Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index [August 29, 2022 - September 4, 2022]

Arbitration and Conciliation Act, 1996 - Arbitrator's fee cap is Rs 30 lakhs, ceiling limit applicable to individual arbitrators, not tribunal as a whole. Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 LiveLaw (SC) 723

Arbitration and Conciliation Act, 1996 - Arbitrators cannot unilaterally fix their fee as it violates party autonomy. Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 LiveLaw (SC) 723

Arbitration and Conciliation Act, 1996 - Arbitrators entitled to charge separate fee for claim & counter claim in arbitration proceedings. Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 LiveLaw (SC) 723

Arbitration and Conciliation Act, 1996 - 'Hold preliminary hearings to fix arbitrator's fee': Supreme Court issues directives to govern fees of arbitrators. Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 LiveLaw (SC) 723

Arbitration and Conciliation Act, 1996; Section 31(7) - The arbitrator has the discretion to award post-award interest on a part of the 'sum' - The arbitrator has the discretion to determine the rate of reasonable interest, the sum on which the interest is to be paid, that is whether on the whole or any part of the principal amount, and the period for which payment of interest is to be made - whether it should be for the whole or any part of the period between the date on which the cause of action arose and the date of the award - The arbitrator must exercise the discretionary power to grant post award interest reasonably and in good faith, taking into account all relevant circumstances - The purpose of granting post-award interest is to ensure that the award debtor does not delay the payment of the award. (Para 18-22) Morgan Securities and Credits Pvt. Ltd. v. Videocon Industries Ltd., 2022 LiveLaw (SC) 728

Central Civil Service Rules - Rule 43 - Maternity Leave - Unless a purposive interpretation were to be adopted in the present case, the object and intent of the grant of maternity leave would simply be defeated. The grant of maternity leave under Rules of 1972 is intended to facilitate the continuance of women in the workplace. It is a harsh reality that but for such provisions, many women would be compelled by social circumstances to give up work on the birth of a child, if they are not granted leave and other facilitative measures. No employer can perceive child birth as detracting from the purpose of employment. Child birth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective. (Para 25) Deepika Singh v. Central Administrative Tribunal, 2022 LiveLaw (SC) 718

Code of Civil Procedure, 1908; Order II Rule 2 - Order II Rule 2 of the CPC cannot apply to an amendment which is sought on an existing suit - It applies only for a subsequent suit. (Para 49-50, 70) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729

Code of Civil Procedure, 1908; Order VI Rule 17 - All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side - The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations) - A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence - In dealing with a prayer for amendment of pleadings, the court should avoid a hyper technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (Para 70) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729

Code of Civil Procedure, 1908; Order VI Rule 17 - Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (Para 70) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729

Code of Civil Procedure, 1908; Order VI Rule 17 - Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. - Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation - Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint - Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed - Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (Para 70) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729

Code of Civil Procedure, 1908; Order XXI - Order XXI is exhaustive and in the nature of a complete Code as to how the execution proceedings should take place. This is the second stage after the success of the party in the civil proceedings. It is often said in our country that another legal battle, more prolonged, starts in execution proceedings defeating the right of the party which has succeeded in establishing its claim in civil proceedings - There cannot be a licence to prolong the litigation ad infinitum. (Para 39) Jagan Singh & Co. v. Ludhiana Improvement Trust, 2022 LiveLaw (SC) 733

Code of Civil Procedure, 1908; Order XXI Rule 90(3) - The twin conditions of material irregularity of fraud and substantial injury has to be satisfied before an auction sale can be set aside under Order XXI Rule 90(3) -No sale could be set aside unless the Court is satisfied that the applicant has sustained substantial injury by reason of irregularity or fraud in completing or conducting the sale. (Para 11, 38) Jagan Singh & Co. v. Ludhiana Improvement Trust, 2022 LiveLaw (SC) 733

Code of Civil Procedure, 1908; Order XXII Rule 2, 11 - A second appeal does not abate on death of one of the respondents when the right to sue survives against the surviving respondent - Abatement occurs only when the cause of action does not survive upon or against the surviving party. (Para 6-9) Sakharam v. Kishanrao, 2022 LiveLaw (SC) 722

Code of Civil Procedure, 1908; Section 11 - The principle of constructive res judicata has no application when there was no formal adjudication between the parties after full hearing. (Para 52) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729

Code of Criminal Procedure, 1973; Section 145 - While dropping the proceedings under Section 145 CrPC because of the pendency of civil litigations, the learned Magistrate could not be considered justified in making any observations or returning any findings as regards rights of the parties qua the property in question. Mohd Shakir v. State of Uttar Pradesh, 2022 LiveLaw (SC) 727

Code of Criminal Procedure, 1973; Section 154 - If multiple First Information Reports by the same person against the same accused are permitted to be registered in respect of the same set of facts and allegations, it will result in the accused getting entangled in multiple criminal proceedings for the same alleged offence - The registration of such multiple FIRs is nothing but abuse of the process of law - The act of the registration of such successive FIRs on the same set of facts and allegations at the instance of the same informant will not stand the scrutiny of Articles 21 and 22 of the Constitution of India. (Para 12) Tarak Dash Mukharjee v. State of Uttar Pradesh, 2022 LiveLaw (SC) 731

Code of Criminal Procedure, 1973; Section 482 - If no offence is made out by a careful reading of the complaint, the complaint deserves to be quashed - When the complaint itself disclosed nothing more than a commercial relationship which broke, it is not possible to enlarge the scope of his complaint by merely adding the language used in the text of the Indian Penal Code. (Para 15-18) Wyeth Limited v. State of Bihar, 2022 LiveLaw (SC) 721

Constitution of India, 1950; Article 14 - Equal Protection of Law - Atypical families which are different from traditional family units also entitled to equal protection of law- Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. (Para 26) Deepika Singh v. Central Administrative Tribunal, 2022 LiveLaw (SC) 718

Constitution of India, 1950; Article 21 - Right to reproduction and child rearing important facets of one's right to privacy and dignity (Para 21) Deepika Singh v. Central Administrative Tribunal, 2022 LiveLaw (SC) 718

Constitution of India, 1950; Article 300A - Though the right in property is not a fundamental right, it is still a constitutional right under Article 300A of the Constitution of India. Thus, a person can be deprived of the rights of the property only in a manner known to law. (Para 30) Jagan Singh & Co. v. Ludhiana Improvement Trust, 2022 LiveLaw (SC) 733

Disciplinary Proceedings - Criminal and departmental, are entirely different and merely because one has been acquitted in a criminal trial that itself will not result in the reinstatement in service when one has been found guilty in a departmental proceeding - When it is not an honourable acquittal, but an acquittal given due to a "benefit of doubt", there cannot be reinstatement. (Para 8-14) State of Rajasthan v. Phool Singh, 2022 LiveLaw (SC) 735

Disciplinary Proceedings - If the Court finds that furnishing of the enquiry report would have made a difference to the result, in such case it should set aside the order of punishment. Where the Court sets aside the order of punishment, the proper relief which should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to back­wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. (Para 7) State of Uttar Pradesh v. Prabhat Kumar, 2022 LiveLaw (SC) 736

Disciplinary Proceedings - Once the Court set aside an order of punishment on the ground that the enquiry was not properly conducted, the Court should not preclude the employer from holding the inquiry in accordance with law. It must remit the case concerned to the disciplinary authority to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. (Para 6) State of Uttar Pradesh v. Prabhat Kumar, 2022 LiveLaw (SC) 736

Employees State Insurance Act, 1948 - Board of Control for Cricket in India [BCCI] can be said to be a "shop" for the purposes of attracting the provisions of Employees State Insurance Act - The activities of the BCCI can be said to be systematic commercial activities providing entertainment by selling tickets etc. (Para 9-12) Board of Control for Cricket in India v. Regional Director Employees' State Insurance Corporation, 2022 LiveLaw (SC) 725

Highways Act, 2001 (Tamil Nadu); Section 15(2) - Highways Rules, 2003 (Tamil Nadu); Rule 5(2) - Highways Department may or may not file a statement by way of answer to the objections by land owners - Not a mandatory requirement - Non-filing of a statement by way of answer to the objections by the Highways Department and/or non­furnishing the copy of the same to the original land owners shall not vitiate the entire process of acquisition process. (Para 5.1) M. Mohan v. State Government of Tamil Nadu, 2022 LiveLaw (SC) 737

Highways Act, 2001 (Tamil Nadu); Section 15(2) - Tamil Nadu Highways Rules, 2003; Rule 5 - Rule 5 cannot be said to be inconsistent with Section 15(2) of the Act. (Para 7) M. Mohan v. State Government of Tamil Nadu, 2022 LiveLaw (SC) 737

Interpretation of Statutes - The words used in a particular statute cannot be used to interpret the same word in a different statute especially when the two statues are not pari materia with each other and have a wholly different scheme from one another. (Para 11) Board of Control for Cricket in India v. Regional Director Employees' State Insurance Corporation, 2022 LiveLaw (SC) 725

Judicial Service Examination - Particularly in such cases where there is a multiple choice question paper, it is always advisable that for such question papers, there shall always be an OMR sheet which may be provided to the candidates so that the question paper can be retained by each of the participants and after the examination is held, a provisional answer key is to be uploaded inviting objections from the candidates who had participated in the selection process, to be furnished within a reasonable time and after collating such objections, the same be placed before a subject expert committee to be constituted by the recruiting/competent authority and after the report is submitted by the subject expert committee, the same be examined by the recruiting authority and thereafter the final answer key is to be uploaded. We make it clear that no presumption is to be drawn that the result has to be declared, but at least the candidates may be provided the final answer keys to enable them to make their own assessment. (Para 26) Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720

Judicial Service Examination - Punjab/Haryana Superior Judicial Service Examination, 2019 - High Court dismissed writ petition challenging the examination process - Allowing the appeal, the Supreme Court directed : Valuate the marks obtained of question nos. 1,2,3 and 5 of Paper V (Criminal Law) (out of total 160 marks) and after undertaking the process, a fresh result of the written examination be declared of the candidates in reference to Punjab/Haryana Superior Judicial Service Examination, 2019 and those who qualify and fall in the zone of three times the number of vacancies may be called for viva­voce and result of the selection process, thereafter be finally declared in accordance with the scheme of Rules, 2007. Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720

Judicial Service Examination - Where the written examination is followed with viva­voce, declaration of result of the written examination before conducting viva­voce may not be valid and justified but in cases where determination of merit is based on written examination, it must be declared and made available to candidates without any loss of time and this Court can take a judicial notice of the fact that in such cases where the written examination is followed with interview / viva­voce and the members in the interview board are made aware of the marks secured by the candidates in the written examination that may likely to form bias affecting the impartial evaluation of the candidates in viva­voce and in our considered view, it may always be avoided. (Para 28-29) Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720

Legislation - Amendment - When the legislature acts within its power to usher in a valid law and rectify a legal error, even after a court ruling, the legislature exercises its constitutional power to enact the law and does not overrule an earlier court decision - The power to amend, which includes the power to amend the statute with retrospective effect, is a constitutional power vested with the legislature, which is not confined and restricted to any particular type of statutes, namely, tax statutes. (Para 13, 22) Independent Schools Federation of India v. Union of India, 2022 LiveLaw (SC) 719

Legislation - Difference between retroactive effect and retrospective operation - Retrospective statute operates backwards and takes away vested rights accrued under law. The retroactive statute does not operate retrospectively, but it operates in future, albeit it does not become retrospective in operation when the operation is based on the character and status that arose earlier. Character or event which has happened in past or requisites which have been drawn from antecedent events cannot be necessarily construed as having retrospective effect. A retrospective statute means a statute which creates a new obligation on transactions or considerations already past or destroyed or impaired vested rights on and from the retrospective date. Independent Schools Federation of India v. Union of India, 2022 LiveLaw (SC) 719

Maternity Leave - A woman cannot be declined maternity leave under the Central Services (Leave Rules) 1972 with respect to her biological child on the ground that her spouse has two children from his earlier marriage. Deepika Singh v. Central Administrative Tribunal, 2022 LiveLaw (SC) 718

Motor Vehicles Act, 1988 - Motor Accident Claims- Does third party insurance cover pillion rider of a motor cycle? Supreme Court refers to larger bench. Mohana Krishnan S. v. K. Balasubramaniyam, 2022 LiveLaw (SC) 726

Motor Vehicles Act, 1988 - Motor Accident Compensation - In the matter of compensation, the amount actually due and payable is to be awarded despite the claimants having sought for a lesser amount and the claim petition being valued at a lesser value. Mona Baghel v. Sajjan Singh Yadav, 2022 LiveLaw (SC) 734

Narcotic Drugs and Psychotropic Substances Act, 1985 - Independent witness - Independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice - But if the Court has ­­ (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy - If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards - Corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. (Para 18) Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 54 - Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. (Para 33A) Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724

Payment of Gratuity Act, 1972; Sections 2(e) and 13A - Payment of Gratuity (Amendment) Act, 2009 - Constitutional validity of the amendment to Section 2(e) and insertion of Section 13A upheld - The amendment with retrospective effect is to make the benevolent provisions equally applicable to teachers - It seeks to bring equality and give fair treatment to the teachers. Independent Schools Federation of India v. Union of India, 2022 LiveLaw (SC) 719

Penal Code, 1860; Section 302 - There cannot be any sentence/punishment less than imprisonment for life, if an accused is convicted for the offence punishable under Section 302 IPC. (Para 5) State of Madhya Pradesh v. Nandu @ Nandua, 2022 LiveLaw (SC) 732

SEBI circular on standardisation of procedure for debenture trustees has retroactive application. Securities and Exchange Board Of India v. Rajkumar Nagpal, 2022 LiveLaw (SC) 738

Specific Relief Act, 1963; Section 21 - Specific Relief (Amendment) Act, 2018 - After 2018 amendment, damages are now available only in addition to specific performance and not in lieu thereof. (Para 59) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729

Specific Relief Act, 1963; Section 21 (5) - Sub-section (5) stipulates that compensation cannot be awarded under the section unless the Plaintiff has claimed such compensation in the plaint. This provision is mandatory. (Para 55) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729

Specific Relief Act, 1963; Section 21, 22 - Code of Civil Procedure, 1908; Order VI Rule 17 - The provisions contained in Order VI Rule 17 of the CPC would apply to a specific performance suit and a plaintiff who has earlier failed to incorporate the reliefs for compensation or who has incorporated the reliefs for compensation but seeks amendment in the same, could seek the permission of the court to introduce these reliefs by way of amendment. (Para 66) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729

NOMINAL INDEX

1. Board of Control for Cricket in India v. Regional Director Employees' State Insurance Corporation, 2022 LiveLaw (SC) 725
2. Deepika Singh v. Central Administrative Tribunal, 2022 LiveLaw (SC) 718
3. Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720
4. Independent Schools Federation of India v. Union of India, 2022 LiveLaw (SC) 719
5. Jagan Singh & Co. v. Ludhiana Improvement Trust, 2022 LiveLaw (SC) 733
6. Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729
7. M. Mohan v. State Government of Tamil Nadu, 2022 LiveLaw (SC) 737
8. Mahadeo v. Sovan Devi, 2022 LiveLaw (SC) 730
9. Mohana Krishnan S. v. K. Balasubramaniyam, 2022 LiveLaw (SC) 726
10. Mohd Shakir v. State of Uttar Pradesh, 2022 LiveLaw (SC) 727
11. Mona Baghel v. Sajjan Singh Yadav, 2022 LiveLaw (SC) 734
12. Morgan Securities and Credits Pvt. Ltd. v. Videocon Industries Ltd., 2022 LiveLaw (SC) 728
13. Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 LiveLaw (SC) 723
14. Sakharam v. Kishanrao, 2022 LiveLaw (SC) 722
15. Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh, 2022 LiveLaw (SC) 724
16. Securities and Exchange Board Of India v. Rajkumar Nagpal, 2022 LiveLaw (SC) 738
17. State of Madhya Pradesh v. Nandu @ Nandua, 2022 LiveLaw (SC) 732
18. State of Rajasthan v. Phool Singh, 2022 LiveLaw (SC) 735
19. State of Uttar Pradesh v. Prabhat Kumar, 2022 LiveLaw (SC) 736
20. Tarak Dash Mukharjee v. State of Uttar Pradesh, 2022 LiveLaw (SC) 731
21. Wyeth Limited v. State of Bihar, 2022 LiveLaw (SC) 721