invite the penalty of imprisonment."

86. 'In India, Every State Action Must Be Fair, Failing Which It Will Fall Foul Of Article 14' : Supreme Court Sets Aside Direction To Shift NH Toll Plaza

[Case: National Highway Authority of India v. Madhukar Kumar; Citation: LL 2021 SC 493]

The Supreme Court set aside a Patna High Court judgment which directed the National Highway Authority of India to shift the toll plaza on Patna-Bakhtiyarpur four-lane road (NH-30) from Karmalichak near Deedarganj. "Undoubtedly, in India, every state action must be fair, failing which, it will fall foul of the mandate of Article 14. It is, at this juncture, we may also notice that the duty to give reasons, would arise even in the case of administrative action, where legal rights are at stake and the administrative action adversely affects legal rights", a bench comprising Justices KM Joseph and S Ravindra Bhat observed in the judgment. The Patna High Court, while allowing the writ petitions challenging the setting up of Toll Plaza, had held that the toll plaza location was violation of Rule 8 of National Highways Fee (Determination of Rates and Collection) Rules, 2008 which provides that a toll plaza must be constructed beyond 10 kilometers of a municipal or town area and, in no condition, should be within five-kilometre limits. 

"Persons, who may have a right or an interest, would know, what are the reasons which impelled the Administrator to take a particular decision. Judicial review, in India, which encompasses the wide contours of public interest litigation as well, would receive immeasurable assistance, if the reasons for particular decisions, are articulated to the extent possible. The giving of reasons also has a disciplining effect on the Administrator. This is for the reason that the reasons would capture the thought process, which culminated in the decision and it would help the Administrator steer clear of the vices of illegality, irrationality and also disproportionality. Reasons could help establish application of mind. Conversely, the absence of reasons may unerringly point to non-application of mind. The duty to act fairly, may require reasons to be recorded but the said duty, though there is a general duty on all state players to act fairly, may have its underpinnings, ultimately in legal rights", the Bench observed. 

87. Supreme Court Upholds Rejection Of Candidature To Judicial Post Citing Absence Of 'Honourable Acquittal' In Criminal Case

[Case: Rajasthan High Court v. Akashdeep Morya; Citation: LL 2021 SC 494]

The perception of the common man about the credentials and background of the judicial officer is vital, the Supreme Court observed while upholding non-appointment of a candidate to a post of judicial officer on the ground of the absence of 'honourable acquittal' in criminal cases. The bench of Justices KM Joseph and PS Narasimha observed that most suitable persons should be occupying the post of judicial officer, as they have perform most important functions of the State. In this case, the candidate, who applied to the post of civil judge, voluntarily revealed that he was implicated in certain criminal cases. The Full Court of the Rajasthan High Court noted that offences in all the cases he was involved were serious in nature and acquittals were not clean. Thus his candidature was rejected following which he filed writ petition before the High Court. Allowing his petition, the High Court on its judicial side observed that offences under Section 323 and 324 IPC could not have been treated at par with other heinous offence. The denial of appointment was found unsustainable and unconstitutional.

"The post of a Civil Judge or a Magistrate is of the highest importance notwithstanding the fact that in the pyramidical structure of the judiciary, the Civil Judge or the Magistrate is at the lowest rung. We say this for the reason that of all the litigation which is instituted in the country, the highest volume of the same takes place at the lowest level. Not many of the cases finally reach the highest Court. It is through the Civil Judge (Junior Division)/Magistrate that the common man has the greatest interface. Most importantly, the perception of the common man about the credentials and background of the judicial officer is vital. We have only highlighted these aspects as a prelude to consider the facts of the case further. In other words, in the absence of a honourable acquittal, the alleged involvement of an officer in criminal cases may undermine public faith in the system", the Bench observed. Taking note of the age, the nature of the offences in which the candidate was implicated and the two FIRs and the acquittal based substantially on a compromise, the court allowed the appeal and said: "We would, therefore, think that bearing in mind the age, the nature of the offences in which the first respondent was implicated and the two FIRs, at any rate, in which the matter progressed from the stage of the FIR to the stage of chargesheeet and the manner in which the case ended viz., acquittal based substantially on a compromise and also where the witnesses turned hostile and also the nature of the post for which the first respondent was a candidate, the matter should have been approached differently by the High Court."

88. Existence Of Alternate Remedy Does Not Bar Exercise Of Writ Jurisdiction If Order Is Challenged For Want Of Jurisdiction

[Case: Magadh Sugar & Energy Ltd. v. State of Bihar; Citation: LL 2021 SC 495]

The Supreme Court observed that even if an alternate remedy exists, a High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law. "While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies", the bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna observed.

Exceptions to the rule of alternate remedy arise, the court noted, were:(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.

89. SARFAESI - Fresh 30 Days Notice Not Needed If Failure To Conduct Sale As Per First Notice Was Due To Borrower's Actions

[Case: S.Karthik & Ors v. N.Subhash Chand Jain & Ors; Citation: LL 2021 SC 496]

If the sale of a mortgaged property as per the SARFAESI Rules was interrupted during the 30 days notice period due to the actions of the borrower, a fresh notice of 30 days is not necessary for the sale process to resume after the interruptions are over, held the Supreme Court in a recent judgment. The Court stated that a fresh notice is necessary only if the sale got stopped due to reasons which are not attributable to the borrower. A bench comprising Justices L Nageswara Rao, BR Gavai and BV Nagarathna dismissed the special leave petition filed by the borrower, after making critical observations against the litigant for instituting various proceedings to stall the SARFAESI proceedings. The judgement stated that a litigant, by taking recourse to a series of proceedings one after the other, cannot be allowed to block the enforcement of a security interest created in favour of a secured creditor and thereby defeat the very purpose for which the SARFAESI Act was enacted.

In this case, the appellants were guarantors for a loan taken by borrower from Respondent-Bank. Upon failure of the borrower to replay, the Respondent-Bank issued a sale notice in respect of mortgaged properties. The first sale notice was stayed by an order of DRT Chennai and subsequently the Respondent-Bank issued another sale notice and sold the mortgaged property to the Auction Purchaser. The guarantors contended that the sale notice issued was not in compliance with Rule 8 and Rule 9 of the SARFAESI Rules and thus the sale was void and liable to be set aside, as the second sale notice gave only 10 days as opposed to 30 days. The Madras High Court dismissed the challenge. The Bench dismissed the SLP with costs and observed that in matters like these the purpose with which the SARFAESI Act has been enacted has to be taken into consideration.

90. Land Acquisition Compensation : Deduction For Development Costs Is To Made To Arrive At Market Value Of Undeveloped Land

[Case: Shankarrao Bhagwantrao Patil Etc. v. The State of Maharashtra; Citation: LL 2021 SC 497]

In a case related to land acquisition compensation, the Supreme Court has approved the deduction of 50% towards developmental costs. Referring to precedents, the Court observed that deduction for development is to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for developments). The deduction varies from 20% to 75% of the price of such developed plots. A bench comprising Justices Hemant Gupta and V Ramasubramanian was deciding an appeal filed by land owners seeking enhancement of compensation. The cases arose from proceedings initiated under the Land Acquisition Act 1894. In the instant case, the Court noted that the land in question was rocky and had a moorum soil. Such land is not cultivable. The possession of the land was taken for construction of government quarters and a road. Since the use of the land for a government quarter was known, therefore, the smaller area was sold keeping in view the intended use of the land acquired for the residential purposes. 

From the circumstances, the Court held that the deduction of 50% is proper. "...we find that deduction towards the development cost at the rate of 50% is warranted in the facts of the present case", the Court said in it judgment.

91. Supreme Court Recalls Suo Motu Extension Of Limitation With Effect From October 2; Period From 15.03.2020 To 02.10.2021 Stands Excluded From Computing Limitation

[Case: In Re Cognizance For Extension of Limitation; Citation: LL 2021 SC 498]

The Supreme Court has recalled the suo motu order of April 27, 2021, which had extended with effect from March 14, 2021 the limitation period for filing of cases in view of the COVID second wave. The Court said that the suo motu extension of limitation period will stand withdrawn with effect from October 2, 2021. A bench comprising Chief Justice of India NV Ramana, Justices L Nageswara Rao and Surya Kant made these observations in the suo motu case In Re Cognizance For Extension of Limitation.

The following are the directions : I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021. II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. III. The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. IV. The Government of India shall amend the guidelines for containment zones, to state.

92. Retirement Will Not Terminate Mandate Of Dept Officer Appointed As Sole Arbitrator : Supreme Court Restores 1998 Award

[Case: M/s Laxmi Continental Construction Co v. State of UP; Citation: LL 2021 SC 499]

Deciding an appeal arising out of the Arbitration Act 1940, the Supreme Court has held that a department officer, who was appointed as the arbitrator, can continue to preside over the arbitration proceedings even after his retirement. A bench comprising Justices MR Shah and AS Bopanna was considering the question "whether once an officer of the department is appointed as an Arbitrator considering the arbitration clause, whether his mandate to continue the arbitration proceedings shall come to an end on his retirement?". The dispute arose out of an agreement of 1988 between a contractor and the State of Uttar Pradesh. As per the Arbitration Clause, the Chief Engineer was to be the sole arbitrator for the disputes arising out of the agreement. In 1992, the arbitration proceedings commenced. The award, which was passed in 1998 in favour of the contractor, was set aside by the High Court of Uttaranchal in 2007. The High Court held that the mandate of the Arbitrator came to an end with his retirement and his continuation of the proceedings after his retirement amounted to misconduct. In 2008, special leave petition was filed in the Supreme Court against the High Court's verdict.

"...the only qualification for appointment as an arbitrator is that he should be the officer of the rank of the Superintending Engineer or higher. Once such an officer is appointed as an Arbitrator, he continues to be the Sole Arbitrator till the arbitration proceedings are concluded unless he incurs the disqualification under the provisions of the Indian Arbitration Act, 1940. Even after his retirement, the arbitration proceedings have to be continued by the same Arbitrator. In the present case also the Sole Arbitrator, who at the relevant time was the Chief Engineer and was qualified to become the Sole Arbitrator was even nominated and/or appointed by the Chief Engineer as per clause 52. Therefore, considering the clause 52 of the agreement, it cannot be said that his mandate to continue with the arbitration proceedings would come to an end on his retirement", the Bench observed. 

93. "It Breaks The Back Of Litigants; Insults & Kills Justice" : Supreme Court Urges Courts To Get Out Of 'Adjournment Culture'

[Case: Ishwarlal Mali Rathod v. Gopal; Citation: LL 2021 SC 500]

The Supreme Court, in an order passed recently, urged the courts not to grant repeated adjournments in routine manner. "Time has now come to change the work culture and get out of the adjournment culture so that confidence and trust put by the litigants in the Justice delivery system is not shaken and Rule of Law is maintained", Justice MR Shah and AS Bopanna observed. The court said that repeated adjournments break the back of the litigants and consequentially lose confidence in the justice delivery system. A judicial officer has to bear in mind his duties to the litigants and shall not worry about 'displeasure of bar' for not granting unnecessary adjournments, the bench remarked. The court made these observations while considering a special leave petition which it termed as 'classic example of misuse of the adjournments granted by the court'.

"It cannot be disputed that due to delay in access to justice and not getting the timely justice it may shaken the trust and confidence of the litigants in the justice delivery system. Many a times, the task of adjournments is used to kill Justice. Repeated adjournments break the back of the litigants. The courts are enjoying upon to perform their duties with the object of strengthening the confidence of common man in the institution entrusted with the administration of the justice. Any effort which weakens the system and shake the faith of the common man in the justice dispensation has to be discouraged. Therefore the courts shall not grant the adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice. The courts have to be diligence and take timely action in order to usher in efficient justice dispensation system and maintain faith in rule of law", the Bench observed further. 

94. 'Nobody Can Take Benefit Of Mistake Of Court' : Supreme Court Refuses To Rely On 'Inadvertent' Order Enhancing Compensation

[Case: Ajai Pal Singh and others v. State of Uttar Pradesh; Citation: LL 2021 SC 501]

The Supreme Court has observed that a party cannot take benefit of an inadvertent mistake committed by a court while passing an order. A bench comprising Justices MR Shah and AS Bopanna was hearing an appeal seeking enhancement of compensation for lands acquired by the NOIDA authority pursuant to a notification issued in 1976. The appellants had placed reliance on a 2014 judgment of the Allahabad High Court in the case Mangu v State of UP. In the said case, the High Court had passed a common judgment to dispose of a batch of appeals, which were predominantly relating to land acquisitions which took place in 1992. However, one of the appeals related to an acquisition of 1977, which got 'inadvertently' tagged with the other appeals relating to the 1992 acquisitions. As the High Court had passed a common order for enhancement, the land value of the 1977 acquisition also got 'mechanically' enhanced, along with the 1992 acquisitions.

Before the Supreme Court, the appellants placed reliance on this enhancement granted by the High Court for the 1977 case. However, the Supreme Court noted that the case pertaining to the 1977 acquisition got inadvertently tagged with the other batch of cases pertaining to 1992 acquisition. Nobody pointed out this fact to the High Court. Therefore, the High Court "mechanically" enhanced the compensation for all cases, without noticing the presence of the case relating to 1977 acquisition in the batch of appeals. "Nobody can be permitted to take the benefit of the mistake either of the Court or of any party, which mistake has occurred inadvertently and without noticing the peculiar facts. As such it was the duty of the Advocate for the claimants to point out the correct facts", the Supreme Court held.

95. ID Act - Burden Is On Employee To Prove He Was Not Gainfully Employed After Dismissal

[Case: National Gandhi Museum v Sudhir Sharma; Citation: LL 2021 SC 502]

The Supreme Court has observed that whether an employee has been able to discharge the burden that he was not gainfully employed after order of compulsory requirement or not is an issue which is to be decided in the facts of each case taking into consideration the entire material on record. The Court was dealing with a case arising out of proceedings under the Industrial Disputes Act in relation to the compulsory retirement of an employee. Referring to the precedent in Talwara Cooperative Credit and Service Society Ltd v. Sushil Kumar, a Bench of Justices Ajay Rastogi and Abhay S Oka observed that, "...the fact whether an employee after dismissal was gainfully employed is within his special knowledge and therefore, considering the principles laid down in Section 106 of the Indian Evidence Act, 1872, the burden is on the employee to come out with a case that he was not gainfully employed during the relevant period. We must note that whether such burden is discharged or not is an issue to be decided in the facts of each case. The issue has to be decided by taking into consideration the entire material on record." 

96. Role Attached To Accused Has To Be Considered While Deciding Bail Plea Citing Parity

[Case: Mahadev Meena v. Raveen Rathore; Citation: LL 2021 SC 503]

The Supreme Court has observed that the role attached to the accused has to be considered while deciding the plea seeking bail on the ground of parity. The seriousness and gravity of the crime alleged has to be considered while granting bail to the accused, the bench of Justices DY Chandrachud and BV Nagarathna reiterated while setting aside a bail grant to a murder accused. The case relates to murder of a Senior Technical Officer with the Intelligence Bureau in New Delhi. On 14 February, 2018, he was found in an unconscious state near Railway Crossing Puliya and was declared brought dead at the hospital. Later on investigation, it was revealed that he was killed by administering Ketamine. A charge sheet was filed against Raveen Rathore (employee of the Anti-Corruption Bureau), the wife of the deceased and some others. The co-accused Anita Meena was granted bail on 4 June 2019, after the High Court noted that she had a child of eleven months and due to her incarceration, her child was also confined with her in the jail. Thereafter, Rathore was also granted bail on the following grounds: (i) custody for a period of two and a half years; (ii) Out of seventy-six witnesses only twenty-five have been examined; (iii) There was a delay in lodging the FIR; (iv) While the initial FSL report did not contain any reference to the use of the Ketamine, it was after four months that police had developed a case that Ketamine was administered to the deceased; and (v) The co-accused had been enlarged on bail.

In appeal filed by the father of the deceased, the Apex Court bench observed that the High Court ought to have had due regard to the seriousness and gravity of the crime. The material which has emerged during the course of investigation cannot simply be ignored or glossed over, the court said. "The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law", the Bench observed further. 

97. Right To Get Aid From Govt Not Fundamental Right, There Cannot Be Any Difference Between Minority & Non- Minority Aided Institutions

[Case: State of Uttar Pradesh v. Principal Abhay Nandan Inter College; Citation: LL 2021 SC 504]

The Supreme Court has observed that there is no difference between minority and non-minority aided institutions and that their right to get an aid from the Government is not a fundamental right. An institution receiving aid is bound by the conditions imposed and therefore expected to comply, the bench of Justices Sanjay Kishan Kaul and MM Sundresh observed while allowing the appeal filed by State of Uttar Pradesh against the Allahabad High Court judgment that declared that Regulation 101 framed under the Intermediate Education Act, 1921 is unconstitutional. The court added that an institution can never be allowed to say that the grant of aid should be on its own terms.

Allowing the appeal, the Bench observed, "When it comes to aided institutions, there cannot be any difference between a minority and non-minority one. Article 30 of the Constitution of India is subject to its own restrictions being reasonable. A protection cannot be expanded into a better right than one which a non-minority institution enjoys. Law has become quite settled on this issue and therefore does not require any elaboration."

98. Summoning Of An Accused Is A Serious Matter; Magistrate Has To Record Satisfaction About Prima Facie Case

[Case: Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd; Citation: LL 2021 SC 505]

The Supreme Court reiterated that the summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course and that magistrate while ordering summons has to record his satisfaction about a prima facie case against the accused, the bench of Justices MR Shah and AS Bopanna observed. In this case, a private complaint was lodged by a person against a company, its director and other functionaries alleging offences punishable under Sections 406, 418, 420, 427, 447, 506 and 120B read with Section 34 of Indian Penal Code. The Magistrate issued the process against the accused. Later, the Sessions Court set aside this order, and the same was upheld by the High Court, by dismissing the revision petition filed by the complainant.

"The learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them. Looking to the averments and the allegations in the complaint, there are no specific allegations and/or averments with respect to role played by them in their capacity as Chairman, Managing Director, Executive Director, Deputy General Manager and Planner & Executor. Merely because they are Chairman, Managing Director/Executive Director and/or Deputy General Manager and/or Planner/Supervisor of A1 & A6, without any specific role attributed and the role played by them in their capacity, they cannot be arrayed as an accused, more particularly the cannot be held vicariously liable for the offences committed by A1 & A6", the Court said while dismissing the appeal.

99. Resignation Once Accepted Can't Be Withdrawn Citing Mere Delay In Relieving Employee

[Case: M/s New Victoria Mills & Ors. v. Shrikant Arya; Citation: LL 2021 SC 506]

The Supreme Court has observed that mere delay in relieving an employee from his duties does not impact the acceptance of his resignation. The Court rejected the argument of the employee that he was entitled to withdraw the resignation citing the delay in relieving him of his duties. "Once such a resignation was accepted, and not even assailed, there could be no question of the respondent being permitted to resign post acceptance of the resignation. It was only a postponement of the cut off date for administrative reasons, which merely delayed the relieving of the respondent and did not defer the acceptance of the resignation", a bench comprising Justices Sanjay Kishan Kaul and MM Sundresh observed. "The mere fact that some staff continued to work after the closure of the Mill, or the fact that some people may have been deployed in other mills cannot help the respondent's case for reinstatement," the bench added.

"In contractual terms, appellant No. 1's acceptance of the respondent's offer of resignation as available under the MVRS was completed on 28.05.2003. The respondent cannot be permitted to take advantage of the postponement of the cut off date by a few days, during which time the respondent was asked to attend to office, albeit against no sanctioned post," the bench observed in this context.

100. Office Bearers Of Bar Association Are To Be Elected By Advocates Regularly Practicing In That Court; Outsiders Cannot Be Permitted To Take Part

[Case: Amit Sachan & Anr v. Bar Council of Uttar Pradesh ; Citation: LL 2021 SC 507]

The Supreme Court has observed that office-bearers of the Bar Association are to be elected by genuine voters and advocates genuinely/regularly practising in the High Court/Court concerned. Outsiders not regularly practicing in that court cannot be permitted to hijack the system by permitting them to take part in the election process of electing members of the Bar Association, the Court added. "Office bearers of the Bar Association are to be elected by the genuine voters and the advocates genuinely/regularly practicing in the High Court and/or the Court concerned, and outsiders not regularly practicing in that court cannot be permitted to hijack the system by permitting them to take part in the election process of electing members of the Bar Association", a bench comprising Justices MR Shah and AS Bopanna observed. 

The bench made these observations while dismissing the special leave petitions assailing Allahabad High Court's order dated August 24 and August 27 of cancelling the election process and imposing some restrictions while conducting elections of the Awadh Bar Association afresh. The elections were cancelled after widespread ruckus and misbehaviour occurred. "Any member of the Bar cannot be permitted to misbehave in the premises of the High Court. The manner in which the lawyers acted and misbehaved on 14.08.2021 in the premises of the High Court, where the election of the Awadh Bar Association was going on, cannot be tolerated and accepted and has to be deprecated," bench further observed.

101. Retrospective Seniority Cannot Be Claimed From A Date When An Employee Is Not Even Borne In Service

[Case: State of Bihar v. Arbind Jee; Citation: LL 2021 SC 510]

The Supreme Court has observed that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. The Bench comprising Justices R. Subhash Reddy and Hrishikesh Roy observed that seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. In this case, the authorities had rejected the claim of an employee who sought seniority from 5.12.1985 on the ground that he was appointed on 27.2.1996 on direction of the Supreme Court and that he was not borne in service as on 5.12.1985. The rejection order was then challenged and the Patna High Court which directed the authority to consider the his seniority from 5.12.1985. Before the Supreme Court, the issue raised was whether the employee is entitled to claim seniority in service from a retrospective date i.e. 20.11.1985 as was ordered by the High Court or whether he is entitled for seniority from the date he entered service?

"The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted", the Court observed. Referring to the facts of this case, the Court opined that the action of the authorities in determination of the employee's seniority from the date of entering service is consistent with the applicable laws. "There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category.", the Court observed while setting aside the High Court judgment.

102. Supreme Court Dismisses Adani Gas Ltd Plea Seeking Authorization For City Gas Distribution Network In Ahmedabad District With Rs 10 Lakh Costs

[Case: Adani Gas Ltd. v. Union of India; Citation: LL 2021 SC 511]

The Supreme Court has dismissed an appeal filed by Adani Gas Ltd seeking authorisation for city gas distribution network in three areas of Ahmedabad District in Gujarat with a cost of Rupees 10 lakhs. The Court has held the exclusion of Adani Gas Ltd from the disputed areas as "justified in the overall facts and circumstances". "Having regard to the above findings and conclusions, the appeals fail and are dismissed. In the circumstances, Adani shall bear the costs quantified @ ₹10 lakhs, payable to the Union of India", the Court ordered while concluding the judgment. A Bench comprising Justices UU Lalit, S. Ravindra Bhat and Hrishikesh Roy also overruled a two judge bench judgment in Adani Gas Ltd. v. Union of India (2019) 3 SCC 641, on the scope of the "deemed authorisation" clause under the proviso to Section 16 of the Petroleum and Natural Gas Regulatory Board Act, 2006. Under the Petroleum and Natural Gas Regulatory Board Act, 2006 (PNGRB Act), authorization from the Petroleum and Natural Gas Regulatory Board is required to operate a City or Local Natural Gas Distribution Network(CGD Network). The Petroleum and Natural Gas Regulatory Board denied authorization to AGL for operating City Gas Network in different areas of Ahmadabad city in Gujarat.

Feeling aggrieved by the exclusion, AGL filed a writ petition in the Gujarat High Court, challenging the various Regulations under the PNGRB Act and also the grant of authorization to a competitor Gujarat Gas, a state-entity. The High Court dismissed AGL's petition in 2018. Challenging the High Court's dismissal, AGL approached the Supreme Court. "In view of the factual discussion, about the background leading to the grant of authorization to Adani, and its acceptance of that authorization, furnishing of performance bond, and proceeding to act upon it, even participating in the auction for the excluded areas there can be no manner of doubt that it acquiesced to the action of the PNGRB, and after having unsuccessfully entered its bid, sought to challenge the authorization. Clearly, this conduct amounts to approbating and reprobating. Adani's arguments about its lack of knowledge about its true rights, in the opinion of this Court, cannot be countenanced, because it knew and conformed to the procedure under the PNGRB Act, specifically, the requirements of the regulations, and Regulation 18, when it applied and obtained authorization in other areas in the country", the judgment stated. 

103. Insurance Surveyor's Report Not Sacrosanct, But Consumer Forum Cannot Subject It To 'Forensic Examination

[Case: Khatema Fibres Ltd. v. New India Assurance Company Ltd; Citation: LL 2021 SC 512]

The Supreme Court has observed that though an insurance surveyor's report is not so sacrosanct, a Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject it to 'forensic examination of its anatomy'. "Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop", the bench of Justices Hemant Gupta and V. Ramasubramanian observed said.

The court observed thus while upholding a Judgment of the National Consumer Disputes Redressal Commission confining the compensation payable to claimants only to the extent of the assessment as made by the final Surveyor. In this case, a "Standard Fire and Social Perils" policy was taken by the complainant from the insurance company. When the policy was in force, a fire broke out in its factory premises. One M/S Adarsh Associates, appointed by the Insurance Company, conducted a survey, and submitted its report assessing the loss suffered as Rs.2,86,17,942. Aggrieved, the complainant filed a consumer complaint before the National Commission claiming inter alia compensation in a sum of Rs.1364.88 lakhs. The commission directed the insurance company to pay only the amount of Rs.2,85,76,561 as admitted by them. "This is not a case where the Insurance Company has repudiated the claim of the appellant arbitrarily or on unjustifiable grounds. This is a case where the claim of the appellant has been admitted, to the extent of the loss as assessed by the Surveyor. In cases of this nature the jurisdiction of the special forum constituted under the Consumer Protection Act, 1986 is limited. Perhaps if the appellant had gone to the civil court, they could have even summoned the Surveyor and cross examined him on every minute detail. But in a complaint before the Consumer Forum, a consumer cannot succeed unless he establishes deficiency in service on the part of the service provider.", the Court observed further. 

104. 'Court Cannot Rewrite Statutory Language' : Supreme Court Sets Aside Madras HC Order Reading Down Advance Notice Condition For Broadcasters Under Rule 29(4) Of Copyright Rules

[Case: Saregama India Limited v. Next Radio Limited & Ors; Citation: LL 2021 SC 513]

The Supreme Court has set aside an interim order passed by the Madras High Court in a writ petition filed by some broadcasters/FM Radios challenging Rule 29(4) of Copyright Rules, 2013. "Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft.", the bench of Justices DY Chandrachud and BV Nagarathna observed. Before the Madras High Court, the validity of Rule 29(4) was challenged by certain broadcasters/ FM Radio on the ground that it (i) violates Article 19(1)(a) of the Constitution; and (ii) is ultra vires Section 31D of the Act. The High Court, in its interim order observed that the duty which is cast on broadcasters in the notice to broadcast under Rule 29(1) is "apparently onerous".

Before the Apex Court, challenging this interim order, it was contended that the interim order amounts to re-writing Rule 29(4) of the Rules framed in pursuance of the provisions of Section 31D and Section 78(2)(cD) of the Copyright Act 1957. The Court noted that the High Court has substituted the provisions of Rule 29(4) with a regime of its own, which is made applicable to the broadcasters and the petitioners before it. "The Court is entrusted by the Constitution of the power of judicial review. In the discharge of its mandate, the court may evaluate the validity of a legislation or rules made under it. A statute may be invalidated if is ultra vires constitutional guarantees or transgresses the legislative domain entrusted to the enacting legislature. Delegated legislation can, if it results in a constitutional infraction or is contrary to the ambit of the enacting statute be invalidated. However, the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language. Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft. That precisely is what the Division Bench of the High Court has done by its interim order.", the Bench observed.

105. Validity Of Sanction Order Can Also Be Raised In The Course Of Trial

[Case: Major M.C. Ashish Chinappa v. Central Bureau of Investigation; Citation: LL 2021 SC 514]

The Supreme Court has observed that the validity of sanction order can also be raised in the course of trial. In this case, the petitioner's contention before the Apex Court was that the Trial Court has taken cognizance of the offence without there being valid sanction as per the provision of Section 19 of the Prevention of Corruption Act, 1988. The petitioner had earlier approached the Uttarakhand High Court challenging the summoning order, contending that the same is void ab initio since having been issued without there being a prior sanction granted under Section 19 of the Prevention of Corruption Act. The High Court dismissed the said petition.

Taking note of the fact that, in this case, the cognizance has already been taken and trial is in progress, the bench of Justices S. Abdul Nazeer and Krishna Murari referred to the following observations made in Dinesh Kumar v. Chairman, Airport Authority of India (2012) 1 SCC 532 : "In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the trial Judge, the High Court cannot be said to be have erred in leaving the question of validity of sanction open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal vs. State of Punjab (2007) 1 SCC 1 and not unjustified."

106. 'Constitutional' Power To Punish For Contempt Cannot Be Taken Away Even By Legislative Enactment

[Case: Suraz India Trust v. Union of India; Citation: LL 2021 SC 515]

The Supreme Court has observed that its power to punish for contempt is a constitutional power which cannot be abridged or taken away even by legislative enactment. "Motivated and calculated attempts to bring down the image of the judiciary in estimation of public and impair the administration of justice must bester themselves to uphold their dignity and the majesty of law", the Supreme Court has observed in the order in which it held Suraz India Trust Chairman Rajiv Daiya guilty of contempt of court for scandalising the Court. The Court also observed that the 'raison d'etre' of contempt jurisdiction is to maintain the dignity of the institution of judicial forums. "It is not a vindictive exercise nor are inappropriate statements by themselves capable of lowering the dignity of a Judge. These are often ignored but where despite all latitude a perennial litigant seeks to justify his existence by throwing mud at all and sundry, the Court has to step in", the court added.

The Court also noticed the judgment in Re: Vijay Kurle & Ors and observed that here is no absolute licence when appearing in person to indulge in making aspersions as a tendency to scandalise the Court in relation to judicial matters. "Motivated and calculated attempts to bring down the image of the judiciary in estimation of public and impair the administration of justice must bester themselves to uphold their dignity and the majesty of law. In the current context if seen, the grievance arises on account of the inability of the contemnor to file public interest petitions on account of costs being imposed, which he claims to be unable to pay and the consequences thereof of not being able to prosecute his petitions, which are large in number. The contemnor has apparently made a profession of filing public interest petitions of subjects of which he may not know much and then seeking to scandalise the Court to grant him relief failing which he will continue to scandalise the Court.", the Court added.

107. 'Non Compoundable' Criminal Cases Of Predominantly Private Nature Can Be Quashed U/s 482 CrPC Even If Compromise Is Reached After Conviction

[Case: Ramgopal v. State of Madhya Pradesh; Citation: LL 2021 SC 516]

The Supreme Court has observed that a High Court can quash criminal proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non-compoundable and the compromise is reached after conviction. The bench comprising CJI NV Ramana and Justice Surya Kant added that criminal proceedings involving non-­heinous offences or where the offences are predominantly of a private nature, can be quashed irrespective of the fact that trial has already been concluded or appeal stands dismissed against conviction. Where compromise is struck post-conviction, the High Court ought to exercise such discretion with rectitude, keeping in view the circumstances surrounding the incident, the court said. In this case, the accused who were convicted under Section 326 of the Indian Penal Code, in their revision petition, sought compounding of offence in light of the compromise. The High Court rejected their plea on the ground that the offences are non-compoundable.

"True it is that offences which are 'non­compoundable' cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C, which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C., which may justify its wider interpretation and include such offences in the docket of 'compoundable' offences which have been consciously kept out as non­compoundable. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C. The High Court, keeping in view the peculiar facts and circumstances of a case and for justifiable reasons can press Section 482 Cr.P.C. in aid to prevent abuse of the process of any Court and/or to secure the ends of justice", the Bench observed further. 

108. Order IX Rule 13 CPC : Supreme Court Holds Defendant Who Refused Summons Not Entitled To Seek Setting Aside Of Ex-Parte Decree

[Case: Vishwabandhu v. Sri Krishna and another; Citation: LL 2021 SC 517]

The Supreme Court has set aside a judgment of the High Court, which had allowed the setting aside of an ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure. In this case, the defendant had refused to accept the summons issued in the suit. After the suit was decreed ex-parte, execution proceedings were initiated. The defendant duly acknowledged the receipt of auction notice with respect to the suit property. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. Though the trial court rejected the application, the High Court allowed the same in appeal. Though the High Court observed that the defendant was not vigilant as he ought to have been, it added that the "conduct does not on the whole warrant to castigate him as an irresponsible litigant".

At the Supreme Court, a bench comprising Justices Uday Umesh Lalit and S Ravindra Bhat noted that Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant.The Court therefore held that the defendant was not vigilant. "In the light of the features indicated above and the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant", the Court observed.

109. Provision For Upper Age Limit Is Mandatory & Can't Be Relaxed; Eligibility Criteria For Public Appointment Must Be Uniform

[Case: The State of Jammu and Kashmir v. Shaheena Masarat and Anr; Citation: LL 2021 SC 518]

Observing that eligibility criteria for appointment to public posts should be uniform, the Supreme Court has held that provision relating to upper age limit should be construed as "mandatory" and not "directory". Holding the upper age limit provision to be "directory" would mean that the authority is given unbridled power in giving relaxations to persons of their choice. That is impermissible as per the Constitutional scheme, as the appointments to the public posts must be in accordance with Articles 14 and 16, the Court stated. It was also observed that there could not be scope of arbitrary selections by unfettered discretion being vested in the authorities. Considering an appeal against a judgment of the Jammu and Kashmir High Court, the Supreme Court observed that the High Court correctly construed the provision relating to upper age limit as "mandatory".

"Appointments to public posts should be strictly in accordance with Articles 14 and 16 of the Constitution of India. Eligibility criteria should be uniform and there cannot be scope of arbitrary selections by unfettered discretion being vested in the authorities. Construing the provision relating to upper age limit as directory would be conferring unbridled power in the executive to choose persons of their choice by relaxing the age beyond 35 years. In such case, the provision would have to be declared as unconstitutional," bench of Justices L Nageswara Rao and Sanjiv Khanna observed. 

110. Irrigation Department Of State Not An 'Industrial Establishment' Under Section 25L Of ID Act

[Case: State of Madhya Pradesh v. Somdutt Sharma; Citation: LL 2021 SC 519]

Observing that the Irrigation Department of the State of Madhya Pradesh is not an "Industrial Establishment" under Section 25L of the Industrial Disputes Act, the Supreme Court has held that to decide as to whether a Department is an Industrial Establishment or not, the test would be to consider the predominant functions and activities of the said Department. "Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process. Overall activities and functions of the Irrigation Department will have to be considered while deciding the question whether it is carrying on manufacturing activities. Few employees of the Irrigation Department out of several may be incidentally operating pumps. But the test is what are the predominant functions and activities of the said Department. Even if the activity of operation of pumps is carried on by few employees, the Irrigation department does not carry on manufacturing process. As it is not carrying on manufacturing process, it is not a factory within the meaning of clause (m) of section 2 of the Factories Act. Therefore, the Irrigation Department of the first appellant will not be an Industrial Establishment within the meaning of Section 25L. Accordingly, Chapter VB will have no application in the present case," bench of Justices Ajay Rastogi and Abhay S Oka observed. 

Somdutt Sharma ("Respondent" in the present case) was appointed as a daily wage employee on the post of Helper in the Irrigation Department ("Department") of the State of Madhya Pradesh. On December 1, 1995 his employment was terminated. On Chief Minister's directions, Sharma was again taken back in service on August 11, 2004 but his employment was terminated again on July 2, 2005. Sharma raised a dispute which was referred by the appropriate Government to the decision of the Labor Court. Observing that since Chapter VB of the Industrial Disputes Act, 1947 ("Act") was applicable, the Tribunal ordered for Sharma's reinstatement in the Rajghat Canal Project since the State did not comply with section 25N of the Act. The Tribunal however declined to grant back wages. Aggrieved by the Tribunal's award, the State approached the Single Judge of the High Court. The Single Judge of the High Court affirmed the award. The Division Bench of the High Court on December 11, 2019 affirmed the decision by the Single Judge of upholding the Tribunal's award. Aggrieved, the State approached the Top Court. "The Labour Court as well the learned Single Judge and the learned Division Bench of the High Court have not adverted to the question whether the Irrigation Department of the first appellant is an Industrial Establishment within the meaning of Section 25L. There is no finding recorded that the Irrigation Department of the first appellant is doing manufacturing activity as provided in sub-clause (k) of Section 2 of the Factories Act", the judgment observed. 

111. Supreme Court Holds Builder Liable To Compensate Residents Welfare Association For Not Providing Promised Amenities

[Case: The Managing Director (Shri Girish Batra) v. General Secretary (Shri Amol Mahapatra) Royale Garden Residents Welfare Association; Citation: LL 2021 SC 520]

The Supreme Court has directed a builder to pay a compensation of Rupees 60 lakhs to a Residents Welfare Association(RWA) for not fulfilling its promises regarding provision of amenities and facilities. The Court held the builder "Padmini Infrastructure Developers Ltd" liable to compensate Royale Garden RWA of Noida for not building a water softening plant, a second health club & a swimming pool, for failing to put in operation a fire fighting system and provide a Club House as promised in the agreement. Since the builder defaulted on the promises regarding amenities, the RWA approached the National Consumer Disputes Rederssal Commission(NCDRC). The NCDRC appointed an architect as a local commissioner to inspect the site and submit a report. The commissioner's report endorsed the grievances of the RWA regarding lack of completion of facilities. The NCDRC passed an order in January 2010 directing the builder to complete the systems and facilities in dispute within 10 weeks from the date of the order and imposed costs of Rs 25,000 on the builder. Aggrieved with the NCDRC order ,the builder approached the Supreme Court.

A bench comprising Justices Hemant Gupta and V Ramasubramanian observed : "In the light of the aforesaid findings by an independent architect appointed by the National Commission it is not open to the opposite party to create a façade as though all essential services and amenities were handed over in a fully functional state. If all the aforesaid services had been handed over in a fully functional state, the opposite party should have taken an acknowledgment in writing from the complainant. In the alternative, the opposite party should have insisted upon an appropriate provision in the Agreement dated 15.11.2003". However, as the possession of the common amenities was handed over to the housing society 18 years ago, the Court said that it might not be possible to compel the builder to make those facilities or systems fully operational "at this distance of time". 

112. Article 136 - Direct Appeal From HC Single Bench Orders Maintainable In Cases Of 'Glaring Errors & Injustices

[Case: Indian Institute of Technology Kharaghpur and others v. Soutrik Sarangi; Citation: LL 2021 SC 521]

The Supreme Court has reiterated that existence of alternate remedies is not an absolute bar against the exercise of discretion under Article 136 of the Constitution of India. Observing that the discretion under Article 136 is "flexible and sufficiently wide to correct glaring errors and injustices", the Supreme Court has entertained a petition filed challenging a single bench order of the High Court, although the appellate remedy to the division bench was not exhausted. A bench comprising Justices Uday Umesh Lalit, S Ravindra Bhat and Bela M Trivedi was considering a Special Leave Petition filed by the Indian Institute of Technology against a single bench judgment of the Calcutta High Court, which had declared an admission criteria for JEE(Advanced) as arbitrary. The respondent objected to the maintainability of the petition on the ground that the letters patent appeal before the division bench of the High Court has not been filed.

Rejecting this objection as "insubstantial", the Supreme Court observed : "The ordinary rule of necessity that litigants should approach and avail of appellate remedies exhausting them before approaching this Court is a rule of convenience and not an immutable practice. It has been held to be so by this Court (Ref State of UP v Harish Chandra & Ors 1996 (9) SCC 309). Moreover, the discretion under Article 136 of the Constitution is flexible and sufficiently wide, to correct glaring errors and injustices".

113. Insurance Claim Can Be Rejected If Vehicle Was Used Without Valid Registration

[Case: United India Insurance Co. Ltd v. Sushil Kumar Godara; Citation: LL 2021 SC 522]

The Supreme Court has observed that an insurance claim can be rejected if a vehicle is used/driven without a valid registration, since that would constitute a fundamental breach of the terms and conditions of the contract of insurance. The bench of Justices Uday Umesh Lalit, S. Ravindra Bhat and Bela M. Trivedi observed that when an insurable incident that potentially results in liability occurs, there should be no fundamental breach of the conditions contained in the contract of insurance. If on the date of theft, the vehicle had been driven/used without a valid registration, it amounts to fundamental breach, the Court held. In this case, the policy holder had purchased a new Bolero which had a temporary registration. After the registration lapsed, he travelled outside his residence. He parked outside the guest house premises from where it was stolen. He claimed insurance but it was repudiated on the ground that the temporary registration of the vehicle expired. Thereafter, he approached the District Forum seeking a direction to the insurer to pay him the sum insured for the vehicle with rent amount of ₹1,40,000/- and also claimed relief for mental agony and costs of litigation. The said complaint got dismissed, against which he approached the State Consumer Disputes Redressal Commission. Allowing the appeal, the state commission observed that the insurer could not repudiate the insured's genuine claim on technical, petty and frivolous grounds of absence of permanent registration certificate from the competent authority and thus escape its liability to indemnify the insured for the loss of the vehicle. The revision petition filed by the insurer before National Consumer Disputes Redressal Commission was dismissed and thus it approached the Apex Court.

"What is important is this Court's opinion of the law, that when an insurable incident that potentially results in liability occurs, there should be no fundamental breach of the conditions contained in the contract of insurance. Therefore, on the date of theft, the vehicle had been driven/used without a valid registration, amounting to a clear violation of Sections 39 and 192 of the Motor Vehicles Act, 19886 . This results in a fundamental breach of the terms and conditions of the policy, as held by this Court in Narinder Singh (supra), entitling the insurer to repudiate the policy", the Bench observed. 

114. Right To Apply For Bail Is An Individual Right Implicit In Articles 14, 19 & 21

[Case: High Court of Judicature for Rajasthan v. State of Rajasthan and Another; Citation:  LL 2021 SC 523]

Disapproving the blanket orders passed by a single judge of the Rajasthan High Court to not list applications for bail and suspension of sentence as urgent matters during the lockdown, the Supreme Court has observed that the right to apply for bail is an individual right implicit in Articles 14, 19 and 21 of the Constitution. The Court has observed that such blanket bans would suspend Fundamental Rights of individuals and block access for seekers of liberty to apply for bail. A Bench comprising Justices L Nageswara Rao and Aniruddha Bose made the observations while delivering the judgement in special leave petitions filed against orders of the Rajasthan High Court which directed the Registry to not to list bails, appeals, applications for suspension of sentence in appeals and revisions in the category of extreme urgent matters. Also under challenge was a direction issued by the single bench this year to the Registry to not list applications seeking anticipatory bail in offences where maximum sentence extends upto three years during the summer vacation of the Court.

"Such right has been taken away by judicial order, without compliance of procedure established by law, which in our constitutional jurisprudence, is akin to "the due process" dictum." the Bench said. The Court also observed that the right of an accused, an undertrial prisoner or a convicted person awaiting appeal court's verdict to seek bail on suspension of sentence is recognised in Sections 439, 438 and 389 of the 1973 Criminal Procedure Code. The Bench also found it improper for the Single Judge to come to a general finding that when there is complete lockdown the bail applications, appeal under SC/ST Act and applications for suspension of sentence in appeals and revisions could not be considered to be matters of extreme urgency. "Such sweeping orders in our adversarial adjudicatory system would be contrary to law as many persons would be impacted by such orders without having any knowledge of the proceeding." the Bench said. While delivering its verdict, the Bench expressed disapproval of both the directions of restrictions on arrest and listing of bail applications issued by a single bench of the High Court. "The directions issued had the potential for breaching the constitutional and legal rights of individuals who could be or are arraigned in criminal action and also put fetters on power of investigating agencies", the Bench recorded.

115. Power Of Attorney Having Authorisation Of Financial Creditor Can File Application U/s 7 IBC

[Case: Rajendra Narottamdas Sheth v. Chandra Prakash Jain; Citation: LL 2021 SC 524]

The Supreme Court has observed that the power of attorney holder of a financial creditor who has been given authorisation can file an application under Section 7 of Insolvency and Bankruptcy Code on behalf of it. In this case, one Praveen Kumar Gupta was given general authorisation by the Bank (financial creditor) with respect to all the business and affairs of the Bank, including commencement of legal proceedings before any court or tribunal with respect to any demand and filing of all necessary applications in this regard. On behalf of the Financial Creditor,he filed an application under Section 7 of the Code seeking initiation of corporate insolvency resolution process. The Adjudicating authority rejected the corporate debtor's contention that the application under Section 7 of the Code was not maintainable as it was filed by a power of attorney holder. Section 7 provides that a financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. The form and manner in which an application under section 7 of the I&B Code is to be filed by a Financial Creditor is provided in Form-l of the Adjudicating Authority Rules.

The bench of Justices L. Nageswara Rao, BR Gavai and BV Nagarathna observed,

"The NCLAT was of the opinion that general authorisation given to an officer of the financial creditor by means of a power of attorney, would not disentitle such officer to act as the authorised representative of the financial creditor while filing an application under Section 7 of the Code, merely because the authorisation was granted through a power of attorney. Moreover, the NCLAT in Palogix Infrastructure has held that if the officer was authorised to sanction loans and had done so, the application filed under Section 7 of the Code cannot be rejected on the ground that no separate specific authorisation letter has been issued by the financial creditor in favour of such officer. In such cases, the corporate debtor cannot take the plea that while the officer has power to sanction the loan, such officer has no power to recover the loan amount or to initiate corporate insolvency resolution process, in spite of default in repayment." "It does not impair Mr. Gupta's authority to file an application under Section 7 of the Code. It is therefore clear that the application has been filed by an authorised person on behalf of the Financial Creditor and the objection of the Appellants on the maintainability of the application on this ground is untenable.", the court added.