MONTHLY DIGEST- JANUARY
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    • Feb 2, 2020
    • 61 min read

MONTHLY DIGEST- JANUARY

It is not possible to compute two different spells of service as a single service: SC.

The appellant was initially appointed by the Board of School Education, Haryana, Bhiwani on 08.05.1970 on the post of Proof Reader. The appellant due to his family circumstances voluntarily retired on 01.02.1988. The appellant submitted a representation to the Education Minister of Haryana. Later it vides his letter dated 27.03.1993 forwarded the application of the appellant recommending consideration of his case for re-appointment on the humanitarian ground after treating the period of absence without pay even if be Rules have to be relaxed. The Board keeping into view the recommendation of the Education Minister resolved on 31.05.1994 granting sanction to reappoint the appellant afresh. The appellant retired on 31.05.2002. After retirement, certain retirement benefits were paid to the appellant, which were accepted with protest. The Learned Single Judge rejected the application saying that it is not possible to compute two different spells of service as a single service. The review petition which was filed was also dismissed. The appeal filed before the Division Bench was also dismissed.

The question of law is whether Rule 4.23 of PCSR will be attracted or not?

“Rule 4.23 does not permit condonation of interruption of more than one year’s duration, hence the case of the appellant was not covered under Rule 4.23.”

When Rule 4,23 is not attracted to the appellant, the state can refuse the grant of relaxation. Further, the refusal made by the respondent for adding the period of interruption for pensionary benefit cannot be faulted.

The appeal was dismissed

The question of irreparable harm to a party complaining of a breach of contract does not arise if other remedies are available to the party complaining of the breach: SC

There was a contract existing between the defendants no.1 and the plaintiff ( Neptune infraspace private limited) for sale of the suit lands. But the Defendants had underhandedly entered into a registered agreement for sale with defendant no.2. The Principal Civil Judge by order temporary injunction the defendants were restrained from executing any further documents including a sale deed or creating a further charge, interest or deal with the suit lands in any manner. The High Court by its order said that communication of acceptance to the draft MoU sent by e­mail and exchange of WhatsApp correspondences between the parties amounted to a concluded contract.

As there is no evidence provided to show that the plaintiff accepted the agreement before the sale agreement carried on with the defendant no.2, therefore, the court held that the plaintiff’s agreement was at the “embryo stage”.

The court observed that the suit was filed 7 months later which was not taken into account by the The Special Civil Judge and The High Court. The Court made an explanation that the plaintiff waited hopefully for a solution outside litigation as a prudent businessman before finally instituting the suit is too lame an excuse to merit any consideration.

The court allowed the appeal saying that the grant of specific injunction by the Special Civil Judge to the plaintiff was unsustainable and so the orders related to injunction were set aside.

High Court Registry cannot refuse to number the anticipatory bail application on the ground of maintainability: SC

The petitioners had filed an anticipatory bail application before the Hon’ble High Court of Madras in the matter of Crime No. 937 of 2017 involving offences under the SC/ST Act. The Registry had denied numbering of the application on the grounds that a bail application cannot be filed in an SC/ST Act offence. The petitioners filed the present SLP regarding the issue of a judicial function being performed by the registry which is an administrative body.

The Court held that the registry had performed a judicial function that was ultra vires its administrative powers and ordered for a requisite bench to be constituted to adjudicate upon the merits of the bail application.

The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status: SC

The appellant was arrested by the police for the possession of cannabis in the presence of ASP Abohar under Sec. 18 of the NDPS Act. The police seized the cannabis that was found with him and the samples were collected for examination. After due investigation the appellant was arrested.  The trial was intiated and the trial court sentenced the appellant to rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/-. Aggrieved by the order of the trial court the appellant appealed to the High Court which was dismissed.

The bench evaluated the question of law regarding whether the non-examination of independent witnesses and link evidences would vitiate the trial proceedings and the subsequent findings?

The Hon’ble Supreme Court held that the non-examination of independent witnesses cannot vitiate the trial and that the link evidences had been properly examined by the trial court. The Court dismissed the appeal based on a lack of merits and cancelled the bail bonds of the appellant.

The Commission shall be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the West Bengal Madrasah Service Commission Act, 2008: SC

The Managing Committee of Contai Rahmania High Madrasah challenged the validity of Sections 8, 10, 11 and 12 of the Commission Act by filing the Writ Petition. The provisions were related to the process of appointment of teachers in an aided Madrasah, which was recognized as a minority institution. It was submitted that the provisions of the Commission Act transgressed upon the rights of a minority institution of choosing its own teachers. The submission was accepted by the Single Judge of the High Court and the Writ Petition was allowed. Aggrieved by this judgment some of the candidates including the appellant who had got the appointment as a teacher in the minority institution filed the appeal in the SC.

The question of fact is whether provisions of Act violate Article 30?

The SC also made a point that when the minority institutions reject the nominations made by the regulatory regime even if the candidates are well capable then it can be said that those institutions are not using their rights in an efficient manner. Rights ensured in Article 30(1) will be misused.

All nominations made by the regulatory regime in the enactment of the provisions of the Commission Act to be valid and operational. But the nomination of the candidates shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act.

The appeal was allowed by the SC and the order of the Calcutta High Court was set aside.

Hearing starts from January 13, 2020 on Sabarimala Review of the original judgment

The age old religious custom of prohibition of entry of women between the ages of 11 and 50 into the shrine of Sabarimala in Kerala was challenged before the Hon’ble Supreme Court of India as a violation of fundamental rights of equality, expression and religion guaranteed under Article 14, Article 19(1) (a) and Article 21 respectively in the case of Young Indian Lawyers Association v. Union of India

The five judge constitutional bench of the Supreme Court after listening to arguments of both the parties delivered the original judgement on 28th September, 2018 in favour of the petitioners. The Court declared the practice as oppressive and in violation of the fundamental rights and allowed the entry of women of all ages into the shrine.

The advanced cause list for 13th January, 2020 issued 06.01.2020 gave the composition of the 9 judge bench that is to be constituted for the hearing of the review references. The causelist specifies that the bench shall hear only the reference and will not hear arguments on the review petitions or writ petitions in case.

If the real purpose of a partnership is subletting of the premises to such other person, it shall be deemed to be an act of subletting: SC

The appellant filed an eviction suit on the ground of subletting as well as on the ground of arrears of rent against the respondents herein – original defendants – Bala Venkatram and another under Sections 10(2)(i), 10(2)(ii)(a)(b) and 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the ‘Act’) in the Court of District Munsiff, Pollachi. Upon default in payment of rent and noticing a change in the name as well as ownership of the shop in the tenanted premises from ‘Best Mark Super Market’ to ‘Amutham Super Market’, she discovered there was a complete change of hand from original defendant – Bala Venkatram to respondent no.2 – Shahu Hameed which also on the face of it was a gross breach of the rent agreement. The landlady issued a legal notice to the respondent – calling upon him to collect balance amount from the advance payment deposited after adjusting the arrears of rent and handover possession of the tenanted premises within 15 days failing which the appropriate legal action would be taken. There was no reply to the legal notice from respondent. Therefore, the landlady, the appellant herein, filed decree of eviction on the ground of subletting and arrears of rent.

The learned Rent Controller dismissed the eviction petition. Aggrieved by the same, the landlady appealed. The learned Rent Control Appellate Authority allowed the appeal in part. The learned Rent Control Appellate Authority passed the eviction decree on the ground of subletting only and therefore allowed the petition filed. The original tenant – Bala Venkatram died. Therefore, the legal heirs of the original tenant and the second respondent preferred the revision application before the High Court. By the impugned judgment and order, the High Court has allowed the said revision application and has quashed and set aside the eviction order passed by the Rent Control Appellate Authority. Aggrieved by the order the landlady has preferred the present appeal.

It was held that:

Where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the premises while he himself retains the legal possession thereof, the act of the tenant does not amount to subletting. However, inducting the partner in his business or profession by the tenant is permitted so long as such partnership is genuine. If the purpose of such partnership is ostensible in carrying on business or profession in a partnership but the real purpose in subletting such premises to such other person who is inducted ostensibly as a partner then the same shall be deemed to be an act of subletting.

the Hon’ble Supreme Court allowed the present appeal and set aside High Court order. The judgment and decree passed by the Rent Control Appellate Authority was restored.

Grievous injury causing death of a person caused due to grave and sudden provocation falls within the ambit of Exception 4 to Sec. 300 of IPC: SC

From the perusal of the record and even the findings recorded by the learned Trial Court and the High Court, it appears that the incident has taken place on the spur of the moment. It has also come on record that when the accused came to the place of the incident, he did not carry any lathi and/or any other weapon. It was only after some altercation and on the spur of the moment, the accused gave a lathi blow on the head of the deceased and the deceased sustained the injury and there was a fracture on his head. Despite fracture injury on his head, the deceased was conscious. The deceased was first taken to the police station. Thereafter, he was taken to Patashpur Public Health Center; thereafter he was taken to another hospital – Egra Hospital for better treatment; thereafter he was transferred to Midnapur (Paschim) Hospital; thereafter he was shifted to P.G. Hospital, Kolkata. After a few days, he was removed to Ramchandra Bhanja Medical College, Cuttack, Orissa and thereafter he died. The aforesaid shows the gravity of injury. It is true that the deceased died because of the injuries caused by the accused.

However, there does not appear any intention on the part of the accused to cause the very injury which ultimately led to the death of the deceased. Therefore, the case would fall under Exception 4 to Section 300 IPC.

It was held that:

“Grievous injury causing the death of a person caused in the spur of a moment in an altercation falls within the ambit of Exception 4 of Sec. 300 of Indian Penal Code.”

Therefore the Court partly allowed the appeal.

There is no power conferred on the Tribunal to direct the matter to be remanded to a stage prior to the Court Martial proceedings: SC

The Respondent was enrolled as a Soldier in 20 Jat Firing Team which was attached to the Jat Regimental Centre, Bareilly on 25.02.1999. A firing incident took place at around 8.45 a.m. on 02.10.2004 when the team was practicing firing at the Jat Regimental Centre Havildar Harpal and the Respondent sustained gunshot injuries. Havildar Harpal succumbed to the bullet injuries and the Respondent was admitted at the hospital due to injuries. A First Information Report was lodged.

The General Court Martial convicted the Respondent under Section 302 IPC for the murder of Havildar Harpal and for attempting to commit suicide. The appeal was raised in the Armed Forces Tribunal, Regional Bench, Lucknow, set aside the order of the Court Martial.

The question of law is whether Rule 180 of the Army Rule was violated?

The Tribunal can direct for re-trail by the Court Martial only on the grounds of Section16(2) they don’t have jurisdiction to do re-trail on the basis of the provision in Rule 180 and further, the Tribunal has power only to order for re-trail. They can’t direct the matter to remand before the prior stage of proceedings.

the court said that the order passed by the tribunal is to be set aside and the application is remanded back to the Tribunal itself to consider the case on the merits without being influenced by the judgment passed in the Supreme Court. The appeal made was allowed.

Dying declaration of a victim satisfying all judicial procedural conditions cannot be rejected on the sole ground that it was not recorded in the presence of a Magistrate: SC

The appellants are accused of causing the death of one Sher Singh by putting him on fire. The Trial Court as also the High Court has accepted these statements as being his dying declarations wherein the appellants were named as the assailants. Therefore, the appellants stand convicted essentially on the basis of the dying declarations of the victim. The reliability of such dying declarations has been assailed in these appeals apart from other contentions concerning the surrounding factors.

The issue considered by the Court is on the reliability of dying declaration recorded not in the presence of a Magistrate.

The Court held that the mere reasons that the dying declaration was not recorded in the presence of a magistrate or was not attested by the independent witnesses present during the taking of the dying declaration does not invalidate the veracity of a dying declaration that satisfies all the other essential procedural conditions of dying declaration. The Court refuted all the other contentions of the appellants as unfounded and baseless.

The Hon’ble Court accordingly found the appellants guilty of offences under Section 302/34 of the Indian Penal Code and thereby dismissed the appeal

MCOP ACT – The insurance company is not liable to pay compensation if the vehicle is driven by the deceased himself: SC

In a vehicular accident that occurred on 02.10.2006, one Chotelal alias Shivram died. The deceased was traveling on a motorcycle bearing registration No. RJ 02 SA 7811. Stated in the FIR,  the accident had occurred on account of rash and negligent driving by the driver of motorcycle bearing registration No. RJ 29 2M 9223.

The question of law and question of fact are whether the deceased being in the shoes of the owner of the vehicle driven by himself, whether the insurance company of the vehicle driven by the deceased himself would be liable to pay the compensation under Section 163A of the Act?

Whether the deceased not being a third party to the vehicle No. RJ 02 SA 7811 being in the shoes of the owner can maintain the claim under Section 163A of the Act from the owner of the said vehicle?

The SC held that

The claim petition under Section 163A of the Act against the owner and insurance company of the vehicle bearing registration No. RJ 02 SA 7811 shall not be maintainable

The liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient and, therefore, the heirs of the owner could not have maintained the claim in terms of Section 163A of the Act. It is further observed that, for the said purpose, only the terms of the contract of insurance could be taken recourse to.

The Supreme Court has allowed the appeal partly.

Authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services: SC

Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.”

We need to distinguish between the internet as a tool and the freedom of expression through the internet. There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial.

The issues in this matter were: I. Whether   the   Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules?

II. Whether   the   freedom of speech and   expression and freedom to  practise any   profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?

III. Whether the Government’s action of prohibiting internet access is valid?

IV. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid?

V. Whether the freedom of press was violated due to the restrictions?

The Bench held that An order suspending internet services   indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017.

The natural guardian cannot dispose of the share of the minor in the joint family property: SC

One Moola Gounder died intestate on 28.12.1971 leaving behind his wife (D5), two sons (D1- Palanisamy and D2- Arumugam) and 3 daughters (Plaintiff, D3, and D4). The 1/3rd share of the coparcenary property was given to the sons D1 and D2. The remaining share was shared by the Plaintiff and the other 5 defendants. A suit was filed by the youngest daughter claiming that the property is not properly divided and should be divided according to the law. A written statement was filed by D1 and D2 stating that the mother along with all the daughters has jointly executed the release deed relinquishing their rights in the property in favour of the sons. The plaintiff who was at that time minor was represented by her mother. D1 acted as the guardian for D2 who was a minor at that time. After D2 attained the majority, a registered partition deed was executed between the 2 brothers.

Issue: Whether mother could act as the natural guardian of the minor daughters in respect of the property ?

The Court stated that Section 6 of the Act provides is that the natural guardian of a minor Hindu shall be his guardian for all intents and purposes except so far as the undivided interest of the minor in the joint family property is concerned.  This would mean that the natural guardian cannot dispose of the share of the minor in the joint family property.  However, this principle would not apply when a family settlement is taking place between the members of the joint family.   When such dissolution takes place and some of the members relinquish their share in favour of  the Karta,  it   is  obvious   that   the   Karta   cannot   act  as   the guardian   of  that  minor  whose  share is  being  relinquished  in favour of the Karta.   There would be a conflict of interest.  In such an eventuality it would be the mother alone who would be the natural guardian and, therefore, the document executed by her cannot be said to be a void document.

Therefore, the Supreme Court allowed the appeal

In the absence of relevant and contemporaneous medical records, the High Court cannot interfere the disciplinary action: SC

The appeal has been filed to challenge the judgment and order in Writ Petition where the High Court of Orissa has substituted the punishment of discharge for the respondent, to compulsory retirement and to this extent modified the order where under, the Orissa Administrative Tribunal had dismissed the O.A.No.1459(C)/2003 filed by the discharged Orderly.

The High Court should not have granted relief to the respondent solely on the basis of the medical certificate of the specialist Doctor who may not have personally treated the patient. In the absence of relevant and contemporaneous medical records, the High Court should not have interfered with the disciplinary action and ordered for a lesser penalty. The gravity of the misconduct of the respondent was overlooked and unmerited intervention was made with the Tribunal’s rightful decision to decline relief in the O.A. filed by the respondent.

Therefore the Supreme Court allowed the appeal and set aside the impugned judgment and order of the High Court.

Service Law – Reinstatement after wrongful termination must be made according to the pay fixation at the time of reinstatement: SC

The petitioner who was a teacher and the Assistant General Secretary of Kendriya Vidyalaya Sangathan, Devas, Madhya Pradesh was transferred to Kendriya Vidyalaya, Kargil. The petitioner refused to take up the position on the date of effective transfer. The disciplinary committee of the Kendriya Vidyalaya Sangathan initiated disciplinary action against him and terminated his service. The petitioner approached the CAT, Jabalpur Bench against the impugned order of the disciplinary committee. The CAT ordered that the appeal of the petitioner be disposed of by the president. The HRD ministry failed to comply with the order. The petitioner approached the High Court of Madhya Pradesh which was dismissed by the High Court. The petitioner has approached the Hon’ble Supreme Court through a writ petition under Article 32.

The court held that

The petitioner did not join the place KV Kargil, nor did he approach the court at the relevant time or even after his removal contemporaneously. The interest of justice lies in suitably modifying the order proposed by the Central Government. Although the petitioner would not be entitled to the payment of arrears of salary for the period he was out of service, the KVS should issue a separate order fixing his salary having regard to notional increments effective from the date he would have been entitled to the increment in the year 2009 after taking into consideration the relevant increments which accrue thereafter. In other words, the petitioner should be reinstated, and at the same time, the pay fixation order should ensure that the period of absence which would otherwise be treated as dies non is ignored for the purpose of fixation and fitment of salary alone. The order can also expressly state that the benefit of arrears of salary would not accrue to the petitioner.

Suspension of Sentence – Non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated: SC

The appellants who were partners of GLM Infratech Private Limited issued 63 checks for payments due against the respondents. The checks were dishonoured and the respondents issued a demand notice for the payment which had no response from the appellants.

The Sessions Court apparently vacated the suspension of sentence due to the non-compliance by the appellants with its order to deposit 25% of the claim amount. The appellants appealed against the vacation of suspension of sentence.  The appeal was dismissed by the High Court and the appellants appealed under Section 482 of Cr. P. C. to the Supreme Court.

The Court held that, “It is for the Appellate Court who has granted suspension of sentence to take call on non-compliance and take appropriate decision. What order is to be passed by the Appellate Court in such circumstances is for the Appellate Court to consider and decide. However, non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated.”

The Supreme Court dismissed the appeal.

SC dismissed the appeal of centre against TDSAT order to refund ₹104.34 crores lying unadjusted to Reliance communication Ltd

Sistema Shyam Teleservices Ltd. was merged with Sistema Shyam Teleservices Ltd. Union the Union invited bids for auction .This was also successfully auctioned by the respondents RCL and RTL. In terms of NIA 2013, Rs  281.45 crores were due from RCL which couldn’t be paid. Occurring at the same time the due payable for NIA 2015 was Rs 492.79  by the respondents. They couldn’t make these charges. The respondents approached TDSAT complaining of acute financial crunch as well as interim orders made in the course of litigation with lenders, to seek relief by way of extension of time towards payment of deferred spectrum charges. The reliefs claimed were declined by TDSAT.

The court held that, The order of the TDSAT does not call for any interference was held by the SC because the entire claim of refund by the respondents was not allowed only the part was allowed. Therefore the appeal was dismissed by the Supreme Court.

The Disciplinary Authority or any other authority higher than it may impose any penalties on any officer employee: SC

The respondent was working as the Scale I officer in the applleant’s bank. He was suspended by the Deputy General Manager of the Bank in contemplation of departmental proceedings. The respondent denied the misconduct placed on him but the bank was not satisfied. So the departmental proceedings were initiated against the respondent, One Shri L.N. Jha, the Senior Manager of the Bank was appointed as Inquiring Authority and one Shri S.K. Sinha, the Manager of the Bank was appointed as the Presenting Officer. The respondent nominated one Shri B.K. Sinha as defence representative to participate in the departmental inquiry. The inquiry officer held that the respondent is guilty.  The General Manager and Disciplinary Authority have imposed the punishment of compulsory retirement upon the respondent according to Regulation 4(h) of the Canara Bank Officers and Employees (Discipline and Appeal) Regulations, 1976.

The SC going through Regulation 5 of the Discipline and Appeal Regulations, 1976, held that the any authority higher than the Disciplinary Authority can order penalties against the person who is the guilt of his conduct. In this case, the General Manager is higher in the position than the Disciplinary Authority.

Juvenile Justice Act – Heinous offence – defined – An offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence under the Juvenile Justice Act, 2015: SC

Juvenile ‘X’ has committed an offence under section 304 of the Indian Penal Code. The offence is punishable with a maximum punishment of imprisonment for life or up to 10 years and fine in the first part and imprisonment upto 10 years or fine, or both in the second part. No sentence is prescribed. The appellant’s brother died in the motor vehicle accident caused by the juvenile. The juvenile at the time of committing the offence is 16 years. The Court has directed the Legislature to bring in changes in the Juvenile Justice Act so that the 4th category of crimes which include counterfeiting of coins, homicide not amounting to murder, abetment to suicide etc., are categorized into either serious crimes or heinous crimes.

Issue: Whether an offence prescribing a maximum sentence of more than 7 years imprisonment but not providing any minimum sentence, or providing a minimum sentence of less than 7 years, can be considered to be a ‘heinous offence’ within the meaning of Section 2(33) of the Juvenile Justice(Care and Protection of Children) Act, 2015?

The Court held that;

” an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. The Act does not deal with the 4th category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided, shall be treated as ‘serious offences’ within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter.”

The court finally took in view of Article 142 of the Constitution, and directed the legislation to take a call in this matter and deal all the offences after the commencement of the Act of 2015 in the same manner as dealt with serious offences and also that the offence which does not provide a minimum punishment of 7 years cannot be treated as an heinous offence.

Adverse Possession – The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens: SC

The appellant  was the owner of the land which was acquired by the State in 1967–68 for the construction of a major District Road being the Nadaun – Sujanpur Road. The work of constructing a road was completely done in the year 1975.

The issue here is the construction was done without taking recourse to acquisition proceedings, or following due process of law.

The Court stated that since it has been in continuous possession of the land for over 42 years, it would tantamount to “adverse” possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.

The compensation should be paid within 8 weeks. If the compensation is not paid within the said the appeal should be filed within limitation, the delay should not be entertained.

The appeals are allowed.

Service Laws – If the dependents opted for payment of gratuity for the term of service of the employee who died while in service, no compassionate appointment could be granted: SC

One Jagdish Raj, husband of respondent No.1 and father of respondent No.2 died on 15.1.2004 during the course of his work. His salary was Rs.16,486.60. after his death, there was a certain benefit available to his family. The deceased has a wife and three minor children. His wife was working and earning while her husband died, which came to the knowledge of the appellant ie., the bank later

The issue in the present case whether the respondent 2 ie., minor son of the deceased can seek compassionate employment ?

For the application filed by the respondent seeking compassionate employment, the appellant responded by asking them to submit the new application under the scheme said above they also intent only the payment of cash as compensation is available. The respondents did not apply for the cash compensation as they were only interested in compassionate employment.

The court held that the wife of the deceased is working for a salary more than the salary fixed by the scheme. Therefore the order passed by the High court out of sympathy has been set aside and the writ petition filed by the respondents is dismissed. The appeal was allowed.

Arbitration & Conciliation Act – Even statute arbitration under other acts would be governed by Part I of Arbitration and Conciliation Act: SC

The respondent was a contractor who was engaged in the contract for strengthening a section of National Highway. According to him, he completed the work and the bill was also paid. He also says that in the contract he was liable to remove the defects for a period of three years. After the expiry of the said year, the contractor wrote a letter to the state asking to release the security amount. The state in response issued a letter to the contractor saying to pay a sum of Rs.1,09,00,092 as the repair work had not been conducted in accordance with the contract made.

A writ petition was filed by the contractor in the High Court of Gujarat claiming that the State does not have the power to withhold the amount payable to the contractor under other contracts or recover the amount from payments made under other contracts until the liability of the contractor were determined and quantified by a Court jurisdiction. The HC allowed the petition by saying that the state cannot recover the payment dues and they are payable to the contractor. Further, it was held that the state has the permission or right to look for recovery from any other means other than the contractor. Aggrieved by this judgment the state ha applied for appeal in the Supreme Court.

The issue of law is whether the High court of Gujarat or the Gujarat Public Works Contract Disputes Arbitration Tribunal has the jurisdiction to pass an order in respect to  the worker contract

The court held that, “In terms of the Section 17 of the A&C Act are concerned, such powers can be exercised by the Tribunal constituted under the Gujarat Act because there is no inconsistency in these two Acts as far as the grant of interim relief is concerned.”

The SC held that the contractor is with the rights of approaching the Gujarat Public Works Contract Disputes Arbitration Tribunal within 2 months from the date of order. The appeal has been allowed by setting aside the judgment of the High Court.

Power of Extraordinary writ Jurisdiction – The High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court: SC

The appellant could not clear the aptitude test but should have been considered for any other post before discharging from the service. The appeal is made for not considering him for any other alternative service. As the appellant was not fit for the height criteria he was not appointed.

But the issue here is, Whether an appeal against an order passed by a single judge of a High Court deciding a case relating to the Armed Forces personnel pending before the High Court is required to be transformed to the Armed Forces Tribunal or should be heard by the High Court?

Appeals that are made against the order of a single judge bench are called special appeals. After the establishment of the Armed Forces Tribunal in 2007, all the cases relating to armed forces must be dealt by the tribunal. The cases which are pending or in due course in any of the courts should be immediately transferred to the Tribunal. All the documents relating to the case should also be sent as soon as possible according to section 14 and 15 of the Act.

Based on the facts of the case, the appeal was dismissed.

Discharge – defence materials – It is not open to the accused to rely on material by way of defence and persuade the court to discharge him: SC

The appellant was Director of Mines and Geology in the State of Karnataka. There was a partnership firm by the name M/s Associated Mineral Company, the first and the second accused are the partners of the said firm. An undated letter from one Shri K.M. Vishwanath, the Ex-Partner, which is after his retirement with effect from 01.08.2009 from the firm, which was addressed to the appellant, seeking directions to the Deputy Director of Mines and Geology, Hospet in Karnataka to issue the Mineral Dispatch Permit to the new partners.The appellant knowingly made a false note in the file that he had discussed this matter with the Deputy Director (Legal) and directed Deputy Director, Mines, and Geology, Hospet for the issue of MDPs to the new partners. The appellant has been accused of his acts under the following provisions, Indian Penal Code, 1860 Sections 120B, 420, 379, 409, 447, 468, 471 and 477A – Criminal Procedure Code, Section 227 – Prevention of Corruption Act, 1988 Sections 13(2) and 13(1)(c) and 13(1)(d) Mines and Minerals (Development and Regulation) Act, 1957 – Mineral Concession Rules, 1960.

The court held that, As per Section 227 of the Cr.PC , the materials produced by the prosecution to be taken. Through the evidence and the witness if no offence can be proved against the accused it would benefit the accused.

“No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him.”

The SC dismissed the appeal by going through Section 227 of the CrPc and the appellant was discharged.

Opinion of the hand writing experts – cannot be relied upon to base the conviction: SC

The appellant-Padum Kumar was then working as Postman in Indira Nagar Post Office, Lucknow.  On 09.04.1992, PW-3-Dr. M.L. Varshney, Professor, Agriculture Institute, Naini, Allahabad had sent a registered envelope No.0095 to the Complainant-Dr. K.B. Varshney (PW-1) from the Sub-Post Office of the said Institute. The said envelope contained four Indira Vikas Patra of value of each Rs.5,000/- totalling Rs.20,000/-.  The envelope did not reach PW-1 Dr. K.B. Varshney;  On 14.05.1992, information was received from Senior Superintendent, Post and Telegraph, Lucknow that a person named “Mohan” has received the aforesaid registry on 13.04.1992.  Then, PW-1 and his son Devesh Mohan-PW-2 went to Indira Nagar Post Office and saw the signature where it has been written as “D. Mohan”.  Complainant’s son is also named Devesh Mohan (PW-2). On being shown the signature, PW-2 denied that the signature in question belongs to him.

The conviction of the appellant-accused under Sections 467 and 468 IPC is confirmed and the sentence of imprisonment imposed on him is reduced to the period already undergone. The impugned judgment dated 19.02.2018 passed by the High Court of Judicature at Allahabad in Criminal Revision No.511 of 2006 is accordingly modified and the appeal is partly allowed. The appellant-accused is ordered to be released forthwith unless his presence is required in any other case.

Compensation – There is distinction between “right to apply for compensation” and “entitlement to compensation”: SC

The respondents 1 and 2 are the legal heirs of the deceased. The deceased was a government employee (Peon to Tahsildar) and died in a motor vehicle accident while going to the office. The offending vehicle(dumper) was rash and negligent and hit the vehicle of the deceased. The respondents claimed Rs. 50,00,000 along with an annual interest of 12% per annum on the assertion that the deceased earned Rs. 28,000 and pension of her husband Rs. 7,000 as she was the sold bread winner of the family.

The major issues in the present case are

Whether the major sons of a deceased who are gainfully employed and married are entitled to get compensation from the insurer  under the Motor Vehicles Act, 1988?

Whether legal representatives are entitled for compensation only under the conventional heads?

Whether the amount receivable by the legal representatives of the deceased under the 2006 rules is required to be deducted as a whole or only a portion thereof?

The Supreme Court observed that the fact that under Rule 5(2) of the 2006 Rules, the family pension receivable by the family would be payable, however, only after the period, during which the financial assistance is received, is completed.

According to the Act, any person who is legal representative of the deceased is entitled for compensation when a proper application is made.

the respondents are entitled to get compensation on the basis of loss of dependency, loss of gross salary, and future prospects and deduction of only 1/3 amount towards personal expenses of the deceased. The total compensation calculated in this basis is Rs. 31,96,230/- is payable to the claimants. However, along with this amount interest rate of 9% per annum from the date of petition is payable. Hence, the Court partly allowed the appeals

Tenancy law – If one tenancy is created it would not be appropriate to pass eviction order only in respect of a part thereof, and not the whole: SC

One Pathumakutty let out three shop premises defined Room No.s 3/471, 3/472, 3/476 for a monthly rent of Rs. 75. The ownership of the premises was transferred to the appellants in 1986 by a registered document. The rent paid by the respondents was not paid after November 1987. It is also alleged that the appellants required the premises bona fide; two of the shops had been sublet by the original respondent without the consent of the respondents and the rent of the shops has been reduced materially and permanently by the respondents. The appellants sent a legal notice for surrender of possession of the shops and arrears of rent and filed an eviction notice.

Issue:

Whether a person after the transfer of the right of possession of his property sub-let a portion of the property?

The court stated that under sub-para (i) of sub-section (4) of Section 11 of the said Act leaves no manner of doubt that the cause arises upon the tenant transferring his rights under a lease and sub-lets the entire building “or any portion thereof”, if the lease does not confer on him any right to do so. The proviso requires that the landlord should have sent a registered notice to the tenant intimating the contravention of the said condition of the lease and upon the tenant failing to terminate the transfer or the sub-lease, as the case may be, within thirty (30) days of the receipt 10 of the notice, an application for eviction could be made by the landlord. Thus, sub-letting of any part of the tenanted premises gives right to eviction from the whole premises

The appeal was allowed by the Court and 6 months’ time is given to vacate the premises.

Adverse Possession – Hostile Possession – For adverse possession against the true owner, the person in possession has to admit hostile possession to the knowledge of the true owner: SC

The plaintiff filed a suit for possession on the basis of purchase of suit property from the Managing officer, Department of Rehabilitation, Government of India in a public auction in 1964. The certificate of sale was issued thereafter in 1965. The suit was filed in 1979 alleging the defendants to be in an unauthorized possession. The defendants denied that the plaintiffs are the real owners. The defendants asserted that they have been existing in that property for the past two centuries. The property was inherited from their grandfather and then their father and then to the defendant. It was denied that the property was ever vested with the Managing Officer and he has no authority to auction the property.

Parties went on a trial on the following issues:

Whether the suit is properly valued for the purpose of Court fee and jurisdiction?, Whether the suit time is barred?, Whether the plaintiff is the owner of the property in the suit?, Whether the defendants become owner by adverse possession of the property in suit?, Whether the defendants are in unauthorized occupation of the property in dispute?, Relief.

It is found that the defendants have not accepted that the managing officer or the plaintiff to the owner of the property and they being in continuous possession of the property has been proved and it is not proved to be hostile. Therefore, filling of the suit will not ripe the title of the defendants and hence the Defendants are entitled to the possession of the property. The appeal is allowed.

POLLUTION CONTROL – State Governments shall inform the SC about the measures taken to control pollution and arrangements of funds for treatment plants within eight weeks: SC

The environment is continuously being deteriorated by the people. Not only the air is being polluted, the water bodies and land is being heavily polluted by various means. In recent times, the National Capital and the National Capital Region (NCR) is highly polluted and the people living there are suffering a lot because of the air pollution caused by vehicles, industries and the other smoke emitting objects. The Court has given various orders and disposed of the application dated 29.01.2018 and ordered the Ministry of Environment, Forest and Climate Change to produce a complete report by analyzing the status of air pollution in Delhi and the surrounding areas

The issue raised in the writ petition pertains to the environmental pollution that is caused in various places and the impact which leads to a lot of suffering.

The Court held that this is a blatant violation of Article 21- Right to life by the serious kind of pollution. The court has earlier directed the Union of India to publish a report of the High-Level Task Force so that people are aware of the action being taken. The Court wanted to act according to the Public Trust doctrine. The Court wanted the Government to initiate all the methods to control pollution at the earliest.

The interest on the enhanced amount of compensation for the period of delay in approaching the High Court by way of LPAs is denied: SC

There was a delay of five and a half years in preferring the first appeals. As there was a delay of five and a half years, it is submitted that assuming that the High Court is justified in enhancing the amount of compensation at par with the other claimants. It is submitted that for the delayed period the claimants shall also not be entitled to any statutory benefits.

Issue – Whether for the delayed period the claimants shall be entitled to the statutory benefits and the interest under the Land Acquisition Act?

The Court stated that merely because at the time of condoning the delay no such condition was imposed that the claimants shall not be entitled to the interest on the enhanced amount of compensation for the period of delay, the appellant who is otherwise a public body cannot be saddled with the liability to pay the interest for the period of delay, which is not at all attributed to them.

The dispute regarding termination as act of victimization falls exclusively within the jurisdiction of the Labour Court: SC

The appellant was appointed as an employee in 1985 as a Professional Service Representative at Sagar, Madhya Pradesh and later was promoted to Field Sales Officer Grade FM-One. The employee was transferred to Mumbai in 2005 by the employer as per the conditions that the employer has the power to transfer the employee to any of its subsidiaries or sister companies during the course of employment.  As the employee failed to join the duty,  his service became terminated. Primarily the case was filed in the Industrial court which pronounced the judgment favouring the appellant that the termination of the employee is not real, it is fake and bogus because the employee didn’t receive any termination order. But the High Court of Bombay set aside the order of the Industrial Court.

The issues framed by the bench are,

Whether the employee is entitled to dispute the termination order as not real or bona fide for the reason that it was not received by him?

Whether the employee is entitled to dispute his transfer as unfair labour practice?

Whether the question of malice in law can be inferred in the manner of transfer of an employee as unfair labour practice?

Whether the order of termination is ancillary to the order of transfer which confers the jurisdiction on the industrial court to exercise jurisdiction in the matter arising out of an allegation of unfair labour practice?

The court held that, The termination order is not fake. Thus the employee is not entitled to dispute the termination order as not real or bona fide for the reason that it was not received by him.

As there is no mala fide intention on the side of the employer, the transfer is not regarded as an unfair labour practice.  ‘malice in law’ means ‘something done without lawful excuse’ and not necessarily an act done from ill feeling or spite. Here the employee is transferred after 20 years and that to the headquarters of the company. So the malice in law cannot be inferred in the manner of the transfer. on referring the section 7 of the Industrial Disputes Act, that the unfair labour practice mentioned in Item 1 of Schedule IV fall within the jurisdiction of the labour court where the industrial court will not have jurisdiction to examine the question of termination as a consequence of the order of transfer. So, the labour court alone has the jurisdiction to decide the issue of alleged unlawful termination of the appellant.

The bench dismissed the appeal.

The court can invoke its extraordinary writ jurisdiction for the best interest of the child regarding custody of child: SC

Yashita Sahu and Varum Verma got married in India on 30.05.2016. Varun was already working in USA. Yashita also went to USA on 17.07.2016. A daughter was born to them on 03.05.2017 and was named Kiyara Verma and was a citizen of USA. Their relationship did not work out well. The wife applied for a Emergency Protection Order on 25.08.2018 and a petition for the custody of minor child on 29.08.2018 in Norfolk Court. A habeas corpus petition was filed by the husband in the High Court of Rajasthan and the court directed the wife to go along with the child to USA. This appeal is made as the wife is aggrieved by the judgment.

The issue considered by the court is whether a writ of habeas corpus is maintainable?,

The Court held that It is too late in the day to urge that a writ of habeas corpus  is   not   maintainable   if   the   child   is   in   the   custody   of another parent.  The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child.

Whenever the question arises pertaining to the custody of the minor child, the Court decides upon the best interests of the child and not on considerations of the legal rights of parties.

The court held that ,if the wife has not expressed her willingness to go back to USA, then the custody of the minor should be given to the husband or if he is unable to travel to India, to his mother before the High Court of Rajasthan on 03.02.2020.  Then the child will be taken to USA and the mother can make skype call every day. If the wife visits the same place where the husband resides, she will be given the custody of the child in weekends or the father should ensure that the child visits her mother twice in a year.

The Court disposed the appeal.

The courts must act stringently to ensure that all proceedings are decided within a reasonable time: SC

The respondent filed the case against the appellant in the civil court for the breach of contract by the appellant regarding the sale of ancestral property. The summon was served against the appellant but the appellant’s counsel failed to file the written statement even after the extension of time being given by the court. So the civil court closed the appellant’s opportunity of filing the written statement and struck off his defense. After approaching the Delhi High Court by filing the revision petition, the court summarily dismissed the petition, based on the fact that there was no discretion with courts to extend the time for filing the written statement after service of summons.

The question arises here is

Whether the amended or un-amended Order VIII Rule 1 of CPC would be applicable to the present case?

Whether the court has discretion to extend the time limit for filing the written statement regarding the non-commercial disputes in case of delay in filing the written statement?

Whether the appellant has made out a case of exercising discretionary jurisdiction?

Whether the appellant can be given the opportunity to file the written statement?

The Commercial Courts Act, 2015 through section 16 has amended the CPC in its application to commercial disputes.The court hence got the clear view that non-commercial disputes fall within the ambit of the un-amended provision of CPC.

The court lacks discretion in prescribing the time limit for filing the written statement in case of delay only for commercial disputes.

The present dispute does not fall within the parameters specified under section 2(c) of commercial Courts Act, 2015 and in particular sub-clause (vii) as the immovable property here is not of a nature which is ” used exclusively in trade or commerce”.

The reason for not filing the written statement is due to the non-appearance of the appellant’s counsel before the civil court during hearing dates. After taking the circumstance of the case into consideration, and without laying down the discretion being exercised hereinafter as a precedent, the bench directs that the written statement filed by the appellant be taken on record with a copy to counsel for the respondent within one week from the order dated.

Thus the bench set aside the orders of the court and the appeal is disposed of in the above terms by granting the Special Leave Petition.

Section 216 of CrPC can be entertained ‘at any time’ before pronouncing the judgment: SC

The First Information Report was lodged by the father in law who is the fourth respondent of the case against the appellant, alleging that the appellant and the members of his family had harassed his daughter with demands for money and transfer of land in their names.  Once the trial was commenced, the Investigation officer with the permission of the court for further investigation, filed the additional charge sheet under the sections 406 and 420 of IPC against the appellant.

The main issue framed here is, Whether the additional charge sheet can be filed against the appellant under section 216 of CRPC ?

The trial court has the power to alter or add charges at any time even after the completion of evidence, the arguments heard and the judgment reserved, without affecting the interest of justice and not causing any prejudice to the accused.

The bench dismissed the appeal and directed the Additional Junior Civil Judge to continue the trail proceedings pending before the trial court and ordered that the additional charges can be filed against the appellant.

The determination of the age of retirement is a matter of executive policy: SC

The appellant , joined as an ad-hoc lecturer at GVSM  Medical College, Kanpur. He was working as a professor in Cardiology and as Head of the Department. He was  due to retire on the age of 60 as per the terms of Rule 56 of the Fundamental Rules which governs the retirement age of government servants. The appellant sought a Mandamus for his continuance in service until he attains the age of 65 as per the notification dated 6 February 2015 by the Government of Uttar Pradesh extending the age of retirement from 60-65. But the appellant attained the age of superannuation before issuance of the notification. However the appellant had been granted the ‘session benefit’ of an extension of service.

The main issue framed by the bench is, Whether the appellant was entitled to the benefit of increase in the age of retirement from 60-65 years as a consequence of the notification dated 6 February 2015 ?

The court held that, The date on which the employee attains the age of superannuation is prescribed by the fundamental rules. The state government has clearly specified that the notification issued for the enhancement of retirement age would not apply to the teachers who had already crossed the age of superannuation. Accordingly, the appellant had crossed the age of 60 while issuing the notification. As the determination of age of retirement is a matter of executive policy, the court came to the conclusion that, “the appellant was not entitled to the benefit of the enhancement of the age of retirement”.

Thus the bench decided that the appeal shall stand dismissed and if any application is pending regarding the case shall be disposed of.

Once the plea of juvenility is rejected by the Trial Court, HC and the SC, it is not open for the accused to reagitate the plea of juvenility by filing a fresh application: SC

The petitioner Pawan Kumar Gupta was a juvenile at the time of commission of the offence. The date of birth of the petitioner in the School Leave Certificate proves the same. The certificate has also been found to be true by the investigating officer and it is prayed for holding the enquiry in terms of section 7A of the Juvenile Justice Act.

The issue raised before the Court is whether the plea of juvenility is maintainable or not?

The Court stated that once a convict has chosen to take the plea of juvenility before the learned Magistrate, High Court and also before the Supreme Court and the said plea has been rejected up to the Supreme Court, the petitioner cannot be allowed to reagitate the plea of juvenility by filing fresh application under Section 7A of the JJ Act.

The Special Leave Petition is dismissed.

Section 431 Cr.P.C – Hearing of Proceeding may be continued after the death of an accused: SC

A First Information Report was filed on one Ramesan under section 55 (a) and (g) of the Kerala Abkari Act. The Additional Sessions Court convicted the first accused under section 55(a) for a period of 2 years imprisonment and one lakh rupees fine. The accused was also convicted under section 55(g) for a period of 2 years imprisonment and one lakh fine. In default of payment of the fine, the imprisonment period was reduced to 6 months each under the section 55(a) and (g). An appeal was filed in the High Court. The Appellant died after the filing of appeal on 21.12.2007. The Court upheld the conviction. The sentence of imprisonment is unworkable, the fine imposed by the lower court is also not under mistake should be paid. The court dismissed the appeal. This appeal was filed by Girija, legal heir of Ramesan.

Issue:  whether the High Court has committed any error in abating the appeal in toto?

The High Court had overruled the primary objection made in the appeal. The principle according to section 394 or Cr. P. C. is applied. The Court thus gives an opportunity to the submissions of the legal heirs of the accused which was not given in the lower courts. Therefore, the appeal is partly allowed and the criminal appeal no. 254 of 2007 is revived before the High Court for the submissions of the legal heirs of the accused.

Mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured: SC

Appellant bought an insured tractor from the respondent. The tractor was stolen and a FIR was lodged on the same day. The claim was submitted to the respondents after 2 months. It was rejected on the ground that it was submitted after 52 days.

Issue:Whether delay in informing the occurrence of theft of the vehicle to the insurance company, though the FIR was registered immediately, would disentitle the claimant of the insurance claim?

The Bench observed that the registration of FIR regarding the theft and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Therefore, the Court held that mere delay in informing the company about the theft is not a ground to deny the claim of the insured. The appeal is allowed

Petition under the Domestic Violence Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed: SC

The respondent and one of the appellants named Manoj kumar got married as per Hindu rites at Rajasthan and led their matrimonial life in Chennai. The respondent thereafter decided to reside with her parents and refused to join her matrimonial home and claimed protection under the Domestic Violence Act, before the Court of Metropolitan Magistrate, Bangalore against her husband , her in- laws and the other relatives of her husband.

The issues framed here is,

Whether the relatives of the appellant are held liable for monetary relief ?

Whether the Metropolitan Magistrate court has jurisdiction to entertain the complaint filed by the respondent ?

The court held that,

The petition under the Domestic Violence Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. The relatives except in laws and the husband of the respondent cannot be held responsible for the award of monetary relief as there is no specific allegation regarding the violence caused by them against the respondent. So, the criminal case against them is said to be quashed.

While coming to the second issue, the bench observed that under section 27 of the protection of women from the Domestic Violence, 2005 the respondent is residing with her parents in the territorial limits of the Metropolitan Magistrate Court. Therefore the court has the jurisdiction to entertain the complaint filed by the respondent.

The appeal is partly allowed .

It is the quality of evidence that matters and not the quantity : SC

The appellants are the accused in the offence u/s 147, 148, 302/149 and 325 of the Indian Penal Code. They are seven in number and were tried together with several other co-accused persons in 2 incidents. One leaving PW1 with grievous injuries and another which led to the death of Govind Singh for a civil issue relating to demarcation of ridges in the fields. 18 were accused but then 8 were acquitted by the Trial Court stating that the charges against them are not proved beyond reasonable doubt.

The issue raised  before the Court is whether there is cogent evidence about the accused involvement in the crime?

The Court held that  it is the quality of evidence that matters and not the quantity; and even the testimony of a single witness may be sufficient to establish the identity of an accused as member of an unlawful assembly but, when the size of assembly is quite large and many persons have witnessed the incident; and when a witness deposes in general terms, it would be useful to adopt the test of consistency of more than one witness so as to remove any doubt about identity of an accused as a member of the assembly in question.

Consumer Protect Act; Unfair trade practice means direct recovery from the price paid for the transaction, and not from advertisements or sponsorship: SC

The appellant broadcasted ‘Kaun Banega Crorepathi’ (“KBC”) which was sponsored by Bharati Airtel Ltd, who’s also an appellant. Also a contest ‘Har Seat hot Seat’ (“HSHS”) was conducted in which viewers were participated by sending SMS to Airtel which was Rs. 2.40 each which was higher than the normal rate. Thus the respondent, a consumer society filed a complaint before the National Commission against Star India and Airtel, contending that they were committing ‘unfair trade practice’ u/s 2(1)(r)(3)(a) of the Consumer Protection Act, 1986. The commission observed that the prize money for HSHS contest was paid by the revenue earned from increased SMS charges which is an unfair trade practice within the meaning of the section. Thus the commission accepted the contentions of the respondent and awarded a punitive damage of Rs.1 Crore u/s 14(1)(d) of the said act. Also the appellants were directed to pay the litigation cost of Rs.50000/- to the complainant.

The issue raised before the Court is Whether the complaint made by the consumer organization against telecom service provider for committing an ‘unfair trade practice’ within the meaning of Section 2(1)(r)(3)(a) of the  Consumer Protection Act, 1986 (“the 1986 Act”)is maintainable or not?

The service-cum-sponsorship agreement reveals that Airtel was liable to set up the necessary hardware and software for that contest at its own cost. Thus the increased cost would be necessary to meet the expenses. Also even when the SMS charges is considered as the ‘cost’ of participating under the said act it cannot be considered as the wrongful advertising. The court was of the view that the prize money was not paid directly out of SMS revenue and there is no proof that the two appellants had colluded to increase the SMS charges. 

 “The Court held that  the finding of the commission of an unfair trade practice under Section 2(1)(r)(3)(a) in the impugned judgment is bad in law.”

The appeals are allowed

Armed Forces Tribunal Act- The Tribunal exercises jurisdiction, powers and authority against any order, decision, finding or sentence passed by a court martial under section 15.

The superior officer Lt. Abhishek Vardhan made a complaint against his sailor R. Karthik for the use of force. Investigations were conducted and the investigating officer referred the case to the executive officer who examined the 3 witnesses of the case. However they were not cross-examined by the defending officer. The commanding officer accepted the charges to be proved u/s 45(a) of the Navy Act, 1957 and provided a detention period of 60 days and deprived the First Good Conduct Badge. However the Chief Naval Staff ordered dismissal and deprivation of First Good Conduct Badge which was challenged by the Sailor before the Armed Forces Tribunal, Regional Bench, Chennai. The Tribunal found that the use of force was a consequence of provocation by the superior officer using abusive language. The superior officer was found guilty u/s 74 of the Act and was given punishment of one-month loss of seniority. Also the punishment of dismissal was set aside by substitution of 75 days detention which the sailor has since undergone with the punishment of deprivation of First Good Conduct Badge

Sub-section(6) of Section 15 of the AFT Act empowers the Tribunal to substitute the findings of the court martial which includes the disciplinary proceedings under the said Act (see Section 3 (f) of the AFT Act) and also to interfere if the sentence is found to be excessive, illegal or unjust.”

The court here observed that none of the three witnesses assert the hitting of the superior officer by the sailor. Also the superior officer was not examined by the investigating officer or the executive officer and also not cross-examined as per the proceedings. Also he was found guilty for using abusive language against the sailor. Also the senior officer has not appeared before the investigating officer or the executive officer. However the sailor’s act also cannot be condoned. The order passed by the Tribunal is within its jurisdiction.

Thus the appeal is dismissed by the Court.

NDPS Act – Negation of bail is the rule, and its grant is an exception under Section 37 of the Act: SC

The accused were in joint possession of hashish oil and currency notes. They were arrested by the Circle Inspector of Excise for offences punishable u/s 20(b)(ii)(c) and Section 29 of the NDPS Act. The ASJ noted S.37(1)(b)(i) & (ii) of NDPS Act and observed that the accused committed offence punishable u/s 20(b)(ii)(c) & 29 of the act and rejected the application for post-arrest bail. Appeal was filed before the HC which granted the bail application without even noticing S.37 of the act. After this a miscellaneous application was filed by the appellant u/s 482 CrPC for recalling the above order. The court held that even if it was erroneous order and did not involve the application of mind, it was not open for the court to reconsider the facts of S.482 CrPC.

The issue raised before the Court is Whether the High Court of Kerala has committed error in granting bail under section 37 of NDPS Act?

The court observed that the operative part of s.37 provides a twin condition to be fulfilled. The first being the prosecution should be given the opportunity to oppose the application and the second being that the court must be satisfied that there are reasonable grounds that he is not guilty of the offence. The expression “reasonable ground” means something more than prima facie grounds. The HC have overlooked the object of s.37. In the application filed before the HC by appellant u/s 482 CrPC, the Judge has accepted the error committed in granting bail to the accused respondents.

Thus the court in this case allowed the appeal and set aside the bail order passed by the HC.

The land transferred to the State Government continues to be part of compensation pool for the settlement of the displaced persons: SC

The appellant claims to be a pre-partition tenant of a land situated in village Poppalguda, Ranga Reddy District. They claimed patta. Also they contended to stop their right to possession, from being jeopardized. They filed miscellaneous application for claiming the same.

The chief issues of this case are.

Whether the appellants can claim patta?

Whether they can stop their right to possession from being jeopardized?

The court observed that ,the appellants have neither invoked writ jurisdiction nor any other competent forum to redress their grievances for vesting of land. The appellants have not invoked the writ jurisdiction for redressal of their grievances. Based upon the above observations the two writ petitions 29274/2014 and 29436/2014 were set aside. The matter is to be remitted to HC. The appellants are at their liberty to invoke jurisdiction and redress their grievances in accordance with law.

The court thus held that the Central Government has transferred land to State Government and state can allot land for settlement of displaced persons.

The State will always be liable for the misdemeanor by its officers if it is caused by their negligence or casualness: SC

The appellant imported 96 tons of chemical ‘Acetic anhydride’ under bills of entry through Inland Water Container Depot under the Advance Licence Scheme. It claimed for clearance of consignment free of import duty in terms of customs notification. The notification permitted without payment of customs duty subject to fulfillment of some norms and conditions. The notifications were amended which made the imports liable for duty, exemption having been withdrawn. This notification was again amended which allowed the imports of chemicals without any duty but subject to certain terms and conditions. The clarificatory notification led to some difficulties. The appellants were allowed to clear the consignments without any duty. The respondents issued a show cause notice that the consignments have been imported after the date of notification.

The State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified.

The Court considered  held that the order of High Court was completely unsustainable. It is the error made by the High Court in being unaware of the clarificatory notification. The State will always be liable for the misdemeanor by its officers if it is caused by their negligence or casualness. The State authorities have no defence to contend that they were unaware of the notification..

Therefore, the impugned orders are held unsustainable and are set aside. The appeals are allowed.

The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court: SC

The deceased Umadevi after the death of her husband, stayed with her younger sister for 20 years had executed the will in favour of the appellant who was the son of her younger sister. The appellant after filed an application for the eviction of the respondent and to deliver vacant possession of the premises. The executing court declared that the appellant as the legal representative who can be in possession of  the suit property.

The issue framed here is

Whether the appellant is said to be legal representative under Order XXII Rule 5 of CPC ?

Whether the tests laid down in the section 115 is satisfied by the High Court ?

The determination as to who is the legal representative under Order XXII Rule 5 CPC is for the limited purpose of representation of the estate of the deceased and for adjudication of that case. The appellant is the sole claimant to the estate of the deceased on the basis of will and no other person claimed that they are the legal representative of the deceased. So the appellant is said to be the legal representative of the deceased and is entitled to possess the property.

The court held that the High Court has not satisfied the tests laid down in section 115 of CPC that the High Court in exercise of revision jurisdiction has interfered with the order passed by the Executing Court as if it was acting as a first court of appeal.The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court. So the order passed by the High Court is not sustainable in nature.

The appeal was allowed.

Issue regarding fraud in a sale deed when seized in a civil court, the very same issue cannot continue in criminal court: SC

A plot owned by the father of the respondent-2 was purchased by a sale deed by the appellant. Respondent- 2 filed original suit before the Judicial in Farrukhabad district. With regard to the same plot, the appellant also filed suit for permanent injunction restraining respondent- 2 from demolishing his construction. A complaint was filed against respondent-2 alleging that he had stolen the original sale deed. Against this a complaint was registered against the appellant for offences under IPC. Subsequently he filed application u/s 482 CrPC for quashing the above proceedings which the HC rejected.

The court viewed that when the issue is seized before the civil court it cannot be continued in criminal court. There is no allegation of impersonation and forgery of signature in the suit of respondent-2. When the suit for cancellation of sale deed is pending before competent court, a second suit for criminal proceedings cannot be filed.

Central Sales Tax Act – The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India: SC

The appellants imported foreign cigarettes and stored it in customs bonded warehouse situated in West Bengal and some were sold to the Master of a foreign-going ship without payment of customs duty. A suit was filed before the Commercial Tax Officer claiming exemption from payment of sales tax

The chief issue in this case as observed by the SC is “whether the sales in question would qualify the expression ‘sale in the course of import’?”

“The Court held that it is not the case of the appellant that the goods in question were being exported. Since the goods are to be consumed on the board of the foreign going ship and the same would be consumed before reaching a destination, it does not fall under the definition of ‘export’. The sale cannot qualify as a sale occasioning export unless the goods reach a destination which is a place outside India. Further, since the goods have been sold from the bonded warehouse and had crossed the customs port/land customs station prior to their sale, it cannot qualify as a sale in course of export within the meaning of Section 5(1) read with Section 2(ab) of the CST Act.”

The appeals stand cancelled with no order as to cost.

The detenu has a right to challenge a reasoned order but would not be a writ of habeas corpus but would be in the nature of a writ of certiorari: SC

The petitioners have referred for the premature release but the state has not given any benefit. The High Court found that there is life threat for the convicts but this cannot be a ground for detaining them in the prison. The High Court directed the detenu be informed about the threat and allowed the petitions. These orders are under challenge.

Issue: Whether writ of habeas corpus would lie, for securing release of a person who is undergoing a sentence of imprisonment imposed by court of competent jurisdiction praying that he be released in terms of some Government orders/ Rules providing for pre-mature release of prisoners?

The Court points out that the grant of remission is not a right vested with the petitioner but is a privilege available to the prisoner on fulfilling certain conditions. There are various appeals made by various persons in the case. One of it being the prisoner has studied many degrees and as he has committed murder of a person in another community, his release may be a threat to his life. But the court ordered for the release of the respondent. Another prisoner has also completed many courses in the jail and his jail performance is satisfactory and has been in jail for more than the incarceration period, he has been to his place and has no life threats, therefore can be released from the jail. Similarly, the other prisoners, whose performance is satisfactory and do not have any danger for life are directed to be released from the jail under article 142 of the Constitution.

The Court held that the prisoners should be released and should be allowed to live their life without any interruptions and they also should be informed about the threats they have. Therefore, the appeals are disposed of in the aforesaid terms.

Merely because an employee is given a temporary charge of a particular post, it cannot be taken as a promotion to the said post: SC

The respondent herein was appointed as an ‘electrician’ in the appellant institution. The respondent who was entitled to promotion was due. He demanded promotion from the Secretary of appellant. Later he was transferred to HRD however his designation remained the same. He prayed promotion to the post of Section Officer under the Time Bound Promotion Scheme (TBPS) which was rejected.

The court observed that merely because an employee is given a temporary charge to do a particular work of a particular post, it cannot be said that in fact he has been promoted to the said post. An employee is entitled to promotion only under the TBPS. Here the T&C of the service of the employees were governed by the agreement between ICAI and its Employees’ Association. The respondent was governed by Clause 1(v) of the settlement. Accordingly the employees like the respondent are not entitled to any promotion and he was already given the pay-scale of an Assistant.

The respondent shall be entitled to the same salary of Section Officer for the period during which he worked as a Section Officer either on officiating basis and/or he was given the charge, if not paid so far.

The appeal is allowed.

Condone delay in review petitions cannot be invoked after the prescribed period of 30 days under Rule 5A of the Debt Recovery Tribunal Rules: SC

The parties to this suit purchased an Export Insurance Policy from ICICI Lombard General Insurance Company which provided an agreement to indemnify the respondent and the appellant when the foreign buyers default payment. The appellant lodged claim which was repudiated. Thus the appellant filed application before DRT, Mumbai u/s 19 of RDB Act claiming recovery of the sum. An I.A was filed by the respondent before the DRT challenging its jurisdiction which was dismissed.

The issue before the court is Whether Section 5 of the Limitation Act can be invoked to condone delay in the filing revision petition after the prescribed period of 30 days under Rule 5A of the Rules?

The court clearly declared two things: “one, whether in the original or unamended provision, there is no separate power to condone delay, as is contained in Section 20(3) of the Act; and second, that the period of 60 days was considered too long and cut down to 30 days thereby evincing an intention that review petitions, if they are to be filed, should be within a shorter period of limitation – otherwise they would not be maintainable”.

The court allowed the appeal.

Effect must be given to Words of Contract and Intent while interpreting an Insurance Contract: SC

According to the cash credit facility entered into between the appellants and the respondent bank, the appellants were under an obligation to insure he goods hypothecated to the bank. The claim of the appellants under the insurance cover of the goods hypothecated was repudiated by the respondent insurer.

The court held that while interpreting the contract of insurance effect must be given to the words of contract and intent. Reference was made to Section 64(VB) of the Insurance Act 1938. Reliance was made to paragraph 5 of Biman Krishna Bose v United India Insurance Co Ltd of the case referred by the appellant counsel.

Thus the court dismissed the appeal with same with no order as to cost.

In case of “Sexual harassment” not only departmental or regular inquiry as per the service rules shall be initiated, but also other actions as per law: SC

The appellant is a professor in probation in the Central University of Kerala. A formal contract was entered between the university and the appellant restating the terms and conditions referred to in the offer letter. Within a month of appointment, there were various complaints made against the appellant. The respondent No.1 – University had to constitute an internal complaints committee in terms of the statutory regulations of the UGC (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations 2015. The committee wanted to submit an inquiry report. The order itself mentions that on scrutiny of the report of the committee, other documents and academic performance, the Executive Council decided to terminate the services of the appellant. The order also stated that the appellant had to face an inquiry before the committee. If found guilty, then action can be taken following the service rules. In such a situation, the order cannot be construed as an order of terminator simplicitor. The appellant had assailed the order to be exfacie  stigmatic.

Issue: Whether the order issued under the signatures of Vice Chancellor of the Central University of Kerala (respondent No. 1), dated 30.11.2017 is simplicitor termination or exfacie stigmatic?

One of the judicially evolved tests to determine whether   in   substance   an   order   of   termination   is punitive is to see whether prior to the termination there  was (a)  a full scale formal  enquiry  (b)  into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is ex­facie stigmatic and punitive. Such an order could be issued only after subjecting the incumbent to a regular inquiry as per the service rules.

Upon receipt of complaints from aggrieved women about the sexual harassment at workplace it was obligatory on the Administration to refer   such   complaints   to   the   Internal   Committee   or   the   Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. An inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act.In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence.

The Court held that the impugned termination order is ex facie stigmatic. As the approach of the University was flawed, the entitlement to grant backwages should be made in accordance with law. Therefore, the appeal is partly allowed initiating departmental or regular inquiry as per the service rules.

No Contractual obligation on the Airlines to escort every passenger to the boarding gate after issuing boarding pass: SC

The respondent who booked air tickets in Indigo Airlines was left behind by the appellant-Airlines even though the boarding passes were issued. Even the request for accommodation in the next available flight was turned down by the appellant. Due to this the respondent had to incur a huge monetary loss.

The expression ‘deficiency in service’ is defined in S.2(1)(g) of the Consumer Protection Act. Also paragraph 6 of Ravneet Singh Bagga (supra) was noted down by this court. The court considered this complaint should not proceed for want of material facts constituting deficiency in service. Also just because the respondents were not accommodated in the next flight does not constitute deficiency in service. This court declared that the appellants are liable only to refund the Government and airport fees and not liable for loss caused to the passengers. Also paragraph 31 of N. Satchidanand (supra) was referred by this court. This court is of the opinion that the approach of the consumer fora is in complete disregard of the principle of pleadings and burden of proof.

The appeals are allowed with no order cost.

Malprabha reservoir project – If disputed area comes under submergence, then the claimant shall be entitled for compensation/interest: SC

The notification was issued for acquisition of appellant’s land on 07.06.2007 and the award was passed on 23.07.2009 to construct the dam under Malprabha Reservoir Project. But the land was said to be came under submergence in the year 1991 when the notification was issued. The High Court ordered that the interest is to be paid from date of the award i.e. 2009 but not from the date of notification issued.

The issues framed by the bench are,

Whether the land come under submergence in the year 1991 ?

Whether the land was in cultivating possession of the appellant after the notification issued in 1991?

Whether the damages are claimed from the date of possession or from the date of submergence ?

Here the amount of interest been already paid to the appellant under section 34 of Land  Acquisition Act, 1894 from the date of award and not from the date of notification under section 4. As there is no clear documents regarding the question of cultivating possession of the appellant over the land and whether the land has come under submergence in the year 1991 or for how much period the disputed land is under submergence, the court directed the collector to examine the above mentioned issues.

FOR A DECREE OF SPECIFIC PERFORMANCE TO BE GRANTED, READINESS AND WILLINGNESS TO BE PROVED BY PLAINTIFF : SC

The plaintiff is that the land in dispute was agreed to be sold for Rs.1,40,000 as total consideration. Subsequently the plaintiff has paid Rs.69,500 as earnest money. The plaintiff instituted the suit seeking for decree of possession by way of specific performance of the Agreement of Sale executed by defendant No.1 in favour of the plaintiff agreeing to sell the land. The plaintiff also prayed to set aside the sale deed executed by Defendant 1 in favour of Defendant2 stating it to be null and void and further proclaimed that it did not bind him. An alternative suit was filed by the plaintiff to recover the money. The Defendant failed to appear and ex-parte order was passed.

The suit being the one for specific performance of  the contract on payment of the balance sale consideration, the readiness and willingness was required to be proved by the plaintiff and was to be considered by the Courts below as a basic requirement if a decree for specific performance is to be granted.

Therefore the appeal was allowed in part.The orders of the Lower Appellate Court and the High Court to the extent of granting Specific Performance was set aside. The appellant was directed to pay amount to the plaintiff.

Rejection of Mercy Petition of the convict in Nirbhaya’s Case is upheld by the Supreme Court

The petitioner who is a death row convict in Nirbhaya’s case filed the writ petition, challenging the rejection of his mercy petition by the president of India and seeking the commutation of his death sentence.

The issues were framed based on the grounds of challenge put forth by the petitioner for the judicial review of the order passed by the president.

Whether relevant materials are sent to the president for consideration or the mercy petition is rejected by not taking the relevant materials for consideration?

Whether the absence of recommendation of the jail superintendent can be taken as the ground for judicial review?

Whether the averments regarding solitary confinement on the petitioner is true or not?

Whether the alleged sufferings of the petitioner in the prison can be taken as a ground for judicial review?

Whether the quick consideration and swift rejection of the mercy petition can be assumed as pre-determined mind and non-application of mind?

The court held that,

The Joint Secretary and the Ministry of Home Affairs has filed an affidavit containing the relevant documents as per the guidelines mentioned in Shatrughan Chauhan case. It is clear that all the materials are taken for consideration by the President for rejecting the mercy petition..

Column No. 23 of the nominal roll relates to “recommendations of the Jail superintendent,” if any” one of the guidelines to be followed for defining the persons’ conduct in prison while forwarding the mercy petition. But The words “if any” indicates that the superintendent may or may not give his remarks/ recommendations unless the situation warrants. So the absence of recommendation of superintendent cannot be taken for judicial review.

The affidavit filed by the Director General, prisons stated that for security reasons, the petitioner was kept in single room that had iron bars open to air and was intermingling with other prisoners on daily basis, so it can’t be equated to solitary confinement in violation of the principles in Sunil Batra case. Therefore it cannot be a ground for judicial review.

By referring to the case, Narayan Dutt and others v State of Punjab and others, the exercise of power of judicial review of the decision taken by the president of India on the mercy petition is very limited. So the alleged sufferings in the prison cannot be the ground for judicial review of the executive order passed under Article 72 of the constitution.

The bench referred Maru Ramcase, that if the power is vested in a very high authority, it must be presumed that the said authority would act carefully after an objective consideration of all the aspects of the matter.

Here the relevant materials were placed before the president, and upon consideration the mercy petition was rejected. Therefore the quick consideration and swift rejection of the cannot be the ground for judicial review and also it does not suggest that there was pre-determined mind and non-application of mind.

Accordingly the bench dismissed the writ petition.

ANTICIPATORY BAIL CAN BE GIVEN TILL COMPLETION OF TRIAL: SC

The Honourable SC the following issues are referred for consideration to this larger bench:

“(1) whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.”

The court made the observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that “if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.

The court after hearing the submissions of the respective parties observed that as in the case of Balchand Jain , “anticipatory bail” means “bail in anticipation of arrest”. “if there are reasons for doing so, limit the operation of the order to a short period only after filing of an FIR in respect of the matter covered by order and the applicant may in such case be directed to obtain an order of bail under Sections 437 or 439 of the Code within a reasonable short period after the filing of the FIR”.

The Election Tribunal can recount the votes if there is doubt in the declaration of results: SC

The respondent was elected as the Mukhia. The appellant has noted that invalid votes were counted but valid votes were rejected. The respondent was declared elected by a margin of 154 votes. Therefore, this Election case is filed, seeking recounting of votes and electing the appellant elected. The appellant alleged that the swastika symbol pressed in light ink was not counted in favor of the appellant and when the matter was taken to the Returning Officer, he paid no attention. The Election Tribunal evaluated all the evidence and concluded that the result sheet prepared is not proper. In the final order of the Election Tribunal it is declared that the final result for the post is null and void. It is also ordered to the District Magistrate to recount the votes and propose the final order.

Issue:  whether material facts to justify an order of recount of votes has been clearly pleaded and the same have been proved by the appellant/election petitioner in the present case?

The Court concluded that the Division Bench has interfered with the judgment of the Election Tribunal which directed recounting of votes. It is found that the petitioner has secured 95 excess valid votes more than the respondent. That has reinforced the challenge set up by the appellant that the officials had committed serious irregularities bordering the intentional manipulation of the valid votes secured by the appellant. Therefore, we have no hesitation in upholding the order of recounting the votes as passed by the Tribunal and justly upheld the order of the learned single Judge in the facts of the present case. About directing the District Magistrate to declare the result, it is not inappropriate and will not affect the recount of votes.

Thus, the appeal is allowed.  The election case filed by the appellant before the Election Tribunal is allowed.

Curative petition filed by Nirbhaya Case convict Akshay, been dismissed by the Supreme Court

As no merits were found to be within the perameters indicated in the decision of the case, Rupa Ashok Hurra v Ashok Hurra and Another , the bench dismissed the curative petition filed by Akshay, one of the death row convicts in Nirbhaya gang-rape case.

The trial court convicted the petitioner and the other three accused in 2013 and the High Court also confirms the death sentence in the year 2014. The same order has been passed by the Supreme Court in the year 2017.

The bench comprising of the Justice R. Banumathi, Ashok Bushan and A.S. Bopanna, in last month dismissed the review petition, filed by the convict Akshay.

Thus the application for stay of execution of death sentence was rejected and the curative petitions are dismissed accordingly.

The procedure under Section 127 of the Land acquisition Act must be followed only after ten years had lapsed: SC

The appellants were owners of different plots. A development plan was issued under the Maharashtra Regional and Town Planning Act, 1966 where the entire land was reserved for construction of shopping complex. The appellants objected the same and approached the respondent1 with detailed representation.  The appellant’s property was shown as reserved for shopping complex and vegetable market.

The property was subjected to reservation, and as also we have found that their case, based on the notice of previous owners, would not hold good in law and as the subsequent revision of the Plan has come into force with effect from 15.05.2012, we do not find that this is a case where we should exercise our powers under Article 142 of the Constitution”.

Thus this court held that the appellants can bring a cause of action to give notice u/s 127 of the Act after a waiting period of 2 years. No opinion is expressed on invoking S.49.

Thus this appeal is dismissed leaving open all the remedies available to the appellants.

During the currency of the contract of tenancy, both the landlord and tenant can file application for fixing of fair rent : SC.

The appellants, tenants in the non-residential building entered into a lease agreement with a landlord for 20 years. The landlord transferred the land to respondents by a sale deed who demanded enhanced rent citing the market rent of similar other premises. The Rent Controller allowed the application and fixed a fair rent

The issue raised before the Court is whether during currency of contractual tenancy i.e. during the currency of agreed rent between the landlord and the tenant whether landlord is precluded from making an application for determination of fair rent?

The court after considering the arguments of both the parties observed that S.4 gives rights to both the parties to make application for fixing fair rent. The majority opinion in M/s. Raval & Co. was accepted by this court. The Constitution Bench judgment in M/s. Raval & Co.’s case as well as seven-Judge Bench judgment in V. Dhanapal Chettiar’s case are binding which categorically had laid down that application for determination of fair rent can be made both by the landlord and tenant which can be made even during currency of contractual tenancy.

This appeal was dismissed

The party cannot resile from the statement once made before the court through his counsel: SC

The rent controller decreed the suit directing eviction of the respondent who is a monthly tenant, carrying business, from the suit premises which was owned by the appellant on the ground for reconstruction. The High court after looking into the Revision petition, C.R. No. 227/2015, filed by the tenant held that, the respondent of the present case shall be re inducted once the construction is said to be completed which is said to be the subject matter of the case and the appellant is liable to pay Rs.1000 per day,  if he fails to do so. Against this order, the appellant filed review petition by changing his counsel that he had never instructed regarding re induction of the respondent (the statement being made by the counsel of the appellant in C.R. No. 227/2015).

Based on the Special leave petitions, listed for admission, the issue framed by the bench is Whether the appellant should be bound by the statement made by his counsel before the High Court?

The bench views that it is clear , the appellant had expressly instructed his counsel to make such a statement before the High court and it was the subject matter of the proceedings in which the counsel was engaged and instructed to appear. So the appellant cannot resile from the statement and the decision in Himalayan Coop. Group Housing society will no be of avail to the appellant. The court held that, the appellant is obliged to abide by the unequivocal statement made before the High court to re induct the respondent- tenant in the newly constructed building in the front portion admeasuring 3.73 metres* 5.75 metres.

Thus, the bench partly allowed the appeal.

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