Supreme Court Weekly Round Up, October 18 To October 24, 2021

JUDGMENTS THIS WEEK

1. Distinction Between Tax And Fee Has Been Substantially Removed, Says Supreme Court

Case Title: Jalkal Vibhag Nagar Nigam and Ors v. Pradeshiya Industrial and Investment Corporation & Anr.

Citation: LL 2021 SC 583

The Supreme Court observed that the distinction between a tax and fee has been substantially removed.

The practical and even constitutional, distinction between a tax and fee has been weathered down, the bench headed by Justice DY Chandrachud observed while rejecting the challenge against Constitutional validity of Sections 52(a), 55(b)(i) and 56(b) of the UP Water Supply and Sewerage Act.

The court added that the distinction that while a tax is a compulsory exaction, a fee constitutes a voluntary payment for services rendered does not hold good.

2. High Court Under Article 226 Cannot Permit Party To Modify Its Offer Without Hearing Other Parties: Supreme Court

Case Title: Vaibhavi Enterprise v. Nobel Cera Coat Limited (Civil Appeal No. 6289 Of 2021) and Tanish Cerachem Private Limited v. Nobel Cera Coat Limited (Civil Appeal No.6290 Of 2021)

Citation : LL 2021 SC 585 

The Supreme Court has observed that High Court under Article 226 could not permit a party to modify its offer without hearing other parties.

The bench of Justices MR Shah and AS Bopanna in the present matter was considering a special leave petition assailing Gujarat High Court's judgement in which the High Court had directed ONGC to finalize the contract with an applicant on the condition that it would lift the gas within 65 days from the date of allotment instead of 75 days as offered by it earlier.

3. Limitation Period For Appeal Under Section 61 IBC Starts Running From Date Of Pronouncement; Delay In Uploading Won't Exclude Limitation : Supreme Court

Case name: V Nagarajan vs SKS Ispat and Power Ltd

Citation: LL 2021 SC 581

The Supreme Court has held that the period of limitation for filing of appeal against an order as per Section 61 of the Insolvency and Bankruptcy Code will start running as soon as the same is pronounced, and that it is not dependent on the date when the order is uploaded.

So, a party who failed to file an application for the certified copy of the order immediately cannot raise a plea to extend the period of limitation on the ground of delay in uploading the order.

The Court held that period awaiting the receipt of a free certified copy does not extend the limitation period under Section 61(2) of the IBC for a party who has not applied for the same.

4. Nomenclature Of Tax Does Not Determine Its Nature Of Levy Or True Character : Supreme Court

Case Title: Jalkal Vibhag Nagar Nigam and Ors v. Pradeshiya Industrial and Investment Corporation & Anr. | Civil Appeal No 6107 of 2021

Citation : LL 2021 SC 583

The Supreme Court held that the nomenclature ascribed to a tax does not determine the nature of the levy or its true and essential character.

Holding so, the Court observed that the tax labelled as "water tax" or "sewerage tax" under the UP Water Supply and Sewerage Act is in substance a tax on land and buildings situated with the area of the Jal Sansthan authority. The Court also noted that as per the statutory provisions, the tax labelled as "water tax" was not dependent on the actual consumption of water and was based on the provision for water supply given by the authority.

5. Selected IAS Candidates Have No Right To Be Allocated To Cadre Of Their Choice Or To Home State: Supreme Court

Case name: Union of India vs. A. Shainamol, IAS

Citation: LL 2021 SC 584

The Supreme Court observed that selected IAS candidates have no right to be allocated to a cadre of their choice or to home state.

The allocation of cadre is not a matter of right and the State has no discretion of allocation of a cadre at its whims and fancies, the bench of Justices Hemant Gupta and V. Ramasubramanian observed.

The court also observed that consultation under Rule 5(1) of the Indian Administrative Service (Cadre) Rules, 1954 in respect of allocation of cadre is not required to be done with the State from which the candidate belongs. The mandate of Rule 5(1) of the Cadre Rules is satisfied when consultation is made with the State to which allocation is made.

6. UAPA- State Police Has Duty To Continue Investigation Of Schedule Offence Till NIA Actually Takes It Over: Supreme Court

Case name: Naser Bin Abu Bakr Yafai vs State of Maharashtra

Citation: LL 2021 SC 576

The Supreme Court observed that the State police has a duty to continue with the investigation of a schedule offence till the National Investigating Agency actually takes it over.

Between the issuance of a direction and the actual taking up of the investigation by the NIA, there should be no hiatus in the investigation to the detriment of the interests of national security involved in the enactment of the legislation, the bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna observed.

The court added that mere renumbering of the case filed by the NIA did not take away the power of the State police (ATS) to continue the investigation. 

7. Order VIII Rule 1 CPC - Period For Filing Of Written Statement Is Directory In Civil Suits; But Mandatory In Commercial Suits: Supreme Court

Case name: Shoraj Singh vs. Charan Singh

Citation: LL 2021 SC 573

The Supreme Court has observed that the period of 90 days for filing of written statement under Order VIII Rule 1 of Code of Civil Procedure in civil suits is directory.

The bench of Justices Hemant Gupta and V. Ramasubramanian held the provisions of Order VIII Rule 1 CPC are mandatory in the Commercial Courts under the Commercial Courts Act, 2015.

"It may be stated herein that the provisions of Order 8 Rule of CPC are mandatory in the Commercial Courts under the Commercial Courts Act, 2015", the Supreme Court observed in the judgment.

IMPORTANT APEX COURT UPDATES

1. Supreme Court Issues Notice On Plea To Regulate Police Officers' Social Media Disclosures On Investigations

The Supreme Court this week issued notice in a writ petition seeking issuance of directions to the Centre for framing rules and regulations or guidelines to govern reporting and broadcasting of any news related to any criminal investigation by police officials on their personal and professional media accounts.

The writ petition, filed under Article 32 of the Constitution, contended that social media comments by police officers on pending investigations will prejudice fair probe and will amount to interference with administration of justice.

2. Supreme Court Directs Grant Of Permanent Commission To 39 Women Army Officers

The Supreme Court this week directed the Centre to tender a statement in tabulated form indicating reasons for the denial of permanent commission to 25 women officers, together with an affidavit expressly stating that no reasons independent of the directions issued by the Court have weighed in the grant/refusal of PC to the total 72 petitioners.

"In other words, once the final judgement and order of this court has been pronounced, the consideration for the grant of PC has to be confined to the specific directions issued and not be based upon grounds independent of the judgement", the bench clarified. 

3. Abolish Consumer Protection Act If Commission Vacancies Can't Be Filled : Supreme Court Expresses Anguish

The Supreme Court expressed anguish at the mounting vacancies in the consumer commissions.

"The very purpose of settling up these tribunals and providing consumer remedy goes if these tribunals are not being manned. If the government feels it doesn't want them then abolish the Act. But if you put the Act in place you must man the tribunals."

A Bench of Justice Sanjay Kishan Kaul and M.M Sundresh made the above observations while considering the suo-motu case taken by it to deal with the vacancies in Consumer Commissions across the country. 

4. Not Against Right To Protest Even When Legal Challenge Is Pending; But Roads Can't Be Blocked : SC In Farmers Protest Case

While considering a case against the road blockade as part of the farmers protests, the Supreme Court orally remarked that it was not against the exercise of right to protest even when a legal challenge on the issue was pending.

"Ultimately some solution has to be found.I'm not averse to their right to protest even when legal challenge is pending. But roads cannot be blocked", Justice Sanjay Kishan Kaul, the presiding judge of the bench, orally remarked.

The comments assume relevance as another of the Supreme Court recently decided to examine the issue whether a party who has approached the Court can exercise the right to protest in public when the issue was sub-judice.

5. We Did Not Ask For Sealed Cover ' : Supreme Court To UP Govt Over Delayed Status Report in Lakhimpur Kheri Case

The Supreme Court pulled up the State of Uttar Pradesh for delay in filing a status report in the recent violence incident at Lakhimpur Kheri, which was filed by the in a sealed cover.

A Bench comprising CJI NV Ramana, Justice Surya Kant and Justice Hima Kohli observed that the report should have been filed at least one day before the hearing to give the Court enough time to peruse it.

Senior Advocate Harish Salve for State of Uttar Pradesh informed the Court that a status report has been filed by the State. The Bench however remarked that if reports are filed last minute, it becomes difficult for the Court to read it.

6. Supreme Court Sets Aside Two Week furlough Granted By HC To Asaram Bapu's Son Narayan Sai, Convicted In Rape Case

The Supreme Court set aside the grant of two weeks' furlough to self-proclaimed godman and rape convict Asaram's son Narayan Sai who is also serving life term in a 2014 rape case.

The bench headed by Justice D. Y. Chandrachud was pronouncing the judgment on the state of Gujarat's SLP against the June order of the Single Judge of the Gujarat High Court granting the respondent-convict furlough for a period of 2 weeks.

The bench declared that furlough can be granted after a stipulated number of years have been served, without any reason.