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Supreme Court – Weekly Roundup.

Elderly people should be given priority in the admission in the Government hospital looking to their vulnerability for Covid 19- SC (ORDER)

DR.ASHWANI KUMAR VERSUS UNION OF INDIA AND ORS. Writ Petition(s)(Civil) No(s). 193/2016, 4th August, 2020.

The matter was heard by HON’BLE MR. JUSTICE ASHOK BHUSHAN and HON’BLE MR. JUSTICE R. SUBHASH REDDY.

The court stated that;

We only observes that the elderly people should be given priority in the admission in the Government hospital looking to their vulnerability for Covid 19. In event of any complaint made by the elderly people, the hospital administration concerned shall take immediate steps to remedy their grievances.

Constitutional validity of 103rd Amendment – Referred to Five Judge Bench: SC (ORDER) 

JANHIT ABHIYAN VERSUS UNION OF INDIA & ORS. WRIT PETITION (C) NO.55 OF 2019, 5TH AUGUST, 2020.

The Bench comprising of Hon’ble CJI.S.A. BOBDE, Hon’ble Justice R. SUBHASH REDDY and Hon’ble Justice B.R. GAVAI passed the order.

The Court observed that;

It is the case of the petitioners, that the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved, only on the basis of economic criterion. As such, the court of the view that such questions do constitute substantial questions of law to be considered by a Bench of five Judges. It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are required to be heard a Bench of five Judges. Whether the impugned Amendment Act violates basic structure of the Constitution, by applying the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes substantial question of law within the meaning of the provisions as referred above. Further, on the plea of ceiling of 50% for affirmative action, it is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker sections.

If the Court is satisfied that the prosecution failed to establish a prima facie case, Court can interfere with concurrent findings of facts under Article 136: SC

GANGADHAR alias GANGARAM V. STATE OF MADHYA PRADESH CRIMINAL APPEAL NO. 504 OF 2020 (Arising out of SLP (Crl.) No.7415 of 2019), 05th August, 2020.

The Bench comprising of Hon’ble Justice Navin Sinha and Hon’ble Justice R.F. Nariman pronounced the judgement against the verdict given Madhya Pradesh High court.

The Court observed that;

In  view  of  the   nature  of  evidence  available  it  is  not possible   to   hold   that   the   prosecution   had   established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband. Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt.

The police investigation was very extremely casual, perfunctory and shoddy in nature. The appellant has been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution. The consideration of evidence by the Trial Court, affirmed by the High Court, borders on perversity to arrive at conclusions for which there was no evidence. Gross misappreciation of evidence by two courts, let alone poor investigation by the police, has resulted in the appellant having to suffer incarceration for an offence he had never committed.

Normally this Court in exercise of its jurisdiction under Article 136 of the Constitution does not interfere with concurrent findings of facts delving into appreciation of evidence. But in a given case, concerning the liberty of the individual, if the Court is satisfied that the prosecution had failed to establish a prima facie case, the evidence led was wholly insufficient and there has been gross misappreciation of evidence by the courts below bordering on perversity, this Court shall not be inhibited in protecting the liberty of the individual.

The Suit shall proceed de novo on the return of plaint [Order VII Rule 10 and 10A CPC]: SC

M/S. EXL CAREERS AND ANOTHER Vs. FRANKFINN AVIATION SERVICES PRIVATE LIMITED, CIVIL APPEAL NO(s). 2904 OF 2020 (arising out of SLP (Civil) No(s). 16893 of 2018), 05th August, 2020.

The bench comprising of Hon’ble Justice R.F. Nariman, Hon’ble Justice Navin Sinha and Hon’ble Justice Indira Banerjee pronounced the judgment on the appeal which has been placed before the Court on a reference by a two Judge Bench opining a perceived conflict between two Division Bench decisions in Joginder Tuli vs. S.L. Bhatia, (1997) 1 SCC 502 and Oil and Natural Gas Corporation Ltd. vs. Modern Construction & Co., (2014) 1   SCC 648.

The Court stated that

We are of the considered opinion that the mere use of the words ‘return the file’ in the order dated 05.09.2017 cannot enlarge the scope of jurisdiction under Order VII Rule 10 to mean that the High Court has directed so with the intention for continuance of the suit. Firstly, that objection was expressly rejected. Secondly the order itself states that the file be returned under Order VII Rule 10 and 10A of the Code. Clearly what the High Court intended was the return of the plaint.

Interpretation of Section 61 and 62 of Major Port Trusts Act: SC

THE CHAIRMAN, BOARD OF TRUSTEES, COCHIN PORT TRUST V. M/S AREBEE STAR MARITIME AGENCIES PVT. LTD. & ORS. CIVIL APPEAL NO. 2525 OF 2018, 05th August, 2020.

The Bench consisting of Hon’ble Justice R.F. Nariman, Hon’ble Justice Navin Sinha and Hon’ble Justice Indira Banerjee pronounced the judgement on appeal on the verdict given in Kerala High Court.

The Court observed that;

As has been pointed out by the court , no such right has been denied on a correct reading of the MPT Act. The importer, the consignee and the consignor, or their agents, can all be held liable to pay demurrage charges. However, since Rasiklal (supra) does not involve either the owner of the vessel or its agent, the court leave open the question as to whether the Port Trust, as sub-bailee, is entitled to recover its dues from the original bailor – the consignor, and persons claiming through it, given the statutory scheme of the MPT Act, as has already been indicated in paragraph 66 .

This court does not, on the facts of this case, think that the justice of the case demands that the court should interfere with the impugned High Court judgment. The steamer agents themselves did not dispute liability to pay ground rent upto 75 days before the High Court, and have admittedly paid the said charges long ago. As a matter of fact, the steamer agents paid ground rent even beyond the period of 75 days – the High Court having ordered the Appellant Port Trust to recompute the liability of the steamer agents, and return the balance to the parties concerned within two months from the date of receipt of a copy of the impugned judgment. To order a refund of ground rent paid for 75 days to the steamer agent, and direct the Board to then recover the same from the importer, consignor and/or the owner of the goods at this late stage of the proceedings would not be in the interest of justice.

Accordingly, the court disposes of the appeals that have been filed against the impugned High Court judgment. The impugned judgment is set aside on one question of law, namely, that the expression “may” in sections 61 and 62 of the MPT Act cannot be read as “shall”, subject to the caveat that as the “State” under Article 12 of the Constitution, a Port Trust must act reasonably, and attempt to sell the goods within a reasonable period from the date on which it has assumed custody of them.

SC Reiterates “Promotion may include an advancement to a higher pay scale without moving to a different post”

RAMA NAND AND ORS. V. CHIEF SECRETARY, GOVT. OF NCT OF DELHI & ANR.CIVIL APPEAL NOS. 5829-5830 OF 2012, 06th August, 2020.

The bench consisting of Hon’ble Justice Sanjay Kishan Kaul, Hon’ble Justice Ajay Rastogi and Hon’ble Justice Aniruddha Bose pronounced the judgement on appeal of the Delhi High court judgement.

The Court held that;

we are of the view that the benefits of ACP Scheme cannot be held applicable to the appellants and consequently the High Court was right in interfering with the order of the CAT.

The court had already observed that the complete factual contours of the difference between the two posts would have to be examined in the given factual situation and the triple criteria of minimum 5 years of service, a specialised training and much higher financial emoluments leaves us in no manner of doubt. What was done has to be considered as a promotion disentitling the appellants to the benefits of the ACP Scheme. As the very objective of the ACP Scheme, as set out, is “to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues”.

The Court is duty bound to issue a Writ of Mandamus for enforcement of a public duty: SC

HARI KRISHNA MANDIR TRUST V.STATE OF MAHARASHTRA AND OTHERS, CIVIL APPEAL NO.6156 OF 2013, 07th August, 2020.

The Bench comprising of Hon’ble Justice Indira Banerjee, and Hon’ble Justice Indu Malhotra pronounced the judgment on the appeal against the judgment passed by Bombay High court.

The Court stated that;

The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.

The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.

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