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Weekly Digest (Feb 10-15) 2020

The person who has acceded to a position and participated in the process cannot be permitted to approbate and reprobate: SC

Nithesh Kumar Pandey vs. The State of Madhya Pradesh and Ors

Coram :  Justice R. Banumathi and Justice A.S. Bopanna

The well accepted position in law is that the person who has acceded to a position and participated in the process cannot be permitted to approbate and reprobate.

Appeals made are dismissed.

Sabarimala Review Petition: SC refers questions of law to larger bench [Order Attached]

In the sabarimala Review petition the Supreme Court Nine-Judge bench refered the matter to larger bench to decide the Questions of law. The beach framed the following issues:

  1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India? 2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India? 3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health? 4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality? 5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India? 6. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India? 7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Section 438 of CrPC shall not apply to cases under SC-ST Act except when there is no Prima facie case is made out: SC

PRATHVI RAJ CHAUHAN Vs. UNION OF INDIA & ORS

Coram : Justice Arun Mishra, Justice Vineet Saran and Justice Ravindra Bhat

Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989.   However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply.

The Hon’ble Court uphold the constitutionality of Section 18A of the SC-ST Act, inserted vide an amendment in 2018. https://www.thelaws.in/judgments/section-438-of-crpc-shall-not-apply-to-cases-under-sc-st-act-except-when-there-is-no-prima-facie-case-is-made-out-sc/

Employees Absorbed As Fresh Appointees For Projects Without Pay Protection And Seniority Will Not Be Entitled To Count Past Service For Purpose Of Pension: SC

Parmeshwar Nanda Etc. Versus The State Of Jharkhand Through Chief Secretary & Ors. Etc.

Coram : Justice Nageswara Rao and Justice Hemant Gupta

The Court noted that the entire issue was based upon Rule59. The specific scheme under which employees were appointed was held not to be a permanent establishment as it was established for a specific purpose. Also noticed that in the State of Bihar, past services rendered by employees under the Project were taken into consideration for pensionary benefits.

The burden of adducing the evidence lies on the person who admits the issuance of cheque in order to rebut the presumption arising under section 139 N.I. Act: SC

Rajeshbhai Mulhibhai patel and others etc.. v State of Gujarat and Another etc., Criminal Appeal No. 251-252 of 2020 arising out of SLP (crl) no. 142-143 of 2019 – February 10, 2020.

Coram: Justice. R. Banumathi and A.S. Bopanna

 Issue: Whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts ?

Once the issuance of cheque is admitted or established, the presumption would arise under section 139 of NI Act, in favour of the holder of the cheque. The nature of presumption under section 139 of NI Act and section 118(a) of IEA are rebuttable.

The Court held that the petition filed by the appellants under section 482 CRPC is allowed  to quash the FIR and directed the competent court to proceed with the case filed under section 138  N.I. Act.

Shelter cannot be taken under section 149 of CPC when suit is filed only as one for mandatory injunction but was actually a suit for specific performance: SC

Atma Ram Vs Charanjit singh 

Coram : Justice V. Ramasubramanian and Hon’ble Justice N.V Ramana

 If the suit was only for mandatory injunction (which it actually was), the only recourse open to the petitioner was to seek an amendment under Order VI, Rule 17 CPC. If such an application had been filed, it would have either been dismissed on the ground of limitation (K. Raheja Constructions Ltd., vs. Alliance Ministries1) or even if allowed, the prayer for specific performance, inserted by way of amendment, would not have been, as a matter of course, taken as relating back to the date of the plaint 

The SLP is dismissed.

The absence of regulation of Virupapura Gaddi cannot be used as a ground to justify the illegal construction on ‘Hampi a Historical Site’: SC

Sakkubai Etc. Etc. Vs State of Karnataka & Ors. Etc. Etc

Coram : Justice MOHAN M. SHANTANAGOUDAR and R. SUBHASH REDDY

The Court farmed two issues

  1. Whether the construction raised by the Appellants was lawful under the 1961 Act, in light of the 1988 notification?

  2. If not, whether the HWHAMA had authority to demolish the said constructions?

The court refers to section 2 definitions section 4 and Section 19 of the (Archaeological sites and Remains Act). The construction carried out by the Appellants was in violation of the 1961 Act. (Archaeological sites and Remains Act).

The court refers to Section 14 of the Hampi Act. The Respondents shall proceed with the demolition of the illegal structures erected by the Appellants.

Appeals stand dismissed.

“Swatantrata Sainik Samman Pension Scheme” – There is a rationale for extending the Scheme with a cut-off date: SC

GOVERNMENT OF INDIA & ORS. v SITAKANT S. DUBHASHI & ANR

Coram : Justice ASHOK BHUSHAN and Justice NAVIN SINHA

 Issue : whether the respondent was entitled for the grant of SSS Pension and whether cut-off date fixed by the Government Order that applicant should be in receipt of State Pension is a valid condition ?

Swatantrata Sainik Samman Pension Scheme is a scheme of Central Government for grant of pension for those who participated in freedom movement of the country.”  Thus the eligibility for the grant of pension under SSSP Scheme is entirely different from the eligibility under the Goa Rules.

The court held  that the respondent is not entitled for the grant of SSS pension.

SC held that the judgment in Preetam Singh’s case needs reconsideration – directed these cases to be presented before the CJI for constitution of a larger Bench.

State of U.P. & Ors.  V. Virendra Kumar & Ors.

Coram : Justice ASHOK BHUSHAN and Justice M.R. SHAH

Issue : Whether judgment of this Court in State of U.P  v  Preetam Singh, (2014)15 SCC 744, requires reference to a larger bench or not.

The State Legislature has legislative competence under Entry 41 List 5 of the VII Schedule of the Constitution. Also the State Legislature has the executive power to issue orders by virtue of Article 162 of the Constitution. Thus this court directed these cases to be presented before the CJI for constitution of a larger Bench. Also the CJI is requested to form a larger Bench.

When F.I.R. does not disclose the commission of an offence, continuance of the criminal prosecution of that offence would amount to abuse of process of the Court: SC

Arun Singh and Ors. V. State of U.P.

Coram : Justice Navin Sinha and Justice Krishna Murari

Issue : whether the High Court can refuse to quash the FIR and charge sheet filed by the aggrieved party when a compromise is made between them? Whether the allegations made in the FIR constitute commission of an offence?

offence against the appellants under Section 3/4 of the Dowry Prohibition Act is concerned, since the allegations disclose the commission of cognizable offence in the F.I.R., it is not a fit case to exercise power under Section 482 Cr.PC and to quash criminal proceedings against the appellants for the said offence.

Mere passing of the award on the same day in one sitting does not give rise to any suspicion and would not raise any doubt or ambiguity in the Arbitration: SC

Balwant Singh (D) through LRS., Vs. Dungar Singh (D) through LRS

Coram : Justice R. Banumathi and Justice A.S. Bopanna

The Court held that the parties had agreed that the arbitral award would be passed unanimously by the arbitrators and the same would bind the parties. The decision of the High Court remains correct and the award should be passed accordingly.

It is mandatory for First Appellate Court to follow Order XL1 Rule 31 of CPC ,even when the First Appellate Court affirms the Judgment of the Trial Court: SC

MALLURU MALLAPPA(D) THR. LRS. Vs KURUVATHAPPA & ORS

Coram :  Justice S. ABDUL NAZEER and Justice SANJIV KHANNA

The Court held that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. The appeal is accordingly allowed in part. The judgment and decree of the High Court, is set aside and the matter is remanded to the High Court for fresh disposal in accordance with law.

Only if there is a delay as mentioned in the terms of insurance of contract occur, the claim can be rejected: SC

Oriental Insurance Co. Ltd. v National Bulk Handling Corporation Pvt. Ltd

CORAM :  Justice MOHAN M. SHANTANAGOUDAR and Justice R. SUBHASH REDDY.

The court observed that Fidelity Guarantee is different from contingency guarantee. The insurance under it is for honesty, against negligence or for being faithful and loyal to its employees. The protection afforded is different than in normal insurance policies.  “In that view of the matter, it cannot be said that there is any delay on the part of the respondent in lodging the claim, so as to accept that there is breach of condition no. 1 of the policy”

The appeal is dismissed.

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