Supreme Court Weekly Digest With Nominal And Subject Wise And Statute Wise Index- April 4 to 10

Administrative Law - Every erroneous, illegal or even perverse order/action by a Statutory authority, by itself, cannot be termed as wanting in good faith or suffering from malafide - For imputing motives and drawing inference about want of good faith in any person, particularly a statutory authority, something more than mere error or fault ought to exist. (Para 13, 16) Chandra Prakash Mishra v. Flipkart, 2022 LiveLaw (SC) 359

Amendment - Whenever the challenge is to the amended provisions, the scope of enquiry, inter alia, ought to be as to whether the same is in consonance with the Principal Act, achieve the object and purpose of the Principal Act and are otherwise just, rational and reasonable. (Para 21) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355

Arbitration and Conciliation Act, 1996; Section 11 - Arbitration application decided and disposed of after a period of four years by Telangana High Court - Very sorry state of affairs - Registrar General of the High Court directed to submit a detailed report/statement pointing out how many Section 11 applications are pending before the High Court and from which year. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2022 LiveLaw (SC) 345

Arbitration and Conciliation Act, 1996; Section 11 - The arbitration applications for appointment of an Arbitrator are required to be decided and disposed of at the earliest, otherwise the object and purpose of the Arbitration Act shall be frustrated. (Para 2) Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2022 LiveLaw (SC) 345

Arbitration and Conciliation Act, 1996; Section 34 - Arbitral award can be set aside by the court if the court finds the award is vitiated by patent illegality appearing on the face of the award - The award shall not be set aside merely on the ground of erroneous application of law or by misappreciation of evidence. (Para 15) Haryana Urban Development Authority, Karnal v. M/s. Mehta Construction Company, 2022 LiveLaw (SC) 348

Arbitration and Conciliation Act, 1996; Section 34 - The court may condone delay of a period up to thirty days in filing of the objections if it is satisfied that the applicant is prevented by sufficient cause from making an application under Section 34(1) of the Act. (Para 10) Haryana Urban Development Authority, Karnal v. M/s. Mehta Construction Company, 2022 LiveLaw (SC) 348

Armed Forces Tribunal Act, 2007; Section 15 - AFT would be justified in interfering with the finding of the court martial where its finding is legally not sustainable due to any reason whatsoever. It would be permissible to interfere with such a finding when it involves a wrong decision on a question of law - AFT would be justified in allowing an appeal against conviction by a court­martial when there was a material irregularity in the course of the trial resulting in miscarriage of justice. (Para 27) Union of India v. Major R. Metri No. 08585N, 2022 LiveLaw (SC) 343

Bail - Appeal against Allahabad HC granting bail to an accused - Allowed - Order of High Court granting bail to co-accused was earlier set aside - Reasons which have weighed with this Court in cancelling the bail which was granted to the co-accused would equally apply to the case of the first respondent which also arises out of the same first information report and incident. Rishipal @ Rishipal Singh Solanki v. Raju, 2022 LiveLaw (SC) 344

Coal Mines (Nationalisation) Act, 1973; Section 3 - What was transferred to and vested in the Central Government were the coal mines - The ownership of the land was immaterial. If the land fell within the definition of the expression "mine" under the Nationalisation Act, the same stood transferred to and vested in the Central Government under Section 3(1). (Para 13) Bharat Coking Coal Ltd. v. Mahendra Pal Bhatia, 2022 LiveLaw(SC) 350

Coal Mines (Nationalisation) Act, 1973; Sections 2(h) and 3(1) - Focus is on the property and not on who the owner of the property is - Even the lands and buildings used solely for the location of the management, sale or liaison offices or for the residence of officers and staff were also included in the definition of the word "mine". (Para 15) Bharat Coking Coal Ltd. v. Mahendra Pal Bhatia, 2022 LiveLaw(SC) 350

Code of Civil Procedure, 1908; Section 64(2) and Order XXI Rule 58 - To get the benefit of sub-section (2) of Section 64 of the CPC, the objector and/or subsequent purchaser has to plead and prove that he is the bona fide purchaser, who has entered into the transaction prior to the order of attachment. (Para 4) Dokala Hari Babu v. Kotra Appa Rao, 2022 LiveLaw (SC) 342

Companies Act, 2013; Section 170 - Companies Act, 1956; Section 394 (1)(a) - Amalgamation - Amalgamation is unlike the winding up of a corporate entity. In the case of amalgamation, the outer shell of the corporate entity is undoubtedly destroyed; it ceases to exist. Yet, in every other sense of the term, the corporate venture continues – enfolded within the new or the existing transferee entity. In other words, the business and the adventure lives on but within a new corporate residence, i.e., the transferee company. It is, therefore, essential to look beyond the mere concept of destruction of corporate entity which brings to an end or terminates any assessment proceedings - Upon amalgamation, the cause of action or the complaint does not per se cease – depending of course, upon the structure and objective of enactment - The quest of legal systems and courts has been to locate if a successor or representative exists in relation to the particular cause or action, upon whom the assets might have devolved or upon whom the liability in the event it is adjudicated, would fall. (Para 18) Principal Commissioner of Income Tax (Central) – 2 v. Mahagun Realtors (P) Ltd; 2022 LiveLaw (SC) 346

Constitution of India, 1950; Article 14 - Classification Test - When there is a reasonable basis for a classification adopted by taking note of the exigencies and diverse situations, the Court is not expected to insist on absolute equality by taking a rigid and pedantic view as against a pragmatic one - When the differentiation is clearly distinguishable with adequate demarcation duly identified, the object of Article 14 gets satisfied. Social, revenue and economic considerations are certainly permissible parameters in classifying a particular group - Courts could not act like appellate authorities especially when a classification is introduced by way of a policy decision clearly identifying the group of beneficiaries by analysing the relevant materials - When a classification is made on the recommendation made by a body of experts constituted for the purpose, courts will have to be more wary of entering into the said arena as its interference would amount to substituting its views, a process which is best avoided. (Para 14-18) State of Uttarakhand v. Sudhir Budakoti, 2022 LiveLaw (SC) 354

Constitution of India, 1950; Article 226 - The High Court's writ jurisdiction under Article 226 extends to protecting the personal liberty persons who have demonstrated that the instrumentality of the State is being weaponized for using the force of criminal law. (Para 16) Mallada K. Sri Ram v. State of Telangana, 2022 LiveLaw (SC) 358

Constitution of India, 1950; Article 300A - Forcible dispossession of a person of their private property without following due process of law, was violative of both their human right, and constitutional right under Article 300-A - High threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State. (Para 25, 15) Sukh Dutt Ratra v. State of Himachal Pradesh, 2022 LiveLaw (SC) 347

Constitutional Validity - Mere plea of inconvenience is not enough to attract the constitutional inhibition - There is presumption that the Parliament understands and reacts to the needs of its own people as per the exigencies and experience gained in the implementation of the law. (Para 59) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355

Consumer Protection Act, 1986 - Appeal by Developer against NCDRC order directing refund and compensation to Consumer for its failure to deliver possession of the apartment within the time stipulated as per the Apartment Buyers Agreement - Dismissed - Commission is correct in its approach in holding that the clauses of the agreement are one-sided and that the Consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest - Commission has correctly exercised its power and jurisdiction in passing the directions for refund of the amount with interest. Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, 2022 LiveLaw (SC) 352

Consumer Protection Act, 1986 - Real Estate (Regulation and Development) Act, 2016 - Consumer Protection Act and the RERA Act neither exclude nor contradict each other - They are concurrent remedies operating independently and without primacy. (Para 14.1) Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, 2022 LiveLaw (SC) 352

Consumer Protection Act, 1986; Section 2(g), 14 - The power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts - A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands. (Para 15-16) Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, 2022 LiveLaw (SC) 352

Criminal Trial - Once the witness is in the witness box and is being cross examined every endeavour must be made to ensure that the cross examination is completed on that day. Neetu Tripathi v. State of Uttar Pradesh, 2022 LiveLaw (SC) 349

Dam Safety Act 2021 - Mullaperiyar Dam Dispute between Kerala and Tamil Nadu - Supreme Court reconstitutes Supervisory Committee- Confers it powers of the National Dam Safefy Authority under the Dam Safety Act - Chief Secretaries of States liable for vioaltion of committee directions- The reconstituted Supervisory Committee will decide all outstanding matters related to Mullaperiyar Dam's safety and conduct a safety review afresh- the Supervisory Committee, in terms of this order, is deemed to be discharging all the functions and powers of the NDSA until a regular NDSA becomes functional under the 2021 Act and more so, orders of this Court in that regard. Dr. Joe Joseph v. State of Tamil Nadu, 2022 LiveLaw (SC) 356

Dam Safety Act 2021 -We express a sanguine hope that the competent authority may take appropriate steps to ensure that the regular NDSA under the 2021 Act is established at the earliest, as it cannot brook delay. Dr. Joe Joseph v. State of Tamil Nadu, 2022 LiveLaw (SC) 356

Extra­judicial confession - A weak piece of evidence - Unless such a confession is found to be voluntary, trustworthy and reliable, the conviction solely on the basis of the same, without corroboration, would not be justified. Union of India v. Major R. Metri No. 08585N, 2022 LiveLaw (SC) 343

Foreign Contribution (Regulation) Act, 2010 - It is open to the State to have a regime which may completely prohibit receipt of foreign donation, as no right inheres in the citizen to receive foreign contribution (donation). (Para 74) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355

Foreign Contribution (Regulation) Act, 2010; Section 12(1A) and 17(1) - Opening of main FCRA account in the designated bank as per the law made by the Parliament in that regard, cannot be brushed aside on the specious argument of some inconvenience being caused to the registered associations. (Para 76) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355

Foreign Contribution (Regulation) Act, 2010; Section 7 - Complete prohibition regarding transfer of foreign contribution to third party - The transfer within the meaning of Section 7, would be a case of per se (simplicitor) transfer by the recipient of foreign contribution to third party without requiring to engage in the definite activities of cultural, economic, educational or social programme of the recipient of foreign contribution, for which the recipient had obtained a certificate of registration from the Central Government - If the recipient of foreign contribution engages services of some third party or outsources its certain activities to third person, whilst undertaking definite activities itself and had to pay therefor, it would be a case of utilisation. (Para 47) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355

Foreign Contribution (Regulation) Amendment Act, 2020 - Constitutional Validity upheld - Amended provisions vide the 2020 Act, namely, Sections 7, 12(1A), 12A and 17 of the FCRA Act, 2010, are intra vires the Constitution and the Principal Act - Section 12A read down and construed as permitting the key functionaries/office bearers of the applicant (associations/NGOs) who are Indian nationals, to produce Indian Passport for the purpose of their identification. (Para 87) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355

Income Tax Act, 1961; Section 2 (1A) - Companies Act, 1956; Section 394 (2), 481 - Despite amalgamation, the business, enterprise and undertaking of the transferee or amalgamated company- which ceases to exist, after amalgamation, is treated as a continuing one, and any benefits, by way of carry forward of losses (of the transferor company), depreciation, etc., are allowed to the transferee - Whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case. (Para 42) Principal Commissioner of Income Tax v. Mahagun Realtors (P) Ltd; 2022 LiveLaw (SC) 346

Interim Order - A party who is in enjoyment of an interim order, is bound to lose the benefit of such interim order when the ultimate outcome of the case goes against him. (Para 20) Fertilizer Corporation of India Ltd. v. Rajesh Chandra Shrivastava, 2022 LiveLaw (SC) 351

Interpretation of Statutes - When Statutes provide more than one judicial fora for effectuating a right or to enforce a duty-obligation, it is a feature of remedial choices offered by the State for an effective access to justice. Therefore, while interpreting statutes provisioning plurality of remedies, it is necessary for Courts to harmonise the provisions in a constructive manner. (Para 14.1-14.2) Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, 2022 LiveLaw (SC) 352

Land Acquisition - Appeal against Himachal Pradesh HC judgment which disposed a writ petition challenging dispossession and seeking compensation - Allowed - In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law - State directed to treat the subject lands as a deemed acquisition and appropriately disburse compensation to the appellants. Sukh Dutt Ratra v. State of Himachal Pradesh, 2022 LiveLaw (SC) 347

Land Acquisition - Need for written consent in matters of land acquisition proceedings - contention of 'oral' consent to be baseless. Sukh Dutt Ratra v. State of Himachal Pradesh, 2022 LiveLaw (SC) 347

Payment of Gratuity Act, 1972; Section 2(s) - 'Wages' - Ad hoc payment made pursuant to the interim orders passed by Court does not form part of "wages" within the meaning of the expression under Section 2(s) of the Payment of Gratuity Act, 1972 for the purpose of calculating gratuity. (Para 17-22) Fertilizer Corporation of India Ltd. v. Rajesh Chandra Shrivastava, 2022 LiveLaw (SC) 351

Penal Code, 1860; Section 307 - Appeal against Rajasthan High court judgment which partly allowed a criminal appeal by maintaining the conviction of the accused for the offence under Section 307 IPC, but by reducing the sentence from three years rigorous imprisonment to the period already undergone by him in confinement (44 days) - Allowed - Merely because a long period has lapsed by the time the appeal is decided cannot be a ground to award the punishment which is disproportionate and inadequate- trial Court had already taken a very lenient view while imposing the sentence of only three years' rigorous imprisonment. Therefore, the High Court ought not to have interfered with the same. State of Rajasthan v. Banwari Lal, 2022 LiveLaw (SC) 357

Penal Code, 1860; Section 307 - There is no minimum sentence under Section 307 IPC - Discretion has to be exercised judiciously and the sentence has to be imposed proportionately and looking to the nature and gravity of the offence committed and by considering the principles for imposing sentence. (Para 9) State of Rajasthan v. Banwari Lal, 2022 LiveLaw (SC) 357

Practice and Procedure - Criminal Appeals - Criminal appeals are being disposed of in a cursory manner and by adopting truncated methods - Practice of disposing of criminal appeals by adopting shortcuts deprecated. (Para 10) State of Rajasthan v. Banwari Lal, 2022 LiveLaw (SC) 357

Precedent - Whenever the State or instrumentalities of State come up with appeals challenging small benefits granted to individual litigants, this Court applies the test of proportionality to see whether the quantum of benefits granted to the individual concerned, justifies the examination of the question of law, at the cost of that little man from a far off place. The refusal of this Court to go into the question of law in such cases, cannot be treated as tantamounting to answering the question of law in a particular manner. (Para 15) Fertilizer Corporation of India Ltd. v. Rajesh Chandra Shrivastava, 2022 LiveLaw (SC) 351

Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act ,1986 (Telangana) - A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order" - Callous exercise of the exceptional power of preventive detention by the detaining authorities and the state - Respondents directed to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards. (Para 17) Mallada K. Sri Ram v. State of Telangana, 2022 LiveLaw (SC) 358

Preventive Detention - Appeal against Telangana HC judgment which dismissed challenge against a preventive detention order - Allowed - The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority - Detention order quashed. Mallada K. Sri Ram v. State of Telangana, 2022 LiveLaw (SC) 358

Preventive Detention - The personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. (Para 15) Mallada K. Sri Ram v. State of Telangana, 2022 LiveLaw (SC) 358

Public Order - A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order" - The distinction between a disturbance to law and order and a disturbance to public order discussed. Mallada K. Sri Ram v. State of Telangana, 2022 LiveLaw (SC) 358

Rent Control Act, 1958 (Delhi) - Appeal against Delhi HC judgment which allowed revision petition filed by a tenant under Section 25B(8) of the Act - Allowed - High Court proceeded to allow the revision by treating it like an appeal. Abid-ul-Islam v. Inder Sain Dua, 2022 LiveLaw (SC) 353

Rent Control Act, 1958 (Delhi); Section 14(1)(e) - Eviction on Bona fide need - There has to be satisfaction on two grounds, namely, (i) the requirement being bona fide and (ii) the non-availability of a reasonably suitable residential accommodation. Such reasonableness along with suitability is to be seen from the perspective of the landlord and not the tenant - Section 14(1)(e) creates a presumption subject to the satisfaction of the Rent Controller qua bona fide need in favour of the landlord which is obviously rebuttable with some material of substance to the extent of raising a triable issue- Before a presumption is drawn, the landlord is duty bound to place prima facie material supported by the adequate averments. It is only thereafter, the presumption gets attracted and the onus shifts on the tenant. (Para 12, 15) Abid-ul-Islam v. Inder Sain Dua, 2022 LiveLaw (SC) 353

Rent Control Act, 1958 (Delhi); Section 14(1)(e) and 25B(5) - For availing the leave to defend as envisaged under Section 25B(5), a mere assertion per se would not suffice - The satisfaction of the Rent Controller in deciding on an application seeking leave to defend is obviously subjective. The degree of probability is one of preponderance forming the subjective satisfaction of the Rent Controller. Thus, the quality of adjudication is between a mere moonshine and adequate material and evidence meant for the rejection of a normal application for eviction - The tenant is expected to put in adequate and reasonable materials in support of the facts pleaded in the form of a declaration sufficient to raise a triable issue. (Para 15-17) Abid-ul-Islam v. Inder Sain Dua, 2022 LiveLaw (SC) 353

Rent Control Act, 1958 (Delhi); Section 19 - Right to the dispossessed tenant for repossession if there is a non-compliance on the part of the landlord albeit after eviction, to put the premises to use for the intended purpose - Such a right is available only to a tenant who stood dispossessed on the application filed by the landlord invoking Section 14(1)(e) being allowed. (Para 16) Abid-ul-Islam v. Inder Sain Dua, 2022 LiveLaw (SC) 353

Rent Control Act, 1958 (Delhi); Section 25B - Legislative object - expeditious and effective remedy for a class of landlords, sans the normal procedural route. (Para 17) Abid-ul-Islam v. Inder Sain Dua, 2022 LiveLaw (SC) 353

Rent Control Act, 1958 (Delhi); Section 25B (8) - Revisional Jurisdiction - The High Court is not expected to substitute and supplant its views with that of the trial Court by exercising the appellate jurisdiction. Its role is to satisfy itself on the process adopted. The scope of interference by the High Court is very restrictive and except in cases where there is an error apparent on the face of the record, which would only mean that in the absence of any adjudication per se, the High Court should not venture to disturb such a decision. There is no need for holding a roving inquiry in such matters which would otherwise amount to converting the power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature. (Para 20) Abid-ul-Islam v. Inder Sain Dua, 2022 LiveLaw (SC) 353

Rule of Law - Nobody can be deprived of liberty or property without due process, or authorization of law - Rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law. (Para 14) Sukh Dutt Ratra v. State of Himachal Pradesh, 2022 LiveLaw (SC) 347

Service Law - Even if the appointment was irregular, the appellant had discharged the duties and in lieu of duties, he had to be paid. The State cannot take any work from any employee without payment of any salary. Man Singh v. State of Uttar Pradesh, 2022 LiveLaw (SC) 341

Universities Act, 1973 (Uttar Pradesh State) - Appeal against the order of Uttarakhand HC which allowed writ petition filed by a Registrar of State University seeking parity in pay with its counterparts in Central University - Allowed - State has not made a decision to accept and adopt the circular of the Central Government pertaining to the Registrars working in the Universities coming under its purview - When the classification is distinct and clear having adequate rationale with due relation to the objective, there is no reason to hold otherwise by treating a Registrar at par with the Lecturers. One is meant for administration and the other teaching. State of Uttarakhand v. Sudhir Budakoti, 2022 LiveLaw (SC) 354

Universities Act, 1973 (Uttar Pradesh State) - Direction issued by the Central Government would at worst be mandatory to the Central Universities and the Central Government Colleges receiving funds - Any such decision would obviously be directory to State Government Colleges and Universities, being in the nature of a mere recommendation. (Para 20) State of Uttarakhand v. Sudhir Budakoti, 2022 LiveLaw (SC) 354

NOMINAL INDEX

1. Abid Ul Islam v. Inder Sain Dua, 2022 LiveLaw (SC) 353
2. Bharat Coking Coal Ltd. v. Mahendra Pal Bhatia, 2022 LiveLaw (SC) 350
3. Chandra Prakash Mishra v. Flipkart, 2022 LiveLaw (SC) 359
4. Dokala Hari Babu v. Kotra Appa Rao, 2022 LiveLaw (SC) 342
5. Dr.Joe Joseph v. State of Tamil Nadu, 2022 LiveLaw (SC) 356
6. Experion Developers v. Sushma Ashok Shiroor, 2022 LiveLaw (SC) 352
7. Fertilizer Corporation v. Rajesh Chandra Shrivastava, 2022 LiveLaw (SC) 351
8. Haryana Urban Development Authority v. Mehta Construction Company, 2022 LiveLaw (SC) 348
9. Mallada K Sri Ram v. State of Telangana, 2022 LiveLaw (SC) 358
10. Man Singh v. State of Uttar Pradesh, 2022 LiveLaw (SC) 341
11. Neetu Tripathi v. State of U.P., 2022 LiveLaw (SC) 349
12. Noel Harper v. Union of India, 2022 LiveLaw (SC) 355
13. Principal Commissioner of Income Tax v. Mahagun Realtors, 2022 LiveLaw (SC) 346
14. Rishipal @ Rishipal Singh Solanki v. Raju, 2022 LiveLaw (SC) 344
15. Shree Vishnu Constructions v. Military Engineering Service, 2022 LiveLaw (SC) 345
16. State of Rajasthan v. Banwari Lal, 2022 LiveLaw (SC) 357
17. State of Uttarakhand v. Sudhir Budakoti, 2022 LiveLaw (SC) 354
18. Sukh Dutt Ratra v. State of Himachal Pradesh, 2022 LiveLaw (SC) 347
19. Union of India v. Major R. Metri, 2022 LiveLaw (SC) 343