quarterly digest · 2019. 6. 18. · kerala state road transport corporation v. baby p.p, air 2018...
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JUDICIAL TRAINING & RESEARCH INSTITUTE, U.P.,
LUCKNOW
Quarterly Digest
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court)
July to September, 2018
Volume: XXI Issue No.: 3rd
EDITOR-IN-CHIEF
SAROJ YADAV
Director
EDITOR-IN-CHARGE
Sri Anoop Kumar Goel, Addl. Director
(REDITORS
Santosh Rai, Addl. Director (Research) Ram Nagina Yadav, Addl. Director (Trg.)
Rajiv Maheshwaram, Addl. Director (Admin.) Mohinder Kumar, Dy. Director Avanish Kumar, Dy. Director
Smt. Neelanjana, Dy. Director
FINANCIAL ADVISOR
Smt. Sunita Aditya, Addl. Director (Finance) ASSOCIATE
MS Sabiha Akhtar, Training Officer
ASSISTANCE
Waqar Hasan Girish Kumar Singh
SUBJECT INDEX
(Supreme Court)
Sl. No. Name of Act
1. Administration of Justice
2. Arbitration and Conciliation Act
3. Benami Transactions (Prohibition) Act
4. Civil Procedure Code
5. Constitutional Law
6. Constitution of India
7. Consumer Protection Act
8. Criminal Jurisprudence
9. Criminal Procedure Code
10. Criminal Trial
11. Evidence Act
12. Family Courts Act
13. First Information Report
14. General Clauses Act
15. Hindu Law
16. Hindu Marriage Act
17. Hindu Succession Act
18. Income Tax Act
19. Indian Penal Code
20. Indian Succession Act
21. Industrial Disputes Act
22. Interpretation of Statutes
23. Land Acquisition Act
24. Motor Vehicles Act
25. Narcotic Drugs and Psychotropic Substances Act
26. Negotiable Instruments Act
27. Passports Act
28. Prevention of Corruption Act
29. Prevention of Food Adulteration act
30. Property Law
31. Registration Act
32. Representation of the People Act
33. Service Law
34. Supreme Court Rules
35. Transfer of Property Act
36. U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction ) Act
37. Wild Life (Protection) Act
38. Words and Phrases
SUBJECT INDEX
(High Court)
Sl. No. Name of Act
1. Administrative Tribunal Act
2. Arbitration and Conciliation Act
3. Civil Procedure Code
4. Constitution of India
5. Criminal Procedure Code
6. Finding of Act
7. Houses and Rents
8. Indian Penal Code
9. Interested Witness
10. Motor Vehicles Act
11. Right to Information Act
12. Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act
13. Service Law
14. Specific Relief Act
15. Statutory Provisions
16. Succession Act
17. U.P. Entertainment and Betting Tax Act
18. U.P. Panchayat Raj Act
19. U.P. Public Premises Act
20. Urban Land (Ceiling and Regulation) Act
21. U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act
22. U.P.Z.A. & L.R. Act
23. U.P. Zamindari Abolition and Land Reforms Rules
24. U.P. Government Servants Seniority Rules
25. Words and Phrases
NOTE: This journal is meant only for reference and guidance.
For authentic detailed information, readers are
advised to consult referred Journal(s).
LIST OF THE CASES COVERED IN THIS ISSUE
(SUPREME COURT)
Sl. No. Name of the Case & Citation
1. Akhilesh Singh @ Akhileshwar Singh V. Lal Babu Singh,
2018(2) ARC 609: 2018 (6) Supreme 178
2. Amar Nath Jha v. Nand Kishore Singh, AIR 2018 SC 3597
3. Ameet Lalchand Shah V. Rishabh Enterprises 2018 (5)
Supreme 161 : AIR 2018 SC 3041
4. Amrit Paul Singh V. Tata AIG General Insurance Co. Ltd.
2018
5. Anil Kumar Singh V. Vijay Pal Singh 2018(2) ARC 324
6. Apollo Zipper India Limited v. W. Newman and Co. Ltd.,
AIR 2018 SC 2847
7. Asian Resurfacing Of Road Agency V. Central Bureau Of
Investigation, 2018 (36) LCD
8. Atcom Technologies Limited V. Y.A. Chunawala and Co.
2018 (5) 533
9. Auto Cars V. Trimuti Cargo Movers Pvt. Ltd., 2018(2) ARC
456
10. B.C. Singh (D) by LRS. Vs. J.M. Utarid (D) by LRS. 2018
(6) Supreme 101
11. Babji v. State of Andhra Pradesh, AIR 2018 SC 3831
12. Bar Council of India v. A.K. Balaji, 2018(4) AWC 3467
13. Basanti Devi (D) by LRs. V. Rati Ram 2018(6) Supreme 88
14. Chandra Bhawan Singh V. The State of Uttar Pradesh 2018
(5 ) Supreme 93
15. Commissioner of Customs (Import) Mumbai V. M/s Dilip
Kumar and Company, AIR 2018 SC 3606
16. Deepak v. State of Uttar Pradesh (Now Uttrakhand), AIR
2018 SC 3568
17. Delhi Administration V. Vidya Gupta 2018 (4) Supreme 760
18. Devidas Loka Rathod V. State of Maharashtra 2018 (6)
Supreme 377: AIR 2018 SC 3093
19. Dhanraj V. The State of Maharashtra, 2018(9) Scale, 634
20. Dilawar V. State of Haryana 2018 (6) Supreme 92
21. Gorusu Nagaraju v. State of A.P., 2018 (104) ACC 711
22. Government of NCT of Delhi V. Union of India & Another,
2018 (8) SCALE 72
23. Gurbakhsh Singh v. Buta Singh, AIR 2018 SC 2635
24. IBI Consultancy India Private Limited v. DSC Limited, AIR
2018 SC 2907
25. Indian Bank V. S.N. Engineers & Suppliers 2018(6)
Supreme 60
26. Industrial Infrastructure Development Corporation
(Gwalior) M.P. Ltd. v. Commissioner of Income Tax
Gwalior, AIR 2018 SC 3560
27. Jasmeet Kaur V. Navtej Singh 2018 (6) Supreme 36
28. Jayaswamy V. State of Karnataka 2018 (5) Supreme 684
29. Kalim Khan V. Fimidabee 2018 (6) Supreme 227:2018(36)
LCD 2277
30. Kalpana Mehta V. Union of India 2018 (5) Supreme 545
31. Kandla Export Corporation V. M/s. Oci Corporation 2018
(6) Supreme 4
32. Kavita Chandrakant Lakhani V. State of Maharashtra 2018
(5) Supreme 1
33. Kehar Singh (D) Thr. L.Rs. V. Nachittar Kaur, AIR 2018
SC 3907
34. Kerala State Road Transport Corporation v. Baby P.P, AIR
2018 SC 2909
35. Khurshid Ahmed V. State of Jammu & Kashmir 2018 (5)
Supreme 302
36. Kumar V. State Represented by Inspector of Police, 2018 (5)
Supreme 231
37. Lalit Yadav v. The State of Chhattisgarh, 2018 (9) SCALE
44
38. Lavghanbhai Devijibhai Vasava V. The State of Gujarat,
2018 (6) Supreme 52
39. Lok Prahari Through Its General Secretary V. The State Of
Uttar Pradesh 2018 (5) Supreme 188
40. Lok Prahari v. Union of India, 2018 (4) ALJ 680
41. M. Siddiq (D) through LRs. V. Mahant Suresh das 2018 (6)
Supreme 67
42. M/s Bhangu Trading Company & Anr. V. Surjit Sing
(Dead) Through Lrs., 2018 (8) Scale 628
43. M/s Emkay Global Financial Services Ltd. V. Girdhar
Sondhi, AIR 2018 SC 3894
44. M/s Fortune Infrastructure (Now Known as M/s Hicon
Intrastructure) V. Trevor D’Lima, AIR 2018 SC 2975
45. M/s Haryana Suraj Malting Ltd. V. Phool Chand, AIR 2018
SC 2670
46. M/s Raveechee and Co. V. Union of India, AIR 2018 SC
3109
47. Madiraju Venkata Ramana Raju v. Peddireddigari
Ramachandra Reddy, AIR 2018 SC 3012
48. Mangamal @ Thulasi V. T.B.Raju 2018 (4) Supreme 738
49. Manoj Kumar V. State of Himachal Pradesh, AIR 2018 SC
2693
50. Mohan Lal v. State of Punjab, AIR 2018 SC 3853
51. Mohd. Akhtar V. The State of Jammu & Kashmir 2018 (5)
Supreme 528
52. Mohinder Singh v. State of Punjab, AIR 2018 SC 3798
53. Motiram Padu Joshi V. State of Maharashtra, AIR 2018 SC
3245
54. Mr. Anurag Mittal V. Mrs. Shaily Mishra Mittal 2018 (36)
LCD 2214
55. Ms. Paramount Digital Color Lab V. M/s. Agfa India Pvt.
Ltd. 2018 (5) Supreme 754
56. Ms. X V. The State of Telangana 2018 (5) Supreme 339
57. Municipal Corporation of greater Mumbai V. Pankaj Arora
(Secretary) 2018 (6) Supreme 20
58. Nandakumar V. The State of Kerala 2018 (6) Supreme 69
59. Om Prakash Singh v. State of Bihar & Ors., 2018 (8)
SCALE 720 : AIR 2018 SC 3242
60. Paradeep Phoshates Ltd. V. State of Orissa 2018 (4)
Supreme 733
61. Pimpri Chinchwad New Township Development Authority
v. Vishnudev Cooperative Housing Society, AIR 2018 SC
3656
62. Prabhu Dayal v. State of Rajasthan, AIR 2018 SC 3199
63. Pramod laxman Guadadhe V. Election Commission of
India, 2018 (5) Supreme 212
64. Prof. Chintamani Malviya v. High Court of Madhya
Pradesh, AIR 2018 SC 2656
65. Purushottam S/o. Tulsiram Badwaik Vs. Anil & Ors. 2018
(6) Supreme 74
66. R. Kasthuri V. M. Kasthuri 2018 (6) Supreme 204
67. Rajendra Kumar Verma (D) through LRs. V. Additional
District Magistrate (Civil Supplies) 2018 (6) Supreme 59
68. Raju Manjhi v. State of Bihar, AIR 2018 SC 3592
69. Raju Manjhi V. State of Bihar, AIR 2018 SC 3592
70. Ram Chandra Singh v. Rajaram, 2018(9) SCALE 618 : AIR
2018 SC 3789
71. Ramsingbhai (Ramsangbhai) Jerambhai v. State of Gujarat,
AIR 2018 SC 2629
72. Ravi v. State of Karnataka, AIR 2018 SC 2744, 2018 (6)
Supreme 113
73. Satpal Singh V. The State of Punjab 2018(5) Supreme 705
74. Satpal V. State of Haryana 2018 (5) Supreme 98
75. Shamanna V. Divisional Manager Oriental Insurance Co.
Ltd., AIR 2018 SC 3726
76. Shanker V. State of Madhya Pradesh 2018 (6) Supreme 130
77. Shashank Gupta v. Union of India, AIR 2018 All 253
78. Sheila Sebastian V. R. Jawaharaj 2018 (5) Supreme 239
79. Shivaji v. Divisional Manager, United India Insurance Co.
Ltd., AIR 2018 SC 3705
80. Shyam Narayan Prasad V. Krishna Prasad 2018 (36) LCD
2230 : AIR 2018 SC 3152
81. Siddagangaiah v. N.K. Giriraja Shetty, AIR 2018 SC 3080
82. Sita Ram Bhama v. Ramvatar Bhama, AIR 2018 SC 3057
83. Sivakami v. State of Tamil Nadu, AIR 2018 SC 2637
84. Smt. Kusum Lata v. State of U.P., AIR 2018 All 210
85. Smt. Shanti Mishra v. Sammuel, AIR 2018 All 242
86. Soumitra Kumar Sen V. Shyamal Kumar Sen 2018 (5)
Supreme 748 : 2018(2) ARC 624
87. State By Lokayuktha Police V. H. Srinivas 2018 (5)
Supreme 374
88. State of Andhra Pradesh V. Pullagummi Kasi Reddy
Krishna Reddy @ Rama Krishna Reddy 2018 (6) Supreme
216
89. State of Assam v. Union and Ors, 2018(9) SCALE 54
90. State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti,
Bihar, Jharkhand, AIR 2018 SC 3862
91. State of Gujarat v. Navinbhai Chandrakant Joshi, AIR 2018
SC 3345
92. State of Madhy Pradesh V. Adbul Latif 2018 (6) Supreme
206
93. State of Maharashtra V. Dinesh 2018 (6) Supreme 27 :AIR
2018 SC 2997
94. State of Rajasthan v. Mohan Lal, AIR 2018 SC 3564
95. State of Uttar Pradesh V. Mahipal 2018 (6) Supreme 185
96. Supriya Suresh Patil & Sow Supriya Pratik Kadam v. The
State of Maharashtra, 2018 (8) Scale 627
97. Suresh Kumar Kohli V. Rakesh Jain 2018 (4) Supreme 747 :
AIR 2018 SC 2708
98. Suresh Singh V. State of Madhya Pradesh 2018 (5) Supreme
258
99. Surinder Kumar Khanna v. Intelligence Officer Directorate
of Revenue Intelligence, AIR 2018 SC 3574
100. T. P. Murugan (Dead) Thr. Lrs. V. Bojan, AIR 2018 SC
3601 : 2018(9) Scale 43
101. Tapan Kumar Dutta v. Commissioner of Income Tax, West
Bengal, AIR 2018 SC 2875
102. Tapan Sarkar V. State of West Bengal 2018 (6) Supreme 33
103. Tehseen Poonawalla V. Union of India AIR 2018 SC 3354:
2018 (5) Supreme 36
104. Telangana Housing Board V. Azamunnisa Begum (Died)
thru. LRs. 2018 (5) Supreme 105
105. The Corporation of Madras V. M. Parthasarathy, 2018(3)
ARC 15 : 2018(9) Scale 559
106. The State of Himachal Pradesh V. Hans Raj 2018 (6)
Supreme 184
107. The State of Himachal Pradesh V. Pardeep Kumar 2018 (6)
Supreme 208
108. U.P.P.S.C. through its Chairman & ANR. Vs. Rahul Singh
2018 (5) Supreme 719
109. Union of India V. Hardy Exploration and Production
(India) Inc. 2018 (5) Supreme 101
110. Union of India v. M/s Varindera Constructions Ltd., AIR
2018 SC 2961:2018 (6) Supreme 126
111. Union of India V. Ram Lakhan Sharma 2018(6) Supreme
366
112. United India Insurance Co. Ltd. V. Indiro Devi 2018(6)
Supreme 214
113. Vaijnath Kondiba Khandke V. State of Maharashtra 2018
(5) Supreme 345 : AIR 2018 SC 2659
114. Ved Pal (D) Through LRS V. Prem Devi (D) Through LRS
& Ors., 2018(9) Scale 526
115. Vijay Arjun Bhagat V. Nana Laxman Tapkire 2018 (5)
Supreme 261: AIR 2018 SC 2625
116. Vinay Sharma v. State of NCT of Delhi, AIR 2018 SC 3231
117. Vinod Kumar Dhall V. Dharampal Dhall (Deceased)
through High LRs. and ors. 2018 (5) Supreme 698
118. Wild Life Warden v. Komarrikkal Elias. AIR 2018 SC 3269
LIST OF THE CASES COVERED IN THIS ISSUE
(HIGH COURT)
Sl. No. Particulars
1. Abdul Raqeeb V. Board of Revenue, U.P. at Allahabad
and others, 2018(3) ARC 27
2. Ashok Kumar Jain V. Gaurav Jain, Advocate, 2018(140)
RD 579
3. Atul Rastogi V. Mohammad Salim, 2018 (4) ALJ 792
4. Bholu V. State of U.P., 2018 (104) ACC 414
5. Bramha Prakash Srivastava V. State of U.P. 2018 (36)
LCD 2343
6. Brij Kishore v. Rajesh Kumar Gupta, 2018 (5) ALJ 331
7. Buddu Miya v. Additional District & Sessions Judge,
Court No. 5, Agra, 2018 (5) ALJ 90
8. Dheerendra Kumar v. Authorised Officer Aadhar
Housing Finane Ltd., 2018 (4) ALJ 661
9. Hindustan Aeronautics Ltd. V. Hindustan Aeronautics
Karmchari Sabha, 2018 (4) ALJ 387
10. Imran v. State of U.P., 2018 (104) ACC 46
11. Imtiaz Ahmad v. State of U.P., 2018 (5) ALJ 162
12. Janak Raj V. Smt. Indu Nath 2018 (36) LCD 2314
13. Kalika Prasad and others v. State of U.P. and others,
2017 (1) AWC 448
14. Mamta Devi V. Kedar (deceased) Purushotam Das and
others, 2018 (4) ALJ 224
15. Manisha Sahu v. State of U.P., 2018 (104) ACC
16. Mayor Constructions V. Anil Mayor H.U.F. through its
Karta Anil Kumar Mayor, 2018 (4) AWC 3454
17. Mohammad Yasin V. Deputy Director of Consolidation,
2018 (140) RD 684
18. Nathu Ram Sahu v. Aritrator/Collector, 2018 (5) ALJ
224
19. New India Assurance Co. Ltd. V. Smt Sushma Gupta
and others, 2018 (4) AWC 3331
20. Public Information Officer, U.P. V. State Information
Commissioner, U.P., Lucknow, 2018 (4) ALJ 497
21. Rai Sharwan Kumar V. In the matter of Rai Bharat
Kumar, 2018 (5) ALJ 349
22. Rajendra Singh Gurjer V. State of U.P., 2018 (104) ACC
444
23. Rakesh Awasthi V. State of U.P., 2018 (5) ALJ 133
24. Ram Kishor Seth V. Bhagwan Sri Laxmi Narayan
Mandir Trust, 2018(2) ARC 815
25. Ramakant Tiwari V. State of U.P., 2018 (4) AWC 3278
26. Rati Ram v. State of U.P., 2018 (4) ALJ 338
27. Ravi Kumar Srivastava V. State of U.P. and others, 2018
(4) AWC 3572
28. Saud Akhar V. State of U.P., 2018 (4) ALJ 480
29. Shamim V. State of U.P., 2018 (140) RD 639
30. Shaukat Hussain V. State of U.P., 2018 (5) ALJ 94
31. Shiv Mangal v. Additional Commissioner (Adm.)
Lucknow Divisions, 2017 (35) LCD 303
32. Smt. Anuradha Gosqami V. State of U.P., 2018(140) RD
471
33. Smt. Fulra Devi V. Addl. Distt. And Sess.
Judge/F.T.C.(II), Ambedkar Nagar, 2018(2) ARC 809
34. Smt. Ishraj Mishra V. Union of India, 2018 (4) AWC
3323
35. Sudhakar @ Sudharasan v. State Rep. by Inspector of
Police, 2018 (104) ACC 302
36. Sunil Kumar Srivastava v. Mahindra And Mahindra
Services Ltd., Jalaun, 2018 (5) ALJ 89 : 2018 (4) AWC
3272
37. Syed Deep Mohindra V. Deepak Kumar Mohindra,
2018(2) ARC 595
38. Union of India v. Smt. Bitola Devi, 2018 (4) ALJ 301
39. Uttam Tomar v. State of U.P., 2018 (104) ACC 100
Part –I (Supreme Court)
Administration of Justice:
Appellate jurisdiction – Appellate court can disturb findings and conclusion – Appellate
court can disturb findings and conclusion of trial court – But only for compelling
reason
It is by now well settled that the Appellate Court hearing the appeal filed
against the judgment and order of acquittal will not overrule or otherwise disturb the
Trial Court's acquittal if the Appellate Court does not find substantial and compelling
reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably
wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial
Court's judgment is likely to result in grave miscarriage of justice; if the entire
approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial
Court judgment was manifestly unjust and unreasonable; and if the Trial Court has
ignored the evidence or misread the material evidence or has ignored material
documents like dying declaration/report of the ballistic expert etc. the same may be
construed as substantial and compelling reasons and the first appellate court may
interfere in the order of acquittal. However, if the view taken by the Trial Court while
acquitting the accused is one of the possible views under the facts and circumstances
of the case, the Appellate Court generally will not interfere with the order of acquittal
particularly in the absence of the aforementioned factors. Jayaswamy V. State of
Karnataka 2018 (5) Supreme 684
Appreciation of evidence – Court should not adopt hyper technical approach – Rather
it should look at broader probabilities of the case.
When analyzing the evidence available on record, Court should not adopt
hyper technical approach but should look at the broader probabilities of the case.
Basing on the minor contradictions, the Court should not reject the evidence in its
entirety. Sometimes, even in the evidence of truthful witness, there may appear
certain contradictions basing on their capacity to remember and reproduce the minute
details. Particularly in the criminal cases, from the date of incident till the day they give
evidence in the Court, there may be gap of years. Hence the Courts have to take all
these aspects into consideration and weigh the evidence. The discrepancies and
contradictions which do not go to the root of the matter, credence shall not be given
to them. In any event, the paramount consideration of the Court must be to do
substantial justice. Khurshid Ahmed V. State of Jammu & Kashmir 2018 (5) Supreme
302
Delay and latches – No time limit specified – act must be taken within reasonable time
– Claim made after 25 year – No entertainable.
Insofar as the facts of the present case are concerned, the claim made under
Section 87 of the Act was after a period of at least 25 years. This can hardly be
described as a reasonable period. There is no explanation for the inordinate delay and
to make matters worse, third party interests have been created through a Housing
Scheme developed on the land in dispute or in any event on the surrounding land.
After a further lapse of 25 years it is not possible to put the clock back, even if there is
any reason to do so, which reason we cannot even visualize in this case. Telangana
Housing Board V. Azamunnisa Begum (Died) thru. LRs. 2018 (5) Supreme 105
Interlocutory applications – For intervention, for impleadment, for filing additional
documents and for rendering assistance by third parties rejected – IAS filed by parties
to the appeal allowed
We direct the Registry not to entertain any interlocutory applications for
intervention/ impleadment/ for filing any book or additional documents/ for seeking
permission to give assistance in these appeals from any third party. Needless to say, if
the parties to the present appeals file them, the Registry shall accept and place the
same before the Court.
All the interlocutory applications filed in the present appeals for taking
additional documents on record, for setting aside abatement, for condonation of
delay, for substitution, for exemption from filing official translation stand allowed. M.
Siddiq (D) through LRs. V. Mahant Suresh das 2018 (6) Supreme 67
Judicial propriety – Court should not interfere with subject matter of arbitration unless
injustice is caused to either of the parties.
The primary object of the arbitration is to reach a final disposition in a speedy,
effective, inexpensive and expeditious manner. In order to regulate the law regarding
arbitration, legislature came up with legislation which is known as Arbitration and
Conciliation Act, 1996. In order to make arbitration process more effective, legislature
restricted the role of courts in case where matter is subject to the arbitration. Section
5 of the Act specifically restricted the interference of the courts to some extent. In
other words, it is only in exceptional circumstances, as provided by this Act, the court
is entitled to intervene in the dispute which is subject matter of arbitration. Such
intervention may be before, at or after the arbitration proceeding, as the case may be.
In short, court shall not intervene with the subject matter of arbitration unless
injustice is caused to either of the parties. Union of India V. M/s. Varindera
Constructions Ltd. 2018 (6) Supreme 126
Judicial propriety – Summary disposal of SLP – Does not mean affirmation of High
Court view
We must also hold that the view taken by the learned Single Judge of the
Patna High Court in Rajan Kumar Verma (Supra) is required to be seen in the light of
the present decision. Said judgment of the learned Single Judge had not noted the
decision of this Court in MMTC Ltd. (Supra). Summary dismissal of SLP(C) No.25036 of
2005 vide order dated 14.12.2005 by this Court would not mean affirmation of the
view taken by the learned Single Judge insofar as declaration of law is concerned [See
Kunhayammed and others v. State of Kerala and another (2000) 6 SCC 359 para 27
Indian Oil Corporation Ltd. v. State of Bihar & Ors. (1986) 4 SCC 146 paras 6 to 10 17].
Purushottam S/o. Tulsiram Badwaik Vs. Anil & Ors. 2018 (6) Supreme 74
Res judicata – once a court holds a case to be not maintainable it has no jurisdiction to
make further observation. Such observations do not operate as res judicata.
There is no dispute that the rule of res judicata in common law, from Ferrer V.
Arden (1598) 77 Eng. Rep. 263, to recent precedents of this Court, has been accepted
as a universal rule of law emanating from the public policy [interest reipublicae ut sit
finis litium.] to limit excessive and unnecessary litigation. It may not be an
overstatement to state that the principle of res judicata is as old as the law itself. The
extent of application of res judicata in a country, on a comparative analysis of foreign
jurisprudence, depends on various considerations such as efficiency, fairness, and
substantive policies, but across the board a minimal core seems to be well preserved.
Once the court concludes that a case is not maintainable under sec. 378 of
Cr.P.C., it did not have any jurisdiction to make further observations on merits as has
been done in this case.
Moreover, it was not necessary for the High Court in the earlier order to travel
beyond the issue of ascertaining whether a dismissal of complaint on the ground of
delay amounted to acquittal in order to invoke the jurisdiction under Sec. 378 of
Cr.P.C. The observations of the High Court on the interplay of Cr.P.C. and MMC Act and
its implication on the facts were not foundational or necessary for the jurisdictional
issue. Despite a specific jurisdictional issue present, the court gave a finding on merits
and such finding cannot be treated as res judicata as it was purely auxiliary or non-
foundational to the main issue in the earlier order. Municipal Corporation of greater
Mumbai V. Pankaj Arora (Secretary) 2018 (6) Supreme 20
Advocates Act:
Ss. 29, 24, 47 (2), 49 (1) (e), 49A, 2(a), 6 and 17- Arbitration and Conciliation Act, 1996-
Sections 2 (1) (f), 19 and 34 (2) (a) (iii)- Bar Council of India Rules, 1975- Rules 36, 18,
20, 21 and 22- Foreign Law Firms- Practice in India- Permissibility
The issue involved in this batch of matters is whether foreign law
firms/lawyers are permitted to practice in India.
In this case, the High Court upheld the plea of the foreign law firms
to the effect that there was no bar to such firms taking part in negotiations,
settling of documents and conducting arbitrations in India. There was no
bar to carrying on consultancy/support services in the field of protection
and management of intellectual, business and industrial proprietary rights,
carrying out market survey and research, publication of reports, journals
etc. without rendering any legal advice.
This could not be treated as practice of law in India. Referring to
Section 2(1)(f) of the Arbitration and Conciliation Act, 1996 (the
Arbitration Act), it was observed that if in international commercial
arbitration, India is chosen as the seat of arbitration, the foreign
contracting party is bound to seek assistance from lawyers of their own
country on the contract. There could be no prohibition for such foreign
lawyers to advise their clients on the foreign law.
Judgment of the Bombay High Court in Lawyers Collective (supra)
was distinguished on the ground that setting up of law offices for litigious
and non litigious matters was different but if a foreign law firm without
establishing any liaison office in India offers advice to their clients on
foreign law, there was no legal bar to do so.
Court has considered the rival submissions. Questions for
consideration mainly arise out of directions in para 63 of the Madras High
Court judgment which have already been quoted in the beginning of this
judgment. viz. :
(i) Whether the expression 'practise the profession of law' includes
only litigation practice or non-litigation practice also;
(ii) Whether such practice by foreign law firms or foreign lawyers
is permissible without fulfilling the requirements of Advocates Act and
the Bar Council of India Rules;
(iii) If not, whether there is a bar for the said law firms or lawyers
to visit India on 'fly in and fly out' basis for giving legal advice regarding
foreign law on diverse international legal issues;
(iv) Whether there is no bar to foreign law firms and lawyers from
conducting arbitration proceedings and disputes arising out of contracts
relating to international commercial arbitration; (v) Whether BPO
companies providing integrated services are not covered by the Advocates
Act or the Bar Council of India rules.
We have already held that practicing of law includes not only
appearance in courts but also giving of opinion, drafting of instruments,
participation in conferences involving legal discussion. These are parts of
non-litigation practice which is part of practice of law. Scheme in
Chapter-IV of the Advocates Act makes it clear that advocates enrolled
with the Bar Council alone are entitled to practice law, except as
otherwise provided in any other law. All others can appear only with the
permission of the court, authority or person before whom the proceedings
are pending. Regulatory mechanism for conduct of advocates applies to
non-litigation work also. The prohibition applicable to any person in
India, other than advocate enrolled under the Advocates Act, certainly
applies to any foreigner also.
RE : (iii)
41. Visit of any foreign lawyer on fly in and fly out basis may
amount to practice of law if it is on regular basis. A casual visit for giving
advice may not be covered by the expression 'practice'. Whether a
particular visit is casual or frequent so as to amount to practice is a
question of fact to be determined from situation to situation. Bar Council
of India or Union of India are at liberty to make appropriate rules in this
regard. We may, however, make it clear that the contention that the
Advocates Act applies only if a person is practicing Indian law cannot be
accepted. Conversely, plea that a foreign lawyer is entitled to practice
foreign law in India without subjecting himself to the regulatory
mechanism of the Bar Council of India Rules can also be not accepted.
We do not find any merit in the contention that the Advocates Act does
not deal with companies or firms and only individuals. If prohibition
applies to an individual, it equally applies to group of individuals or
juridical persons.
RE: (iv)
42. It is not possible to hold that there is absolutely no bar to a
foreign lawyer for conducting arbitrations in India. If the matter is 49
governed by particular rules of an institution or if the matter otherwise
falls under Section 32 or 33, there is no bar to conduct such proceedings
in prescribed manner. If the matter is governed by an international
commercial arbitration agreement, conduct of proceedings may fall under
Section 32 or 33 read with the provisions of the Arbitration Act. Even in
such cases, Code of Conduct, if any, applicable to the legal profession in
India has to be followed. It is for the Bar Council of India or Central
Government to make a specific provision in this regard, if considered
appropriate.
RE: (v)
43. The BPO companies providing range of customized and
integrated services and functions to its customers may not violate the
provisions of the Advocates Act, only if the activities in pith and
substance do not amount to practice of law. The manner in which they are
styled may not be conclusive. As already explained, if their services do
not directly or indirectly amount to practice of law, the Advocates Act
may not apply. This is a matter which may have to be dealt with on case
to case basis having regard to a fact situation.
44. In view of above, we uphold the view of the Bombay High
Court and Madras High Court in para 63 (i) of the judgment to the effect
that foreign law firms/companies or foreign lawyers cannot practice
profession of law in India either in the litigation or in nonlitigation side.
We, however, modify the direction of the Madras High Court in Para
63(ii) that there was no bar for the foreign law firms or foreign lawyers to
visit India for a temporary period on a "fly in and fly out" basis for the
purpose of giving legal advice to their clients in India regarding foreign
law or their own system of law and on diverse international legal issues.
45.We hold that the expression "fly in and fly out" will only cover
a casual visit not amounting to "practice". In case of a dispute whether a
foreign lawyer was limiting himself to "fly in and fly out" on casual basis
for the purpose of giving legal advice to their clients in India regarding
foreign law or their own system of law and on diverse international legal
issues or whether in substance he was doing practice which is prohibited
can be determined by the Bar Council of India. However, the Bar Council
of India or Union of India will be at liberty to make appropriate Rules in
this regard including extending Code of Ethics being applicable even to
such cases.
We also modify the direction in Para 63 (iii) that foreign lawyers
cannot be debarred from coming to India to conduct arbitration
proceedings in respect of disputes arising out of a contract relating to
international commercial arbitration. We hold that there is no absolute
right of the foreign lawyer to conduct arbitration proceedings in respect of
disputes arising out of a contract relating to international commercial
arbitration. If the Rules of Institutional Arbitration apply or the matter is
covered by 51 the provisions of the Arbitration Act, foreign lawyers may
not be debarred from conducting arbitration proceedings arising out of
international commercial arbitration in view of Sections 32 and 33 of the
Advocates Act. However, they will be governed by code of conduct
applicable to the legal profession in India. Bar Council of India or the
Union of India are at liberty to frame rules in this regard.
We also modify the direction of the Madras High Court in Para
63(iv) that the B.P.O. Companies providing wide range of customized and
integrated services and functions to its customers like word processing,
secretarial support, transcription services, proof reading services, travel
desk support services, etc. do not come within the purview of the
Advocates Act, 1961 or the Bar Council of India Rules. We hold that
mere label of such services cannot be treated as conclusive. If in pith and
substance the services amount to practice of law, the provisions of the
Advocates Act will apply and foreign law firms or foreign lawyers will
not be allowed to do so. Bar Council of India v. A.K. Balaji, 2018(4)
AWC 3467
Arbitration and Conciliation Act:
Ss. 8 and 45 – Allegation of fraud – Reference to arbitration can be refused only where
serious question of fraud is involved – Cannot be refused on mere allegation of fraud.
It is the duty of the Court to impart the commercial understanding with a
“sense of business efficacy” and not by the mere averments made in the plaint. The
High Court was not right in refusing to refer the parties on the ground of the
allegations of fraud levelled in the plaint.
It is only where serious questions of fraud are involved, the arbitration can be
refused. In this case, as contended by the appellants there were no serious allegations
of fraud; the allegations levelled against Astonfield is that appellant no.1 - Ameet
Lalchand Shah misrepresented by inducing the respondents to pay higher price for the
purchase of the equipments. There is, of course, a criminal case registered against the
appellants in FIR No.30 of 2015 dated 05.03.2015 before the Economic Offences Wing,
Delhi. The appellant no.1 – Ameet Lalchand Shah has filed Criminal Writ Petition
No.619 of 2016 before the High Court of Delhi for quashing the said FIR. The said writ
petition is stated to be pending and therefore, we do not propose to express any views
in this regard, lest, it would prejudice the parties. Suffice to say that the allegations
cannot be said to be so serious to refuse to refer the parties to arbitration. In any
event, the Arbitrator appointed can very well examine the allegations regarding fraud.
Ameet Lalchand Shah V. Rishabh Enterprises 2018 (5) Supreme 161 : AIR 2018 SC 3041
Sec. 11 – Cardinal Principle of the Act
Held - It is a cardinal principle of the Arbitration and Conciliation Act that the
parties are free to decide the number of arbitrators, provided, it is an odd number, as
well as the procedure for appointing them. However, if the parties are not able to
agree on the said procedure, or constitute the Arbitral Tribunal to their mutual
satisfaction, either of the party has an option to route to an appropriate remedy under
Section 11 of the Act, which provides detailed machinery for appointment of
Arbitrator through judicial intervention. IBI Consultancy India Private Limited v. DSC
Limited, AIR 2018 SC 2907.
Sec. 31- Power of Arbitrator grant pendente lite interest
Clause 16(3) only bars interest upon earnest money and security deposits or
amounts payable to the contractor under the contract. When a dispute is referred to
for adjudication to an arbitrator, a term of such a nature as contained in the Clause
16(3) of GCC, that is binding on the parties cannot be extended to bind an Arbitrator.
The Arbitrator has the power to award interest pendente lite where justified. M/s
Raveechee and Co. V. Union of India, AIR 2018 SC 3109
Sec. 34 -
Held -It is a settled law that the process of interpretation is based on the
objective view of a reasonable person, given the context in which the contracting
parties made their agreement. Union of India v. M/s Varindera Constructions Ltd., AIR
2018 SC 2961
Sec. 34 – Setting aside of arbitral award
Speedy resolution of arbitral disputes has been the reason for enacting the
1996 Act, and continues to be the reason for adding amendments to the said Act to
strengthen the aforesaid object. Quite obviously, if issues are to be framed and oral
evidence taken in a summary proceeding under Section 34, this object will be
defeated. An application for setting aside an arbitral award will not ordinarily require
anything beyond the record that was before the Arbitrator. However, if there are
matters not contained in such record, and are relevant to the determination of issues
arising under Section 34(2)(a), they may be brought to the notice of the Court by way
of affidavits filed by both parties. M/s Emkay Global Financial Services Ltd. V. Girdhar
Sondhi, AIR 2018 SC 3894.
Sec. 34(5)
Section 34(5) does not deal with the power of the Court to condone the non-
compliance thereof. It is imperative to note that the provision is procedural, the object
behind which is to dispose of applications under Section 34 expeditiously. State of
Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti, Bihar, Jharkhand, AIR 2018 SC 3862.
Sec. 50 – Scope of – Sec. 13 (1), Commercial Courts, Commercial Division and
Commercial Appellate Division of High Court Act, 2015 would not apply to cases
covered by Sec. 50
It is clear that Section 50 is a provision contained in a self-contained code on
matters pertaining to arbitration, and which is exhaustive in nature. It carries the
negative import mentioned in paragraph 89 of Fuerst Day Lawson (supra) that appeals
which are not mentioned therein, are not permissible. This being the case, it is clear
that Section 13(1) of the Commercial Courts Act, being a general provision vis-à-vis
arbitration relating to appeals arising out of commercial disputes, would obviously not
apply to cases covered by Section 50 of the Arbitration Act. Kandla Export Corporation
V. M/s. Oci Corporation 2018 (6) Supreme 4
Benami Transactions (Prohibition) Act:
Sec. 4(3) – Scope and ambit.
Provisions of Benami Transactions (Prohibition) Act, 1988 do not apply in cases
of property held by a coparcener in HUF for benefit of other coparceners, or property
held in fiduciary capacity or as a trustee for benefit of another person.
Section 2(a) of Act defined ‘benami transactions’ as under:
“2. Definitions- In this Act, unless the context otherwise requires,--
(a) benami transaction means any transaction in which property is transferred to one
person for a consideration paid or provided by another person; (b) .....”
Section 4 of the Act is reproduced as under:
“4. Prohibition of the right to recover property held benami-
(1) No suit, claim or action to enforce any right in respect of any property held
benami against the person in whose name the property is held or against
any other person shall lie by or on behalf of a person claiming to be the
real owner of such property.
(2) No defence based on any right in respect of any property held benami,
whether against the person in whose name the property is held or against
any other person, shall be allowed in any suit, claim or action by or on
behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply,--
(a) where the person in whose name the property is held is a coparcener
in a Hindu undivided family and the property is 13 held for the benefit
of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or
other person standing in a fiduciary capacity, and the property is held
for the benefit of another person for whom he is a trustee or towards
whom he stands in such capacity.
(emphasis supplied)
The bare reading of the aforesaid provision contained in Section 4(3) of the Act makes
it clear that where a person in whose name a property is held as coparcener in a Hindu
Undivided Family and the property is held for the benefits of the coparcener in the
property, provisions of Section 4 containing prohibition of the right to recover the
property held benami would not be applicable. The bar of the Act is not applicable to a
transaction as contained in section 4(3) (a) and (b). If the property is held in fiduciary
capacity or is held as a trustee for the benefits of another person for whom he is a
trustee or towards whom he stands in such capacity. Thus, the provision of Act could
not be said to be applicable in the instant case. Vinod Kumar Dhall V. Dharampal Dhall
(Deceased) through High LRs. and ors. 2018 (5) Supreme 698
Civil Procedure Code:
Sec. 27 O. 5, R. 20(3) and O. 9 R.13-Application for setting aside ex parte decree-On
ground summons of suit not duly served on them-Application rejected holding the
summons duly served-Summons published in newspaper had material infirmity
therein, which rendered summons so also the service on the defendants bad in law-
The material infirmity in the summons was that it did not mention any specific day,
date, year and time for defendants’ appearance in the Court-This being the
requirement of S. 27 r/w O. V, R. 20(3) and Process-I-A of Appendix-B, it was
mandatory for the Court to mention the specific working day, date, year and time in
the columns meant for such filing-Rejection improper.
In other words, the summons dated 17.11.2004 published in the papers (Times
of India and Dainik Bhaskar) had material infirmity therein, which rendered the
summons so also the service made on the defendants bad in law.
The material infirmity in the summons was that it did not mention any specific
day, date, year and time for the defendants’ appearance in the Court. This being the
requirement of Section 27 read with Order V Rule 20(3) and Process-IA of Appendix-B,
it was mandatory for the Court to mention the specific working day, date, year and
time in the columns meant for such filing. It would have enabled the defendants to
appear before the Court on the date so fixed therein. It is a settled rule of
interpretation that when the legislature provides a particular thing to be done in a
particular manner then such thin has to be done in the same prescribed manner and in
no other manner.
It was, however, brought to our notice that during the pendency of this
appeal, the appellant was asked to deposit a sum of Rs. 47.50 lakhs which they have
deposited. Now that the suit is restored to its original file for its decision on merits, we
make it clear that the deposit and withdrawal of Rs. 47.50 lakhs would be subject to
the final result of the suit. Auto Cars V. Trimuti Cargo Movers Pvt. Ltd., 2018(2) ARC
456
Sec. 47 & O. 21, R. 26(1) – Respondent filing objection in execution petition belatedly –
Effect of – Objections nothing but deliberate attempt to nullify decree of eviction.
The Court observed that the intervention at this belated stage of execution
proceedings, in the fact and circumstances of the case, seems to be a deliberate
attempt to nullify the decree passed in favour of the appellant herein as when
Respondent No.1 filed objections under Sec. 47 O. 21 of the Code, he claimed to be in
possession of the suit premises, however, he failed to produce any evidence except
two rent receipts for the months of December, 1993 and January 1994 there too when
the Respondent No. 1 in his objection petition filed in the execution proceedings of the
eviction decree has himself admitted that the there exists a dispute between him and
Respondent No. 2 and they had parted their way. Suresh Kumar Kohli V. Rakesh Jain
2018 (4) Supreme 747
Sec. 80
Sec. 80, though a procedural provision, has been held to be mandatory as it is
conceived in public interest, the public purpose underlying it being the advancement
of justice by giving the Government the opportunity to scrutinize and take immediate
action to settle a just claim without driving the person who has issued a notice having
to institute a suit involving considerable expenditure and delay. This is to be
contrasted with Section 34(5), also a procedural provision, the infraction of which
leads to no consequence. To construe such a provision as being mandatory would
defeat the advancement of justice as it would provide the consequence of dismissing
an application filed without adhering to the requirements of Section 34(5), thereby
scuttling the process of justice by burying the element of fairness. State of Bihar v.
Bihar Rajya Bhumi Vikas Bank Samiti, Bihar, Jharkhand, AIR 2018 SC 3862.
Sec. 100 – Scope of
In second appeal High Court has to frame substantial questions of law and
confine its discussion and judgment on those questions only.
Adverting to the facts of the case at hand, we find that the High
Court on 30.11.2002 admitted the second appeal and framed six
substantial questions of law quoted supra as required under subsections
(1) and (4) of Section 100 of the Code which, according to the High
Court, arose in the second appeal.
The High Court was, therefore, required to decide the second appeal only on
the six formulated substantial questions of law as provided under subsection (5) of
Section 100 of the Code.
We, however, find that the High Court instead of deciding the second appeal
on these six substantial questions of law framed at the time of 10 admission allowed
the appeal on two additional substantial questions of law (see Para 10 of the
impugned judgment) which were neither framed by the High Court at the time of
admission of the second appeal on 30.11.2002 and nor at the time of hearing the
second appeal.
In other words, the High Court allowed the appeal on the two questions,
which were framed in the impugned judgment only. Vijay Arjun Bhagat V. Nana
Laxman Tapkire 2018 (5) Supreme 261: AIR 2018 SC 2625
Sec.100 – Point for consideration whether the High Court was justifying in allowing the
appeal
Held -The High Court while deciding and eventually allowing the second appeal
did not follow the mandatory procedure prescribed under Section 100 of the Code of
Civil Procedure, 1908 (hereinafter referred to as “the Code”).
As mentioned above, the High Court had the jurisdiction to decide the second
appeal only on the six substantial questions of law framed at the time of admitting the
appeal. In other words, the jurisdiction of the High Court to decide the second appeal
was confined only to six questions framed and not beyond it.
Second, the High Court though had the jurisdiction to frame additional
question(s) by taking recourse to proviso to subsection(5) of Section 100 of the Code
but it was subject to fulfilling the three conditions, first "such questions should arise in
the appeal", second, "assign the reasons for framing the additional questions" and
third, "frame the questions at the time of hearing the appeal".
In this case, the High Court committed an error because it framed two
additional questions in the judgment itself.
This procedure adopted by the High Court while deciding the second appeal
caused prejudice to the rights of the parties because the parties, especially the
appellants herein, who suffered the adverse order, had no knowledge about framing
of the two additional questions inasmuch as they were deprived of the opportunity to
address the Court on the two additional questions on which the impugned judgment
was founded. Vijay Arjun Bhagat v. Nana LaxmanTapkire, 2018 (5) Supreme 261: AIR
2018 SC 2625.
O. 6 R. 16 and O. 7. 11 – Rejection of election petition - in limline, purportedly under
Order 7 Rule 11 – effect of.
Ordinarily, an application for rejection of election petition in limine,
purportedly under Order VII Rule 11 for non-disclosure of cause of action, ought to
proceed at the threshold. For, it has to be considered only on the basis of institutional
defects in the election petition in reference to the grounds specified in clauses (a) to
(f) of Rule 11. Indeed, non-disclosure of cause of action is covered by clause (a)
therein. Concededly, Order VII of the CPC generally deals with the institution of a
plaint. It delineates the requirements regarding the particulars to be contained in the
plaint, relief to be specifically stated, for relief to be founded on separate grounds,
procedure on admitting plaint, and includes return of plaint. The rejection of plaint
follows the procedure on admitting plaint or even before admitting the same, if the
court on presentation of the plaint is of the view that the same does not fulfill the
statutory and institutional requirements referred to in clauses (a) to (f) of Rule 11. The
power bestowed in the court in terms of Rule 11 may also be exercised by the court on
a formal application moved by the defendant after being served with the summons to
appear before the Court. Be that as it may, the application under Order VII Rule 11
deserves consideration at the threshold. Madiraju Venkata Ramana Raju v.
Peddireddigari Ramachandra Reddy, AIR 2018 SC 3012.
O.6, R.17 – Amendment in plaint – Suit filed for declaration on the basis of
reversionary rights was decreed ex parte consequence.
Held -At the time when the application for amendment was preferred, only
two official witnesses were examined. The nature of amendment as proposed neither
changes the character and nature of the suit nor does it introduce any fresh ground.
The High Court itself was conscious that the amendment would not change the nature
of the suit. In the given circumstances, in our view, the amendment ought to have
been allowed.
The Supreme Court, in a series of decisions has held that the power to allow
the amendment is wide and can be exercised at any stage of the proceeding in the
interest of justice. The main purpose of allowing the amendment is to minimise the
litigation and the plea that the relief sought by way of amendment was barred by time
is to be considered in the light of the facts and circumstances of each case. Gurbakhsh
Singh v. Buta Singh, AIR 2018 SC 2635.
O. 7, R.11 – Rejection of Plaint – Application under O. 7 R. 11 for rejection of plaint has
to be decided only on averments in the plaint and defence projected in written
statement cannot be looked into.
In a suit filed by respondent No.1, the appellant herein (defendant
No.1 in the said suit) moved an application under O.7, R.11 of the Code of
Civil Procedure, 1908 claiming rejection of the plaint on the ground that
the suit filed by respondent No.1 was barred by res judicata and also under
Section 69 of the Indian Partnership Act, 1932. The Civil Judge dismissed
the said application vide orders dated May 03, 2016 with the observations
that without taking evidence it would not be proper to reject the plaint on
the principles of res judicata as it was not permissible for the Court to look
into the statements made in the written submissions while dealing with an
application under O. 7 R. 11 CPC. Revision petition preferred by the
appellant against the said order also stands dismissed by the High Court.
One has to only look into the plaint for the purpose of deciding application
under O.7, R.11, CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not
given the details about Suit No. 268 of 2008 which has been decided against him. He
has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has
attained finality. In that sense, the plaintiff/respondent no. 1 may be guilty of
suppression and concealment, if the averments made by the appellant are ultimately
found to be correct. However, as per the established principles of law, such a defense
projected in the written statement cannot be looked into while deciding application
under O.7, R.11, CPC.
Therefore, insofar as trial court dismissing the said application of the
appellant, which is upheld by the High Court, cannot be faulted with. Soumitra Kumar
Sen V. Shyamal Kumar Sen 2018 (5) Supreme 748 : 2018(2) ARC 624
O. 7, R. 11 – Custody of child – Paramount consideration is the best interest of child –
It cannot be finally determined under O. 7, R. 11.
Marriage between the parties took place in U.S.A. Out of the wedlock, one
child was born in 2012 in U.S.A. and the second child was born in India. The appellant
came to India, just before the delivery of the said child.
The appellant filed an application under O. 7, R. 11 for guardianship of the
child.
The family court rejected the petition on the ground that the parties are
national of the U.S.A. and the U.S. courts have intimate contact with the matter.
In a recent three Judge Bench Judgment in Nithya Nand Raghvan V. State of
NCT, (2017) 8 SCC 454 and it was observed:
“39. We must remind ourselves of the settled legal position that the concept
of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the
principle of comity of courts as applicable to India in respect of child custody matters
has been succinctly delineated in several decisions of this Court….
66. The invocation of first strike principle as a decisive factor, in our opinion,
would undermine and whittle down the wholesome principle of the duty of the Court
having jurisdiction to consider the best interests and welfare of the child, which is of
paramount importance. If the Court is convinced in that regard, the fact that there is
already an order passed by a foreign Court in existence may not be so significant as it
must yield to the welfare of the child. That is only one of the factors to be taken into
consideration. The interests and welfare of the child are of paramount consideration.
The principle of comity of courts as observed in Dhanwanti Joshi’s case *1998 (1 SCC
112], in relation to non-convention countries is that the Court in the country to which
the child is removed will consider the question on merits bearing the welfare of the
child as of paramount importance and consider the order of the foreign Court as only a
factor to be taken into consideration. While considering that aspect, the Court may
reckon the fact that the child was abducted from his or her country of habitual
residence but the Court’s overriding consideration must be the child’s welfare.”
In view of the above, principle of comity of courts or principle of forum
convenience alone cannot determine the threshold bar of jurisdiction. Paramount
consideration is the best interest of child. The same cannot be subject-matter of final
determination in proceedings under O. 7, R. 11. Jasmeet Kaur V. Navtej Singh 2018 (6)
Supreme 36
O. 8, R. 1 - Written statement required to be filed within 30 days extendable up to 90
days by court – Provision procedural and court can condone larger delays – but only in
exceptional cases.
The Notice of Motion filed by the respondents was for condonation of delay in
filing the written statement. Delay was of 15 years and 54 days (though according to
the appellant it is 14 years and 166 days). The Single Judge condoned the delay vide
order dated March 15, 2016 with a cost of Rs.5 lakhs which was ordered to be paid by
the respondents to the appellant. Aggrieved by the said order condoning such an
inordinate delay, the appellant preferred appeal before the Division Bench which has
affirmed the order passed by the Single Judge and dismissed the appeal of the
appellant.
O.8 R. 1 of the Code of Civil Procedure, 1908 reads as under:
“1. Written statement:- The defendant shall, within thirty days from the date
of service of summons on him, present a written statement of his defence: Provided
that where the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the same on such other day, as may be specified
by the Court, for reasons to be recorded in writing, but which shall not be later than
ninety days from the date of service of summons.”
This provision has come up for interpretation before this Court in number of
cases. No doubt, the words 'shall not be later than ninety days' do not take away the
power of the Court to accept written statement beyond that time and it is also held
that the nature of the provision is procedural and it is not a part of substantive law. At
the same time, this Court has also mandated that time can be extended only in
exceptionally hard cases.
In such a situation, onus upon the defendant is of a higher degree to plead and
satisfactorily demonstrate a valid reason for not filing the written statement within
thirty days. When that is a requirement, could it be a ground to condone delay of
more than 5 years even when it is calculated from the year 2009, only because of the
reason that Writ of Summons were not served till 2009?
We fail to persuade ourselves with this kind of reasoning given by the High
Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1
of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High
Court that delay was condoned 'by balancing the rights and equities' is farfetched and,
in the process, abnormal delay in filing the written statement is condoned without
addressing the relevant factor, viz. whether the respondents had furnished proper and
satisfactory explanation for such a delay. The approach of the High Court is clearly
erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII
Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore,
hand maid of justice. However, that would not mean that the defendant has right to
take as much time as he wants in filing the written statement, without giving
convincing and cogent reasons for delay and the High Court has to condone it
mechanically. Atcom Technologies Limited V. Y.A. Chunawala and Co. 2018 (5) 533
O. 11 R. 14, O. 7 R. 14- Constitution Article 131- Production of documents-Whether
production of documents which were not in possession of the applicant should be
allowed- Held, Yes
Learned counsel and upon evaluating the objection of the State of Nagaland,
we see no reason to disallow the production of the maps.
The evidence of PW 9 is being recorded. Production of the above documents
by the witness for the Survey of India should, in our view, be allowed in the interest of
justice. The documents were not in the possession of the applicant and the earlier
order of this Court will not preclude the State of Assam from seeking production at
this stage. We, however, clarify that we have not dealt with the relevance or
admissibility of the documents. It would be open to the State of Nagaland to raise such
objections as it is advised to raise and all appropriate defences.
Subject to what has been stated above, the application for production is
allowed. The Interlocutory Application shall accordingly stand disposed of. State of
Assam v. Union and Ors, 2018(9) SCALE 54
O. 12, R. 6 – Appellant admitting the undertaking being given by it – Objecting on the
ground that the letter produced by plaintiff does not contain seal of the bank – Held,
Courts below rightly decreed the suit.
The Trial Judge, while allowing the application under O. 12, R. 6 CPC held that
the appellant failed to proce the original letter dated 1.9.1992. Instead, a Xerox copy
of the said letter was filed. The judgment of the trial Judge was confirmed by the
Division Bench on the ground that the Appellant made a deliberate attempt for
frustrate the legal right of Respondent no. 1
We see no reason to interfere with the judgment of the High Court. The
appeal is accordingly dismissed. Indian Bank V. S.N. Engineers & Suppliers 2018(6)
Supreme 60
O. 21 Rr 90, 91 O. 6 R. 4, Sec. 47 – Auction sale – Suit for declaration of title
possession.
When the auction purchaser is the decree-holder himself and when an
application is made to set aside the sale on a ground other than that covered by
Rule 90 and no application has been made under Rule 89, the case would fall under
Section 47.
There can be restoration of the petition dismissed for default filed under
Order 21 Rule 90 and thereafter if sale has been confirmed, it is provided under
Order 21 Rule 92(3) that no suit to set aside an order made under Rule 92(1) shall
be brought by any person against whom such an order is made. Order 21 R.
92(1) provides that where an application has been filed under Order XXI Rule 89, 90 or
91, same has been disallowed, the court shall make an order conferming the sale
and thereupon the sale shall become absolute, and no suit shall lie as per
the mandate of sub rule (3) of Rule 92 of Order 21 CPC against whom
such an order is made. The order confirming the sale may be made either where no
application is made at all to set aside the sale or where and application is made and
disallowed may be that it is dismissed for default. No suit shall lie in either case to set
aside the order confirming the sale. The refusal to set aside a sale is an order
appealable. In case the court has set aside or refused to set aside a sale that would
include a case where an application under Order21 Rule 89, 90 or 91 has been
dismissed for default. Siddagangaiah v. N.K. Giriraja Shetty, AIR 2018 SC 3080
O. 23, R. 1 and O. 39 R.1 and 2-Withdrawal application-To withdraw suit for
permanent injunction as parties entered into a compromise wherein Respondent No.
Agreed not to interfere in appellant’s possession-Withdrawal application allowed on
cost-Revision against dismissed-High Court allowed Respondent No.1’s writ petition
directing appellant/plaintiff to place Respondent No. 1(Defendant No. 1) in possession
of suit land-Justification of-When plaintiff files an application under O. 23 R.1 and
prays for permission to withdraw the suit whether in full or part, he is always at liberty
to do so and in such case, the defendant has no right to raise any objection to such
prayer being made by the plaintiff except to ask for payment of the cost him by
plaintiff as provided in sub-rule(4)-There was no justification on part of the High Court
to have travelled in the issues relating to the grant of injunction in relation to the suit
land and give direction to plaintiff/appellant to place Respondent No. 1 in possession
of the suit land-Impugned order set aside.
In our considered opinion, when the plaintiff files an application under O. 23
Rule 1 and prays for permission to withdraw the suit, whether in full or part, he is
always at liberty to do so and in such case, the defendant has no right to raise any
objection to such prayer being made by the plaintiff except to ask for payment of the
cost to him by the plaintiff as provided in sub-rule (4).
There was, therefore, no justification on the part of the High Court to have
travelled in the issues relating to the grant of injunction in relation to the suit land and
give direction to the appellant (plaintiff) to place respondent No. 1 in possession of the
suit land.
We, however, make it clear that defendant No. 1 would be at liberty to raise
issues relating to his ownership and possession in relation to the suit land in
appropriate proceedings in accordance with law.
In view of foregoing discussion, the appeal thus succeeds and is allowed.
Impugned order is set aside and the orders of the Trial Court and the Revision Court
are restored. Anil Kumar Singh V. Vijay Pal Singh 2018(2) ARC 324
O. 23 R. 3A; Sec. 96(3)- Compromise between parties- A civil suit was filed for a
declaration and permanent injunction- Single Judge of the High Court disposed of the
second appeal in terms of compromise, which is said to have been arrived at between
the parties –Second appeal was not decided on merits but disposed of in the right of
compromise arrived at between the parties- Review petition filed by appellants was
dismissed- Whether the order passed in the review petition can be set aside- Held,
Yes- this Court permits appellants to file an application before the High Court for
amending their review petition, raising all their grievances
In this case, we prefer to follow this course keeping in view the bar
contained in Order 23 Rule 3A of the Code of Civil Procedure, 1908 (for
short 'the CPC') for filing the suit in a case of this nature and also another
bar created under Section 96 (3) of the CPC, which prohibits filing of any
appeal, though in this case it does not apply because the dispute arose in
second appeal filed under Section 100 of the CPC.
The purpose in making reference to these two provisions is to show
the legislative intent which does not allow the parties to take recourse to
these legal remedies to challenge the compromise once it is arrived at in
the suit/appeal. The only exception being if the challenge is founded on
the ground of fraud committed by the parties in obtaining any judicial
orders, the suit, in appropriate case, may lie.
In this case, we find that the High Court did not examine the plea of
the appellants properly keeping in view the facts alleged in the application
and while negativing the attack observed that the appellants are free to
take recourse to any other legal remedies. Since the second appeal was
disposed of affecting the rights of the parties in the light of compromise,
the proper Forum to reexamine the issue, in our opinion, is the High
Court, which disposed of the second appeal rather than any other Forum
to examine the issue at this stage. It is more so when we find that the High
Court did not go into the details in the proceedings filed by the appellants
in its correct perspective. Ved Pal (D) Through LRS V. Prem Devi (D)
Through LRS & Ors., 2018(9) Scale 526
O. 41, R.23-A and 27- Suit for permanent injunction-Suit dismissed-During pendency of
appeal, application to adduce additional evidence by plaintiff-Placing reliance on
additional evidence appeal allowed suit decreed-Second appeal affirmed the
judgment/decree of First Appellate Court-Sustainability of-No opportunity to
defendant to file any rebuttal evidence to counter the additional evidence adduced by
plaintiffs, this caused prejudice to the appellants herein-Procedural error was also
committed by first appellate Court-Impugned order set aside, matter remanded to
Trial Court for retrial of all the suits.
First, it took into consideration the additional piece of evidence while deciding
the appeals on merits without affording any opportunity to the appellants herein (who
were respondents in the first appeals) to file any rebuttal evidence to counter the
additional evidence adduced by the respondents (appellants before the first Appellate
Court). This caused prejudice to the appellants herein because they suffered the
adverse order from the Appellate Court on the basis of additional evidence adduced
by the respondents for the first time in appeal against them. (See Land Acqulsition
Officer, City Improvement Trust Board v. H Narayanaiah and Ors., (1976) 4 SCC 9,
Shalimar Chemical Works Ltd. V. Surendra Oil and Dal mills (Refineries) and Ors.,
(2010) 8 SCC 423: 2010 (3) ARC 603(SC) and Akhilesh Singh v. Lal Babu Singh and Ors.,
(2018) 4 SCC 759: 2018(2) ARC 609(SC).
Second error was of a procedure which the first Appellate Court failed to
resort in disposing of the appeals. This also involved a question of jurisdiction.
In the light of the foregoing discussion and having regard to the totality of the
facts of the case and to enable the parties to have full and fair trial, we consider it
Proper to take recourse to the powers under Order 41 Rule 23 A of the Code and
accordingly set aside the judgment and decree of the first Appellate Court to the
extent it allows the respondents’ appeals on merit but at the same time uphold that
part of the order which has allowed CMP No. 1559/1993 filed by the plaintiffs for
adducing additional evidence and remand the cases to the Trial Court for retrial of all
the four civil suits on merits afresh.
The Trial Court will then decide the suits afresh on merits on the basis of entire
evidence without being influenced by any of the previous order/judgments rendered
in this case including this order because having formed an opinion to remand the case
foe retrial, we have refrained from entering into the merits of the issues. Let the trial
be over within one year.
In view of the foregoing discussion the appeals succeed and are allowed
impugned order is set aside. The Corporation of Madras V. M. Parthasarathy, 2018(3)
ARC 15 : 2018(9) Scale 559
O. 41, R. 27-Addition evidence-Opportunity to rebut the additional evidence rejected
by High Court-Justification of-The High Court erred in simultaneously proceeding with
the hearing of the appeal after admitting additional evidence on record-High Court
ought to have given opportunity to contesting respondents in the First Appeal to lead
evidence in rebuttal or to explain the alleged admission as contained in the sale deed,
which having not been done-Impugned order set aside, matter remanded for re-
decision after giving an opportunity to the present appellant to lead evidence in
rebuttal.
The submission of the learned counsel for the respondents that execution of
sale deeds was never denied by the present appellant before the High Court, hence no
error has been committed by the High Court in relying on the contents in the sale deed
cannot be accepted. Even if, execution of sale deeds was not denied, the Appellate
Court before which any statement in sale deeds is relied ought to have given an
opportunity to lead evidence in rebuttal or to explain the admission. Opportunity to
explain the admission contained in the sale deeds was necessary to be given to the
contesting party in the facts of the present case. We thus are of the opinion that the
High Court erred in simultaneously proceeding with the hearing of the appeal after
admitting additional evidence on record. The High Court ought to have given
opportunity to contesting respondents in the First Appeal to lead evidence in rebuttal
or to explain the alleged admission as contained in the sale deed, which having not
been done, the order and judgment of the High Court deserves to be set aside. The
High Court may now proceed to decide the appeal afresh after giving an opportunity
to the present appellant to lead evidence in rebuttal. The appeal before the High Court
being pending since 1976, we expect that the High Court should conclude the entire
process expeditiously preferably within a period of six months from the date of
production of this judgment before the High Court. We make it clear that we have not
expressed any opinion on merits of the case and it is for the High Court to consider the
First Appeal on merits afresh and take a decision in accordance with law. In result, this
appeal is allowed, judgment and decree of the High Court is set aside. The First Appeal
be decided by the High Court afresh as observed above. Parties shall bear their own
costs. Akhilesh Singh @ Akhileshwar Singh V. Lal Babu Singh, 2018(2) ARC 609: 2018
(6) Supreme 178
O. 47 R 1 – Scope of
Held -The scope of the appellate powers and the review powers are well
defined. The power of review under Order 47 Rule 1 of the Code of Civil Procedure,
1908 is very limited and it may be exercised only if there is a mistake or an error
apparent on the face of the record. The power of review is not to be confused with the
appellate power. The review petition/application cannot be decided like a regular intra
court appeal. On the other hand, the scope of appeal is much wider wherein all the
issues raised by the parties are open for examination by the Appellate Court.
A fortiori, what was not decided in appeal by the Division Bench could not be
decided by the Division Bench while deciding the review application. Sivakami v. State
of Tamil Nadu, AIR 2018 SC 2637.
O. 61, R.27 r/w rule 2 – Consideration of
After admitting applications under O. 61, r. 27 First appellate court ought to
give contesting respondents opportunity to rebut the same.
During pendency of the First Appeal, the defendants-respondents, who were
appellant in First Appeal, filed various applications under Order 61 Rule 27 Code of
Civil Procedure for acceptance of additional evidence in the First Appeal. High Court
has passed an order on the I.A.s that applications shall be heard at the time of hearing
of the appeal. At the time of hearing nobody appeared on behalf of appellant, who
was respondent in the first Appeal. The High Court after hearing the learned counsel
for the defendants-respondents allowed the I.A.s by accepting the additional evidence,
which was sought to be brought on record. Simultaneously, the High Court proceeded
with the hearing of the appeal and relying on additional evidence allowed the First
Appeal setting aside the judgment and decree of the trial court.
Order 61 Rule 2 provides that the appellant shall not, except by leave of the
court, be allowed to urge any ground in the appeal, which is not set forth in the
memorandum of appeal. The proviso to Order 61 Rule 2 engrafts a rule, which obliged
the Court to grant a sufficient opportunity to the contesting party, if any new ground is
allowed to be urged by another party, which may affect the contesting party. The
provision engrafts rule of natural justice and fair play that contesting party should be
given opportunity to meet any new ground sought to be urged. When Appellate Court
admits the additional evidence under Order 61 Rule 27, we fail to see any reason for
not following the same course of granting an opportunity to the contesting party,
which may be affected by acceptance of additional evidence. The main issue in the
First Appeal before the High Court was as to whether the finding of the trial court that
no partition by metes and bounds taken place in the family is correct or not. The
additional evidence which was admitted has been relied by the High Court while
allowing the appeal. It was in the interest of justice that High Court ought to have
allowed opportunity to the plaintiffs, who were respondents to the First Appeal to
either lead an evidence in rebuttal or to explain the alleged admissions as relied by the
defendants.
Opportunity to explain the admission contained in the sale deeds was
necessary to be given to the contesting party in the facts of the present case. We thus
are of the opinion that the High Court erred in simultaneously proceeding with the
hearing of the appeal after admitting additional evidence on record. The High Court
ought to have given opportunity to contesting respondents in the First Appeal to lead
evidence in rebuttal or to explain the alleged admission as contained in the sale deed,
which having not been done, the order and judgment of the High Court deserves to be
set aside. The High Court may now proceed to decide the appeal afresh after giving an
opportunity to the present appellant to lead evidence in rebuttal. Akhilesh Singh
@Akhileshwar Singh V. Lal Babu Singh, 2018(2) ARC 609: 2018 (6) Supreme 178
Constitutional Law:
Doctrine of separation of powers – Basic structure of Constitution – Court cannot
mandate the executive or the legislature to initiate legislation
The Court observed that a strict separation is neither possible nor desirable
and also an overlap is not strictly prohibited but an exercise of function of other wing
resulting in wresting away of the regime of constitutional accountability is certainly
prohibited. Kalpana Mehta V. Union of India 2018 (5) Supreme 545
Judicial Review – Not unfettered – Comes within conception of judicial restraint
When we speak about judicial review, it is also necessary to be alive to the
concept of judicial restraint. The duty of judicial 30 reviews which the Constitution has
bestowed upon the judiciary is not unfettered; it comes within the conception of
judicial restraint. The principle of judicial restraint requires that judges ought to decide
cases while being within their defined limits of power. Judges are expected to
interpret any law or any provision of the Constitution as per the limits laid down by the
Constitution.
At this juncture, we think it apt to clearly state that the judicial restraint
cannot and should not be such that it amounts to judicial abdication and judicial
passivism. The Judiciary cannot abdicate the solemn duty which the Constitution has
placed on its shoulders, i.e., to protect the fundamental rights of the citizens
guaranteed under Part III of the Constitution. The Constitutional Courts cannot sit in
oblivion when fundamental rights of individuals are at stake. Our Constitution has
conceived the Constitutional Courts to act as defenders against illegal intrusion of the
fundamental rights of individuals. The Constitution, under its aegis, has armed the
Constitutional Courts with wide powers which the Courts should exercise, without an
iota of hesitation or apprehension, when the fundamental rights of individuals are in
jeopardy. Kalpana Mehta V. Union of India 2018 (5) Supreme 545
Constitution of India:
Constitutional Morality- Constitutional fundamentals –Duties imposed- Moral values
of our constitution –Democratic set up promised to the citizenry to remain
unperturbed- Constitutional morality is that fulcrum which acts as an essential check
upon the high functionaries and citizens alike- It signifies a constitutional culture which
each individual in a democracy must imbibe
In the Constituent Assembly Debates, Dr. B.R. Ambedkar spoke thus on
collective responsibility:
"I want to tell my friend Prof. K.T. Shah that his amendment would be
absolutely fatal to the other principle which we want to enact, namely collective
responsibility. All Members of the House are very keen that the Cabinet should work
on the basis of collective responsibility and all agree that is a very sound principle. But
I do not know how many Members of the House realise what exactly is the machinery
by which collective responsibility is enforced. Obviously, there cannot be a statutory
remedy. Supposing a Minister differed from other Members of the Cabinet and gave
expression to his views which were opposed to the views of the Cabinet, it would be
hardly possible for the law to come in and to prosecute him for having committed a
breach of what might be called collective responsibility. Obviously, there cannot be a
legal sanction for collective responsibility. The only sanction through which collective
responsibility can be enforced is through the Prime Minister. In my judgment collective
responsibility is enforced by the enforcement of two principles. One principle is that
no person shall be nominated to the Cabinet except on the advice of the Prime
Minister. Secondly, no person shall be retained as a Member of the Cabinet if the
Prime Minister says that he shall be dismissed. It is only when Members of the Cabinet
both in the matter of their appointment as well as in the matter of their dismissal are
placed under the Prime Minister, that it would be possible to realize our ideal of
collective responsibility. I do not see any other means or any other way of giving effect
to that principle.
Supposing you have no Prime Minister; what would really happen? What
would happen is this, that every Minister will be subject to the control or influence of
the President. It would be perfectly possible for the President who is no ad idem with a
particular Cabinet, to deal with each Minister separately singly, influence them and
thereby cause disruption in the Cabinet. Such a thing is not impossible to imagine.
Before collective responsibility was introduced in the British Parliament you remember
how the English King used to disrupt the British Cabinet. He had what was called a
Party of King's Friends both in the Cabinet as well as in Parliament. That sort of thing
was put a stop to by collective responsibility. As I said, collective responsibility can be
achieved only through the instrumentality of the Prime Minister.
Therefore, the Prime Minister is really the keystone of the arch of the Cabinet
and unless and until we
create that office and endow that office with statutory authority to nominate
and dismiss Ministers there can be no collective responsibility."
79. In State of Karnataka v. Union of India and another26 , the Court, after
reproducing a few passages from Sir Ivor Jennings and Mr. Joseph Chamberlain,
observed:
"...The following discussion on the subject in "Representative and Responsible
Government" by A. H. Birch will be found useful in this connection: "Ministerial
accountability to Parliament has two aspects : the collective responsibility of Ministers
for the policies of the Government and their individual responsibility for the work of
their departments. Both forms of responsibility are embodied in conventions which
cannot be legally enforced. Both conventions were developed during the nineteenth
century, and in both cases the practice was established before the doctrine was
announced (page 131)."”
In "Government and Law" by T. C. Hartley and J.A.G. Griffith27, the position in
regard to the collective responsibility of Ministers to the Legislature is tersely stated as
under:
"Ministers are said to be collectively responsible. This is often elevated by
writers to the level of a 'doctrine' but is in truth little more than a political practice
which is commonplace and inevitable.
Ordinarily, Ministers form the governmental team, all being appointed by the
Prime Minister from one political party. A Cabinet Minister deals with his own area of
policy and does not normally have much to do with the area of other Ministers.
Certainly no Cabinet Minister would be likely to make public statements which
impinged on the work of another Minister's department. On a few important issues,
policy is determined by the Cabinet after discussion. Collective responsibility means
that Cabinet decisions bind all Cabinet Ministers, even if they argued in the opposite
direction in Cabinet. But this is to say no more than a Cabinet Minister who finds
himself in a minority must either accept the majority view or resign. The team must
not be weakened by some of its members making clear in public that they disapprove
of the Government's policy. And obviously what is true for Cabinet Ministers is even
more true for other Ministers. If they do not like what the team is doing, they must
either keep quiet or leave."
Speaking on collective responsibility, the Court in the case of R.K. Jain v. Union
of India and 27 Hartley T.C. and Griffith J.A.G., Government and Law; an introduction
to the working of the Constitution in Britain 2nd edition, 1981 London; Weidenfeld
and Nicholson others28 has opined that each member of the Cabinet has personal
responsibility to his conscience and also responsibility to the Government. Discussion
and persuasion may diminish disagreement, reach unanimity, or leave it unaltered.
Despite persistence of disagreement, it is a decision, though some members like less
than others. Both practical politics and good government require that those who like it
less must still publicly support it. If such support is too great a strain on a Minister's
conscience or incompatible with his/her perceptions of commitment and he/she finds
it difficult to support the decision, it would be open to him/her to resign. So, the price
of acceptance of Cabinet office is the assumption of responsibility to support Cabinet
decisions and, therefore, the burden of that responsibility is shared by all.
In Common Cause, A Registered Society v. Union of India and others, the
Court, explaining the concept of collective responsibility, stated:
"30. The concept of "collective responsibility" is essentially a political concept.
The country is governed by the party in power on the basis of the policies adopted and
laid down by it in the Cabinet Meeting. "Collecting Responsibility" has two meanings :
The first meaning which can legitimately be ascribed to it is that all members of a
Govt, are unanimous in support of its policies and would exhibit that unanimity on
public occasions although while formulating the policies, they might have expressed a
different view in the meeting of the Cabinet. The other meaning is that Ministers, who
had an opportunity to speak for or against the policies in the Cabinet are thereby
personally and morally responsible for its success and failure.”
The principle of collective responsibility is of immense significance in the
context of ‘aid and advice’ of the Council of Ministers. The submission of the learned
counsel of the appellant is that when after due deliberation between the Chief
Minister and the Council of Ministers a decision is taken, but the same is not given
effect to because of interdiction of the Lieutenant Governor, the value of collective
responsibility that eventually gets transformed into a Cabinet decision stands
absolutely denuded. It is emphatically submitted that if the collective responsibility of
the Council of Ministers is not given the expected weightage, there will be corrosion of
the essential feature of representative government. Government of NCT of Delhi V.
Union of India & Another, 2018 (8) SCALE 72
Art. 21 – Art. 21 implicitly confers right to speedy trial which encompasses right to
speedy investigation – Many provisions laying down time limit for investigation
It is not necessary to refer to all the decisions of this Court articulating the
mandate of the Constitution that there is implicit right under Article 21 for speedy trial
which in turn encompasses speedy investigation, inquiry, appeal, revision and retrial.
To determine whether undue delay has occurred, one must have regard to nature of
offence, number of accused and witnesses, workload of the court and the investigating
agency, systemic delays. Inordinate delay may be taken as presumptive proof of
prejudice particularly when accused is in custody so that prosecution does not become
persecution. Court has to balance and weigh several relevant factors. Though it is
neither advisable nor feasible to prescribe any mandatory outer time limit and the
court may only examine effect of delay in every individual case on the anvil of Article
21 of the Constitution, there is certainly a need for in-house mechanism to ensure that
there is no undue delay in completing investigation.
However, there is no express outer limit for investigation in other cases but
delay in investigation may affect reasonableness of procedure specially when a person
is in custody and is unable to furnish bail. Hence the need to lay down timelines for
completing investigation with a view to give effect to the mandate of Article 21 of the
Constitution. This aspect has also been discussed in the Law Commission's Report
including the 14th report (1958) and 154th Report (1996) as noticed by this Court.
[Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67, paras 30 and 31]. Dilawar Vs.
State of Haryana 2018 (6) Supreme 92
Art. 21 – Fair trial – Speedy trial – Prayer for transfer of case from Kathua – Report of
the District & Sessions Judge, Kathua vindicating that there had been some obstruction
by the Bar Association at Kathua – Case retransferred fro Kathua in J&K to Pathankot
in Punjab – Direction given
The duty of the court is to see that not only the interest of the accused as per
law is protected but also the societal and collective interest is safeguarded. It is
distressing to note that despite series of judgments of this Court, the habit of granting
adjournment, really an ailment, continues. How long shall we say, “Awake! Arise!”.
There is a constant discomfort. Therefore, we think it appropriate that the copies of
the judgment be sent to the learned Chief Justices of all the High Courts for circulating
the same among the learned trial Judges with a command to follow the principles
relating to trial in a requisite manner and not to defer the cross-examination of a
witness at their pleasure or at the leisure of the defence counsel, for it eventually
makes the trial an apology for trial and compels the whole society to suffer chicanery.
Let it be remembered that law cannot allowed to be lonely; a destitute.”
In view of the aforesaid, we think it appropriate to issue the following
directions:-
(i) The matter that has been committed to the court of the District &
Sessions Judge, Kathua, shall stand transferred to the file of the District
& Sessions Judge, Pathankot situate in the State of Punjab;
(ii) The District & Sessions Judge, Kathua shall send all the materials relating
to the charge-sheet and other documents in sealed covers through
special messengers with the assistance of the police force to the
transferee court;
(iii) The transferee court shall proceed under the Ranbir Penal Code as that
applies to the State of Jammu & Kashmir;
(iv) The statements of the witnesses that have been recorded in Urdu
language, as accepted by Mr. Gopal Subramanium, shall be translated to
English so that the transferee court does not face any difficulty in
conducting the trial;
(v) The State of Jammu & Kashmir shall provide requisite number of
interpreters as directed by the learned District & Sessions Judge,
Pathankot so that the deposition of the witnesses can be properly
recorded and translated copies thereof can be provided to the accused
persons;
(vi) It shall be the duty of the State of Jammu & Kashmir to transport the
witnesses to Pathankot and provide all other necessary facilities,
including food, etc. so that the witnesses do not face any difficulty;
(vii) The accused persons shall also be similarly treated so that they do not
feel that solely because they are accused persons, they are presumed to
be guilty, for it is the settled principle that they are innocent till they are
found guilty;
(viii) The learned District & Sessions Judge, Pathankot shall himself take up
the trial and not assign it to any Additional Sessions Judge;
(ix) The learned District & Sessions Judge, Pathankot shall fast-track the trial
and take it up on day-to-day basis so that there is no delay in trial;
(x) The examination-in-chief and the cross-examination of witnesses shall
be in a continuous manner and for no reasons whatsoever the same
shall be deferred;
(xi) The State of Jammu & Kashmir is granted liberty to appoint the Public
Prosecutor for prosecution of the case;
(xii) The trial shall be held in camera so that the witnesses feel protected and
the accused persons feel safe;
(xiii) As this Court is monitoring the matter, no court shall entertain any
petition pertaining to this case; and
(xiv) The juvenile, who is facing the trial, shall be dealt with in accordance
with law and he should be given all special care and protection as per
the command of the law.
In view of the aforesaid directions, the order staying the trial before the
Kathua court stands vacated.
The protection that we had granted vide order dated 16th April, 2018, shall
continue and shall not be varied till the trial is over. Mohd. Akhtar V. The State of
Jammu & Kashmir 2018 (5) Supreme 528
Art 21 – Cases of mob lynching – Right to Life and Liberty – Guidelines issued by
Supreme Court
Held - There is no dispute that the act of lynching is unlawful but we are not
concerned with any specific case since it has become a sweeping phenomenon with a
far-reaching impact. It is our constitutional duty to take a call to protect lives and
human rights. There cannot be a right higher than the right to live with dignity and
further to be treated with humanness that the law provides. What the law provides
may be taken away by lawful means; that is the fundamental concept of law. No one is
entitled to shake the said foundation. No citizen can assault the human dignity of
another, for such an action would comatose the majesty of law. In a civilized society, it
is the fear of law that prevents crimes. Commencing from the legal space of
democratic Athens till the legal system of modern societies today, the law makers try
to prevent crimes and make the people aware of the same but some persons who
develop masterly skill to transgress the law jostle in the streets that eventually leads to
an atmosphere which witnesses bloodshed and tears. When the preventive measures
face failure, the crime takes place and then there have to be remedial and punitive
measures. Steps to be taken at every stage for implementation of law are extremely
important. Hence, the guidelines are necessary to be prescribed.
A. Preventive Measures
(i) The State Governments shall designate, a senior police officer,
not below the rank of Superintendent of Police, as Nodal Officer in each
district. Such Nodal Officer shall be assisted by one of the DSP rank officers in
the district for taking measures to prevent incidents of mob violence and
lynching. They shall constitute a special task force so as to procure intelligence
reports about the people who are likely to commit such crimes or who are
involved in spreading hate speeches, provocative statements and fake news.
(ii) The State Governments shall forthwith identify Districts, Sub-
Divisions and/or Villages where instances of lynching and mob violence have
been reported in the recent past, say, in the last five years. The process of
identification should be done within a period of three weeks from the date of
this judgment, as such time period is sufficient to get the task done in today's
fast world of data collection.
(iii) The Secretary, Home Department of the concerned States
shall issue directives/advisories to the Nodal Officers of the concerned districts
for ensuring that the Officer In-charge of the Police Stations of the identified
areas are extra cautious if any instance of mob violence within their
jurisdiction comes to their notice.
(iv) The Nodal Officer, so designated, shall hold regular meetings
(at least once a month) with the local intelligence units in the district along
with all Station House Officers of the district so as to identify the existence of
the tendencies of vigilantism, mob violence or lynching in the district and take
steps to prohibit instances of dissemination of offensive material through
different social media platforms or any other means for inciting such
tendencies. The Nodal Officer shall also make efforts to eradicate hostile
environment against any community or caste which is targeted in such
incidents.
(v) The Director General of Police/the Secretary, Home
Department of the concerned States shall take regular review meetings (at
least once a quarter) with all the Nodal Officers and State Police Intelligence
heads. The Nodal Officers shall bring to the notice of the DGP any inter-district
co-ordination issues for devising a strategy to tackle lynching and mob
violence related issues at the State level.
(vi) It shall be the duty of every police officer to cause a mob to
disperse, by exercising his power under Section 129 of CrPC, which, in his
opinion, has a tendency to cause violence or wreak the havoc of lynching in
the disguise of vigilantism or otherwise.
(vii) The Home Department of the Government of India must take
initiative and work in co-ordination with the State Governments for sensitising
the law enforcement agencies and by involving all the stake holders to identify
the measures for prevention of mob violence and lynching against any caste or
community and to implement the constitutional goal of social justice and the
Rule of Law.
(viii) The Director General of Police shall issue a circular to the
Superintendents of Police with regard to police patrolling in the sensitive areas
keeping in view the incidents of the past and the intelligence obtained by the
office of the Director General. It singularly means that there should be
seriousness in patrolling so that the anti-social elements involved in such
crimes are discouraged and remain within the boundaries of law thus fearing
to even think of taking the law into their own hands.
(ix) The Central and the State Governments should broadcast on
radio and television and other media platforms including the official websites
of the Home Department and Police of the States that lynching and mob
violence of any kind shall invite serious consequence under the law.
(x) It shall be the duty of the Central Government as well as the
State Governments to take steps to curb and stop dissemination of
irresponsible and explosive messages, videos and other material on various
social media platforms which have a tendency to incite mob violence and
lynching of any kind.
(xi) The police shall cause to register FIR under Section 153A of IPC
and/or other relevant provisions of law against persons who disseminate
irresponsible and explosive messages and videos having content which is likely
to incite mob violence and lynching of any kind.
(xii) The Central Government shall also issue appropriate
directions/advisories to the State Governments which would reflect the
gravity and seriousness of the situation and the measures to be taken.
B. Remedial Measures
(i) Despite the preventive measures taken by the State Police, if it
comes to the notice of the local police that an incident of lynching or mob
violence has taken place, the jurisdictional police station shall immediately
cause to lodge an FIR, without any undue delay, under the relevant provisions
of IPC and/or other provisions of law.
(ii) It shall be the duty of the Station House Officer, in whose
police station such FIR is registered, to forthwith intimate the Nodal Officer in
the district who shall, in turn, ensure that there is no further harassment of
the family members of the victim(s).
(iii) Investigation in such offences shall be personally monitored by
the Nodal Officer who shall be duty bound to ensure that the investigation is
carried out effectively and the charge-sheet in such cases is filed within the
statutory period from the date of registration of the FIR or arrest of the
accused, as the case may be.
(iv) The State Governments shall prepare a lynching/mob violence
victim compensation scheme in the light of the provisions of Section 357A of
CrPC within one month from the date of this judgment. In the said scheme for
computation of compensation, the State Governments shall give due regard to
the nature of bodily injury, psychological injury and loss of earnings including
loss of opportunities of employment and education and expenses incurred on
account of legal and medical expenses. The said compensation scheme must
also have a provision for interim relief to be paid to the victim(s) or to the next
of kin of the deceased within a period of thirty days of the incident of mob
violence/lynching.
(v) The cases of lynching and mob violence shall be specifically
tried by designated court/Fast Track Courts earmarked for that purpose in
each district. Such courts shall hold trial of the case on a day to day basis. The
trial shall preferably be concluded within six months from the date of taking
cognizance. We may hasten to add that this direction shall apply to even
pending cases. The District Judge shall assign those cases as far as possible to
one jurisdictional court so as to ensure expeditious disposal thereof. It shall be
the duty of the State Governments and the Nodal Officers in particular to see
that the prosecuting agency strictly carries out its role in appropriate
furtherance of the trial.
(vi) To set a stern example in cases of mob violence and lynching,
upon conviction of the accused person(s), the trial court must ordinarily award
maximum sentence as provided for various offences under the provisions of
the IPC.
(vii) The courts trying the cases of mob violence and lynching may,
on application by a witness or by the public prosecutor in relation to such
witness or on its own motion, take such measures, as it deems fit, for
protection and for concealing the identity and address of the witness.
(viii) The victim(s) or the next of kin of the deceased in cases of
mob violence and lynching shall be given timely notice of any court
proceedings and he/she shall be entitled to be heard at the trial in respect of
applications such as bail, discharge, release and parole filed by the accused
persons. They shall also have the right to file written submissions on
conviction, acquittal or sentencing.
(ix) The victim(s) or the next of kin of the deceased in cases of
mob violence and lynching shall receive free legal aid if he or she so chooses
and engage any advocate of his/her choice from amongst those enrolled in the
legal aid panel under the Legal Services Authorities Act, 1987.
C. Punitive Measures
(i) Wherever it is found that a police officer or an officer of the
district administration has failed to comply with the aforesaid directions in
order to prevent and/or investigate and/or facilitate expeditious trial of any
crime of mob violence and lynching, the same shall be considered as an act of
deliberate negligence and/or misconduct for which appropriate action must
be taken against him/her and not limited to departmental action under the
service rules. The departmental action shall be taken to its logical conclusion
preferably within six months by the authority of the first instance.
(ii) In terms of the ruling of this Court in Arumugam Servai v. State
of Tamil Nadu, AIR 2011 SC 1859, the States are directed to take disciplinary
action against the concerned officials if it is found that (i) such official(s) did
not prevent the incident, despite having prior knowledge of it, or (ii) where the
incident has already occurred, such official(s) did not promptly apprehend and
institute criminal proceedings against the culprits.
The measures that are directed to be taken have to be carried out within four
weeks by the Central and the State Governments. Reports of compliance be filed
within the said period before the Registry of this Court.
The Supreme Court emphatically note that it is axiomatic that it is the duty of
the State to ensure that the machinery of law and order functions efficiently and
effectively in maintaining peace so as to preserve our quintessentially secular ethos
and pluralistic social fabric in a democratic set-up governed by rule of law. In times of
chaos and anarchy, the State has to act positively and responsibly to safeguard and
secure the constitutional promises to its citizens. The horrendous acts of mobocracy
cannot be permitted to inundate the law of the land. Earnest action and concrete
steps have to be taken to protect the citizens from the recurrent pattern of violence
which cannot be allowed to become “the new normal”. The State cannot turn a deaf
ear to the growing rumblings of its People, since its concern, to quote Woodrow
Wilson, “must ring with the voices of the people.” The exigencies of the situation
require us to sound a clarion call for earnest action to strengthen our inclusive and all-
embracing social order which would, in turn, reaffirm the constitutional faith. Tehseen
S. Poonawalla V. Union of India, AIR 2018 SC 3354: 2018 (5) Supreme 36.
Art. 21
A fair trial to an accused, a constitutional guarantee under Article 21 of the
Constitution, would be a hollow promise if the investigation in a NDPS case were not
to be fair or raises serious questions about its fairness apparent on the face of the
investigation. In the nature of the reverse burden of proof, the onus will lie on the
prosecution to demonstrate on the face of it that the investigation was fair, judicious
with no circumstances that may raise doubts about its veracity. The obligation of proof
beyond reasonable doubt will take within its ambit a fair investigation, in absence of
which there can be no fair trial. If the investigation itself is unfair, to require the
accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers
in the police which may well lead to false implication also. Investigation in such a case
would then become an empty formality and a farce. Such an interpretation therefore
naturally has to be avoided. Mohan Lal v. State of Punjab, AIR 2018 SC 3853
Art. 32 – Legal thought moving away from theory of infringement of fundamental
rights of an individual citizen or non citizen to one of infringement of rights of a class
While it is true that Article 32 of the Constitution is to be invoked
for enforcement of the fundamental rights of a citizen or a non citizen, as
may be, and there must be a violation or infringement thereof we have
moved away from the theory of infringement of the fundamental rights of
an individual citizen or non citizen to one of infringement of rights of a
class. In fact, the above transformation is the foundation of what had
developed as an independent and innovative stream of jurisprudence
called “Public Interest Litigation” or class action.
Though evolved much earlier, a Solemn affirmation of the
aforesaid principle is to be found in paragraph 48 of the report in Vineet
Narain (supra) which would be eminently worthy of recapitulation and,
therefore, is extracted below:
“48. In view of the common perception shared by everyone including the
Government of India and the Independent Review Committee (IRC) of the
need for insulation of the CBI from extraneous influence of any kind, it is
imperative that some action is urgently taken to prevent the continuance of
this situation with a view to ensure proper implementation of the rule of law.
This is the need of equality guaranteed in the Constitution. The right to
equality in a situation like this is that of the Indian polity and not merely of a
few individuals. The powers conferred on this Court by the Constitution are
ample to remedy this defect and to ensure enforcement of the concept of
equality.” Lok Prahari Through Its General Secretary V. The State Of Uttar
Pradesh 2018 (5) Supreme 188
Arts. 32 and 226 – Public Interest Litigation (PIL) – PIL a valuable instrument and
jurisdictional tool to promote structural due process – Being brazenly mis-utilized –
Motives varying from desire to seek publicity to settling scores of political or business
rivalry.
Public Interest Litigation has developed as a powerful tool to espouse the
cause of the marginalised and oppressed. Indeed, that was the foundation on which
public interest jurisdiction was judicially recognised in situations such as those in
Bandhua Mukti Morcha v Union of India28. Persons who were unable to seek access to
the judicial process by reason of their poverty, ignorance or illiteracy are faced with a
deprivation of fundamental human rights. Bonded labour and under trials (among
others) belong to that category. The hallmark of a public interest petition is that a
citizen may approach the court to ventilate the grievance of a person or class of
persons who are unable to pursue their rights. Public interest litigation has been
entertained by relaxing the rules of standing.
The essential aspect of the procedure is that the person who moves the court
has no personal interest in the outcome of the proceedings apart from a general
standing as a citizen before the court. This ensures the objectivity of those who pursue
the grievance before the court.
Over time, public interest litigation has become a powerful instrument to
preserve the rule of law and to ensure the accountability of and transparency within
structures of governance. Public interest litigation is in that sense a valuable
instrument and jurisdictional tool to promote structural due process.
Yet over time, it has been realised that this jurisdiction is capable
of being and has been brazenly mis-utilised by persons with a personal
agenda. At one end of that spectrum are those cases where public interest
petitions are motivated by a desire to seek publicity. At the other end of
the spectrum are petitions which have been instituted at the behest of
business or political rivals to settle scores behind the facade of a public
interest litigation. The true face of the litigant behind the façade is seldom
unravelled. These concerns are indeed reflected in the judgment of this
court in State of Uttaranchal v Balwant Singh Chaufal29. Underlining
these concerns, this court held thus:
"143. Unfortunately, of late, it has been noticed that such an important
jurisdiction which has been carefully carved out, created and nurtured with great care
and caution by the courts, is being blatantly abused by filing some petitions with
oblique motives. We think time has come when genuine and bona fide public interest
litigation must be encouraged whereas frivolous public interest litigation should be
discouraged. In our considered opinion, we have to protect and preserve this
important jurisdiction in the larger interest of the people of this country but we must
take effective steps to prevent and cure its abuse on the basis of monetary and non-
monetary directions by the courts." 29 (2010) 3 SCC 402
The misuse of public interest litigation is a serious matter of concern for the
judicial process. Both this court and the High Courts are flooded with litigation and are
burdened by arrears. Frivolous or motivated petitions, ostensibly invoking the public
interest detract from the time and attention which courts must devote to genuine
causes. This court has a long list of pending cases where the personal liberty of citizens
is involved. Those who await trial or the resolution of appeals against orders of
conviction have a legitimate expectation of early justice. It is a travesty of justice for
the resources of the legal system to be consumed by an avalanche of misdirected
petitions purportedly filed in the public interest which, upon due scrutiny, are found to
promote a personal, business or political agenda. This has spawned an industry of
vested interests in litigation. Tehseen Poonawalla V. Union of India AIR 2018 SC 3354:
2018 (5) Supreme 36
Chap. III – Plenary powers of Legislature – Legislation beyond assigned legislative fields
or transgressing fundamental rights are liable to be struck down.
Dealing with the plenary powers of the legislature, the Court ruled that these
powers are controlled by the basic concepts of the written Constitution itself and can
be exercised within the 79 legislative fields allotted to their jurisdiction by the three
Lists under the Seventh Schedule; but beyond the Lists, the Legislatures cannot travel.
They can no doubt exercise their plenary legislative authority and discharge their
legislative functions by virtue of the powers conferred on them by the relevant
provisions of the Constitution; but the basis of the power is the Constitution itself.
Besides, the legislative supremacy of our Legislatures including the Parliament is
normally controlled by the provisions contained in Part III of the Constitution. If the
Legislatures step beyond the legislative fields assigned to them, or while acting within
their respective fields, they trespass on the fundamental rights of the citizens in a
manner not justified by the relevant articles dealing with the said fundamental rights,
their legislative actions are liable to be struck down by the Courts in India. Therefore, it
is necessary to remember that though our Legislatures have plenary powers, yet they
function within the limits prescribed by the material and relevant provisions of the
Constitution. Kalpana Mehta V. Union of India 2018 (5) Supreme 545
Arts. 105, 194 and 19(1) (a) - Parliamentary privilege – Freedom of speech – No
member of Parliament liable to any proceedings in any court in respect of anything
said by him in the committee – Complete constitutional protection.
Sub-article (2) of the aforesaid Article clearly lays the postulate that no
Member of Parliament shall be made liable to any proceedings in any court in respect
of anything he has said in the committee. Freedom of speech that is available to the
members on the floor of the legislature is quite distinct from the freedom which is
available to the citizens under Article 19(1)(a) of the Constitution. Members of the
Parliament enjoy full freedom in respect of what they speak inside the House. Article
105(4) categorically stipulates that the provisions of clauses (1), (2) and (3) shall apply
in relation to persons, who by virtue of this Constitution, have the right to speak in,
and otherwise to take part in the proceedings of, a House of the Parliament or any
committee thereof as they apply in relation to the members of the Parliament. Thus,
there is complete constitutional protection. It is worthy to note that Article 118
provides that each House of the Parliament may make rules for regulating, subject to
the provisions of this Constitution, its procedure and the conduct of its business.
Condignly analysed, the Parliament has been enabled by the Constitution to regulate
its procedure apart from what has been stated directly in the Constitution.
Kalpana Mehta V. Union of India 2018 (5) Supreme 545
Art. 134
The appellate courts cannot upset an order of acquittal in a casual manner
when there are two possibilities of view which can be taken from the evidences on
record. Amar Nath Jha v. Nand Kishore Singh, AIR 2018 SC 3597.
Art. 136 – Concurrent findings of courts below – Supreme Court would be slow in
interfering.
It is a settled principle of law that when the Courts below have recorded
concurrent findings against the accused person which are based on due appreciation
of evidence, this Court under Article 136 of the Constitution of India would be slow to
interfere in such concurrent findings and would not appreciate the evidence de novo
unless it is prima facie shown that both the Courts below did not either consider the
relevant piece of evidence or there exists any perversity or/and absurdity in the
findings recorded by both the Courts below etc. Suresh Singh V. State of Madhya
Pradesh 2018 (5) Supreme 258
Art. 136 – Scope of
It is a settled principle of law that when the Courts below have recorded
concurrent findings against the accused persons which are based on due appreciation
of evidence, this Court under Article 136 11 of the Constitution of India would be slow
to interfere in such concurrent findings and secondly would not appreciate the
evidence de novo unless it is prima facie shown that both the Courts below did not
either consider the relevant piece of evidence or there exists any perversity or/and
absurdity in the findings recorded by both the Courts below etc. Chandra Bhawan
Singh V. The State of Uttar Pradesh 2018 (5 ) Supreme 93
Art. 137 and 145 – Ground for review
Held - Death penalty been abolished by the Parliament of U.K. in the year
1966 and several Latin American countries and Australian States have also abolished
death penalty is no ground to efface the death penalty from the statute book of our
country. So far the death penalty remains in the Penal Code the Courts cannot be held
to commit any illegality in awarding death penalty in appropriate cases.
In view of the above, no ground to review judgment is made out on the
strength of the above submissions. Vinay Sharma v. State of NCT of Delhi, AIR 2018 SC
3231
Art. 226 – Invocation of powers under Article 226
The discretionary power vested with this Court is supposed to be invoked by
taking into consideration a wide variety of circumstances, inter alia, the facts of the
case, the exigency that warrants such exercise of discretion, the consequences of grant
or refusal of the writ, the nature and extent of injury that is likely to ensue by such
grant or refusal, etc. and further that no writ, order or direction is required to be given
if that does not subscribe to justice or serves the cause of justice.
It would not be appropriate to invoke the power under Article 226 of the
Constitution of India as (the sale deed) would restore an illegality. Smt. Kusum Lata v.
State of U.P., AIR 2018 All 210.
Art. 226 – Writ of Habeas Corpus – An adult person has the right of choice – Held, the
girl being adult has a right to choice to live with appellant 1.
It may be significant to note that insofar as Thushara is concerned, she has
expressed her desire to be with appellant No. 1. Accordingly, we allow this appeal and
set aside the impugned judgment of the High Court. However, since Thushara has not
appeared as she was not made party in these proceedings, while setting aside the
directions of the High Court entrusting the custody of Thushara to respondent No. 4,
we make it clear that the freedom of choice would be of Thushara as to with whom
she wants to live. Nandakumar V. The State of Kerala 2018 (6) Supreme 69
Consumer Protection Act:
Sec. (1)(d) – Consumer – Meaning of
A person buying and using a machine exclusively for earning his livelihood by
means of “self-employment” comes within the definition of “consumer”. Even if the
purchaser of the machine trains another person for operating the machine he still
remains a consumer. Ms. Paramount Digital Color Lab V. M/s. Agfa India Pvt. Ltd. 2018
(5) Supreme 754
Contract Act:
Sec.72 – Breach of Contract
Held - The damages become due on the date when the breach of contract
takes place, and are normally assessed by the reference to the time of breach. The
aforesaid rule is based on the principle that the injured party is presumed to be in
knowledge of the breach as soon as it is committed and at that time he can take
appropriate measures of mitigation to control the loss flowing from the breach. The
courts may deviate from the aforesaid rule and fix appropriate date in facts and
circumstance of a case if aforesaid presumptions could not be established or it would
not be reasonable to follow the rule. It may be noted that where there is non-delivery
of the flat/house, and the developer has refused to provide alternative and equivalent
accommodation, and the buyer lacks means to purchase a substitute from the market,
then in such circumstances, damages would not be reasonable to be assessed on the
breach date. M/s Fortune Infrastructure (Now Known as M/s Hicon Intrastructure) V.
Trevor D’Lima, AIR 2018 SC 2975
Criminal Jurisprudence :
Suspicion howsoever strong cannot take place of proof – Standard of proof in a
criminal trial – Proof beyond reasonable count.
Law is well settled with regard to the fact that however strong the suspicion
may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt
cannot take the place of proof. Always a duty is cast upon the Courts to ensure that
suspicion does not take place of the legal proof. Sheila Sebastian V. R. Jawaharaj 2018
(5) Supreme 239
Criminal Procedure Code :
Sec. 154 – FIR and preliminary investigation – Absence of entries in the General Diary
concerning the preliminary enquiry would not be per se illegal – Unless at the time of
the trial some grave prejudice going to the root of matter is shown to exist.
The absence of entries in the General Diary concerning the preliminary enquiry
would not be per se illegal. Our attention is not drawn to any bar under any provision
of CrPC barring investigating authority to investigate into matter, which may for some
justifiable ground, not found to have been entered in the General Diary right after
receiving the Confidential Information.
The obligation of maintenance of General Diary is part of course of conduct of
the concerned officer, which may not itself have any bearing on the criminal trial
unless some grave prejudice going to the root of matter is shown to exist at the time
of the trial, Union of India and Ors. V.T.Nathamuni, (2014) 16 SCC 285. Conspicuous
absence of any provision under CrPC concerning the omissions and errors during
investigation also bolsters the conclusion reached herein, Niranjan Singh and Ors. V.
State of Uttar Pradesh, AIR 1957 SC 142.
Moreover, the requirement of the preliminary enquiry is well established by
judicial precedents as a check on mushrooming false prosecution against public
servants by persons who misuse the process of law for their personal vengeance. Such
preliminary check would be beneficial and has been continuously approved by catena
of judgments of this Court. [refer to P. Sirajuddin Case, (1970) 1 SCC 595, Lalitha
Kumari Case (Supra)]. In light of the discussion, we cannot sustain the reasoning
provided by the High Court on this aspect. State By Lokayuktha Police V. H. Srinivas
2018 (5) Supreme 374
Sec. 154 – FIR – Is not on encyclopedia of the case
Held - It is settled law that the FIR need not contain an exhaustive account of
the incident. FIR is not an encyclopedia of the entire case and is even not a substantive
piece of evidence. It has value, no doubt, but only for the purpose of corroborating or
contradicting the maker. If there be material departure in the prosecution case as
unfolded in the FIR, which would be so if material facts not mentioned in the FIR are
deposed to by prosecution witnesses in the court, the same would cause dent to the
edifice on which the prosecution case is built, as the substratum of the prosecution
case then gets altered. This is entirely different from thinking that some omission in
the FIR would require disbelieving of the witnesses who depose about the fact not
mentioned in the FIR. Prabhu Dayal v. State of Rajasthan, AIR 2018 SC 3199.
Sec. 174 – Inquest – Evidencery value of – Report does not constitute substantive
evidence – Primarily intended to ascertain the nature of the injuries and the apparent
cause of death
The purpose of holding an inquest is limited. The inquest report does not
constitute substantive evidence. Hence matters relating to how the deceased was
assaulted or who assaulted him and under what circumstances are beyond the scope
of the report. The report of inquest is primarily intended to ascertain the nature of the
injuries and the apparent cause of death. On the other hand, it is the doctor who
conducts a post-mortem examination who examines the body from a medico-legal
perspective. Hence it is the post-mortem report that is expected to contain the details
of the injuries through a scientific examination. Tehseen Poonawalla V. Union of India
2018 (5) Supreme 36
Ss. 227, 228, 239 – Framing of charges
Held – The court has to see as to whether the material brought on record,
reasonably connects the accused with the offence.
Order framing charge is not purely an interlocutory order nor a
final order. Jurisdiction of the High Court is not barred irrespective of the
label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227
of the Constitution. However, the said jurisdiction is to be exercised
consistent with the legislative policy to ensure expeditious disposal of a
trial without the same being in any manner hampered. Thus considered,
the challenge to an order of charge should be entertained in a rarest of rare
case only to correct a patent error of jurisdiction and not to re- appreciate
the matter. Even where such challenge is entertained and stay is granted,
the matter must be decided on day-to-day basis so that stay does not
operate for an unduly long period. Though no mandatory time limit may
be fixed, the decision may not 37 exceed two-three months normally. If it
remains pending longer, duration of stay should not exceed six months,
unless extension is granted by a specific speaking order, as already
indicated. Mandate of speedy justice applies to the PC Act cases as well as
other cases where at trial stage proceedings are stayed by the higher court
i.e. the High Court or a court below the High Court, as the case may be. In
all pending matters before the High Courts or other courts relating to PC
Act or all other civil or criminal cases, where stay of proceedings in a
pending trial is operating, stay will automatically lapse after six months
from today unless extended by a speaking order on above parameters.
Same course may also be adopted by civil and criminal
appellate/revisional courts under the jurisdiction of the High Courts. The
trial courts may, on expiry of above period, resume the proceedings
without waiting for any other intimation unless express order extending
stay is produced. Asian Resurfacing Of Road Agency V. Central
Bureau Of Investigation, 2018 (36) LCD
Ss. 340 & 195 – Perjury – Application u/s 340 pending election petition –itself
dismissed – Not expedient to initiate proceedings u/s 340.
Held - Prosecution should be ordered when it is considered expedient in the
interest of justice to punish the delinquent…. and there must be prima facie case of
deliberate falsehood on the matter of substance and the Court should be satisfied that
there is reasonable foundation for the charge. The election petition itself has been
dismissed and considering the entirety of the matter, it would not be expedient to
initiate proceedings under Section 340 Cr.P.C. read with Section 195(1)(b)(i) of Cr.P.C.
Prof. Chintamani Malviya v. High Court of Madhya Pradesh, AIR 2018 SC 2656.
Ss. 438 & 439 – Application u/s 438 pending before High Court – High Court passing
interim order – Accused surrendering before Sessions Court and seeking regular bail
u/s 439 on basis of interim order of High Court – Not permissible.
It is unfortunate that the Sessions Court did not take note of the final order
passed by the High Court. The Court should have enquired as to whether the matter
had been finally disposed of particularly after noticing the interim order. The casual
approach adopted by the learned Sessions judge has apparently led to the accused
being released on regular bail, on the basis of the interim order passed by the High
Court. When the application for anticipatory bail was the subject matter before the
High Court, the accused had no business to go and surrender before the sessions Court
and seek regular bail on the basis of an interim order. The learned counsel for the
accused submits that they had produced the final passed by the High Court dated
21.09.2017 along with the application for regular bail. Satpal Singh V. The State of
Punjab 2018(5) Supreme 705
Ss. 438 & 439 – Accused on anticipatory bail not automatically entitled to regular bail –
Satisfaction of Court for granting protection u/s 438 – Different from that u/s 439
while considering regular bail.
In any case, the protection under Sec. 438 Cr.P.C. is available to the accused
only till the court summons the accused based on the charge sheet (report under Sec.
173(2), Cr.P.C.). On such appearance, the accused has to seek regular bail under Sec.
439 Cr.P.C. and that application has to be considered by the court on its own merits.
Merely because an accused was under the protection of anticipatory bail granted
under Sec.438 Cr.P.C. that does not mean that he is automatically entitled to regular
bail under Sec. 439 Cr.P.C. is different from the one under Sec. 439 Cr.P.C. while
considering regular bail. Satpal Singh V. The State of Punjab 2018(5) Supreme 705
Sec. 439 – High Court granting bail – Four days thereafter second FIR lodged –Held not
supervening circumstance to warrant cancellation of the bail.
The accused had the benefit of an order granting him anticipatory bail. The
grant of anticipatory bail was cancelled principally on the ground that he had not
disclosed the pendency of a prosecution against him in the 2G Spectrum case. The
Court has been informed during the course of the hearing that the said prosecution
has ended in an acquittal. Regular bail was granted by the High Court on 17 November
2017 in the present case.
The second FIR which was lodged on 22 November 2017 is not, in our view, a
supervening circumstance of such a nature as would warrant the cancellation of the
bail which was granted by the High Court. The learned counsel appearing on behalf of
the accused has submitted that the lodging of the second FIR, four days after the order
of bail is merely an attempt to bolster a case based on a supervening event and that it
suffers from vagueness and a complete absence of details.
We are not inclined to make any further observations and leave the matter
there. Above all, the Court must bear in mind that it is a settled principle of law that
bail once granted should not be cancelled unless a cogent case, based on a
supervening event has been made out. We find that to be absent in the present case.
For the above reasons, we hold that the order of the High Court allowing the
application for bail cannot be faulted. Moreover, no supervening circumstance has
been made out to warrant the cancellation of the bail. There is no cogent material to
indicate that the accused has been guilty of conduct which would warrant his being
deprived of his liberty. Ms. X V. The State of Telangana 2018 (5) Supreme 339
Sec. 439 – Rejection of bail and cancellation of bail – Distinction
In a consistent line of precedent this Court has emphasised the distinction
between the rejection of bail in a non-bailable case at the initial stage and the
cancellation of bail after it has been granted. In adverting to the distinction, a Bench of
two learned Judges of this Court in Dolatram v State of Haryana, (1995) 1 SCC 349
observed that:
"Rejection of a bail in a non-bailable case at the initial stage and the
cancellation of bail so granted, have to be considered and dealt with on different basis.
Very cogent and overwhelming circumstances are necessary for an order directing the
cancellation of the bail, already granted. Generally speaking, the grounds for
cancellation of the bail, already granted, broadly (illustrative and not exhaustive) are:
interference or attempt to interfere with the due course of administration of justice or
evasion of attempt to evade the due course of justice or abuse of the concession
granted to the accused in any manner.
The satisfaction of the court, on the basis of material placed on the record of
the possibility of the accused absconding is yet another reason justifying the
cancellation of bail. However, bail once granted should not be cancelled in a
mechanical manner without considering whether any supervening circumstances have
rendered it no longer conducive to a fair trial to allow the accused to retain his
freedom by enjoying the concession of bail during the trial.”
These principles have been reiterated by another two Judge Bench decision in
Central Bureau of Investigation, Hyderabad v Subramani Gopalakrishnan 2011) 5 SCC
296: 2011(3) Supreme 431 and more recently in Dataram Singh v State of Uttar
Pradesh 2018 (2) SCALE 285:
“It is also relevant to note that there is difference between yardsticks for
cancellation of bail and appeal against the order granting bail. Very cogent and
overwhelming circumstances are necessary for an order directing the cancellation of
bail already granted. Generally speaking, the grounds for cancellation of bail are,
interference or attempt to interfere with the due course of administration of justice or
evasion or attempt to evade the due course of justice or abuse of the concessions
granted to the accused in any manner. These are all only few illustrative materials. The
satisfaction of the Court on the basis of the materials placed on record of the
possibility of the accused absconding is another reason justifying the cancellation of
bail. In other words, bail once granted should not be cancelled in a mechanical manner
without considering whether any supervening circumstances have rendered it no
longer conducive to a fair trial to allow the accused to retain his freedom by enjoying
the concession of bail during the trial.” Ms. X V. The State of Telangana 2018 (5)
Supreme 339
Sec. 482- IPC –Section 420, 406, 379, 448, 307, 427 & 506 R/w Sec. 34- Quashing the
order taking cognizance of offence- Justifiability –High Court was mainly influenced by
the factum that the earlier order of taking congnizance was quashed while deciding
the present matter- Whether the High Court was justified in allowing the petition filed
u/s 482, Cr.PC without effectively considering the allegations made in the complaint-
held, No.
Having heard the learned Advocates from both the sides, we
find that the High Court is at fault in allowing the petition filed under
Section 482 of the Code of Criminal procedure without duly appreciating the facts and
circumstances of the case and without effectively considering the allegations made in
the complaint and materials found in the charge sheet. The High Court is mainly
influenced by the factum that the earlier order of taking cognizance was quashed
while deciding the present matter. In court considered opinion, it is an error to
conceive that the present proceedings based on the subsequent complaint are liable
to be quashed merely because the earlier criminal proceedings were quashed. The
High Court rather advanced erroneously on the basis of presumptions and conjectures,
without considering the merits of the matter.
In the matter on hand, the complainant/appellant came to know certain facts
relating to the replacement of parts of the machine after the disposal of the first
complaint, that too after getting a service report form “Key Pharma Limited, Delhi”,
and therefore, there is no bar for the appellant to lodge second complaint.
Looking to the complaint and the charge-sheet, it is clear that the complainant
has made host of allegations. The police after due investigating filed the charge-sheet.
On going through the available material, court find a prima facie case against
respondent no. 2 and 3. Since the case has to be tried, court desist ourselves to
comment any further on the merits of the matter court make it clear that the
observations made by us are only for disposal of this appeal, that these observations
of ours will not influence the trial court while deciding the case, since, court find prima
facie material against respondent nos. 2 and 3, the High Court is not justified in
quashing the proceedings. Accordingly, the impugned judgment of the High Court is
set aside. The order of taking cognizance passed by the Chief Judicial Magistrate,
Siwan, in Siwan (M) P.S. Case No. 288/2012 stands restored.
Om Prakash Singh v. State of Bihar & Ors., 2018 (8) SCALE 720 : AIR 2018 SC 3242.
Criminal Trial:
Appeal against acquittal – Appeal against acquittal – Power of appellate court – Same
as in appeal against conviction
The power of the appellate Court in an appeal against acquittal is the same as
that of an appeal against conviction. But, in an appeal against acquittal, the Court has
to bear in mind that the presumption of innocence is in favour of the accused and it is
strengthened by the order of acquittal. At the same time, appellate Court will not
interfere with the order of acquittal mainly because two views are possible, but only
when the High Court feels that the appreciation of evidence is based on erroneous
considerations and when there is manifest illegality in the conclusion arrived at by the
trial Court. Khurshid Ahmed V. State of Jammu & Kashmir 2018 (5) Supreme 302
Appreciation of evidence – Evidence of sole eye witness should be accepted with
caution and conviction can be based on such evidence in reliable.
In Joseph v. State of Kerala, (2003)1 SCC 465 this Court has observed that
where is a sole witness, his evidence has to be accepted with an amount of caution
and after testing it on the touchstone of other material on record. In State of Haryana
v. Inder Singh (2002) 9 SCC 537 this Court has laid down that the testimony of a sole
witness must be confidence inspiring and beyond suspicion, thus, leaving no doubt in
the mind of the Court. It is well settled that it is the quality of the evidence and not the
quantity of the evidence which is required to be judged by the court. State of
Maharashtra V. Dinesh 2018 (6) Supreme 27
Conviction – Conviction cannot be awarded on assumptions and conjectures
There was no corroboration among their statements, who are the prime
witnesses, as to the role played by the accused herein. The postmortem report and the
evidence of PW7 (Dr. Nilay Jain) does not disclose any injuries suffered by the victim
resulted from the beatings received by fists, cuffs and legs as such injures are not
visible. In such a scenario, it would not be in the interest of justice to convict the
appellants as the standard of proof in a criminal trial is proof beyond reasonable doubt
and the prospection could not prove the guilt of the accused in those standards. The
Courts below, basing on their own assumptions and presumptions, have convicted the
accused. Though every discrepancy and contradiction in the evidence of prosecution
witnesses is not fatal to the case of prosecution, but the contradictions in the case on
hand goes to the root of the matter are material ones and basing on such evidence it is
not advisable to convict the accused. Shanker V. State of Madhya Pradesh 2018 (6)
Supreme 130
Conviction – It is the quality and not quantity of evidence that matters in convicting
accused.
Conviction – Ransom calls made after killing the children – Makes no difference
The fact that ransom calls were made after 9th January, 2013 on which date
the two children murdered, as it now appears, will make no significant change to the
situation. Making of ransom calls after the person abducted is put to death is a
common feature in cases of the kind the Court is confronted with. The aforesaid fact
cannot certainly go to the benefit of the accused respondent. State of Uttar Pradesh V.
Mahipal 2018 (6) Supreme 185
Deceased hitting accused – Prosecution witnesses not trustworthy – Motive not
established – Conviction not sustainable.
Generally, in case prosecution desires to place motive of the accused as a
circumstance, like any other incriminating circumstance, it should also be fully
established. We are alive to the fact that if the genesis of the motive of the occurrence
is not proved, the ocular testimony of the witnesses as to the occurrence could not be
discarded only on the ground of absence of motive, if otherwise the evidence is
worthy of reliance. But in the case on hand, as we have already discussed in the above
paragraphs, the evidence of direct witnesses is not satisfactory and on the other hand,
it is demonstrated that the deceased hit the accused on his head with the wooden 22
log besides the testimony from the eye witnesses that there was scuffle. In such a
factual situation, certainly motive may act as a double-edged sword. Kumar V. State
Represented by Inspector of Police, 2018 (5) Supreme 231
Falsus in uno falsus in omnibus’ – Not accepted in India Trail Court acquitting 12
accused out of 30 – High Court not relying prosecution witnesses because of acquittal
of 12 accused – Acquitting all accused – Not justified – Evidence of witness not reliable
in respect of some accused does not make it unreliable for all accused
The principle of 'Falsus in uno falsus in omnibus ' has not been accepted in our
country. [See Bhagwan Jagannath Marked V. State of Maharashtra, (2016) 10 SCC537
: 2016(4) Crimes (SC) 246/2017(1) Supreme 146 para 19] Even if some accused are
acquitted on the ground that the evidence of a witness is unreliable, the other accused
can still be convicted by relying on the evidence of the same witness. State of Andhra
Pradesh V. Pullagummi Kasi Reddy Krishna Reddy @ Rama Krishna Reddy 2018 (6)
Supreme 216
Injured witness – May be classified as interested witness
Merely because an injured witness, who may legitimately be classified as an
interested witness for obvious reasons, may have stated that the appellant was not of
unsound mind, cannot absolve the primary duty of the prosecution to establish its
case beyond all reasonable doubt explaining why the plea for unsoundness of mind
taken by the accused was untenable. Devidas Loka Rathod V. State of Maharashtra
2018 (6) Supreme 377
Injuries sustained by accused – Prosecution not explaining – Prosecution story of
simple injury or mob justice cannot be accepted.
In the case on hand, admittedly, the accused-appellant was also injured in the
same occurrence and he too was admitted in the hospital. But, prosecution did not
produce his medical record, nor the Doctor was examined on the nature of injuries
sustained by the accused. The trial Court, instead of seeking proper explanation from
the prosecution for the injuries sustained by the accused, appears to have simply
believed what prosecution witnesses deposed in one sentence that the accused had
sustained simple injuries only.
A duty is cast on the prosecution to furnish proper explanation to the Court
how the person who has been accused of assaulting the deceased, received injuries on
his person in the same occurrence. We may note that the injuries alleged to have been
caused are not properly explained. An alternative story is set up wherein the injuries
are attributed to mob justice, such allegations without substantive evidence cannot be
accepted. Kumar V. State Represented by Inspector of Police, 2018 (5) Supreme 231
Last seen theory – Ambit and Scope – A facet of circumstantial evidence – Week
evidence by itself.
In this case, we have considered the respective submissions and the evidence
on record. There is no eye witness to the occurrence but only circumstances coupled
with the fact of the deceased having been last seen with the appellant. Criminal
jurisprudence and the plethora of judicial precedents leave little room for
reconsideration of the basic principles for invocation of the last seen theory as a facet
of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by
itself to found conviction upon the same singularly. But when it is coupled with other
circumstances such as the time when the deceased was last seen with the accused,
and the recovery of the corpse being in very close proximity of time, the accused owes
an explanation under Section 106 of the Evidence Act with regard to the circumstances
under which death may have taken place. If the accused offers no explanation, or
furnishes a wrong explanation, absconds, motive is established, and there is
corroborative evidence available inter alia in the form of recovery or otherwise
forming a chain of circumstances leading to the only inference for guilt of the accused,
incompatible with any possible hypothesis of innocence, conviction can be based on
the same. If there be any doubt or break in the link of chain of circumstances, the
benefit of doubt must go to the accused. Each case will therefore have to be examined
on its own facts for invocation of the doctrine. Satpal V. State of Haryana 2018 (5)
Supreme 98
Last seen theory – Has to be in close proximity of death of deceased – In case of
considerable gap of time between ‘last seen together’ and death of deceased –
Accused entitled to benefit of doubt.
“Last seen together” is certainly a strong piece of circumstantial evidence
against an accused. However, as it has been held in numerous pronouncements of this
Court, the time-lag between the occurrence of the death and when the accused was
last seen in the company of the deceased has to be reasonably close to permit an
inference of guilt to be drawn. When the time-lag is considerably large, as in the
present case, it would be safer for the Court to look for corroboration. In the present
case, no corroboration is forthcoming. In the absence of any other circumstances
which would connect the accused appellants with the crime alleged except as
indicated above and in the absence of any corroboration of the circumstance of ‘last
seen together’ we are of the view that a reasonable doubt can be entertained with
regard to the involvement of the accused appellants in the crime alleged against them.
Ravi V. The state of Karnataka 2018 (6) Supreme 113.
Motive – Persecution may prove, but it is not bound to prove the motive a crime –
When there is a direct and reliable evidence available on record, motive loses its
importance
It is appropriate to observe that in Halsbury's Laws of England, 3rd Edition,
with regard to 'motive', it is stated that "the prosecution may prove, but it is not
bound to prove the motive for a crime". 'Motive' is an emotion which compels the
person to do a particular act. But in all the cases, it will be very difficult for the
prosecution to prove the real motive. Motive is a double edged weapon when there is
a direct and reliable evidence available on record, motive loses its importance. In a
case of circumstantial evidence, motive assumes greater importance than in the case
of direct evidence. In a case of direct and compelling evidence, even assuming that no
motive is attributed, still the prosecution version has to be examined.
In view of the above discussion, we are of the considered view that the direct
oral evidence available on record coupled with the medical evidence, points at the
guilt of the accused and not proving the motive for commission of the offence lost its
significance in the facts of the case. Khurshid Ahmed V. State of Jammu & Kashmir
2018 (5) Supreme 302
Evidence Act :
Evidence Law – Principle of – Some minor contradiction or contradiction or
inconsistency in evidence cannot affect the material evidence and such contradiction
or inconsistency cannot be made basis to discard the whole evidence as unrealiable
Learned counsel for the appellant wanted to go through the entire evidence
and he actually did it but could not point out any material contradiction or
inconsistency in evidence. It is a well settled principle of criminal law that some minor
contradiction or inconsistency in evidence cannot affect the material evidence and
such contradiction or inconsistency cannot be made basis to discard the whole
evidence as unreliable. It is much more so when the two Courts below took note of
the said evidence and discarded it being wholly immaterial. Gorusu Nagaraju v. State
of A.P., 2018 (104) ACC 711
Sec. 3 – Evidence of eye witness
Held - Evidence of a witness is not to be disbelieved simply because he has not
reacted in a particular manner. Motiram Padu Joshi V. State of Maharashtra, AIR 2018
SC 3245.
Sec. 3 Motive
Motive plays significant role in a case based on circumstantial evidence where
the purpose would be to establish this important link in the chain of circumstances in
order to connect the accused with the crime. But, for the case on hand, proving
motive is not an important factor when abundant direct evidence is available on
record. The confessional statement of the appellant itself depicts the motive of the
team of accused in pursuit of which they committed the robbery at the house of
informant and the appellant being part of it. Raju Manjhi v. State of Bihar, AIR 2018 SC
3592.
Sec. 3 – Testimony of interested witness
Held - Merely because the eyewitnesses are family members their evidence
cannot per se be discarded. When there is allegation of interestedness, the same has
to be established. Mere statement that being relatives of the deceased they are likely
to falsely implicate the accused cannot be a ground to discard the evidence which is
otherwise cogent and credible. We shall also deal with the contention regarding
interestedness of the witnesses for furthering the prosecution version.
Relationship is not a factor to affect credibility of a witness. It is more often
than not that a relation would not conceal actual culprit and make allegations against
an innocent person. Foundation has to be laid if plea of false implication is made. In
such cases, the court has to adopt a careful approach and analyze evidence to find out
whether it is cogent and credible.
Judicial approach has to be cautious in dealing with such evidence. It is
unreasonable to contend that evidence given by related witness should be discarded
only on the ground that such witness is related. Motiram Padu Joshi v. State of
Maharashtra, AIR 2018 SC 3245.
Sec. 3 – Testimony of the sole eye witness
Held – It cannot be held that testimony of sole eye witness cannot be relied
upon or conviction of an accused cannot be based upon the statement of the sole
eyewitness to the crime. All that is needed is that the statement of the sole eye-
witness should be reliable, should not leave any doubt in the mind of the Court and
has to be corroborated by other evidence produced by the prosecution in relation to
commission of the crime and involvement of the accused in committing such a crime”.
It is well settled that it is the quality of the evidence and not the quantity of the
evidence which is required to be judged by the court to place credence on the
statement. State of Maharashtra v. Dinesh, AIR 2018 SC 2997.
Ss. 3 and 145 – Reliability of testimony of witness –
Held - It is a common phenomenon that the witnesses are rustic and can
develop a tendency to exaggerate. This, however, does not mean that the entire
testimony of such witnesses is falsehood. Minor contradictions in the testimony of the
witnesses are not fatal to the case of the prosecution.
Inconsistencies and discrepancies alone do not merit the rejection of the
evidence as a whole. Prabhu Dayal v. State of Rajasthan, AIR 2018 SC 3199.
Sec. 9 - Test Identification Parade
The purpose of identification test is only to help the investigating agency as to
whether the investigation into the offence is proceeding in a right direction or not.
Non-identification of the appellant by any prosecution witness would not vitiate the
prosecution case. Raju Manjhi V. State of Bihar, AIR 2018 SC 3592.
Sec. 116 – Burden of Proof – Estoppel
Held - It is a settled principle of law laid down by this Court that in an eviction
suit filed by the landlord against the tenant under the Rent Laws, when the issue of
title over the tenanted premises is raised, the landlord is not expected to prove his
title like what he is required to prove in a title suit. Apollo Zipper India Limited v. W.
Newman and Co. Ltd., AIR 2018 SC 2847.
Family Courts Act:
Ss. 13, 14 and 15 – Constitution of Family Courts – For settlement of family disputes by
pre-litigation proceedings – Failing, adjudicated by special process provided in Ss. 13,
14 and 15, different from what is adopted in ordinary civil proceedings.
The objects and reasons behind the enactment of the Act which is reproduced
herein below would suggest that the reason for constitution of family courts is for
settlement of family disputes, if possible, by pre-litigation proceedings. If the dispute
cannot be settled the same has to be adjudicated by adoption of a process which is
different from what is adopted in ordinary civil proceedings.
Sections 13, 14 and 15 of the Act spell out a special procedure. The
other provisions of the Act i.e. Section 4(4) would indicate that a major
objective behind the enactment of the Act is to have a specialized body to
preserve and save the institution of marriage.
In the present case, there is no family dispute between the plaintiffs
and the defendants. The dispute arose after the demise of Gunaseelan to
whom both the plaintiff No.1 and the defendant No.1 claim to be married.
The other plaintiffs and defendant No.2 are the children claimed to be
born out of the respective marriages.
Taking into account all that has been said above we are of the view
that the High Court was not correct in holding the suit filed by the
plaintiffs – appellants to be not maintainable in law. Accordingly, we set
aside the order of the High Court dated 15th June, 2015 passed in S.A.
No.725 of 2005 and remand the matter to the High Court for a decision on
merits of the Second Appeal filed by the defendants. R. Kasthuri V. M.
Kasthuri 2018 (6) Supreme 204
First Information Report:
Informant receiving severe head injury – Going to doctor’s clinic and then to police
station – Not disclosing entire sequence of events in his information – Cannot discredit
the FIR
In our opinion, there is no doubt that the FIR was lodged in this case on the
basis of the oral complaint made by the deceased at the police station which is a
reliable document and made soon after the incident.
Time and again this Court has illustrated that the first information report is not
an encyclopaedia. It is not necessary that it should contain each and every detail
concerning the offence at the time of lodging of FIR. Here in the present case, the
informant who had received a severe head injury and accompanied by his father
(PW9), went to the clinic of PW3 and later to the police station, would have been
under great tension. Their mental condition in such a situation can be visualized. In
such a state of mind, failure on their part to disclose the entire sequence of events in
the first information report is neither unnatural nor fatal to the case of the
prosecution.
The trial Court has misconstrued the two statements of the deceased, one
given at the police station immediately after the occurrence and the other, at the
hospital while his condition was deteriorating. We are of the view that the subsequent
statement of the deceased at the hospital as recorded by the I.O. is duly corroborated
by the evidence of PW9 and absolutely there is no reason to disbelieve the same and
the contention in this regard is meritless. Khurshid Ahmed V. State of Jammu &
Kashmir 2018 (5) Supreme 302
General Clauses Act :
Sec. 21- Applicability of
The object of Sec. 12A of the Act and Section 21 of the General Clauses Act
held that the order of the CIT passed under Section 12A is quasi-judicial in nature.
Second, there was no express provision in the Act vesting the CIT with power of
cancellation of registration Section 21 of the General Clauses Act has no application to
the order passed by the CIT under Section 12A because the order is quasi-judicial in
nature and it is for all these reasons the CIT had no jurisdiction to cancel the
registration certificate once granted by him under Section 12A till the power was
expressly conferred on the CIT by Section 12AA(3) of the Act. Industrial Infrastructure
Development Corporation (Gwalior) M.P. Ltd. v. Commissioner of Income Tax Gwalior,
AIR 2018 SC 3560.
Hindu Law:
Ancestral Property
Karta of the family, had every right to sell the suit land belonging to family to
discharge the debt liability and spend some money to make improvement in
agriculture land for the maintenance of his family. Once the factum of existence of
legal necessity stood proved, then, in our view, no co-coparcener (son) has a right to
challenge the sale made by the Karta of his family. The plaintiff being a son was one of
the co-coparceners along with his father Pritam Singh. He had no right to challenge
such sale in the light of findings of legal necessity being recorded against him. It was
more so when the plaintiff failed to prove by any evidence that there was no legal
necessity for sale of the suit land or that the evidence adduced by the defendants to
prove the factum of existence of legal necessity was either insufficient or irrelevant or
no evidence at all. Hence High Court was justified in holding that the sale made by
defendant Karta in favour of defendants was for legal necessity and binding on plaintiff
son of Karta. Kehar Singh (D) Thr. L.Rs. V. Nachittar Kaur, AIR 2018 SC 3907
Family Settlement
(1) The family settlement must be a bona fide one so as to resolve family disputes
and rival claims by a fair and equitable division or allotment of properties
between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud,
coercion or undue influence;
(3) The family arrangement maybe even oral in which case no registration is
necessary;
(4) It is well settled that registration would be necessary only if the terms of the
family arrangement are reduced into writing. Here also, a distinction should
be made between a document containing the terms and recitals of a family
arrangement made under the document and a mere memorandum prepared
after the family arrangement had already been made either for the purpose of
the record or for information of the court for making necessary mutation. In
such a case the memorandum itself does not create or extinguish any rights in
immovable properties and therefore does not fall within the mischief of
Section 17(2) of the Registration Act and is, therefore, not compulsorily
registrable;
(5) The members who may be parties to the family arrangement must have some
antecedent title, claim or interest even a possible claim in the property which
is acknowledged by the parties to the settlement. Even if one of the parties to
the settlement has no title but under the arrangement the other party
relinquishes all its claims or titles in favour of such a person and acknowledges
him to be the sole owner, then the antecedent title must be assumed and the
family arrangement will be upheld and the courts will find no difficulty in
giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal
claims are settled by a bona fide family arrangement which is fair and
equitable the family arrangement is final and binding on the parties to the
settlement. Sita Ram Bhama v. Ramvatar Bhama, AIR 2018 SC 3057.
Hindu Marriage Act:
Ss. 5&12 – Marriage between two major Hindus, a girl of marriageable age and a boy
attaining marriageable age shortly – Not void but voidable.
Insofar as marriage of appellant No. 1 (who was less than 21 years of age on
the date of marriage and was not of marriageable age) with Thushara is concerned, it
cannot be said that merely because appellant No. 1 was less than 21 years of age,
marriage between the parties is null and void. Appellant No. 1 as well as Thushara are
Hindus. Such a marriage is not a void marriage under the Hindu Marriage Act, 1955,
and as per the provisions of section 12, which can be attracted in such a case, at the
most, the marriage would be a voidable marriage.
We need not go into this aspect in detail. For our purposes, it is sufficient to
note that both appellant No. 1 and Thushara are major. Even if they were not
competent to enter into wedlock (which position itself is disputed), they have right to
live together even outside wedlock. It would not be out of place to mention that 'live-
in relationship' is now recognized by the Legislature itself which has found its place
under the provisions of the Protection of Women from Domestic Violence Act, 2005. In
a recent judgment rendered by this Court in the case of 'Shafin Jahan v. Asokan K.M. &
Ors.' [2018 SCC Online SC 343], after stating the law pertaining to writ of Habeas
Corpus, this writ has been considered as "a great constitutional privilege" or "the first
security of civil liberty". The Court made the following pertinent observations: -
"28. Thus, the pivotal purpose of the said writ is to see that no one is deprived
of his/her liberty without sanction of law. It is the primary duty of the State to
see that the said right is not sullied in any manner whatsoever and its sanctity
is not affected by any kind of subgterfuge. The role of the Court is to see that
the detenue is produced before it, find out about his/her indpendent choice
and see to it that the person is released form illegal restraint. The issue will be
a different one when the detention is not illegal. What is seminal is to
remember that the song of liberty is sung with sincerity and the choice of an
individual is appositely respected and conferred its esteemed status as the
Constitution guarantees.”
Nandakumar V. The state of Kerala 2018 (6) Supreme 69
Sec. 15 – Purpose of Sec. 15 of the Act
Section 15 of the Act provides that it shall be lawful for either party to marry
again after dissolution of a marriage if there is no right of appeal against the decree. A
second marriage by either party shall be lawful only after dismissal of an appeal
against the decree of divorce, if filed. If there is no right of appeal, the decree of
divorce remains final and that either party to the marriage is free to marry again. In
case an appeal is presented, any marriage before dismissal of the appeal shall not be
lawful. The object of the provision is to provide protection to the person who has filed
an appeal against the decree of dissolution of marriage and to ensure that the said
appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications
that would arise due to a second marriage during the pendency of the appeal, in case
the decree of dissolution of marriage is reversed. The protection that is afforded by
Section 15 is primarily to a person who is contesting the decree of divorce. Mr. Anurag
Mittal vs Mrs. Shaily Mishra Mittal 2018 (36) LCD 2214
Hindu Succession Act:
Sec. 14(1) & (2) – When husband’s limited right of life time interest flows from a
compromise, his wife cannot have better right than him. Sec. 14(2) would apply and
the wife’s right cannot enlarge into full ownership.
The suit was filed primarily on the ground that neither Sheo Lal nor his widow
had any pre-existing right in the suit land since their rights flow from the compromise
decree. After the death of Smt. Chimmli, the plaintiffs were entitled to the possession
of the land. It is clear that Sheo Lal was granted limited right not in recognition of his
pre-existing right. Section 14(1) of the Act does not recognize the pre-existing right of
a male Hindu. The suit property never became the self acquired property of Sheo Lal.
Even his widow Chimmli did not hold the land in lieu of maintenance which can be
enlarged into full ownership by virtue of Section 14(1) of the Act. The estate was
conferred on Chimmli by virtue of the decree which created a new right. There were
no pre-existing rights of either Sheo Lal or his widow Chimmli. The property in her
hands came as a result of she being a successor of Sheo Lal. Smt. Chimmli would not
have acquired a better right than Sheo Lal in the suit property. The rights of Sheo Lal as
well as Smt. Chimmli flow from the consent decree.
In the instant case, there is nothing on record to show that the property in the
hands of Chimmli came in lieu of maintenance or on account of arrears of
maintenance. The property in her hands came as a result of she being a successor of
Sheo Lal. Sheo Lal did not possess any property. He had only life interest in the
property which did not enlarge into a full right because Section 14(1) does not
recognize the pre-existing right of a Hindu male. Smt. Chimmli could not have acquired
a better right than her husband had in the property in dispute. Right of Sheo Lal, as
also Smt. Chimmli, flows from the decree. Therefore, her right would not mature into
full-fledged ownership by virtue of Section 14(1). She has acquired the right by virtue
of the compromise decree for the first time. Therefore, Section 14(2) would apply to
the instant case. Basanti Devi (D) by LRs. V. Rati Ram 2018(6) Supreme 88
Sec. 29-A (iv) – Scope after 1989 amendment
It is undisputed fact that Late T.G. Basuvan, father of the
appellants, had only ancestral properties and he did not left behind any
self acquired properties. On a plain reading of the newly added provision
i.e., Section 29-A of the Act, it is evident that, inter-alia, daughter of a
coparcener ought not to have been married at the time of commencement
of the amendment of 1989. In other words, only un-married daughter of a
coparcener is entitled to claim partition in the Hindu Joint Family
Property. In the instant case, it is admitted position that both the
appellants, namely, Mangammal, got married in the year 1981 and Indira,
got married in or about 1984 i.e., prior to the commencement of the 1989
amendment. Therefore, in view of clause (iv) of the Section 29-A of the
Hindu Succession (Tamil Nadu Amendment) Act, 1989, appellants could
not institute the suit for partition and separate possession at first instance
as they were not the coparceners.
Moreover, under Section 29-A of the Act, legislature has used the
word “the daughter of a coparcener”. Here, the implication of such
wordings mean both the coparcener as well as daughter should be alive to
reap the benefits of this provision at the time of commencement of the
Amendment of 1989. The similar issue came up for the consideration
before this Court in Prakash & Ors. vs. Phulavati & Ors., (2016) 2 SCC
36, this Court while dealing with the identical matter held at Para 23 as
under:-
23.Accordingly, we hold that the rights under the amendment are applicable
to living daughters of living coparceners as on 9th September, 2005 irrespective of
when such daughters are born……” (emphasis supplied by us) It is pertinent to note
here that recently, this Court in Danamma @ Suman Surpur & Anr. Vs. Amar & Ors,
2018 (1) Scale 657 dealt, inter-alia, with the dispute of daughter’s right in the ancestral
property. In the above case, father of the daughter died in 2001, yet court permitted
the daughter to claim the right in ancestral property in view of the amendment in
2005. On a perusal of the judgment and after having regard to the peculiar facts of the
Danamma (supra), it is evident that the Division Bench of this Court primarily did not
deal with the issue of death of the father rather it was mainly related to the question
of law whether daughter who born prior to 2005 amendment would be entitled to
claim a share in ancestral property or not? In such circumstances, in our view, Prakash
& Ors. (supra), would still hold precedent on the issue of death of coparcener for the
purpose of right of daughter in ancestral property. Shortly put, only living daughters of
living coparceners would be entitled to claim a share in the ancestral property.
Mangamal @ Thulasi V. T.B.Raju 2018 (4) Supreme 738
Income Tax Act:
Sec. 158 – BD – Notice issued by Assessing Officer u/s 158 – BC not in conformity with
requirement of Sec. 158 – BD
Held - It can be seen that notice under Section 158BD can be issued to a
person with respect to whom search was not conducted but undisclosed income was
found as belonging to such person from the material seized from the residence or
business premises of the person with respect to whom search was made under Section
132. Section 158BD speaks of the condition that “where the Assessing Officer is
satisfied that any undisclosed income belongs to any person other than the searched
person”, which means that the Assessing Officer must have to be satisfied that any
undisclosed income belongs to any person other than the searched person. In the
present case, it is not in dispute that the Assessing Officer, who is assessing the Firm as
well as the Appellant, is the same person. In other words, the same Assessing Officer
having jurisdiction over the searched person can proceed against the present
Appellant. Therefore, the present Assessing Officer had jurisdiction to proceed against
the present Appellant to make a block assessment under Chapter XIV-B of the IT Act,
in case the Assessing Officer is prima facie satisfied that any undisclosed income
belongs to the present Appellant.
A perusal of Section 158BD of the IT Act makes it clear that the Assessing Officer needs
to satisfy himself that the undisclosed income belongs to any person other than the
person with respect to whom the search was made under Section 132 or whose books
of accounts or other documents or assets were requisitioned under Section 132A. The
very object of the Section 158BD is to give jurisdiction to the Assessing Officer to
proceed against any person other than the person against whom a search warrant is
issued. Although Section 158BD does not speak of ‘recording of reasons’ as postulated
in Section 148, but since proceedings under Section 158BD may have monetary
implications, such satisfaction must reveal mental and dispassionate thought process
of the Assessing Officer in arriving at a conclusion and must contain reasons which
should be the basis of initiating the proceedings under Section 158BD. Tapan Kumar
Dutta v. Commissioner of Income Tax, West Bengal, AIR 2018 SC 2875.
Indian Penal Code:
Sec. 34 – Common intention – Invocation of
In absence of common intention Sec. 34 IPC cannot be ivoked and none of the
accused can be convicted.
The strained relations in the family and giving of evasive replies, by itself,
cannot be considered to be a safe and sound basis to arrive at the required inference
so as to attract the principle laid down in Sec. 34 IPC. The inference of common
intention must be based on more tangible material so as to hold all the accused-
appellants to be jointly and vicariously liable for the crime committed. It is possible
that one of the accused had committed the crime but in the absence of evidence to
draw an inference of common intention, none of the accused can be held liable.
In the present case, the evidence adduced by the prosecution, in our
considered view, cannot be a safe basis for us to invoke the principle laid down under
sec. 34 IPC. The prosecution has also not brought any material whatsoever to show the
involvement of any one of the three accused in the crime. In such circumstances,
without the aid of Sec. 34 IPC none of the accused can be held liable for the offence
under sec. 302 IPC.
On the basis of the above reasoning, we deem it appropriate to allow these
appeals, set aside the order of the High court and acquit all the three accused on the
benefit of the reasonable doubt that we entertain in the present case. Tapan Sarkar V.
State of West Bengal 2018 (6) Supreme 33
Sec. 53 - Sentence
The Courts will have to take into account certain principles while exercising
their discretion in sentencing, such as proportionality, deterrence and rehabilitation. In
a proportionality analysis, it is necessary to assess the seriousness of an offence in
order to determine the commensurate punishment for the offender. The seriousness
of an offence depends, apart from other things, also upon its harmfulness. The
principle governing the imposition of punishment will depend upon the facts and
circumstances of each case. However, the sentence should be appropriate, adequate,
just, proportionate and commensurate with the nature and gravity of the crime and
the manner in which the crime is committed. The gravity of the crime, motive for the
crime, nature of the crime and all other attending circumstances have to be borne in
mind while imposing the sentence. The Court cannot afford to be casual while
imposing the sentence, inasmuch as both the crime and the criminal are equally
important in the sentencing process. The Courts must see that the public does not lose
confidence in the judicial system. Imposing inadequate sentences will do more harm
to the justice system and may lead to a state where the victim loses confidence in the
judicial system and resorts to private vengeance. State of Rajasthan v. Mohan Lal, AIR
2018 SC 3564.
Sec. 84 r/w Sec. 105 , Indian Evidence Act, 1872 – Unsoundness of mind – Legal and
medical insanity
In case of unsoundness of mind, defence on preponderance of probability is
enough. Burden of proof then shifts on prosecution to explain why the plea of
unsoundness of mind taken by the accused was untenable.
Section 84 of the IPC carves out an exception, that an act will not be an
offence, if done by a person, who at the time of doing the same, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or what he is
doing is either wrong or contrary to law. But this onus on the accused, under Section
105 of the Evidence Act is not as stringent as on the prosecution to be established
beyond all reasonable doubts. The accused has only to establish his defence on a
preponderance of probability, as observed in Surendra Mishra vs. State of Jharkhand,
(2011) 11 SCC 8 495, after which the onus shall shift on the prosecution to establish
the inapplicability of the exception.
The crucial point of time for considering the defence plea of unsoundness of
mind has to be with regard to the mental state of the accused at the time the offence
was committed collated from evidence of conduct which preceded, attended and
followed the crime as observed in Ratan Lal vs. State of Madhya Pradesh, (1970) 3 SCC
53. Devidas Loka Rathod V. State of Maharashtra 2018 (6) Supreme 377: AIR 2018 SC
3093
Ss. 228A, 376 & 342- Rape- Identity of the victim –Every attempt should be made by all
the courts not too disclose the identity of the victim in terms of Section 228A ,IPC
Court, however, notice from the judgments of both, the trial court
and the High Court that the victim in the present case who was examined
as PW2 has been named all through. Such a course is not consistent with
Section 228- Signature Not Verified ANITA MALHOTRA Date:
2018.07.10 A of IPC though the explanation makes an exception in favour
Digitally signed by 18:06:15 IST Reason: of the judgments of the
superior court. Nonetheless, every attempt should be made by all the
courts not to disclose the identity of the victim in terms of said Section
228-A IPC. It has been so laid down by this Court in State of Punjab v.
Ramdev Singh reported in (2004)1 SCC 421.
While dismissing the present matter, we direct the Registry of the
High Court to place the record of the appeal in the High Court before the
learned Judge for causing appropriate changes in the record including
passing appropriate practice directions so that the trial courts in the State
comply with the mandate and spirit of Section 228- A IPC. Lalit Yadav
v. The State of Chhattisgarh, 2018 (9) SCALE 44
Ss. 300 Ex 4, 302 and 304 Part II –Intention or Knowledge-
The occurrence took place in the heat of the moment and the assault was
made without premeditation at the spur of time. The fact that the accused rushed to
his house across the road and returned with a sword, is not sufficient to infer an
intention to kill, both because of the genesis of the occurrence and the single assault
by the accused. Coupled with the duration of the entire episode for 1½ to 2 minutes.
Had there been any intention to do away with the life of the deceased, nothing
prevented the Appellant from making a second assault to ensure his death, rather
than to have run away. The intention appears more to have been to teach a lesson by
the venting of ire by an irked neighbour, due to loud playing of the tape recorder. But
in the nature of weapon used, the assault made in the rib cage area, knowledge that
death was likely to ensue will have to be attributed to the accused. Deepak v. State of
Uttar Pradesh (Now Uttrakhand), AIR 2018 SC 3568.
Sec. 302 – Attractibility of
Knowledge that the injury inflicted sufficient to cause death in normal course
attracts section 302 IPC.
The challenge by the State of Himachal Pradesh is to a judgment of the High
Court by which the conviction of the respondent – accused has been altered from Sec.
302 IPC to one under Sec. 304 Part II IPC. Accordingly, the sentence has been modified
to the period undergone which is about six years.
We are unable to agree with the view taken by the High Court. Injuries on the
skull with a danda resulting in a fracture with brain matter oozing out of the wound
has been found by PW-12 in the course of the postmortem. This would show that the
ingredients necessary to attract the offence under Sec. 302 IPC are present in the
instant case. A person assaulting another with a wooden danda on the head with such
force that the same has resulted in a fracture enabling brain matter to come out must
be understood to have knowledge, if not the intention, that injuries caused by him are
sufficient in the normal cause to cause death. If that be so, we will have no occasion to
agree with the view taken by the High Court that the offence committed is one under
Sec. 304 Part II IPC. We, therefore, interfere with the order of the High Court and
restore the conviction and sentence recorded by the learned trial court. The accused
respondent who is currently on bail will surrender before the learned trial court to
serve out the sentence, as awarded, forthwith, failing which he will be taken into
custody. The State of Himachal Pradesh V. Hans Raj 2018 (6) Supreme 184
Sec. 302 – Circumstantial Evidence – Last seen together - certainly a strong piece of
circumstantial evidence against on accused.
Held- The time-lag between the occurrence of the death and when the
accused was last seen in the company of the deceased has to be reasonably close to
permit an inference of guilt to be drawn. When the time-lag is considerably large, as in
the present case, it would be safer for the Court to look for corroboration. In the
present case, no corroboration is forthcoming. In the absence of any other
circumstances which could connect the accused appellants with the crime alleged
except as indicated above and in the absence of any corroboration of the circumstance
of las seen together. The Supreme Court viewed that a reasonable doubt can be
entertained with regard to the involvement of the accused appellants in the crime
alleged against them.
The circumstance of last seen together does not by itself and necessarily lead
to the inference that it was the accused who committed the crime. There must be
something more establishing connectivity between the accused and the crime. There
may be cases where on account of close proximity of place and time between the
event of the accused having been last seen with the deceased and the factum of
death, a rational mind may be persuaded to reach an irresistible conclusion that either
the accused should explain how and in what circumstances the victim suffered the
death or should own the liability for the homicide. In the present case there is no such
proximity of time and place. Ravi v. State of Karnataka, AIR 2018 SC 2744.
Sec. 302 – Ground of conviction
Prosecution has discharged its part of the burden by leading evidence of which it was
capable by substantiating the fact
(i) that there has been demand of dowry
(ii) deceased has been taken to her in laws house
(iii) at the time of death, deceased has been staying with her in laws and
appellants are the inmates of the house
(iv) death in question has taken place inside the house
(v) injuries caused clearly reflects that it is case of murder
(vi) story of suicide set up by appellant No.3 was not at all supported by
medical evidence (vii) DBBL gun has been used in the commission of
offence and once chain of events are clearly linked up then in view of
Section 106 of Evidence Act, as young bride in question has been killed
inside the house, then there is corresponding burden on the inmates of
the house to give cogent explanation as to how the crime was committed.
The inmates of the house cannot get away by simply keeping quiet and
offering no explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and there is no duty at
all on an accused to offer any explanation. The principle is that when an
incriminating circumstance is put to the accused and said accused does
not offer any explanation which on the face of it is found false or untrue,
then the same becomes additional link in the chain of circumstances to
make it complete."
Chandra Bhawan Singh V. The State of Uttar Pradesh 2018(5) Supreme 93
Ss. 302 & 304, Part 1
When incident occurs all of a sudden and the accused does not take undue
advantage of the deceased his conviction u/s 304 Part I would be justified.
It is clear from the evidence on record that the accused came to the house
after attending the ‘Milad’ at midnight. The deceased opened the door and,
thereafter, the deceased and the accused went to sleep. Suddenly, quarrel took place
between them. It is clear from the evidence of PW-1 that the death occurred ude to
injury Nos. 11 and 12. The other injuries were simple in nature. The evidence of PW-1
shows that the death occurred on account of Asphyxia. The evidence of PW-5 and PW-
6 coupoled with evidence of POW-1 makes it clear that the incident had occurred all of
a sudden, without any premeditation. It is evident that the accused had not taken
undue advantage or acted in a cruel or unusual manner. Therefore, the High Court has
rightly convicted the accused under Sec. 304 Part I of IPC. We do not find any infirmity
in the judgment of the High Court. State of Madhy Pradesh V. Adbul Latif 2018 (6)
Supreme 206
Sec. 304 – Incident taking place due to sudden altercation – appellant inflicting a single
blow with a wooden object not with much force – Case falling u/s 304 Part II and not
Sec. 302.
The appellant herein has been convicted by the Trial Court for an offence
under sec. 302 of the IPC, 1860 and sentenced to undergo life imprisonment and pay a
fine of Rs. 500/-, in default, to undergo simple imprisonment for three months. The
conviction and sentence has been upheld by the High Court.
This Court in the case of Dhirendra Kumar Vs. State of Uttrakhand [2015(3)
SCALE 30]Has laid down the parameters which are to be taken into consideration while
deciding the question as to whether a case falls under Sec. 302 IPC or 304 IPC, which
are the following:
a. The circumstances in which the incident takes place;
b. The nature of weapon used;
c. Whether weapon was carried or was taken from the spot;
d. Whether the assault was aimed on vital part of the body;
e. The amount of force used;
f. Whether the deceased participated in the sudden fight;
g. Whether there was any previous enmity;
h. Whether there was any sudden provocation;
i. Whether the attack was in the heat of passion;
j. Whether the person inflicting the injury took any undue advantage or
acted in a cruel or unusual manner.
Keeping in view the aforesaid factors it becomes evident that the case of the
appellant would fall under Sec. 403 IPC as the incident took place due to a sudden
altercation which was a result of delay in preparing lunch by the deceased. The
appellant picked up a wooden object and his the deceased. The medical evidence
shows that not much force was used in inflicting blow to the deceased. The
prosecution has not set up any case suggesting that relationship between the husband
and wife was not cordial, otherwise. Manifestly, the incident took place due to sudden
provocation and in a heat of passion the appellant had struck a blow on his wife,
without taking any undue advantage. We are, therefore, of the opinion that it was an
offence which would be covered by Section 304 Part – II IPC and not 302 IPC.
Lavghanbhai Devijibhai Vasava V. The State of Gujarat, 2018 (6) Supreme 52
Sec. 304, Part II - Culpable homicide not amounting to murder
Held -In the case the death is not instantaneous, but the deceased died after
sometime, due to hemorrhage. When several persons of the accused group wielding
weapons attacked the deceased, it is surprising to see only two injuries, that too, two
simple injuries alone are inflicted; of course, one such simple injury turns out to be
fatal sometime later. This circumstance demonstrates that the appellant had no
intention to cause death, though he has knowledge that the weapon used by him to
inflict injury on the scalp of the deceased may cause death. But in the absence of
intention to cause death or to cause such bodily injury as is likely to cause death, the
offence does not fall within the scope of Section 300, IPC but it will fall within Section
304, Part II of the IPC. Manoj Kumar V. State of Himachal Pradesh, AIR 2018 SC 2693
Sec. 306 – Abatement of suicide – Consideration of
FIR was registered against the appellant and one Vidya Ghorpade under Ss.
306, 506 read with Sec. 34 IPC.
The appellant as well as said Vidya Ghorpade filed Criminal Application seeking
quashing of the aforesaid FIR.
The High Court accepted the plea made by Vidya Ghorpade and quashed the
proceedings against her. However, Criminal Application preferred by the appellant was
dismissed by the High Court. Hence appeal filed.
We have gone through the material on record. There is no suicide note left
behind by the deceased and the only material on record is in the form of assertions
made by his wife in her reporting to the police. It is true that if a situation is created
deliberately so as to drive a person to commit suicide, there would be room for
attracting Section 306 IPC. However, the facts on record in the present case are
completely inadequate and insufficient.
As a superior officer, if some work was assigned by the applicant to the
deceased, merely on that count it cannot be said that there was any guilty mind or
criminal intent. The exigencies of work and the situation may call for certain action on
part of a superior including stopping of salary of a junior officer for a month. That
action simplicitor cannot be considered to be a pointer against such superior officer.
The allegations in the FIR are completely inadequate and do not satisfy the
requirements under Section 306 IPC. There is absolutely no room for invoking
provisions of Section 306 IPC. We are of the firm view that the interest of justice
demands that the proceedings initiated against the appellant are required to be
quashed. Vaijnath Kondiba Khandke V. State of Maharashtra 2018 (5) Supreme 345
Sec. 306 – When can attracted
Held -It is true that if a situation is created deliberately so as to drive a person
to commit suicide, there would be room for attracting Section 306 IPC. Vaijnath
Kondiba Khandke V. State of Maharashtra, AIR 2018 SC 2659
Sec. 324 – Injured witness attributing his injuries to deceased – accused cannot be
convicted u/s 324
In light of the deficiencies noted above, it can be easily said that even the
charge under Section 324 of IPC is not established. The aforesaid conclusion is clearly
buttressed by the fact that the injured witness himself has attributed the injury on him
to the deceased, instead of the accused. In such a situation conviction of the accused
on the charge of Section 324 cannot be sustained under law. Kumar V. State
Represented by Inspector of Police, 2018 (5) Supreme 231
Sec. 464 – Offence of forgery – Cannot lie against a person who has not created or
signed the document.
A close scrutiny of the aforesaid provisions makes it clear that,
Section 463 defines the offence of forgery, while Section 464
substantiates the same by providing an answer as to when a false
document could be said to have been made for the purpose of committing
an offence of forgery under Section 463, IPC. Therefore, we can safely
deduce that Section 464 defines one of the ingredients of forgery i.e.,
making of a false document. Further, Section 465 provides punishment for
the commission of the offence of forgery. In order to sustain a conviction
under Section 465, first it has to be proved that forgery was committed
under Section 463, implying that ingredients under Section 464 should
also be satisfied. Therefore unless and untill ingredients under Section 463
are satisfied a person cannot be convicted under Section 465 by solely
relying on the ingredients of Section 464, as the offence of forgery would
remain incomplete.
The key to unfold the present dispute lies in understanding Explanation 2 as
given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB
310, a case dealing with the possession and making of fictitious stamp wherein he
stated that "to make", in itself involves conscious act on the part of the maker.
Therefore, an offence of forgery cannot lie against a person who has not created it or
signed it. Sheila Sebastian V. R. Jawaharaj 2018 (5) Supreme 239
Sec. 366 – Other ingredients of Sec. 366, namely intention of marrying or forcing to
illicit inter course held afterthought – Invocation of – High Court rightly discharged
respondent 2.
Mere abduction is not enough for invoking section 366 IPC.
This Court has time and again held that mere abduction does not bring an
accused under the ambit of Section 366 IPC. It must be proved that the accused
abducted the woman with the intent that she may be compelled, or knowing it to be
likely that she will be compelled to marry any person or in 11 order that she may be
forced or seduced to illicit intercourse or knowing it to be likely that she will be forced
or seduced to illicit intercourse. It is evident on record that Respondent No. 2 and the
appellant herein were in a relationship which was known to their families also. The
primary allegations are that Respondent No. 2 took her forcibly to his house. But it was
not with intent to seduce her to illicit intercourse. Actually, as per the prosecutrix,
Respondent No. 2 first expressed his love for her and afterwards he started beating
her with waist belt and using his hands which fact is evident on record. The statement
of being molested at the hands of Respondent No. 2 was not given at once and was
given later. The very same acts of Respondent No. 2 do not show his intent to abduct
her in order to marry her against her will or to force her or seduce her to illicit
intercourse
Even if it is proved that Respondent No. 2 forcibly took her to his house, but
the later version that his intention was to marry her or to force or seduce her to illicit
intercourse is clearly an afterthought. At the highest, the case can be put that both of
them were in a relationship and due to sudden outbreak of emotions or due to sense
of insecurity on the part of Respondent No. 2, the above act was done. Further, the
decisions relied upon by learned senior counsel for the parties have no application to
the facts of the present case.
In view of the foregoing discussion, we are of the opinion that the charge
under Section 366 of the IPC is not maintainable and the High Court was right in
upholding so. We are in agreement with the order passed by the High Court. However,
since the matter is pending since 2003 and is still at the stage of charge framing, we
deem it appropriate to direct the trial Court to conclude the trial within 6 (months)
from the date of passing of this judgment. Kavita Chandrakant Lakhani V. State of
Maharashtra 2018 (5) Supreme 1
Indian Succession Act:
Succession of property of Indian Christian by a foreign national by inheritance – No
prohibition
Dr. S.L. Singh died on 20.3.1976 without leaving any issue. It is not disputed
that Ida Utarid is the real sister of Dr. S.L. Singh. According to the admitted pedigree,
M. Utarid had two sons, namely, Dr. M.B. Utarid and Nazir Utarid. Nazir Utarid had
two daughters, namely, Dr. S.L. Singh (wife of the original plaintiff) and Ida Utarid. J.M.
Utarid (defendant No.1) is the son of E. Udarid and grandson of Dr. M.B. Utarid. Dr.
S.L. Singh is admittedly an Indian Christian. Therefore, the Indian Succession Act, 1925
(for short 'the Act') would be applicable to the succession of the property left by her.
This Act does not bar the succession of property of any Indian Christian by a person
who is not an Indian national. There is no prohibition for succession of the property in
India by a foreign national by inheritance. B.C. Singh (D) by LRS. Vs. J.M. Utarid (D) by
LRS. 2018 (6) Supreme 101
Industrial Disputes Act:
Ss. 11 and 17A – Merely because award has become enforceable, does not necessarily
mean that it has become binding
Held -Merely because an award has become enforceable, does not necessarily
mean that it has become binding. For an award to become binding, it should be passed
in compliance with the principles of natural justice. An award passed denying an
opportunity of hearing when there was a sufficient cause for non-appearance can be
challenged on the ground of it being nullity. An award which is a nullity cannot be and
shall not be a binding award. In case a party is able to show sufficient cause within a
reasonable time for its non-appearance in the Labour Court/Tribunal when it was set
ex parte, the Labour Court/Tribunal is bound to consider such an application and the
application cannot be rejected on the ground that it was filed after the award had
become enforceable. The Labour Court/Tribunal is not functus officio after the award
has become enforceable as far as setting aside an ex parte award is concerned. It is
within its powers to entertain an application as per the scheme of the Act and in terms
of the rules of natural justice. It needs to be restated that the Industrial Disputes Act,
1947 is a welfare legislation intended to maintain industrial peace. In that view of the
matter, certain powers to do justice have to be conceded to the Labour
Court/Tribunal, whether we call it ancillary, incidental or inherent. M/s Haryana Suraj
Malting Ltd. V. Phool Chand, AIR 2018 SC 2670
Interpretation of Statute:
Interpretation of Statute – Meaning of
The meaning that the Court ultimately attaches to the statutory words will
frequently be that which it believes members of the legislature attached to them, or
the meaning which they would have attached to the words had the situation before
the Court been present to their minds. Interpretation is the process by which the
Court determines the meaning of a statutory 8 Cross Statutory Interpretation, Ed. Dr.
John Bell & Sir George Ingale, Second Edition (1987) provision for the purpose of
applying it to the situation before it. Mr. Anurag Mittal vs Mrs. Shaily Mishra Mittal
2018 (36) LCD 2214
“Allowances” - occurring in Sch. VII, List I Entry 73 of constitution – Interpretation of _
Is wide enough to cover payment of “pension” and other benefits to MPs or ExMPs
and is rerecord by provisions of salary , Allowances and pension of members of
parliament Activities
Expression “allowances” of MPs occurring under Entry 73 of List I of Seventh
Schedule, is wide enough to cover payment of 'pension' and other benefits covered by
impugned provision to MPs or ExMPs. Even otherwise authority of parliament under
Entry 97 List I is wide enough to cover impugned legislation. Lok Prahari v. Union of
India, 2018 (4) ALJ 680
Beneficial law – Should be construed liberally
Undoubtedly, it is a cardinal principle of law that beneficial laws should be
construed liberally. The Industrial Dispute Act, 1947 is one of the welfare legislations
which intends to provide and protect the benefits of the employees. Hence, it shall be
interpreted in a liberal and broad manner so that maximum benefits could reach to
the employees. Any attempt to do strict interpretation would undermine the intention
of the legislature. In a catena of cases, this Court has held that the welfare legislation
shall be interpreted in a liberal way. Paradeep Phoshates Ltd. V. State of Orissa 2018
(4) Supreme 733
Interpretation of Constitution – Principle of – Constitution, being a living and organic
document, should never be construed narrowly keeping in view the growing
jurisprudence
The Courts never allow a constitutional provision to be narrowly construed
keeping in view the principle that the Constitution is a living document and organic
which has the innate potentiality to take many a concept within its fold. The Courts,
being alive to their constitutional sensibility, do possess a progressive outlook having a
telescopic view of the growing jurisprudence. Nonetheless, occasions do arise where
the constitutional consciousness is invoked to remind the Court that it should not be
totally oblivious of the idea, being the final arbiter of the Constitution, to strike the
requisite balance whenever there is a necessity, for the founding fathers had wisely
conceived the same in various articles of the grand fundamental document. In the
present case, this delicate balance is the cardinal issue, as it seems to us, and it needs
to be resolved in the backdrop of both the principles. Kalpana Mehta V. Union of India
2018 (5) Supreme 545
Interpretation – Judgments – Cannot be interpreted like legislations – Have to be read
in the context and background discussions.
It is well settled that judgments are not legislations, they have to be read in
the context and background discussions. State By Lokayuktha Police V. H. Srinivas 2018
(5) Supreme 374
Proviso – Primary purpose of a proviso is to qualify the generality of the main part by
providing an exception.
The primary purpose of a proviso is to qualify the generality of the
main part by providing an exception, which has been set out with great
felicity in CIT v. Indo-Mercantile Bank Ltd., 1959 Supp (2) SCR 256 at
266-267, thus:
“The proper function of a proviso is that it qualifies the generality of the main
enactment by providing an exception and taking out as it were, from the main
enactment, a portion which, but for the proviso would fall within the main enactment.
Ordinarily it is foreign to the proper function of a proviso to read it as providing
something by way of an addendum or dealing with a subject which is foreign to the
main enactment. “It is a fundamental rule of construction that a proviso must be
considered with relation to the principal matter to which it stands as a proviso”.
Kandla Export Corporation V. M/s. Oci Corporation 2018 (6) Supreme 4
Strict Interpretation
Held - In construing penal statutes and taxation statutes, the Court has to
apply strict rule of interpretation. The penal statute which tends to deprive a person of
right to life and liberty has to be given strict interpretation or else many innocent
might become victims of discretionary decision making. Insofar as taxation statutes are
concerned, Article 265 of the Constitution (Mangalore Chemicals Case, AIR 2992 SC
152) prohibits the State from extracting tax from the citizens without authority of law.
It is axiomatic that taxation statute has to be interpreted strictly because State cannot
at their whims and fancies burden the citizens without authority of law. In other
words, when competent Legislature mandates taxing certain persons/certain objects
in certain circumstances, it cannot be expanded/interpreted to include those, which
were not intended by the Legislature.
Strict interpretation of a statute certainly involves literal or plain meaning test.
The other tools of interpretation, namely contextual or purposive interpretation
cannot be applied nor any resort be made to look to other supporting material,
especially in taxation statutes. Indeed, it is well settled that in a taxation statute, there
is no room for any intendment; that regard must be had to the clear meaning of the
words and that the matter should be governed wholly by the language of the
notification. Equity has no place in interpretation of a tax statute. Strictly one has to
look to the language used; there is no room for searching intendment nor drawing any
presumption. Furthermore, nothing has to be read into nor should anything be implied
other than essential inferences while considering a taxation statute. Commissioner of
Customs (Import) Mumbai V. M/s Dilip Kumar and Company, AIR 2018 SC 3606.
Land Acquisition Act:
Sec. 18 – Reference –Dismissal for non-payment of requisite court fee- Justifiability-
Reference u/s 18 was dismissed for non-payment of requisite court fee- Restoration
application was dismissed- High Court did not interfere with the order passed by the
Reference Court- Application for reference can be restored subject to the appellant
paying the required court fee
Court find that in similar matters Reference Court has entertained the
application(s) on condition of waiver of the statutory bebefits for the period covered
by delay, pursuant to the order passed by the High Court
The appeals are hence disposed of as follows:- Subject to the appellant
paying the required court fee, within one month from today, the application for
reference will stand restored. However, court make it clear that in the event of
Reference Court granting any enhancement, the appellant shall not be entitled to any
statutory benefits for the entire period i.e, form the date of dismissal (07.02.2001) of
the reference to this date (30.7.2018) Dhanraj V. The State of Maharashtra, 2018(9)
Scale, 634
Ss. 28A and 54 – Redetermination of amount of compensation
Held -The redetermination under Section 28A is available only in respect of an
“Award” passed by the “court” under Part III of the Act. Hence application for
determination of compensation cannot be filed within the period of 3 months from
date of judgment of High Court and Supreme Court in appeal u/s 54 of Act.
Ramsingbhai (Ramsangbhai) Jerambhai v. State of Gujarat, AIR 2018 SC 2629.
Ss. 48 and 16
Once it is held that the possession of the acquired land was with the State, the
land stood vested in the State disentitling the State to release the land from the
acquisition proceedings by taking recourse to the provisions of Section 48 of the Act.
Pimpri Chinchwad New Township Development Authority v. Vishnudev Cooperative
Housing Society, AIR 2018 SC 3656.
Motor Vehicles Act:
Words and Phrases – Accident arising out of use of Motor Vehicle
The causal relationship should exist between violation and the accident
caused. There has to be some act done by the person concerned in causing the
accident. The commission or omission must have some nexus with the accident. The
word 'use' as has been explained by the authorities of this Court need not have an
intimate and direct nexus with the accident. The Court has to bear in mind that the
phraseology used by the legislature is "accident arising out of use of the motor
vehicle". The scope has been enlarged by such use of the phraseology and this Court
taking note of the beneficial provision has placed a wider meaning on the same. There
has to be some causal relation or the incident must relate to it. It should not be totally
unconnected. Therefore, in each case what is required to be seen is whether there has
been some causal relation or the event is related to the act. Kalim Khan V. Fimidabee
2018(36) LCD 2277
Ss. 2(28), 2(44) and 165 – A motor vehicle does not cease to be such on merely being
temporarily out of use – “Use” of motor vehicle not confined to its being mobile –
Motor vehicle can be in use even while stationary.
When the deceased was returning towards his house after
purchasing certain articles from the grocery shop, a heavy stone came
flying and fell on his head, as a consequence of which, he sustained
grievous injuries and was carried for treatment in a jeep to the hospital
where he was declared dead. The case of the claimants before the Tribunal
was that the stone fell on the deceased due to blasting operation carried
out for digging of well in the field of respondent No. 1. It is further put
forth that the tractor belonging to the 1st respondent and insured with the
respondent No. 4 was used for digging up well by keeping the blasting
machine and, therefore, the causing of death by the use of the tractor was
established.
The Tribunal awarded compensation of Rs. 9,30,000/- with interest
at the rate of 6% per annum from the date of the petition till realization.
High Court set aside the award, hence, appeal filed before the
Hon’ble Supreme Court.
This Court referred to the Statement of Objects and Reasons for
introduction of Section 92A to Section 92E of the Motor Vehicles
(Amendment) Act, 1982. Analyzing, Chapter VIIA of the 1939 Act which
was amended by Act 47 of 1982 dealt with "Liability without fault in
certain cases", the Court referred to the anatomy of Section 92A, the
purpose behind it, the concept of beneficial legislation and proceeded to
interpret the words 'arising out of the use of motor vehicle'. Be it noted, on
behalf of the petitioners therein, a contention was raised that the tanker
had ceased to be a mechanically propelled vehicle. The Court relied on the
decision in Newberry v. Simmonds2 wherein it was held that the motor
car does not cease to be a mechanically propelled vehicle upon the mere
removal of the engine if the evidence admits the possibility that engine
may shortly be replaced and the moving power restored.
Learned counsel for the petitioner therein urged for placing a
narrow meaning on the word 'use' by confining it to a situation only when
the vehicle is mobile. On behalf of the respondent, it was suggested that a
wider connotation for the word 'use' should be taken so as to include the
period when the vehicle is stationary.
It is limpid that the expression 'use of the vehicle' under certain
circumstances can be attracted when the vehicle is stationary or static.
Kalim Khan V. Fimidabee 2018 96) Supreme 227
S. 149 - Liability of Insurers –
Onus is always upon the insurance company to prove that the driver had no
valid driving licence and that there was breach of policy conditions. Where the driver
did not possess the valid driving licence and there are breach of policy conditions, “pay
and recover” can be ordered in case of third party risks. The Tribunal is required to
consider as to whether the owner has taken reasonable care to find out as to whether
the driving licence produced by the driver, does not fulfill the requirements of law or
not will have to be determined in each case. Shamanna V. Divisional Manager Oriental
Insurance Co. Ltd., AIR 2018 SC 3726.
Sec. 147 - Insurer Liability
It is well established that if the owner was aware of the fact that the licence
was fake and still permitted the driver to drive the vehicle, then the insurer would
stand absolved. However, the mere fact that the driving licence is fake, per se, would
not absolve the insurer. Indubitably, the High Court noted that the counsel for the
appellant did not dispute that the driving licence was found to be fake, but that
concession by itself was not sufficient to absolve the insurer. Ram Chandra Singh v.
Rajaram, AIR 2018 SC 3789.
Sec. 149(2)(a) (i) (c) read with Sec. 66 – Motor insurance – Permit –Liability of
insurance company – Pay and recover order – Validity of
In the case at hand, it is clearly demonstrable from the materials brought on
record that the vehicle at the time of the accident did not have a permit. The
appellants had taken the stand that the vehicle was not involved in the accident. That
apart, they had not stated whether the vehicle had temporary permit or any other
kind of permit. The exceptions that have been carved out under Section 66 of the Act,
needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken
aid of in the course of an argument to seek absolution from liability. Use of a vehicle in
a public place without a permit is a fundamental statutory infraction. We are disposed
to think so in view of the series of exceptions carved out in Section 66. The said
situations cannot be equated with absence of licence or a fake licence or a licence for
different kind of vehicle, or, for that matter, violation of a condition of carrying more
number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and
Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That
apart, the insurer had taken the plea that the vehicle in question had no permit. It
does not require the wisdom of the "Tripitaka", that the existence of a permit of any
nature is a matter of documentary evidence. Nothing has been brought on record by
the insured to prove that he had a permit of the vehicle. In such a situation, the onus
cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had
directed the insurer was required to pay the compensation amount to the claimants
with interest with the stipulation that the insurer shall be entitled to recover the same
from the owner and the driver. The said directions are in consonance with the
principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover
principle. Amrit Paul Singh V. Tata AIG General Insurance Co. Ltd. 2018
Sec. 163-A - Compensation on structured formula basis-
To permit a defence of negligence of the claimant by the insurer and/or to
understand Section 163A of the Act as contemplating such a situation, would be
inconsistent with the legislative object behind introduction of this provision, which is
“final compensation within a limited time frame on the basis of the structured formula
to overcome situations where the claims of compensation on the basis of fault liability
was taking an unduly long time”. The Court observed that if an insurer was permitted
to raise a defence of negligence under Section 163A of the Act, it would “bring a
proceeding under Section 163A of the Act at par with the proceeding under Section
166 of the Act which would not only be self-contradictory but also defeat the very
legislative intention”. Consequently, it was held that in a proceeding under Section
163A of the Act, the insurer cannot raise any defence of negligence on the part of the
victim to counter a claim for compensation. Shivaji v. Divisional Manager, United India
Insurance Co. Ltd., AIR 2018 SC 3705.
Sec. 166-Accident claim –Liability of the owner or of the insurer to pay the
compensation amount –it the owner of the offending vehicle was aware of the fact
that the driving licence of the driver was fake and still permitted the driver to drive the
vehicle, then the insurer would stand absolved- However, the mere fact that the
driving licence is fake, per se, would not absolve the insurer
It is well established that if the owner was aware of the fact that the
licence was fake and still permitted the driver to drive the vehicle, then the
insurer would stand absolved. However, the mere fact that the driving
licence is fake, per se, would not absolve the insurer. Indubitably, the
High Court noted that the counsel for the appellant did not dispute that the
driving licence was found to be fake, but that concession by itself was not
sufficient to absolve the insurer.
As aforementioned, in the present case, neither the Tribunal nor
the High Court has bothered to analyse the pleadings and evidence
adduced by the parties on the crucial matter. Be that as it may, in this
appeal, the limited grievance of the appellant-owner of the vehicle is
about unjustly absolving the insurer merely on the finding that the driving
licence of the driver (respondent No.6) was fake. No other aspect has been
raised by the appellant nor do we intend to analyse or consider the same.
Court, therefore, deem it appropriate to relegate the parties before
the High Court for fresh consideration of the appeal filed by the appellant
(owner) only on the question of liability of the owner or of the insurer
(respondent No.7) to pay the compensation amount.
Court make it clear that the High Court shall not examine any other
issue in the remand proceedings. For, the compensation amount, as
determined and directed by the Tribunal, has already been made over to
the claimants.
Accordingly, we set aside the impugned judgment and order passed
by the High Court of Judicature at Allahabad and restore the First Appeal
From Order No.3290 of 2016, to the file of the High Court to its original
number for being decided afresh, on the limited question of whether the
liability to pay compensation amount, is cast upon the appellant (owner of
the vehicle) or respondent No.7 (insurer). That aspect be decided on its
own merits in accordance with law. Ram Chandra Singh v. Rajaram,
2018(9) SCALE 618
Sec. 166 – Income of deceased – Salary certificate from employer showing Rs. 1,06,176
per annum – Income tax return showing Rs. 2,42,606/-p for the assessment year –
Assessment not required to be based solely on salary certificate –Deceased might have
other income.
The deceased was 39 years old. He was employed with the Food Corporation
of India (hereinafter referred to as 'FCI'). He met with an accident when the three-
wheeler he was travelling in collided with a rashly driven Canter truck and died. The
claimants claimed compensation before the Motor Accident Claims Tribunal
(hereinafter referred to as "Tribunal").
The issue in this case revolves around the income of the deceased. On behalf
of the accounts section of the employer of the deceased, it was deposed that the
deceased was getting Rs. 8848/- as gross monthly salary. The deponent proved the
salary certificate. The amount of salary was not questioned. The Tribunal passed the
award on the basis that the salary he was receiving i.e. Rs. 8848/-.
The Tribunal did not take into account the fact that the Income Tax Returns of
the deceased showed an income of Rs. 2,42,606/- per annum for the assessment year
2004-05 and Rs. 2,17,130 for the assessment year 2003-04. The Tribunal held that the
claimants had not led any evidence to explain the contradictions between the two
figures of income emerging from the evidence of the employer of the deceased and
the income tax record, and passed the award relying on the salary certificate issued by
the employer of the deceased.
In a revision carried to the High Court by the Insurance Company and appeal
by the claimants, the High Court took the income of the deceased as found in the
income tax assessment and provided for 50% increase as future prospect. The High
Court applied the lower multiplier of 15 instead of 16 and after making a deduction of
1/4th for the personal expenses, increased the compensation to Rs. 44,03,980/- with
interest @ 7.5% per annum from the date of petition till the date of payment.
We have given our anxious consideration to this contention. There is no doubt
that if the salary certificate is taken into account the salary of the deceased should be
taken as Rs. 1,06,176/- since the gross salary was Rs.8848 per month. That, however,
in our view does not mean that the income of the deceased as stated in the Income
Tax return should be totally ignored. It is not possible to agree with the observation of
the Tribunal that it was necessary for the claimants to "explain the said contradiction"
between two figures of income.
The claimants had led reliable evidence that the deceased had returned an
income of Rs. 2,42,606/- for the assessment year 2004-05. This piece of evidence has
not been discredited. Indeed, it was possible that the deceased had income from other
sources also. There is nothing in the law which requires the Tribunal to assess the
income of the deceased only on the basis of a salary certificate for arriving at a just
and fair compensation to be paid to the claimants for the loss of life.
In the circumstances, we see no reason to interfere with the judgment of the
High Court. United India Insurance Co. Ltd. V. Indiro Devi 2018(6) Supreme 214
Narcotic Drugs and Psychotropic Substances Act:
Sec. 18
In an appeal against acquittal, the High Court will not Interfere unless there
are substantial and compelling reasons to reverse the order of acquittal. Mohinder
Singh v. State of Punjab, AIR 2018 SC 3798.
Sec. 18
For proving the offence under the NDPS Act, it is necessary for the prosecution
to establish that the quantity of the contraband goods allegedly seized from the
possession of the accused and the best evidence would be the court records as to the
production of the contraband before the Magistrate and deposit of the same before
the Malkhana or the document showing destruction of the contraband. Mohinder
Singh v. State of Punjab, AIR 2018 SC 3798.
Sec. 20 r/w Sec. 29 – Examination of independent witnesses – Not an indispensable
requirement – Such non-examination not necessarily fatal to prosecution case. All
prescribed procedures followed
The Hon’ble Court observed that so far as examination of independent
witnesses in support of the prosecution case is concerned all that would be necessary
to say in this regard is that examination of independent witnesses is not an
indispensable requirement and such non-examination is not necessarily fatal to the
prosecution case. In the present case, according to the prosecution, independent
witnesses were not available to witness the recovery of the contraband due to
extreme cold. The fact that the incident took place at about 6.30 p.m. on 27.01.2009
and that too on the Manali-Kulu road may lend credence to the prosecution version of
its inability to produce independent witnesses. In the absence of any animosity
between the police party and the accused and having regard to the large quantity of
contraband that was recovered (18.85kgs.), we are of the view that it is unlikely that
the contraband had been planed/foisted in the vehicle of the accused persons. In so
far as the condition of the contraband parcel is concerned, the materials on record
indicate that the said parcel was brought to the learned trial Court on 15.09.2009 in a
torn condition. The prosecution witnesses examined in this regard had testified that
the parcel was in a torn condition due to its bulky nature and due to nails on the stool
on which it was kept. In this regard, it may also be noted that the samples from the
contraband parcel were sent to the Forensic Laboratory on 23.07.2010. No suggestion
was given to the witnesses (PWs 12 and 13) who had taken the samples to the
laboratory that the contraband parcel has been tampered with. PW-16, who had
chemically examined the contraband samples, was fully cross-examined by the
defence. There is nothing in his evidence to suggest that the ample(s) came to him in a
torn or otherwise doubtful condition. In view of all the above, we are of the opinion
that the grounds on which the High Court have reversed the findings of conviction of
the accused – respondents ought not to be accepted. The State of Himachal Pradesh V.
Pardeep Kumar 2018 (6) Supreme 208
Ss. 21(c), 20
Confessional statement of a co-accused cannot by itself be taken as a
substantive piece of evidence against another co-accused and can at best be used or
utilized in order to lend assurance to the Court. In the absence of any substantive
evidence it would be inappropriate to base the conviction of the appellant purely on
the statements of co-accused. The appellant is therefore entitled to be acquitted of
the charges leveled against accused. Surinder Kumar Khanna v. Intelligence Officer
Directorate of Revenue Intelligence, AIR 2018 SC 3574.
Ss. 35 and 54 – Presumption of Possession
Unlike the general principle of criminal jurisprudence that an accused is
presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of
proof under Sections 35 and 54. But that cannot be understood to mean that the
moment an allegation is made and the F.I.R. recites compliance with statutory
procedures leading to recovery, the burden of proof from the very inception of the
prosecution shifts to the accused, without the prosecution having to establish or prove
anything more. The presumption is rebuttable. Section 35 (2) provides that a fact can
be said to have been proved if it is established beyond reasonable doubt and not on
preponderance of probability. The stringent provisions of the NDPS Act, such as
Section 37, the minimum sentence of ten years, absence of any provision for
remission, do not dispense with the requirement of the prosecution to establish a
prima facie case beyond reasonable doubt after investigation, only after which the
burden of proof shall shift to the accused. The case of the prosecution cannot be
allowed to rest on a preponderance of probabilities. Mohan Lal v. State of Punjab, AIR
2018 SC 3853
Negotiable Instruments Act:
Ss. 118/138/139 – Consequence of
Under Section 139 of the N. I. Act, once a cheque has been signed and issued
in favour of the holder, there is statutory presumption that it is issued in discharge of a
legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer
of the cheque is able to discharge the burden that it was issued for some other
purpose like security for a loan. T. P. Murugan (Dead) Thr. Lrs. V. Bojan, AIR 2018 SC
3601 : 2018(9) Scale 43.
Sec. 138- Dishonour of cheque-Appeal against conviction-Subsequent to judgment of
the High Court the parties have settled their disputes and the cheque amount has
been received by the complainant-respondent-Conviction and sentence imposed on
appellant is set aside- This Court directs the appellant to pay an amount of Rs. 10,000/-
as costs to State Legal Services Authority
The appellants are before this Court aggrieved by the convictin and sentence
under Sectin 138 of the Negotiable Instrument Act, 1881, Learned counsel appearing
for the original complainant, the respondents herein, submits that subsequent to the
judgment of the High Court the parties have settled their disputes and the cheque
amount has been received.
In the peculiar facts and circumstances,, court is of the view that since the
parties have settled the disputes, to do complete justice, the disputes should be given
a quietus, subject to appropriates should be given a quientus, subject to appropriate
terms.
Accordingly, these appeals are allowed and the conviction and sentence
imposed on the appellants is set aside, the appellants are directed to pay an amount
of Rs. 10,000/- (Rs. Ten Thousand only) as costs to the State Legal Services Authority,
within a period of three weeks from today. M/s Bhangu Trading Company & Anr. V.
Surjit Sing (Dead) Through Lrs., 2018 (8) Scale 628
Passports Act:
Sec. 10 – Impounding of Passport – Essential Requirement
Mere pendency of criminal case against the holder of passport would not
automatically result in impounding of his passport and the mere fact that certain
conditions specified in Section 10 (3) of the Act, on the basis of which a passport can
be impounded, subsists in a given case cannot by itself result in impounding of
passport automatically and once the Passport Authority, in his wisdom, chooses to
exercise his discretion in the said direction as to whether on account of pendency of
such criminal case, the passport in question should be impounded or not, then, at the
said point of time, the Passport Officer should apply his mind looking into the nature
of the criminal cases that have been lodged/initiated against the petitioner and further
that if a passport is not impounded, then there are possibilities that the incumbent
would not at all face the criminal case. Even if criminal case is pending against a
person that by itself does not require passport authority to impound/revoke the
passport in every given case. It is only in appropriate cases for adequate and cogent
reasons such an order could be passed. While passing order of impounding/revocation
of passport, merely by quoting the requirement mentioned in the section is clearly
indicative of circumstance that order has been passed without there being any
objective consideration of the subject matter. Shashank Gupta v. Union of India, AIR
2018 All 253
Prevention of Corruption Act;
Ss. 7 and 20
Held – So far the presumption raised under Section 20 of the Act for the
offence under Section 7 of the Act is concerned, it is settled law that the presumption
raised under Section 20 of the Act is a rebuttable presumption, and that the burden
placed on the appellant for rebutting the presumption is one of preponderance of
probabilities. State of Gujarat v. Navinbhai Chandrakant Joshi, AIR 2018 SC 3345.
Sec. 8 – Essential to constitute offence u/s 8 of the Act
In order to constitute an offence under Section 8 of the Act, three things are
essential. In the first place there must have been the solicitation or receipt of the
gratification. Secondly, such gratification must have been asked for or paid as a motive
or reward for inducing a public servant to do an act or do a favour or render some
service as stated under Section 8 of the Act. In the present case, the evidence adduced
by the prosecution is vague for whom accused had demanded the money and whether
the person for whom accused demanded and received the money is a public servant.
Though the receiver of the money, like in the present case may not be a public
servant, the prosecution has to establish by convincing evidence that the amount must
have been received for inducing a public servant for doing something by that public
servant in his official capacity. So far as confirmation of the seat in the Indian Airlines,
there may be persons in the middle who may be a public servant or a travel agency or
others. In the absence of convincing evidence to show that the accused had received
the money from complainant, to induce a public servant to get the confirmation of the
ticket, the conviction of the accused under Section 8 of the Act cannot be sustained.
Babji v. State of Andhra Pradesh, AIR 2018 SC 3831
Prevention of Food Adulteration Act:
Sec. 7 Explanation – Storing adulterated food – includes items stored for making food
items for sale
Sec. 7 of the Act prohibits storing of any adulterated food, it is as
follows:-
"7. Prohibitions of manufacture, sale, etc., of certain articles of food.- No
person shall himself or by any person on his behalf manufacture for sale, or store, sell
or distribute -
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is prescribed, except in
accordance with the conditions of the licence;
(iv) any article of food the sale of which is for the time being prohibited by the
Food (Health) Authority [in the interest of public health;]
(v) any article of food in contravention of any other provision of this Act or of
any rule made thereunder; [or]
(vi) [any adulterant.]
[Explanation.- For the purposes of this section, a person shall be deemed to
store any adulterated food or misbranded food or any article of food referred to in
clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture there
from of any article of food for sale.]"
The explanation to the section does not support this contention. It clearly lays
down that if a person stores any adulterated food for the purpose of manufacturing
from it any article of food for sale, he shall be deemed to store adulterated food. The
purpose of this provision is clear, it prohibits the storing of adulterated food
notwithstanding the fact that such adulterated food is itself not offered for sale, but is
used in making some food which is offered for sale. It is clearly to prevent the
adulteration of food and its sale to the public even when it is meant to be used for
preparing some other food which is offered for sale. Thus, either way, whether the
adulterated food is stored for sale, or if such food is stored for making some other
food which is sold, such storing is an offence. Parliament has rightly assumed that no
one, who offers food for sale, would store food which is not meant to be used in some
food meant for sale.
When this Court decided Tandon's case (supra), the section did not explicitly
prohibit the storing of adulterated food which was not meant for sale. This Court,
therefore, held that storing of adulterated food which was not meant for sale was not
an offence. Tandon's case (supra) was decided on 17.12.1975; the amendment which
introduced the deeming fiction that a person shall be deemed to store any adulterated
food, even if he stores such food for manufacturing from it any article for sale was
introduced by Act 34 of 1976 w.e.f. 01.04.1976. Tandon's case (supra) therefore has
no application to the present case. In the present case, the sample of Ghee that was
taken was from the Ghee that was stored for the purpose of making jalebis. On the
accused's own admission, the offence is clearly made out under Section 7 of the Act.
Delhi Administration V. Vidya Gupta 2018 (4) Supreme 760
Property law:
Ancestral property – Ambit and scope – Property inherited upto four generations of
male lineage from the father, grandfather etc. – Property inherited from mother,
grandmother, uncle and even brother is not ancestral property.
It is apt to have an understanding of the concept of ancestral
property in a nutshell. Any property inherited upto four generations of
male lineage from the father, father’s father or father’s father’s father i.e.
father, grandfather etc., is termed as ancestral property. In other words,
property inherited from mother, grandmother, uncle and even brother is
not ancestral property. In ancestral property, the right of property accrues
to the coparcener on birth. The concept of ancestral property is in
existence since time immemorial. In the State of Tamil Nadu, in order to
give equal position to the females in ancestral property, in the year 1989,
the State Government enacted the Hindu Succession (Tamil Nadu
Amendment) Act, 1989 effective from March 25, 1989 which brought an
amendment in the Hindu Succession Act, 1956 (for brevity “the Act”) by
adding Section 29-A vide Chapter II-A under the heading of Succession
by Survivorship. It is apt to reproduce the said provision herein below.
29-A. Equal rights to daughter in coparcenary property-
Notwithstanding anything contained in Section 6 of this Act,-
(i) in a Joint Hindu Family governed by Mitakshara Law, the
daughter of a coparcener shall be birth become a coparcener in her own
right in the same manner as a son and have the same rights in the
coparcener property as she would have had if she had been a son,
inclusive of the right to claim by survivorship: and shall be subject to the
same liabilities and disabilities in respect thereto as the son:
(ii) at a partition in such a Joint Family the coparcener property
shall so divided as to allot to a daughter the same share as is allotable to a
son:
Provided that the share which a pre-deceased son or a pre-deceased
daughter would have got at the partition if he or she had been alive at the
time of the partition shall be allotted to the surviving child of such pre-
deceased son or of such pre-deceased daughter:
Provided further that the share allotable to the pre-deceased child
of pre-deceased son or pre-deceased daughter, if such child had been alive
at the time of the partition, shall be allotted to the child of such pre-
deceased child of the pre-deceased son or of the pre-deceased daughter, as
the case may be:
(iii) any property to which a female Hindu becomes entitled by
virtue of the provisions of clause (i) shall be held by her with the incidents
of coparcenary ownership and shall be regarded, notwithstanding anything
contained in this Act or any other law for the time being in force, as
property capable of being disposed of by her by will or other testamentary
disposition:
(iv) Nothing in this Chapter shall apply to a daughter married
before the date of the commencement of the Hindu Succession (Tamil
Nadu Amendment ) Act , 1989:
(v) Nothing in clause (ii) shall apply to a partition which had been
effected before the date of commencement of the Hindu Succession (
Tamil Nadu Amendment) Act, 1989. Mangamal @ Thulasi V. T.B.Raju
2018 (4) Supreme 738
Registration Act :
Sec. 17 – Scope of
Sec. 17(i)(b) of the Registration Act mandates that any document which has
the effect of creating and taking away the rights in respect of an immovable property
must be registered and Section 49 of the Registration Act imposes bar on the
admissibility of an unregistered document and deals with the documents that are
required to be registered under Section 17 of the Registration Act. Since, the deed of
exchange has the effect of creating and taking away the rights in respect of an
immovable property, namely, RCC building, it requires registration under Section 17.
Since the deed of exchange has not been registered, it cannot be taken into account to
the extent of the transfer of an immovable property. Shyam Narayan Prasad V. Krishna
Prasad 2018 (36) LCD 2230 : AIR 2018 SC 3152
Ss 17 and 149 – Admissibility of Documents
In a suit for partition, an unregistered document can be relied upon for
collateral purpose i.e. severancy of title, nature of possession of various shares but not
for the primary purpose i.e. division of joint properties by metes and bounds. Further,
an unstamped instrument is not admissible in evidence even for collateral purpose,
until the same is impounded. It is well settled that the nomenclature given to the
document is not decisive factor but the nature and substance of the transaction has to
be determined with reference to the terms of the documents and that the
admissibility of a document is entirely dependent upon the recitals contained in that
document but not on the basis of the pleadings set up by the party who seeks to
introduce the document in question. Sita Ram Bhama v. Ramvatar Bhama, AIR 2018 SC
3057.
Ss. 35 & 66 – Cancellation of registered sale deed – not permissible once registered.
Held -The registering authority could not decide whether the document which
was executed by a person who had title as was recited in the given instrument. The
authority, as such, was not expected to decide the title/right of the parties to the
agreement nor was expected to examine the document to ascertain whether the same
was legal and permissible in law or undertake any analysis thereof. If the document
registered by the registering authority was illegal or if there was any irregularity then
the course to question that was by invoking appropriate proceedings before a Civil
Court. Once a sale deed has been registered, the registering authority is having no
power or authority under the Act, 1908 to cancel the registration, even if an allegation
of impersonation/fraud is alleged. Smt. Kusum Lata v. State of U.P., AIR 2018 All 210.
Representation of the People Act:
S.100(1)(d)(i) – Dismiss in limline - Whether arose cause of Action
Held - It is well settled that the election petition will have to be read as a
whole and cannot be dissected sentence-wise or paragraph-wise to rule that the same
does not disclose a cause of action. Cause of action embodies a bundle of facts which
may be necessary for the plaintiffs to prove in order to get a relief from the Court. The
reliefs claimed by the appellant are founded on grounds inter alia ascribable to Section
100(1)(d)(i). Further relief has been claimed to declare the appellant as having been
elected under Section 101 of the 1951 Act. The cause of action for filing the election
petition, therefore, was perceptibly in reference to the material facts depicting that
the nomination form of respondent No.1 was improperly accepted by the Returning
Officer. It is well established that in an election petition, whether a particular fact is
material or not and as such required to be pleaded, is a question which depends on
the nature of the grounds relied upon and the special circumstances of the case.
Particulars, on the other hand, are the details of the case set up by the party. Madiraju
Venkata Ramana Raju v. Peddireddigari Ramachandra Reddy, AIR 2018 SC 3012.
Ss. 147, 149, 150, 151 and 151A – Right to elect a person – statutory right – Has to be
construed strictly
We must make a distinction between Ss. 147, 149, 150 and 151 on the one
hand and Sec. 151A of the Act on the other. While interpreting these provisions, it has
to be kept in mind that though the right to elect a person is fundamental to
democracy, yet it is only a statutory right. It is also well settled in law that the
legislations governing the said right have to be strictly construed. Pramod laxman
Guadadhe V. Election Commission of India, 2018 (5) Supreme 212
Service Law:
Age of superannuation – An integral part of service condition of employees –
Enhancement of superannuation age would impliedly amount to a privilege – Any
unilateral withdrawal of such privilege – Amounts to contravention of Sec. 9A,
Industrial Disputes Act, 1947 – Such act of the employer bad in law.
Age of superannuation is an integral part of the service condition of the
employee. Also, enhancement of superannuation age would impliedly amount to a
privilege since it was provided particularly for the central public sector employees.
No doubt, the enhancement of the superannuation age was temporary in
nature in order to achieve certain objectives and also it is not deniable that yet
employees would be governed by the Service Rules and the Certified Standing Orders
which were not amended. However, if we allow the plea of the appellant-Company
then it would defeat the object of legislature because legislature could never have
intended that employees would be condemned without giving them right of
reasonable hearing. Naturally, every employee is under the expectation that before
reducing his superannuation age, he would be given a proper chance to be heard.
Right to work is a vital right of every employee and in our view, it shall not be taken
away without giving reasonable opportunity of being heard otherwise it would be an
act of violation of the Constitutional mandate.
We are of the view that at the very moment when the order of enhancement
of superannuation of the employees came into force though temporary in nature, it
would amount to privilege to employees since it is a special right granted to them.
Hence, any unilateral withdrawal of 14 such privilege amounts to contravention of
Section 9A of the Act and such act of the employer is bad in the eyes of law. Paradeep
Phoshates Ltd. V. State of Orissa 2018 (4) Supreme 733
Compassionate Appointment- Denial of –When not warranted?
The appellant is aggrieved since her application for compassionate
appointment was declined by Respondent No. 3. The appellant was
unsuccessful before the High Court.
Court find from the Judgment of the High Court that the main
reason for rejecting the case of the appellant was that the family had
managed to survive for over ten years and, therefore, there was no
immediate necessity. Court is afraid that this cannot be a major reason for
rejection. Whether the family pulled on begging or borrowing also should
have been one consideration. We do not propose to deal with the matter
any further in the peculiar facts of this case. The widow had already been
empaneled for appointment under the Compassionate Appointment
Scheme, but was declined the benefit only on account of crossing the age.
We are of the view that in the peculiar facts of this case, her daughter
should be considered for compassionate appointment. Ordered
accordingly.
Court make it clear that this order is passed in exercise of our
jurisdiction under Article 142 of the Constitution of India for doing
complete justice and hence, it may not be treated as a precedent. The
needful shall be done by the respondents within one month from today.
Supriya Suresh Patil & Sow Supriya Pratik Kadam v. The State of
Maharashtra, 2018 (8) Scale 627
Disciplinary proceedings – Inquiry Officer acting as an independent adjudicator –
Obliged to act fairly, impartially in good faith and without bias
The disciplinary proceedings are quasi-judicial proceedings and Inquiry Officer
is in the position of an independent adjudicator and is obliged to act fairly, impartially.
The authority exercises quasi-judicial power has to act in good faith without bias, in a
fair and impartial manner. Union of India V. Ram Lakhan Sharma 2018(6) Supreme 366
Disciplinary proceeding – Inquiry officer is an independent adjudicator – Inquiry officer
cannot act as presenting officer – If he does so, he will lose his identity as independent
adjudicator and therefore inquiry will be vitiated
There is no requirement of appointment of Presenting Officer in each and
every case, whether statutory rules enable the authorities to make an appointment or
are silent. When the statutory rules are silent with regard to the applicability of any
facet of principles of natural justice the applicability of principles of natural justice
which are not specifically excluded in the statutory scheme are not prohibited.
The question as to whether Inquiry Officer who is supposed to act
independently in an inquiry has acted as prosecutor or not is a question of fact which
has to be decided on the facts and proceedings of particular case. In the present case
we have noticed that the High Court had summoned the entire inquiry proceedings
and after perusing the proceedings the High Court came to the conclusion that Inquiry
Officer himself led the examination in chief of the prosecution witness by putting
questions.
The High Court having come to the conclusion that Inquiry Officer has acted as
prosecutor also, the capacity of independent adjudicator was lost which adversely
affecting his independent role of adjudicator. In the circumstances, the principle of
bias shall come into play and the High Court was right 33 in setting aside the dismissal
orders by giving liberty to the appellants to proceed with inquiry afresh. We make it
clear that our observations as made above are in the facts of the present cases. Union
of India V. Ram Lakhan Sharma 2018(6) Supreme 366
Judicial service – Fast track courts – Created due to lack of adequate cadre strength of
Judges – Judges appointed through selection process
The sole question, which arises for consideration in these appeals is whether
the services rendered by the appellants/Judicial Officers as Fast Track court Judges is
liable to be counted for their pensionary and other benefits, the appellants having
joined the regular judicial service thereafter.
Fast Track Court Judges are entitled to the benefit of the period of service
rendered as Fast Track Court Judges to be counted for their length of service in
determination of their pension and retiral benefits.
The appellants were not appointed to the Fast Track courts just at the whim
and fancy of any person, but were the next in line on the merit list of a judicial
recruitment process. They were either part of the select list, who could not find a
place given the cadre strength, or those next in line in the select list. Had there been
adequate cadre strength, the recruitment process would have resulted in their
appointment. We do believe that these Judges have rendered services over a period of
nine years and have performed their role as Judges to the satisfaction, otherwise there
would have been no occasion for their appointment to the regular cadre strength. We
believe that it is a matter of great regret that these appellants who have performed
the functions of a Judge to the satisfaction of the competent authorities should be
deprived of their pension and retiral benefits for this period of service. The appellants
were not pressing before us any case of seniority over any person who may have been
recruited subsequently, nor for any other benefit. In fact, we had made it clear to the
appellants that we are only examining the issue of giving the benefits of their service
in the capacity of Fast Track court Judges to be counted towards their length of service
for pensionary and retiral benefits. To deny the same would be unjust and unfair to
the appellants. The methodology of non-creation of adequate regular cadre posts and
the consequent establishment of Fast Track courts manned by the appellants cannot
be used as a ruse to deny the dues of the appellants.
We are, thus, unhesitatingly and unequivocally of the view that all the
appellants and Judicial Officers identically situated are entitled to the benefit of the
period of service rendered as Fast Track court Judges to be counted for their length of
service in determination of their pension and retiral benefits. Mahesh Chandra Verma
V. The State of Jharkhand through: its Chief Secretary 2018 (5) Supreme 265
Recruitment – Written examination – Key answers – Correctness of – Onus to
demonstrate incorrectness of key answers – Lies on the candidate – Constitutional
court must exercise great restraint in such matters.
The law is well settled that the onus is on the candidate to not only
demonstrate that the key answer is incorrect but also that it is a glaring mistake which
is totally apparent and no inferential process or reasoning is required to show that the
key answer is wrong. The Constitutional Courts must exercise great restraint in such
matters and should be reluctant to entertain a plea challenging the correctness of the
key answers. In Kanpur University case (supra), the Court recommended a system of -
(1) moderation; (2) avoiding ambiguity in the questions; (3) prompt decisions be taken
to exclude suspected questions and no marks be assigned to such questions.
As far as the present case is concerned even before publishing the first list of
key answers the Commission had got the key answers moderated by two expert
committees. Thereafter, objections were invited and a 26 member committee was
constituted to verify the objections and after this exercise the 9 Committee
recommended that 5 questions be deleted and in 2 questions, key answers be
changed. It can be presumed that these committees consisted of experts in various
subjects for which the examinees were tested. Judges cannot take on the role of
experts in academic matters. Unless, the candidate demonstrates that the key answers
are patently wrong on the face of it, the courts cannot enter into the academic field,
weigh the pros and cons of the arguments given by both sides and then come to the
conclusion as to which of the answer is better or more correct. U.P.P.S.C. through its
Chairman & ANR. Vs. Rahul Singh 2018 (5) Supreme 719
Sec. 20
The grant of decree for specific performance of contract is a discretionary
relief under Section 20 of the Specific Relief Act 1963. The court is not bound to grant
such a relief merely because it is lawful to do so but at the same time the discretion is
required to be exercised on the basis of sound and settled judicial principle and not
arbitrarily. Smt. Shanti Mishra v. Sammuel, AIR 2018 All 242.
Sec. 34- Transfer of Property Act, 1882, S. 118-Registration Act, 1908, S. 49-Suit for
declaration of exchange deed as invalid-Exchange of immovable ancestral property-
Trial Court property in question ancestral property and plaintiffs being sons and
grandson of def. No. 2 they have also equal share in the property allotted to him in the
partition, hence suit decreed-Appeal against allowed-High Court in second appeal
restored the judgment of trail Court-Justification of- Where either of the properties in
exchange are immovable or one of them is immovable and the value of anyone is Rs.
100/- or more the provision of S. 54 of T.P. Act relating to sale of immovable property
would apply-The mode of transfer in case of exchange is the same as in the case of
sale-In case of exchange of property of value of Rs. 100/- and above, it can be made
only by a registered instrument-Since the exchange deed not registered, it cannot be
taken into account to the extent of the transfer of an immovable property-Decreetal
of suit proper.
Practice and Procedure-Absence of pleadings-Effect-Pleadings are meant to give each
side, intimation of the case of the other, so that, it may be met to enable the Courts to
determine what is really at issue between the parties-No relief can be granted to a
party without the pleadings.
Therefore, the properties acquired by defendant No.2 in the partition dated
31.07.1987 although are separate property qua other relations but it is a coparcenary
property insofar as his sons and grandsons are concerned. In the instant case, there is
a clear finding by the trial court that the properties are ancestral properties which
have been divided as per the deed of partition dated 31.07.1987. The property which
had fallen to the share of defendant No.2 retained the character of a coparcenary
property and the plaintiffs being his sons and grandson have a right in the said
property. Hence, it cannot be said that the suit filed by the plaintiffs was not
maintainable.
This takes us to the next question as to whether the exchange deed at Exhibit
P2 is admissible in evidence or not. The transfer of ownership of their respective
properties by defendant Nos. 1 and 2 was done through Exhibit P2 deed of exchange.
It was contended by defendant No.1 that the exchange was only of the businesses.
However, a careful perusal of Exhibit P2 clearly shows that the RCC building is also a
subject matter of the deed of exchange. The value of RCC building exceeds Rs. 100/-
which is not in dispute. Section 118 of the TP Act defines ‘exchange’ as under:
“118 “Exchange” defined -When two persons mutually transfer the
ownership of one thing for the ownership of another, neither thing or
both things being money only, the transaction is called an “exchange”.
A transfer of property in completion of an exchange can be made only in manner
provided for the transfer of such property by sale”.
It is clear from this provision that where either of the properties in exchange
are immovable or one of them is immovable and the value of anyone is Rs.100/- or
more, the provision of Section 54 of the TP Act relating to sale of immovable property
would apply. The mode of transfer in case of exchange is the same as in the case of
sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and
above, it can be made only by a registered instrument. In the instant case, the
exchange deed at Exhibit P2 has not been registered.
The last contention of the learned counsel for the appellant is in relation to
application of Section 53A of the T.P Act. It is well settled that the defendant who
intends to avail the benefit of this provision must plead that he has taken possession
of the property in part performance of the contract. Perusal of the written statement
of the first defendant shows that he has not raised such a plea. Pleadings are meant to
give to each side, intimation of the case of the other, so that, it may be met to enable
courts to determine what is really at issue between the parties. No relief can be
granted to a party without the pleadings. Therefore, it is not open for the first
defendant/appellant to claim the benefit available under Section 53A of the T.P. Act.
In the result, this appeal fails and it is accordingly dismissed. There will be no
order as to costs. Shyam Narayan Prasad V. Krishna Prasad and others, 2018 (2) ARC
840
Supreme Court Rules:
O. 6, R. 2 – Jurisdiction of Indian Courts in international arbitration awards – “Seat”
and “venue” for holding arbitration proceedings by the arbitrators – Matter referred
to larger Bench.
In our opinion, though, the question regarding the "seat" and "venue" for
holding arbitration proceedings by the arbitrators arising under the Arbitration
Agreement/International Commercial Arbitration Agreement is primarily required to
be decided keeping in view the terms of the arbitration agreement itself, but having
regard to the law laid down by this Court in several decisions by the Benches of
variable strength as detailed above, and further taking into consideration the
aforementioned submissions urged by the learned counsel for the parties and also
keeping in view the issues involved in the appeal, which frequently arise in
International Commercial Arbitration matters, we are of the considered view that this
is a fit case to exercise our power under Order VI Rule 2 of the Supreme Court 12
Rules, 2013 and refer this case (appeal ) to be dealt with by the larger Bench of this
Court for its hearing. Union of India V. Hardy Exploration and Production (India) Inc.
2018 (5) Supreme 101
Transfer of Property Act:
S. 53A – When can be attracted
The defendant who intends to avail the benefit of this provision must plead
that he has taken possession of the property in part performance of the contract.
Shyam Narayan Prasad v. Krishna Prasad, 2018 (36) LCD 2230: AIR 2018 SC 3152
Sec. 52 – Doctrine of Lis pendens –
Explanation to Section 52 of the TP makes it clear that pendency of a suit or
proceeding shall be deemed to commence from the date of the presentation of the
plaint. Thus, on the date of execution of the sale deed to defeat maintenance
claim, the suit was pending. Thus, the provisions contained in section 52 would clearly
apply to the case. Siddagangaiah v. N.K. Giriraja Shetty, AIR 2018 SC 3080
Sec. 54 –
Where either of the properties in exchange are immovable or one of them is
immovable and the value of anyone is Rs.100/- or more, the provision of Section 54 of
the T P Act relating to sale of immovable property would apply. The mode of transfer
in case of exchange is the same as in the case of sale. It is thus clear that in the case of
exchange of property of value of Rs. 100/- and above, it can be made only by a
registered instrument. Shyam Narayan Prasad v. Krishna Prasad, 2018 (36) LCD 2230:
AIR 2018 SC 3152
Sec. 106 – Tenancy - Succession
Held -When original tenant dies, the legal heirs inherit the tenancy as joint
tenants and occupation of one of the tenant is occupation of all the joint tenants. It is
not necessary for landlord to implead all legal heirs of the deceased tenant, whether
they are occupying the property or not. It is sufficient for the landlord to implead
either of those persons who are occupying the property, as party. There may be a case
where landlord is not aware of all the legal heirs of deceased tenant and impleading
only those heirs who are in occupation of the property is sufficient for the purpose of
filing of eviction petition. An eviction petition against one of the joint tenant is
sufficient against all the joint tenants and all joint tenants are bound by the order of
the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into
different legal heirs. Suresh Kumar Kohli v. Rakesh Jain, AIR 2018 SC 2708.
Sec. 118 – Definition of Exchange
When two persons mutually transfer the ownership of one thing for
the ownership of another, neither thing or both things being money only,
the transaction is called an "exchange". A transfer of property in
completion of an exchange can be made only in manner provided for the
transfer of such property by sale".
It is clear from this provision that where either of the properties in exchange
are immovable or one of them is immovable and the value of anyone is Rs.100/- or
more, the provision of Section 54 of the TP Act relating to sale of immovable property
would apply. The mode of transfer in case of exchange is the same as in the case of
sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and
above, it can be made only by a registered instrument. Shyam Narayan Prasad V.
Krishna Prasad 2018 (36) LCD 2230 : AIR 2018 SC 2708
U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act:
Sec. 16(5)(a) – Order recording finding of no vacancy – Open to review
Whether a Review under Sec. 16(5)(a) of the U.P. Urban Building (Regulation
of Letting, Rent and Eviction) Act , 1972 in respect fo an order regarding vacancy is
maintainable, is the only question of law arising for consideration in this case.
The whole purpose of Sec. 16(1) of the act, as the title indicates, is for
“allotment and release of vacant building”. Unless there is a finding regarding vacancy,
there cannot be either allotment or release. It is a pre-condition for an order under
Sec. 16(1) (a) & (b). If we adopt the technical argument advanced by Sh. S.R.Singh,
learned senior counsel, the order attains finality and there is no provision under the
Act to challenge the same. In our view, that would defeat the whole purpose of the act
and the contention is also against the scheme of the Act. The whole purpose of Sec.
16(5)(a) is to see whether the District Magistrate has passed a lawful order in the
matter of either allotment or release. The question of release or allotment arises only
if there is a vacancy. Once the finding is that there is no vacancy, the same is certainly
open to be pursued by way of review under sec. 16(5)(a) as otherwise, the order
would seal the fate of a landlord or an applicant for allotment. That is not the purpose
of the act and the scheme of the provision.
Therefore, we are in agreement with the view taken by the High Court that the
District Magistrate was justified in invoking its review jurisdiction under Sub-Sec. 5(a)
of sec. 1`6 of the Act. Rajendra Kumar Verma (D) through LRs. V. Additional District
Magistrate (Civil Supplies) 2018 (6) Supreme 59
Wild Life (Protection) Act :
Sec. 39 -
Held - That an ivory imported into India and an article made from such ivory in
respect of which any offence against this Act or any rule or order made thereunder has
been committed, shall be deemed to be the property of the State Government, and
where such animal is hunted in a sanctuary or National Park declared by the Central
Government, such animal or any animal article, trophy, uncured trophy or meat
derived from such animal shall be the property of the Central Government. Wild Life
Warden v. Komarrikkal Elias. AIR 2018 SC 3269.
Words & Phrases:
Word Inter section
Held -Meaning of the word “intersection” as provided generally in various
dictionaries mentioned supra, is “cutting across”. However, in such a situation it would
be appropriate to keep in mind that the word has to be construed in the context of the
provision of the Act and scheme of the Act.
The “intersection” thus, is not traversing the same line of travel beyond
permitted limits, but to cut across a notified route for its onward journey. This
exception is carved out only to avoid hardships to travellers. Any other view contrary
to the above view would amount to violating integrity of an approved Scheme. Kerala
State Road Transport Corporation v. Baby P.P, AIR 2018 SC 2909.
PART – 2 (HIGH COURT)
Administrative Tribunal Act:
Ss. 20, 21 – Railway Servants (Discipline and Appeal) Rules 1968 – R. 25 – Claim
petition – bar of limitation – Removal of employee on ground of misconduct – Peti-
employee on ground of misconduct – petition filed by employee after about 14 years
from date of accrual of cause of action – Tribunal setting aside order of removal –
original application being barred by time order of Tribunal setting aside removal order,
improper
In the instant case, the claim petition was filed in the year 2012, i.e., almost
after about 14 years from the date of cause of action for filing the original application.
The same was barred by time, and the Tribunal had no jurisdiction to entertain the
original application without there being an application for condonation of delay, and
an order allowing the delay condonation application was passed on the said
application.
The Tribunal while recording the finding that the family pension etc. is a
recurring cause of action and therefore, the original application was in time has
overlooked the fact that the applicant could be entitled for family pension etc. only
after the order of removal of the late Jagdish Prasad is set-aside. The tribuanl has
completely ignored the provision of Section 21 of the Limitation Act, which restrains
the Tribunal from admitting an original application unless the delay in filing the
original application is condoned.
Thus, we hold that the original application was highly barred by time, and in
the absence of any application for condoning the delay in filing the claim petition, the
Tribunal had acted illegally in entertaining the claim petition. Union of India v. Smt.
Bitola Devi, 2018 (4) ALJ 301
Arbitration and Conciliation Act:
Sec. 11(4) – Appointment of arbitrator- Procedure for –Purpose of enactment of sub-
section (6A) of Section 11 is essentially to minimize court’s intervention at stage of
appointing arbitration
After the provision of sub-section (6A) of Section 11 was inserted in the Act,
the Court should and need only to look into one aspect- the existence of an arbitration
agreement. If the agreement exists and it contains an arbitration clause, then the
dispute arising from the agreement between parties has to be resolved by an
arbitrator. The legislative policy and purpose of enactment of sub-section (6A) of
Section 11 is essentially to minimize the Court's intervention at the stage of appointing
the arbitrator and this intention as incorporated in Section 11(6A) ought to be
respected.
In view of the above discussion, I find no difficulty to hold that in terms of the
provisions of Section 11(6A) of the Act, an Arbitrator needs to be appointed. Let Mr.
Justice Janardan Sahai, R/o Plot No.7, High Court Judges Colony, Sector 105, NOIDA,
U.P., Phone No.2567007, be appointed as an Arbitrator to resolve the dispute subject
to his consent in terms of Section 11(8) of the Act. Mayor Constructions V. Anil Mayor
H.U.F. through its Karta Anil Kumar Mayor, 2018 (4) AWC 3454
Sec. 34 – Award – Setting aside of – Jurisdiction of Court – Place where arbitral
proceedings took place would normally determine jurisdiction of court
It is trite law that while dealing with the case concerning provisions of
Arbitration and Reconciliation Act, 1996, the place where the arbitral proceedings took
place, would normally determine the jurisdiction of court/forum where the award
passed in arbitral proceedings, may be put to challenge. Here in this case, arbitral
proceedings took place at Mumbai, therefore, any relief seeking cancellation or
annulment of the award, can be sought at proper forum/court at Mumbai and not at
Orai at Jalaun.
In view of above, it is obvious that the District Judge, Jalaun at Orai was not
vested with the jurisdiction to proceed further in the case under Section 34 of the
Arbitration and Conciliation Act, 1996, then he had one more option among other to
have returned the application for presentation to proper forum having jurisdiction.
Sunil Kumar Srivastava v. Mahindra And Mahindra Services Ltd., Jalaun, 2018 (5) ALJ
89 : 2018 (4) AWC 3272
Sec. 34 – Arbitral award – setting aside of – mere illegality in arbitral award cannot be
ground to construe that award is against public policy
It was also held by the District Judge that the arbitral award was not even
against the public policy of India and merely because some illegality has been pointed
out it cannot be held that the award is against the public policy.
We are in agreement with the findings of the District Judge and since no
ground exists under Section 34 of the Act for setting aside the arbitral award without
re-appreciation of evidence,, we are of the opinion that the judgment and order
passed by the District Judge is not illegal rather perfectly valid. Nathu Ram Sahu v.
Aritrator/Collector, 2018 (5) ALJ 224
Civil Procedure Code:
Ss. 92 and 2 (4)-Civil Courts Act, 1887-Ss. 3,4,8,9 and 20- Jurisdiction of the Court of
Additional District and Sessions Judge-Courts of the Additional District Judges- Created
by the State Government in consultation with the High Court for speedy disposal of
business pending before the District Judges-Additional District Judges empowered to
discharge any of the functions of the District Judge within the local limits of its
jurisdiction as is assigned to them by the District Judge-While discharging those
functions they exercise same powers as that of the District Judge-District Judge being
Superior most can assign a function to the Additional District Judge to be discharged
by him-District Judge can transfer any suit or other proceeding pending before it for
trial and disposal to a Court of competent jurisdiction even subordinate to it by a
judicial order- Position of Additional District Judge equated to that of the District Judge
of the district having identical judicial power-In an application for grant of leave under
section 92 of the Code, the matter is between the “Court” and the “applicant”-For
grant of leave only plaint allegations are to be seen-Order refusing leave appealable
under section 104(1), C.P.C.-In the instant case order passed by the District Judge to
transfer the proceeding of the miscellaneous case before the Additional District
Judge/F.T.C. No. 1, Agra cannot be faulted with-Petition dismissed.
A conjoined reading of the above referred legislations clearly indicates that the
Courts of Additional District Judges in various districts in the State of U.P. have been
created by the State Government, in consultation with the High Court of Allahabad, for
speedy disposal of the business pending before the District Judges. As per section 8(2)
of the Act 1887, the Additional District Judges are empowered to discharge any of the
function of the District Judge within the local limits of its jurisdiction which may be
assigned to them by the District Judge and in discharging those functions, they shall
exercise the same powers as that of the District Judge.
The position of the Additional District Judge is thus equated to that of the
District Judge of the District having identical judicial powers as may be conferred upon
him. The power of discharge of judicial functions by the Additional District Judge in a
District Court is absolutely same as that of the District Judge.
So far as the submission of learned counsel for the petitioner regarding the
stage of "institution" and "trial" of the suit under section 92 of the Code of the Civil
Procedure is concerned, there may not be a dispute that the leave of the Court is a
pre-condition for institution of the suit and a suit under section 92 of the Code without
leave is not maintainable. But this Court has not been able to convince itself to the
submission of learned counsel for the petitioners that though the suit under section 92
of the Code can be tried for disposal by the Additional District Judge after transfer to it
by the District Jude but prayer for leave to institute the said suit cannot be granted by
it.
For the above discussion, the observations made in paragraph no.13 of the
judgement in M/s ITI Allahabad (supra) regarding the ratio of judgement in Ram
Kishore Sharma (supra) can also not be taken aid of, to impress upon the Court for
drawing difference/distinction between two stages i.e. the institution and trial of the
suit under section 92 of the Code of Civil Procedure and to assert that the aforesaid
judgement of the Division Bench would be confined only to the subsequent stage of
trial and disposal of the suit under Section 92 of the Code of Civil Procedure.
For all the above reasons, this Court is of the view that the order passed by the
District Judge to transfer the proceeding of the Misc. Case No.860 of 2016 (Gaurav Jain
Vs. Ashok Kumar before the Additional District Judge/FTC No.1 Agra cannot be faulted
with. The Additional District Judge/Fast Track Court cannot be said to be lacking in
jurisdiction in proceeding with the matter.
The present petition is found devoid of merits and hence dismissed. Ashok
Kumar Jain V. Gaurav Jain, Advocate, 2018(140) RD 579
Sec. 100-Suit for partition-Plaintiff claiming ¾ share in suit property stating suit
property ancestral property on ground defendant Nos. 2 and 3 being mother and sister
already sold their part of suit property to plaintiff against defendant No. 1 elder
brother-W.S. by defendant No. 1 suit property already partitioned by award passed by
Arbitrator, suit is not maintainable, etc.- Suit decreed holding the award not been
made rule of Court and not registered in accordance with law-Appellate Court in
appeal modified decree to extend while making partition of 3/4th share to plaintiff, 50
sq. ft. of land to ‘x’ by plaintiff and defendant Nos. 2 and 3 shall be included in the
entire property-Appellate Court taken into consideration the admission of the plaintiff
in his W.S. filed in connected Original suit No. 468/93(filed for declaration of the
award passed by Arbitrator as null and void) admitting that the property forming
subject matter of the sale-deed was property of his father, therefore this property
requires to be considered for partition between the parties and the lower appellate
Court has rightly directed likewise.
O. 20, R. 18- Non-framing of issue by Trial Court-Findings there on by appellate Court-
Where the both parties have adduced evidence on the point, the Appellate Court can
record a finding under the rule even though no issue has been framed on it 1988(1)
SCC 383.
On perusal of the Judgment of the lower Appellate Court, it is evident that it
has taken into consideration the admission of the plaintiff in his written statement
filed in connected Original Suit No. 468 of 1993 admitting that the property forming
subject-matter of sale deed dated 16.05.1990 was property of Late Manmohan Kumar
Mohinder. Therefore this property requires to be considered for partition between
the parties and the lower Appellate Court has rightly directed likewise. Hence, the
prayer of the Counsel for the appellant remanding the case to the Trial Court is
incorrect. This Court in the case of Kalka Prasad v. Harish Chandra, AIR 1957 All 25,
and Hon’ble Supreme Court in the case of Bhairab Chandra Nandan v. Ranadhir
Chandra Dutta, (1988) 1 SCC 383: 1988(1) ARC 372(SC), has held that where both
parties have adduced evidence on the point, the Appellate Court can record a finding
under the rule even though no issue has been framed on it. Hence the approach of the
lower Appellate Court is correct. Even this Court in para 19 of the judgment in the case
of Smt. Kaniz Fatima (supra) has held that where the parties were fully aware of the
issues involved no justification for remand of the case exists.
The substantial questions of law No. (a) is decided holding that there was a
plea in the written statement of the defendant No. 1 regarding the sale deed dated
15.05.1990 and the parties were fully aware of the issue involved and the finding of
the lower appellate for including the property, forming subject –matter of sale deed
dated 16.05.1990, for including it in the common pool of property to be partitioned is
correct. The substantial question of law No. (b) is decided holding that the property
forming subject-matter of sale deed dated 16.05.1990 was subject-matter of suit of
partition and objection for inclusion of the same therein was on record in the form of
written statement of defendant No. 1 and the direction of the lower Court is correct.
Syed Deep Mohindra V. Deepak Kumar Mohindra, 2018(2) ARC 595.
Sec. 115 – When to be interfered
The only ground on which jurisdiction under Sec. 115 CPC can be exercised is
where the order has resulted in failure of justice. Janak Raj V. Smt. Indu Nath 2018 (36)
LCD 2314
O. 1 R. 9 – Scope of
The principles enshrined in the proviso to O. 1 R. 9, of the Code of Civil
Procedure, 1908 provide that impleadment of a necessary party is mandatory and in
case of non-joinder of necessary party, the Plaintiff/ Petitioner may not be entitled for
the relief sought by him. The litigant has to ensure that the necessary party is before
the Court, be it a Plaintiff or a Defendant, otherwise the proceedings will have to fail.
In service jurisprudence if an unsuccessful candidate challenges the selection process,
he is bound to implead at least some of the successful candidates in representative
capacity. In case the services of a person is terminated and another person is
appointed at his place, in order to get relief, the person appointed at his place is the
necessary party for the reason that even if the plaintiff/petitioner succeeds, it may not
be possible for the Court to issue direction to accommodate the Petitioner without
removing the person who filled up the post manned by Plaintiff / petitioner. More so,
the public exchequer cannot be burdened with the liability to pay the salary of two
persons against one sanctioned post. Bramha Prakash Srivastava V. State of U.P. 2018
(36) LCD 2343
O.1, R.10- Application for deleting name of defendant No. 2 from array of parties-
Allowed holding no relief sought against defendant No. 2-Defendant No. 2/revisional is
a necessary party whose presence is required for disposal of suit, for that reason only,
he was made a defendant in the plaint-Now at a later stage merely on the ground that
no relief is being sought against him, his name cannot be deleted- The power of the
Court under O. 1, R.10, CPC is much wider than merely to look into as to whether any
relief is sought against the defendant or not-Deletion of name improper.
Admiattedly, revisionist/defendant No. 2 is a necessary party whose presence
is required for disposal of the suit. For that reason only, he was made a defendant in
the plaint. Now at a later stage, merely on the ground that no relief is being sought
against him, his name cannot be deleted. The poser of the Court under Order 1 Rule
10 C.P.C. is much wider than merely look into as to whether any relief is sought against
the defendant or not. The law is settled by the judgment in case of Vidur Impex (supra)
of the Hon’ble Supreme Court.
In view of the admitted situation that revisionist/defendant No. 2 has interest
in the property and in the proper disposal of the present suit, no fault could be found
of his being a party to the suit.
In view thereof, the order dated 25.02.2005 cannot stand and is set aside, the
civil revision is allowed.
Since, the matter is pending since the year 2005, the Court below shall
proceed with the matter expeditiously, in view of policy to decide matters
expeditiously, which are pending for more than five years. Ram Kishor Seth V.
Bhagwan Sri Laxmi Narayan Mandir Trust, 2018(2) ARC 815
O.22, R.10, O. 9, R. 13-Recall application under O. 9, R. 13, CPC-Maintainability of by lis
pendens transferee-A lis pendens transferee, though not brought on record under O.
22, R. 10, CPC is entitled to move an application under O. 9, R. 13 CPC to set aside a
decree passed against his transferor, the defendant in the suit.
In so far as first submission of learned Counsel for the petitioner is concerned,
that cannot be accepted because it has been proved on record that the second
respondent had purchased the interest of the defendants in the suit. Once it was
established that she had purchased the right of respondents 3 to 5, who were
defendants in the suit, she had a right to file an appeal keeping in mind the provisions
of Section 146 of the Code of Civil Procedure, 1908 (in short the Code), which applies
to revenue courts by virtue of Section 341 of the U.P. Zamindari Abolition and Land
Reforms Act (in short the Act). Section 146 of the Code provides that where any
proceeding may be taken or application made by or against any person, then the
proceeding may be taken or the application may be made by or against any person
claiming under him. Interpreting the true import of Section 146 of the Code, the apex
court in Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394, held that whoever
is entitled to be but has not been brought under Order 22 Rule 10 CPC in a pending
suit or proceeding is entitled to file an appeal against the decree or order passed
therein if his assignor could have filed such an appeal. Following the above decision, in
Raj Kumar v. Sardari Lal, (2004) 2 SCC 601: 2004(3) ARC 165(SC) the apex court held
that a lis pendens transferee, though not brought on record under Order 22 Rule 10
CPC, is entitled to move an application under Order 9 Rule 13 to set aside a decree
passed against his transferor, the defendant in the suit. Under the circumstances and
in view of the law noticed here in above, it is held that the appeal preferred by the
second respondent was maintainable at her instance even though she was not party in
the suit.
In so far as the submission that the second appellate court had failed to
consider that the husband of the second respondent had admitted possession of the
plaintiff-respondent is concerned, suffice it to say that the second appellate court had
dealt with this aspect and had observed that statement, if any, made by the husband
of the second respondent was without the authority of the second respondent and as
such cannot bind her. Further, the learned counsel for the petitioner has not been able
to demonstrate as to how second respondent's husband's statement in some other
mutation proceeding would bind the second respondent as an admission unless the
witness is confronted with the statement. Under the circumstances, nothing much
turns on this submission of the learned counsel for the petitioner.
In view of the discussion made above, this court finds no good reason to
interfere with the order of remand.
The writ petition is dismissed. Abdul Raqeeb V. Board of Revenue, U.P. at
Allahabad and others, 2018(3) ARC 27.
O. 41, R. 27- “Substantial Cause”-The terms- Meaning-Explanation of.
Within the meaning of Rule 27 aforesaid as per Ibrahim Uddin’s case (supra) it
is equally true that as per the same dictum the application under Order XLI Rule 27 is
to be considered at the time of hearing of appeal on merits so as to find out whether
the documents and/or the evidence sought to be adduced have any relevancy/bearing
on the issues involved and it is at that stage that a proper and effective consideration
whether to allow additional evidence or not can be made.
O. 41, R. 27-Application for additional evidence-Allowed-Effect of-Recourse would
have to be taken to Rules, 28, 29 etc. And the matter would have to be heard again
taking into consideration the additional evidence but the application under O. 41, R.
27 will have to be considered only at the stage of final hearing preceding the allowing
of the said application-Explained.
No party is entitled to lead additional evidence at the appellate stage as a
matter of right under Order XLI Rule 27. Additional evidence would be permissible at
the appellate stage only in terms of the said rule and on the satisfaction of one or
more of the three eventualities mentioned therein vide Clause(a), (aa) and (b). It is
trite that the three clauses or rules relate to three different situations and the
prerequisites for attraction of these three rules are also different. As regards the
Clause (a) and (aa) the power is exercised by the Appellate Court on an application
being filed by the concerned party, whereas, exercise of power under Clause (b) is not
dependent upon such an application being filed and can be exercised by the Court on
its own. This is not to say that such power cannot be exercised on an application being
filed or any defect in the evidence considered by the Trial Court being pointed out by
the party. It is also trite that in a given situation where an application has been filed
which is referable to Clause (a) or Clause (aa) even then Clause (b) may also be
attracted or applied. The scope and purport of Clause (b) of Order 47 Rule 21(1) has
been extensively dealt with by the Constitution Bench of the Supreme Court in a case
reported in AIR 1965 SC 1008, The Municipal Corporation of Greater Bombay v. Lala
Pancham and others, AIR (38) 1951 SC 193, Arjan Singh v. Kartar Singh and others, AIR
1963 SC 1526, K. Venkataramiah v. A. Seetharama Reddy and others and AIR 1931 PC
143, Parsotim Thakur v. Lal Mohar Thakur.
Certainly, if the application for additional evidence is “ allowed” then recourse
would have to be taken to Rules 28, 29 etc. And the matter would have to be heard
again taking into consideration the additional evidence but the application under
Order XLI Rule 27 will have to be considered only at the stage of final hearing
preceding the allowing of the said application.
In view of what has already been discussed hereinabove, the Appellate Court
has erred in considering and deciding the application at a stage prior to actual final
hearing of the appeal. In view of the above the other contentions of Sri Prabhat Kumar
need not be considered by this Court. The impugned order dated 27.7.2017 is hereby
quashed. The application under Order XLI Rule 27 shall now stand restored before the
Appellate Court for consideration afresh keeping in mind the aforesaid discussion. It is
made clear that this Court has not considered the merits of the rival contentions of the
parties in respect of the said application which shall be considered by the Appellate
Court as per low.
With the aforesaid observations the writ petition stands allowed. Smt. Fulra
Devi V. Addl. Distt. And Sess. Judge/F.T.C.(II), Ambedkar Nagar, 2018(2) ARC 809
Constitution of India:
Arts. 16, 226, 309 – Constitution of India – Proviso – U.P. Government press and Allied
Establishments (Gazetted Officers) service Rules – Rr. 5, 9, 17 – U.P. Government
Servants Seniority Rules (1991), R. 8 – Inter se seniority between promotees and direct
recruits – Challenges as to – Fence sitter cannot be allowed to challenge validity of
seniority list after its conclusion
Thus, it is well settled principle in law that fence-sitters cannot be allowed to
raise the dispute or challenge the validity of the order after its conclusion. No party
can claim the relief as a matter of right as one of the grounds for refusing relief is that
the person approaching the Court is guilty of delay and the laches. The Court
exercising public law jurisdiction does not encourage agitation of stale claims where
the right of third parties crystallizes in the interregnum.
Thus, in view of the above, the settled legal proposition that emerges is that
once the seniority has been fixed and it remains in existence for a reasonable period,
any challenge to the same should not be entertained. There is no dispute to the fact
that the final seniority list has been acted upon and persons have been promoted on
next higher post way back in the year 2015. In these circumstances, case laws relied
upon by the petitioner are of no avail to him as the facts of the case are entirely
different.
It is also relevant to mention that the petitioner has neither challenged the
final seniority list dated 19.1.2008 as also another seniority list dated 12.12.2014
issued by the Director, Printing and Stationary for the post of Assistant Directors. It
may be noted, as averred above, that acting upon the said seniority list, four
candidates have been promoted to the post of Deputy Director (Printing) vide order
dated 2.9.2015.
Thus, the Tribunal has rightly dismissed the claim petition of the petitioner.
Accordingly, we do not find any illegality and infirmity in the impugned orders and the
writ petition is hereby dismissed. Costs easy. Rakesh Awasthi V. State of U.P., 2018 (5)
ALJ 133
Art. 226 – Writ jurisdiction – exercise of – despte availability of alternative remedy
Doctrine of exhaustion all other efficacious alternative remedies before
approaching High Court under Art. 226 of Constitution is not rule of law, but police
adopted by writ courts and deviation therefrom is permissible, if action impugned
causes injury to fundamental rights of person or citizen as case may be, if action lacks
jurisdiction, if action is in violation of principles of nature justice and if that is
shockingly arbitrary.
Remedy given under Art. 226 being discretionary is subject to several checks.
Checks mostly are self-imposed and as rule policy with view that extraordinary remedy
should always be exercised in extraordinary circumstances only, Remedy given must
not be treated at par or alike other statutory remedies. Prominent self-imposed
restriction in exercise of discretion given under At. 226 is principle of exhausting all
other statutory remedies before approaching writ court. It is rule of convenience and
discretion and does not oust jurisdiction of writ court, but indicates caution in
exercising extraordinary constitutional authority. Deviation from this principle is
permissible, if relief is sought with well founded allegation of violation of fundamental
rights, if right has been or being threatened to be infringed by law which itself is ultra
vires if there is complete lack of jurisdiction in officer or authority issuing impugned
order or action, if there is flagrant violation of principles of natural justice, if
prevention of public injury and vindication of public justice requires extraordinary
recourse and if court is satisfied that remedy available is not efficacious enough to
protect injury caused or may be caused. This principle applied with more vigour, if
party is seeking writ, nature of certiorari to get order passed by judicial or quasi
judicial authority set aside. Saud Akhar V. State of U.P., 2018 (4) ALJ 480
Art. 226- Seniority list- redetermination of- Legality- Process of redetermination of
final seniority list found not only contumacious but also contrary to service
jurisprudence- Once the seniority list had been fixed and it remains in existence for a
reasonable period, any challenge to the same should not be entertained
It is not in dispute that the order dated 1.2.2018, letter dated 2.2.2018 and
consequential order dated 7.2.2018, impugned in the present writ petition, have been
issued/passed in the garb of the judgment and order dated 7.4.2015 passed in a Civil
Appeal No. 3348 of 2015 filed by one Narendra Kumar Tripathi (supra), an employee of
Rural Engineering Services, whereby re-determination of the final seniority list dated
20.8.2005 has been processed.
Furthermore, final seniority list of the feeding cadre of Assistant Engineers
dated 30.8.2005 was affirmed by the Apex Court. In these circumstances,, it is wrong
to say that judgment rendered in Narendra Kumar Tripathi's case is judgment in rem.
Therefore, process of re-determination of the final seniority list by means of the
impugned orders/instructions/letters are not only contumacious but also contrary to
the service jurisprudence. According to the petitioner, the judgment of Narendra
Kumar Tripathi's case has no relevance with the department of Minor Irrigation
because the Narendra Kumar Tripathi was employed with rural engineering
department and had contested his claim individually upto the Apex Court and has
succeeded, resulting in re-determination of seniority.
So far as finalization of the seniority list and its significance in service
jurisprudence is concerned, the Apex Court in the case of H.S. Vanikani & others Vs.
State of Gujarat & others : (2010) 4 SCC 301 has held that:--
"25. Seniority is a civil right which has an important and vital role to play in
one's service career. Future promotion of a Government servant depends either on
strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc.
Seniority once settled is decisive in the upward march in one's chosen work or calling
and gives certainty and assurance and boosts the morale to do quality work. It instills
confidence, spreads harmony and commands respect among colleagues which is a
paramount factor for good and sound administration. If the settled seniority at the
instance of one's junior in service is unsettled, it may generate bitterness, resentment,
hostility among the Government servants and the enthusiasm to do quality work
might be lost. Such a situation may drive the parties to approach the administration
for resolution of that acrimonious and poignant situation, which may consume a lot of
time and energy. The decision either way may drive the parties to litigative wilderness
to the advantage of legal professionals both private and Government, driving the
parties to acute penury. It is well known that the salary they earn, may not match the
litigation expenses and professional fees and may at times drive the parties to other
sources of money making, including corruption. Public money is also being spent by
the Government to defend their otherwise untenable stand. Further it also consumes
lot of judicial time from the lowest court to the highest resulting in constant bitterness
among parties at the cost of sound administration affecting public interest. Courts are
repeating the ratio that the seniority once settled, shall not be unsettled but the men
in power often violate that ratio for extraneous reasons, which, at times calls for
departmental action.
On due consideration, we are of view that since the judgment rendered by the
Apex Court in Narendra Kumar Tripathi (supra) has no relevance with the department
of Minor Irrigation as Narendra Kumar Tripathi's case was of the employee of Rural
Engineering Department and further, seniority list of Engineers of Minor Irrigation
Department stood finalized which was affirmed by the Apex Court and as a matter of
fact has been acted upon in the past, therefore, the process for re-determination of
seniority is per se bad and unjustified.
Thus, in view of the above, the settled legal proposition that emerges is that
once the seniority had been fixed and it remains in existence for a reasonable period,
any challenge to the same should not be entertained, which surprisingly, has been
reopened merely on the basis of representations reflecting the arbitrariness and
colourable exercise of powers. Ramakant Tiwari V. State of U.P., 2018 (4) AWC 3278
Criminal Procedure Code:
Ss. 156(3), 154 and 482 – F.I.R. - Can be lodged for forgery committed by accused of
land belonging to Government – By a private person – Charge sheet cannot be
quashed – Criminal revision dismissed
When there is provision in the Section 43 Cr.P.C., 1973 which empowers any
private person to arrest a person who in his presence commits non-bailable and
cognizable offence or any proclaimed offender, then this argument of learned counsel
for the revisionists has no basis that the F.I.R. cannot be lodged by a private person
against the wrongs done by a private person regarding immovable landed property
which belongs to the Government.
The courts whether criminal, civil, revenue or any other type of
courts have legal and moral duty to take the cognizance of any wrong
done against the State. To uphold and protect the majesty of law is the
paramount obligation of the courts. The courts either cannot shun from
this legal duty or cannot shut their eyes for the wrongs committed against
the State.
The cardinal principle of the criminal justice is that; any punishable
offence is committed against the State. Although the personal
wrong/injury may be caused to any individual(s). Rajendra Singh
Gurjer V. State of U.P., 2018 (104) ACC 444
Ss. 164, 173(2) and 161 – Indian Penal Code, 1860 0 Sections 262 and 366-A –
Protection of Children from Sexual Offences Act, 2012 – Report lodged by first
informant mother of the victim that her 17 years old daughter has been enticed away
by the petitioners to sell her for prostitution and life of her daughter was in danger –
After recovery of the victim her statement recorded under section 161 Cr.P.C. - Victim
stated that she had gone with A-2 out of her own free will and went to Nepal and
married with A-2 out of her own free will and went to Nepal and married with A-2 in a
temple – She wants to live with A-2 - Victim denied to undergo medical examination –
In her section 164, Cr.P.C. statement she stated that nobody enticed her away and
after marrying in a temple in Nepal they were together but without making physical
relation - Application by father of the victim that her earlier statement was recorded
under influence of police with the accused – Second statement recorded under
Section 164 Cr.P.C. - In her second statement she levelled serious allegations of rape
and blackmailing against petitioners – Second statement of the victim can be an after-
thought and under influence of her father just to defeat her earlier statement –
Statement under section 164, Cr.P.C. on oath before the Magistrate at the first
opportunity after her recovery can be taken as true unless made, under influence,
duress or any oblique motive – Law does not bar recording of second statement –
Investigating officer directed to proceed with the investigation and submit report as
directed by the Co-ordinate Bench – petition disposed of accordingly.
First statement of the victim under Section 164 of the Code was recorded on
19.7.2017 and on 21.7.2017 the father of the victim has given an application to the
Superintendent of Police, district Chandauli mentioning therein that on 15.7.2017, the
victim was abducted by Manoj Kumar with the help of his wife in respect of which a
case was registered at police station Sakaldeeha. Accused Manoj raped her daughter
for three days and on pressure of the police on the family members of the accused, he
came to the police station along with the victim. Accused Manoj is very influential
person, due to which the police has let him off after a short while and the victim could
not be medically examined till date. It is further mentioned in the application that (as
told by the victim ) that the police has got the statement of the victim recorded under
the pressure of the accused. The victim has also told to her father that the accused
had threatened her if she gives statement against him, he will get her brothers
eliminated.
In her second statement under Section 164 Cr.P.C. which was recorded on
13.12.2017, the victim has levelled serious allegations of rape, blackmailing her and
life threat against Manoj and his wife, the petitioners. In the second statement both
under section 161 and 164 Cr.P.C, the victim has given a very clear and lucid picture of
the incident, i.e. as to how she has been enticed away and raped by petitioner Manoj
and what happened thereafter till the recording of her earlier statement under section
161 and 164 Cr.P.C.
In Ram Prasad Vs. State of Maharashtra, 1996 Cri.L.J. 2889, Apex Court has
held thus:
"Be that as it may, the question is whether the court could treat it as an item
of evidence for any purpose.
In Bhuboni Sahu Vs. King, AIR 1949 PC 257, the Privy Council has held that a
statement made under Section 164 of the Code of Criminal procedure can never be
used as substantive evidence of the fact stated, but it can be used to support or
challenge evidence given in Court by the person who made the statement.
In Manik Gazi Vs. Emperor, AIR 1942 Cal 36, a Division bench of Calcutta High
Court had held that the statements under Section 164 of the code can be used only to
corroborate or contradict the statement made under section 145 and 157 of the
Indian Evidence Act.
Court has considered the purpose and relevance of the statement of the
victim recorded under Section 164 of the Code of Criminal Procedure. It has been
stated by the father of the victim that the first statement of the victim both under
section 161 and 164 Cr.P.C. were got recorded by the police under pressure and in
collusion with the accused, but the same appears only to lame excuse by the father of
the victim who moved an application along with an affidavit to the Superintendent of
Police Chandauli, who directed the Investigating Officer to get her statement again
recorded under section 164 Cr.P.C., for which the Investigating Officer moved to the
POCSO Court and Additional Sessions Judge directed the Magistrate to record second
statement of the prosecutrix/victim under Section 164 Cr.P.C. and the learned
Magistrate following the mandate of the POCSO Court recorded the second statement
under Section 164 Cr.P.C. on 13.12.2017 without questioning or confronting the
victim/prosecutrix about earlier statement recorded under Section 164 Cr.P.C. on
19.7.2017 in which she did not level any allegation against the accused Manoj though
the said statement was made on oath by her before the competent Magistrate in view
of the provisions of Section 164 (5) Cr.P.C.
1. In the said circumstances the second statement of the victim recorded under
Section 164 Cr.P.C. can be an afterthought and also under influence of her father,
possibility of which cannot be ruled out and just to defeat the earlier statement
recorded under Section 164 Cr.P.C. of the victim, the Investigating Officer at the
behest of her father again got recorded her statement under Section 164 Cr.P.C
leveling allegations against the accused and his wife.
In the present case neither the learned POSCO Judge, who ordered for
recording the second statement of the victim under Section 164 Cr.P.C. nor the
learned Magistrate, who recorded the second statement on 13.12.2017 has taken due
care or precaution which necessitated the recording of second statement under
Section 164 Cr.P.C. of the victim and also not confronted the victim of her earlier
statement under Section 164 Cr.P.C.
It is true that law does not bar recording the statement of the victim under
Section 164 Cr.P.C. twice, but at the same time the second statement should not be
recorded to negate or defeat the earlier statement of the victim whether it is in favour
or against the accused otherwise the sanctity of the statement under section 164
Cr.P.C. will lose its value. Manisha Sahu v. State of U.P., 2018 (104) ACC
Sec. 389 – IPC, 1860 – S. 302 – Suspension of execution of sentence – First bail
application of applicant rejected earlier – Second bail application filed on ground that
appellant has been in jail for the last about 9 years and there is no possibility of his
appeal being heard and decided in near future – Conclusion of the Trial Court that
accused committed two murders and one of them was brutal – High Court empowered
under Section 389 Cr.P.C. to suspend the sentence pending appeal and release the
convict on bail – such power has to be exercised with great circumspection and
caution – Court must record reasons for granting such relief – Period of incarceration
cannot be ground for granting bail when same is forbidden in law – Role of appellant
distinguishable from co-accused – Looking into the facts and circumstances of the case
no good ground to allow the second bail application – Application rejected
The said power should be exercised only in exceptional
circumstances where failure to stay the conviction, would lead to injustice
and irreversible consequences but such power must be exercised with
great circumspection and caution.
The court has to consider all the facts as are pleaded by the
applicant, in a judicious manner and examine whether the facts and
circumstances involved in the case are such, that they warrant such a
course of action by it.
The court additionally, must record in writing, its reasons for
granting such relief and discuss in detailed the background of the
appellant, the nature of the crime, manner in which it was committed, etc.
and the evidence which has been produced by the prosecution in order to
prove that crime has been committed by the accused-appellant and in what
manner, the same has been dealt by the trial court while passing the
judgment of conviction.
In the case when the accused are old aged person or suffering from
serious medical ailment, his bail application be considered on the ground
of period of his incarceration vis-a-vis the crime committed by him for
which he has sent to jail.
The period of incarceration of the accused-appellant cannot be a
ground for granting his bail where the grant of bail is forbidden in law.
Now rebutting to the facts of the case it is not in dispute that first
bail application of accused appellant was rejected by this Court on
21.11.2017 after considering his role in commission of crime as well as
the findings recorded by the trial court.
In the instant matter learned counsel for the accused-appellant has
only pressed second bail application on the point of period of
incarceration which is of nine years of jail and no other point has been
argued.
Further, while rejecting the first bail application of the accused-
appellant, this Court has taken into consideration the findings recorded by
the learned trial court as well as the fact that role of the accused- appellant
is distinguishable from the co-accused Vishal Gupta alias Chhotey, who
has been acquitted by learned trial court. Hence, looking into the facts and
circumstances of the case on the point of incarceration in jail of nine years,
Court does not found any good ground to allow the second bail
application of the accused-appellant. Bholu V. State of U.P., 2018 (104)
ACC 414
Ss. 482, 257, 244 and 245 – IPC, 1860 – Sections 427, 504 and 506 – Withdrawal of
complaint by the applicant – Earlier the Court below issued summon to the opposite
party Nos. 2 and 3
In the present case, Section 506 I.P.C. is a cognizable and non bailable offence
as per the Uttar Pradesh Amendment, it is to be treated as a warrant case and the
Magistrate has no jurisdiction to permit the complaint and to withdraw.
The scheme of the provisions of Cr.P.C. appears to make out a clear distinction
between the summons trials and warrant trials with significant purpose. Chapter XIX of
Cr.P.C. provides for trial of warrant cases by the Magistrates. Part B of Chapter XIX of
Cr.P.C. makes provision for warrant cases instituted otherwise than on police report
and Section 244 Cr.P.C. provides that when, in any warrant-case instituted otherwise
than on a police report, the accused appears or is brought before a Magistrate, the
Magistrate shall proceed to hear the prosecution and take all such evidence as may be
produced in support of the prosecution. The Magistrate has power to discharge the
accused under Section 245 (1) Cr.P.C. if, upon taking all the evidence referred to in
Section 244 Cr.P.C., he finds that no case against the accused has been made out.
Thus, it is clear that the Magistrate, while trying a warrant cases instituted by
means of a complaint, is bound to follow the procedure as prescribed under Sections
244 and 245 Cr.P.C. and he is not empowered to permit the complainant to withdraw
the complaint without doing so. Hence the applicant cannot be permitted to withdraw
his complaint.
According to Section 244 Cr.P.C., the accused has to appear before the
Magistrate, therefore, the impugned summoning order dated 23.6.2015 which has
been issued by the learned Magistrate on the basis of the evidence and statement of
the complainant, cannot be quashed.
In view of the above discussion, there does not appear any illegality in the
impugned summoning order dated 29.7.2017 and the prayer to quash the aforesaid
order is rejected. Accordingly, the impugned orders dated 23.6.2015 and 29.7.2017,
do not call for any interference by this Court. The instant application is liable to be
dismissed and is accordingly dismissed. Imran v. State of U.P., 2018 (104) ACC 46
Finding of Fact:
Held, beyond scope of any interference under writ jurisdiction-No illegality or
infirmity committed by all consolidation authorities while passing impugned orders-
Petition dismissed.
The specific finding has been recorded by all the consolidation authorities that
the petitioner and other co-sharers are having the excess land and the land of 11
bighas is the excess land of the respondent No. 2. The finding recorded by all the
consolidation authorities are finding of fact, which is beyond the scope of any
interference under the writ jurisdiction. No illegality or infirmity has been committed
by all the consolidation authorities while passing the impugned orders.
Writ petition lacks merit and is, accordingly, dismissed. Mohammad Yasin V.
Deputy Director of Consolidation, 2018 (140) RD 684.
Deficiency in Stamp- Imposition of penalty-Held, Collector has power to recover
payment of deficiency in stamp duty as well as penalty-Petition dismissed.
A perusal of the impugned orders dated 30.11.2004 and 24.3.2005 shows that
the findings recorded by respondent Nos. 3 and 5 regarding constructions existing on
the plot are based on evidence on record and the inspection done by respondent,
findings recorded by respondent No. 3 and upheld by respondent No. 5 regarding
stamp duty liable to be paid on the sale deed dated 30.07.2004 are findings of facts
and not liable to be interfered under Article 226 of the Constitution of India. Similarly,
the argument of Counsel for the petitioner that the authorities did not have the power
to impose penalty on the petitioner is also unfounded. It is evident from the records
that sale deed was executed on 30.07.2004 and Case No. 154 of 2004 was registered
under section 33 of the Act, 1899. A reading of sections 33(5), 40(1) and 47-A of the
Act, 1899 shows that the Collector has the power to require payment of deficiency in
stamp duty as well as penalty. The provisions of sections 33(5), 40(1) and 47-A (4) of
the Act, 1899 are reproduced hereinbelow:
“33(5) In case the instrument is not produced within the period specified by the
Collector, he may require payment of deficit stamp duty, if any, together with penalty
under section 40 on the copy of the instrument:
Provided that no action under sub-section (4) or sub-section (5) shall be taken
after a period of four years from the date of execution of the instrument]:
[Provided further that with the prior permission of the State Government an
action under sub-section (4) or sub-section (5) may be taken after a period of four
years but be fore a period of eight years from the date of execution of the instrument].
40.Collector’s Power to stamp instruments impounded- (1) When the Collector
impounds any instrument under section 33, or receives any instrument sent to him
under section 38, sub-section (2), not being [a receipt] or a bill of exchange or
promissory note, he shall adopt the following procedure:
(a) If he is of opinion that such instrument is duly stamped or is not chargeable
with duty, he shall certify by endorsement thereon that it is duty stamped, or that it is
not so chargeable, as the case may be;
(b) If he is of opinion that such instrument is chargeable with duty and is not duly
stamped, he shall require the payment of the proper duty or the amount required to
make up the deficiency together with a penalty of an amount not exceeding ten times
the amount of the proper duty or of the deficient portion thereof]:
Provided that when such instrument has been impounded only because it has
been written in contravention of section 13 or section 14, the Collector, may, if he
thinks fit, remit the whole penalty prescribed by this section:
[Provided further that no penalty shall be levied unless the party concerned
has been given a reasonable opportunity of being heard].
47-A(4). If on enquiry under subsection (2) and examination under sub-section
(3) the Collector finds the market value of the property.-
(i) Truly set forth and the instrument duly stamped, he shall certify by
endorsement that it is duly stamped and return it to the person who made the
reference;
(ii) Not truly set forth and the instrument not duly stamped, he shall require the
payment of proper duty or the amount required to make up the deficiency in the same
together with a penalty of an amount not exceeding four times the amount of the
proper duty or the deficient portion thereof.”
The aforesaid provisions were incorporated in the Indian Stamp Act, 1899 through U.P.
Act No. 22 of 1998 w.e.f. 01.09.1998 and the sale deed involved i the present writ
petition was executed in 30.07.2004. Evidently, the Full Bench Judgment of this Court
in Girijesh Kumar Srivastava and another V. State of U.P. and other, 1998 (Suppl.) R.D.
532 (HC-FB).
For the aforesaid reasons, there is no merit in the present writ petition and is
dismissed as such. Smt. Anuradha Gosqami V. State of U.P., 2018(140) RD 471.
Houses and Rents:
Application for spot inspection-Rejection of-The facts which could be proved or
established by leading evidence by the petitioner cannot be ascertained by issuing
commission-Issuing commission cannot be a substitute for leading evidence-P.A. to
consider all evidence filed earlier on affidavits by both parties while taking an informed
decision in the matter thereafter-Rejection proper.
This Court observed that the facts which could be proved or established by
leading evidence by the petitioner cannot be ascertained by issuing a Commission.
Issuing a Commission cannot be a substitute for leading evidence.
It shall be open for the Prescribed Authority to consider all evidence filed
earlier on affidavits by both the parties while taking an informed decision in the matter
thereafter.
The Release Application can be decided on the basis of evidence led by either
parties which is already on record within a period of three months from the date a
certified copy of this order is produced before him.
The petition is disposed of with the aforesaid observations. Mohammad
Ibrahim V. Ashok kumar Agarwal, 2018(2) ARC 417
Indian Penal Code:
Ss. 147, 148, 149, 307, 302 and 120-B – Revisionist claimed himself to be juvenile at
the time of occurrence – Dispute was regarding date of birth entered into High School
Marksheet – No informity in the order impugned – Revision dismissed
In Prag Bhati (Juvenile) through legal guardian mother Rajni Bhati vs. State of
U.P. and others, (2016) 12 SCC 74, it is made clear by Supreme Court that Section 7-A,
Juvenile Justice (Care and Protection of Children) Act, 2000, the court is enjoined to
make an enquiry and take such evidence as may be necessary to determine the age of
the person who claims to be a juvenile. However, under Rule 12, Juvenile Justice (Care
and Protection of Children) Rules, 2007 (here-in-after referred to as "Rules of 2007"),
the Juvenile Justice Board is enjoined to take evidence by obtaining the matriculation
certificate if available, and in its absence, the date of birth certificate from the school
first attended and if it is also not available then the birth certificate given by the local
body. In case any of the above certificates are not available, then medical opinion can
be resorted to. However, if the Board comes to the conclusion that the date of birth
mentioned in the matriculation certificate raises some doubt on the basis of material
or evidence on record, it can seek medical opinion from a duly constituted Medical
Board, to determine the age of the accused person claiming juvenility. Further, it is
held that the benefit of the principle of benevolent legislation attached to the J. J. Act
would thus apply to only such cases wherein the accused is held to be a juvenile on the
basis of at least prima facie evidence regarding his minority as the benefit of the
possibilities of two views in regard to the age of the alleged accused who is involved in
grave and serious offence which he committed and gave effect to it in a well-planned
manner, reflecting his maturity of mind rather than innocence, indicating that his plea
of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot
be allowed to come to his rescue. It is settled position of law that if the matriculation
or equivalent certificates are available and there is no other material to prove the
correctness of date of birth, the date of birth mentioned in the matriculation
certificate has to be treated as a conclusive proof of the date of birth of the accused.
However, if there is any doubt or a contradictory stand is being taken by the accused
which raises a doubt on the correctness of the date of birth then as laid down by this
Court in Abuzar Hossain [(2012) 10 SCC 489], an enquiry for determination of the age
would be permissible.
The above law is very much clear on the point that even if the accused wants
to get himself declared juvenile on the basis of his date of birth in High School
certificate, it would be open to the Juvenile Justice Board to hold an enquiry about his
age in case it is found that there was serious doubt about correctness of the said date
in High School certificate. In case at hand, learned court below has raised serious
doubt because of non-submission of documents showing entry of age to have been
made at the stage of primary school and from there onwards till the revisionist
appeared in the examination of High School as a private candidate. It is held by the
court below that in the case at hand, it would not be appropriate to rely upon the
statement of the clerk of the institution in which accused-revisionist appeared and
passed because the said institution was an aided institution. The line of reasoning of
the court below is absolutely correct that unless it was proved by the revisionist as to
what age was recorded in his transfer certificate which might have been submitted by
him at the time of filling up the form of High School as a private candidate, showing his
age, it would not be believable that the age recorded in the High School mark sheet be
taken to be genuine. The mother who was the main witness had not been produced
for being cross-examined on the point of age and hence her statement was rightly
discarded by the court below, hence ultimately the court has relied upon the age
which has been determined on the basis of his medical examination, on the basis of
which he has been found to be 20 years and even after giving benefit of two years on
the lower side, he is found to be above 18 years. No infirmity is found in the order of
the court below in the light of the law cited above. There is no force in this revision
and it is accordingly, dismissed. Uttam Tomar v. State of U.P., 2018 (104) ACC 100
Interested witness:
Related is not equivalent to interested – No law that evidence of related witness
cannot be taken into consideration – Heavy duty cast upon Courts in such cases to be
cautious while evaluating evidence of a related witness to exclude possibility of false
implication
It would be appropriate to have a look at the legal position with regard to the
evidence of related and interested witnesses. In Sarwan Singh v. State of Punjab,
(1976 (4) SCC 369), para 10, this Court observed thus:
“….. The evidence of an interested witness does not suffer from any
infirmity as such, but the Courts require as a rule of prudence, not as a
rule of law, that the evidence of such witnesses should be scrutinized with
a little care. Once that approach is made and the Court is satisfied that the
evidence of interested witnesses have a ring of truth such evidence could
be relied upon even without corroboration.” It is settled law that there
cannot be any hard and fast rule that the evidence of interested witness
cannot be taken into consideration and they cannot be termed as witnesses.
But, the only burden that would be cast upon the Courts in those cases is
that the Courts have to be cautious while evaluating the evidence to
exclude the possibility of false implication. Relationship can never be a
factor to affect the credibility of the witness as it is always not possible to
get an independent witness.
Then, next comes the question ‘what is the difference between a related
witness and an interested witness?’. The plea of "interested witness", "related
witness" has been succinctly explained by this Court that "related" is not equivalent to
"interested". The witness may be called "interested" only when he or she derives
some benefit from the result of a litigation in the decree in a civil case, or in seeing an
accused person punished. In this case at hand PW 1 and 5 were not only related
witness, but also ‘interested witness’ as they had pecuniary interest in getting the
accused petitioner punished. As the prosecution has relied upon the evidence of
interested witnesses, it would be prudent in the facts and circumstances of this case to
be cautious while analyzing such evidence. It may be noted that other than these
witnesses, there are no independent witnesses available to support the case of the
prosecution. Sudhakar @ Sudharasan v. State Rep. by Inspector of Police, 2018 (104)
ACC 302
Motor Vehicles Act:
Sec. 173- Motor Vehicle Rules, 1998- R. 222- Code of Civil Procedure, 1908- Order XLI,
Rule 22- Cross-objection –Maintainability of – Cross-objection under Order XLI, Rule 22
would be maintainable in appeal filed under Section 173 of 1988 Act before High
Court- Objection by owner of vehicle also held to be maintainable subject to statutory
pre-deposit as sell as deposit of court-fee and valuation
The present appeal has raised an issue of importance namely, as to whether
an appeal filed under Section 173 of the Motor Vehicles Rules Act, 1988 before the
High Court read with Rule 222 of the U.P. Motor Vehicles Rules, 1998, confers any
right on the respondents in the appeal to file a Cross Objection as envisaged in terms
of Order XLI Rule 22 of the C.P.C., or not.
In the instant case Section 173 of the 1988 Act creates a right of appeal and
also the jurisdiction to adjudicate the appeal. The question that calls for consideration
is as to whether there is a jurisdiction to entertain a Cross Objection and decide the
same. To our mind, if the jurisdiction is to adjudicate an appeal then the same implies
and inheres in it the right to decide an objection arising out of the same judgment
which is in appeal. Discuss Section 169, 176 Rule 221, 222 (at page 10, 11) Legislature
conscious of not placing restriction on court of appeal.
The jurisdiction of the High Court to entertain a Cross Objection will be
available on the reasoning of Order XLI-A Rule 10 C.P.C. as extracted above and even
by applying the substantive rule of procedure contained in Order XLI Rule 33 of C.P.C.
A Cross Objection, the moment an appeal is filed, gives an opportunity to the other
side which may be a matter of a procedure, but is an exercise of the same right as that
of the appellant and which in our opinion does not require a separate Statutory
conferment. The right to file a Cross Objection is a necessary concomitant of the right
of appeal already created under the Statute. A Cross Objection cannot be filed unless
an appeal exists and conversely if an appeal is filed, the right to file a Cross Objection if
denied can result in injustice or mis-carriage of justice. The reason is that a party may
not intend to file an appeal as he may not be seeking any further relief but once an
order of the Tribunal is put in jeopardy in an appeal then in order to save what has
already been granted to or to demand what has been denied to the other side may be
well at risk.
This case, hold that a Cross Objection under Order XLI Rule 22 C.P.C. would be
maintainable in an appeal filed under Section 173 of the 1988 Act before the High
Court.
So far as a Cross Objection by an owner is concerned, the same would also be
maintainable subject to the Statutory pre-deposit as well as deposit of Court Fee and
valuation for which the Cross Objection should carry a separate report by the Stamp
Reporter. This will not in any way prejudice the cause of either of the parties and
rather facilitate the entire process of adjudication avoiding any multiplicity of
proceedings. New India Assurance Co. Ltd. V. Smt Sushma Gupta and others, 2018 (4)
AWC 3331
Right to Information Act:
Ss. 19 (1), 7, 27 – Right to Information Rules, (2012) R. 8 – U.P. Right to Information
Rules (2015), R. 7 – U.P. State Information Commission (Appeal procedure) rules
(2006), R. 3 – Appeal – refusal to supply information – maintainability – provision of
Act along with rules providing that separate first appeal shall be u/s 19(1) against each
order or against each deemed refusal u/s 7 – single appeal against rejection of
separate seven applications sought for information not maintainable
Right of appeal is a creature of statute. It is a valuable statutory right
conferred upon aggrieved person to enter a superior forum for invoking its aid and
interposition to correct errors of the inferior forum. Section 19(1) of the Act confers
such a right of appeal to be exercised by a person who is aggrieved by reason of
refusal or deemed refusal by the Central Public Information Officer or State Public
Information Officer, as the case may be, to furnish the information to the aggrieved
person who made the request for obtaining the information under Section 6 of the
Act. A conjoint reading of Sections 7, 19 and 20 of the Act read with Rule 8 of the Right
to Information Rules, 2012, Rule 7 of the U.P. Right to Information Rule, 2015 and Rule
3 of the U.P. State Information Commission (Appeal Procedure) Rules, 2006 leads to an
irresistible conclusion that against each order or against each deemed refusal under
Section 7 of the Act, separate first appeals shall lie under Section 19(1) of the Act
before the competent authority. Neeraj Srivastava V. State of U.P., 2018 (4) ALJ 321
S. 19(8) – Power of State Information Commission – scope of
It is, however, made clear that the authorities under the Right to Information
Act are required to ensure that the right of an applicant under the said Act is protected
and information/answer book is supplied as soon as application is made.
Issuance of this direction is also necessary because future/career of the
students hinges on the result. In such circumstances, it becomes duty of every public
servant to ensure providing information under the RTI Act at the earliest, in
enforcement of the right of such applicant. Public Information Officer, U.P. V. State
Information Commissioner, U.P., Lucknow, 2018 (4) ALJ 497
Securitization and Reconstruction of Financial Assets and Enforcement of Security
Interest Act:
Ss. 17, 13 (4). 38 (1), (2) (b) – Security Interest Act, Ss. 17, 13(4), 38 (1), (2)(b) – Security
Interest Rules – R.8 – Constitution of India, Art. 226 – Appeal – Remedy of – Invocation
of – is not barred when provisions of S. 13(4) are invoked by creditor with fixation of
notice for possession
Specific Bar created by legislature for availing remedy under S. 17 is prior to
stage of S. 13(4) of Act. Provision as it stands, namely S. 13 (4) of 2002 Act r/w S. 17,
does not seem to create any situation of ambiguity or absurdity for the Court to fill up
any casus omissus. When the provisions of S. 13 (4) r/w Rule 8 are invoked by creditor
by with fixation of notice under Appendix IV for possession, same is clear assertion of
righ tit ale possession which is separate from /s. 14. Remedy to borrower is against
possession sought to be taken under S. 13(4) of Act. Thus, right to avail remedy does
accrue without any indication of adjournment or postponement for invoking S. 17 of
Act.
Tribunal has to examine as to whether lease has been determined expired,
contrary to provisions of transfer of property act or to terms of mortgage or has been
created after issuance of notice under S. 13(2). Said section also indicates that if such
determination has to be made then Legislature has not intended that such
determination will be made only after tenant or lease holder is thrown out of premises
after taking actual physical possession. This was done consciously after such issues
were being raised time and again in courters of law in order to protect interest of such
persons to extent as indicated in aforesaid statutory provision. Therefore, writ petition
cannot be entertained under Art. 226 of Constitution of India without prejudice to
rights of petitioners to avail of remedy under S. 17. Dheerendra Kumar v. Authorised
Officer Aadhar Housing Finane Ltd., 2018 (4) ALJ 661
Service Law:
Employment- Compassionate appointment- Denial of – No one having vested right to
claim compassionate appointment
The above noted writ petition has been filed by the petitioners challenging the
order dated 22/29.9.2009 passed by the respondent No.2, Chief Commissioner of
Income Tax, Ashok Marg, Lucknow and the order dated 04.10.2010 passed by the
Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application
No. 1351 of 2009.
By these orders, the claim of the petitioners for appointment on compassionate
basis in place of his deceased father has been turned down.
When the above noted writ petition was filed, this Court passed an order dated
24.03.2011 requiring the petitioners to bring on record the financial background of the
family, terminal benefits received, sources of survival and family pension being
received by the respondent No.1 and accordingly, petitioners filed supplementary
affidavit dated 07.5.2013.
The averments made in the supplementary affidavit clearly shows that the
family of deceased Sri A.P. Mishra cannot be said to be in penurious condition and the
age of the petitioner No.2 at the time of making application for compassionate
appointment in the year 2001 was 36 years and now he must be around 53 years of
age and, therefore, the findings of the Central Administrative Tribunal, Allahabad
Bench, Allahabad that the petitioner No.2 was major at the time of death of his father
and, therefore, in a position to earn his livelihood cannot be faulted with. It is further
required to be stated that the application on compassionate basis is not vested right
but only an ameliorating relief for financial constraint bereaved family has suffered
and no one has vested right to claim the same. This legal position has been reiterated
by this Court and also by the Hon'ble Apex Court. In the case of "MGB Gramin Bank Vs.
Chakrawarti Singh, (2014) 13 SCC 583", the Apex Court had held as under:-
"6. Every appointment to public office must be made by strictly adhering to the
mandatory requirements of Articles 14 and 16 of the Constitution. An exception by
providing employment on compassionate grounds has been carved out in order to
remove the financial constraints on the bereaved family, which has lost its bread-
earner. Mere death of a Government employee in harness does not entitle the family
to claim compassionate employment. The Competent Authority has to examine the
financial condition of the family of the deceased employee and it is only if it is satisfied
that without providing employment, the family will not be able to meet the crisis, that
a job is to be offered to the eligible member of the family. More so, the person
claiming such appointment must possess required eligibility for the post. The
consistent view that has been taken by the Court is that compassionate employment
cannot be claimed as a matter of right, as it is not a vested right. The Court should not
stretch the provision by liberal interpretation beyond permissible limits on
humanitarian grounds. Such appointment should, therefore, be provided immediately
to redeem the family in distress. It is improper to keep such a case pending for years.
In view of the above factual and legal position, the orders passed by the Central
Administrative Tribunal, Allahabad Bench, Allahabad as well as by the respondent
No.2, impugned in the writ petition, cannot be faulted with.
Accordingly, the writ petition fails and is hereby dismissed. However, there
shall be no order as to costs. Smt. Ishraj Mishra V. Union of India, 2018 (4) AWC 3323
Specific Relief Act:
Sec. 38 – U.P. Zamindari Abolition and Land Reforms Act – S. 331 – Suit for mandatory
injunction - maintainability
In the present case the plaintiff instituted an original suit praying for decree of
mandatory injunction against the defendant for removing their constructions over plot
no. 1489, area 2 Bigha, 3 Biswa, 10 Biswansi situated in village Bhawanipurwa Z area
Pargana and Tehasil Banda.
The defendant no.1, Raj Kumar and defendant no.5 Bhurelal filed their written
statements stating that plaintiff is not the Bhumidhar with transferable right of the
disputed land and they have purchased the property from defendant no. 8 ; that they
belong to scheduled caste; that the plaintiff has no right to dispossess them; that the
civil court has no jurisdiction to hear the suit and suit is barred by the principles of
estoppel.
On the basis of the pleadings of the parties, trial court framed the following
issues:-
1) Whether plaintiff is the owner of the land where on the defendants have forcibly
made construction, if yes, then its effect?
2) Whether the suit is undervalued and court fees paid is insufficient?
3) Whether the plaintiff is entitled to get any damages, mentioned in the plaint from
the defendants ?
4) Whether the suit of the plaintiff is beyond jurisdiction of this court?
5) Whether the suit of the plaintiff is barred by principles of estoppel ?
6) Whether the suit of the plaintiff is barred by provisions of U.P. Z.A. & L.R. Act?
While deciding the question involved in this matter, the learned trial court
framed as many as 7 issues of facts in which Issue Nos. 1, 4 and 6 are relevant.
By deciding the Issue No.1, the trial court relied upon the Paper No. 120-C
(Copy of Khatauni) produced by the plaintiff wherein it was clearly mentioned that the
plaintiff is the co-owner of Plot No. 1489. The defendants also produced their evidence
such as Paper No. 48-C (Notary of Bhaiyalal), Paper 49-C & 50-C (Plaint of OS No. 628
of 1995) Paper No. 51-C (WS against the OS No. 628/95), Paper No. 52-C (Affidavit of
Harish Chandra) Paper No.53-Ka (Plaint of OS No. 15/98) Paper No. 54-C (Affidavit of
Plaintiff in OS No. 15/98) Papper No. 55-C (Statement of OS No, 15/98), Paper No. 61-C
(plaint of Suit No. 32/1995 Assistant Collector, First Class) Paper No. 66-C (Notary of
Defendant Rajendra Kumar), Paper No. 71-C (Notary of Ram Kumar) Paper No. 80-
C(Notary of Defendant Tejwa). The trial court categorically decided the issue no.1 and
opined that under the provisions of Transfer of Property Act, the transfer of
immovable property can only be done by way of registration before the concerned
registrar office and in this case the sale of the land has been made through "Notary
Affidavit" which is not a valid document for transfer of immovable property under the
said Act nor any owner ship rights have been transferred in favour of the defendants
and hence this issue was decided against the defendants and trial court declared that
the plaintiff, namely, Rajesh Kumar Gupta is the owner of the land in question and the
defendants forcibly constructed their houses.
While deciding issue no.6 trial court has given a clear finding that plaintiff
claimed mandatory injunction for ejectment of unauthorized occupants/defendants
over the land in question who have no bhumindhari rights nor any title through valid
registration, whereas the plaintiff is recorded tenure holder in revenue records and it
is the defendant no.8, who illegally transferred his bhumidhari rights on the basis of
illegal documents and thus except civil court no other court, especially revenue court
have jurisdiction to pass an order of ejectment against the unauthorised occupants by
means of issuing mandatory injunction.
The trial court on the basis of evidence on record has come to the conclusion
that the plaintiff is owner and in possession being Bhoomidhar of the land in dispute
and defendants have failed to prove their possession over the land in question prior to
June 3, 1995, and as such, has come to the conclusion that the suit was not barred by
the provisions under U.P. Z.A. & L.R. Act and decided the issue No.6.
Normally, Section 331 of the U.P. Z.A. & L.R. Act is attracted in such cases
where a declaration of right or status of a tenure holder is necessarily needed. A
recorded tenure holder or a person having possession over the land in question being
Bhumidhar cannot be denied the relief by civil court on the ground of non-
maintainability of suit in view of Section 331 of the U.P. Z.A. & L.R. Act. Brij Kishore v.
Rajesh Kumar Gupta, 2018 (5) ALJ 331
Statutory Provisions:
THE NATIONAL COMMISSION FOR BACKWARD CLASSES
(REPEAL) ACT, 2018
Act No. 24 OF 2018
[14th August, 2018.]
An Act to repeal the National Commission for Backward Classes Act, 1993.
BE it enacted by Parliament in the Sixty-ninth Year of the Republic of India as
follows:—
1. Short title and commencement.—(1) This Act may be called the National
Commission for Backward Classes (Repeal) Act, 2018.
(2) It shall come into force on such date1 as the Central Government may, by
notification in the Official Gazette, appoint.
2. Repeal and savings.—(1) The National Commission for Backward Classes Act, 1993
(27 of 1993) is hereby repealed and the National Commission for Backward Classes
constituted under subsection (1) of section 3 of the said Act shall stand dissolved.
(2) The repeal of the National Commission for Backward Classes Act, 1993 (27 of 1993)
shall, however, not affect,—
2. the previous operation of the Act so repealed or anything duly done or
suffered thereunder; or
3. any right, privilege, obligation or liability acquired, accrued or incurred under
the Act so repealed; or
4. any penalty, confiscation or punishment incurred in respect of any
contravention under the Act so repealed; or
5. any proceeding or remedy in respect of any such right, privilege, obligation,
liability, penalty, confiscation or punishment as aforesaid, and any such proceeding or
remedy may be instituted, continued or enforced, and any such penalty, confiscation
or punishment may be imposed or made as if that Act had not been repealed.
(3) The mention of the particular matters referred to in sub-section (2) shall not
be held to prejudice or affect the general application of section 6 of the General
Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.
THE SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITIES)
AMENDMENT ACT, 2018 (No. 27 of 2018)*
[17th August, 2018.]
An Act further to amend the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
BE it enacted by Parliament in the Sixty-ninth Year of the Republic of India as
follows:—
1. Short title and commencement.- (1) This Act may be called the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018.
(2) It shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint.
2. Insertion of new section 18-A.- After section 18 of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the following section shall be
inserted, namely:—
"18A. (1) For the purposes of this Act,—
(a) preliminary enquiry shall not be required for registration of a First Information
Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary,
of any person,
against whom an accusation of having committed an offence under this Act has been
made and no procedure other than that provided under this Act or the Code shall
apply.
(2) The provisions of section 438 of the Code shall not apply to a case under this
Act, notwithstanding any judgment or order or direction of any Court.".
Right of Children to Free and Compulsory Education Act, 2009
[389] National Council for Teacher Education, Noti. No. F. No. NCTE- Regl
012/16/2018, dated June 28th 2018, published in the Gazette of India, Extra., Part III,
Section 4, dated 29th June, 2018, p.2, No. 246
In exercise of the powers conferred by sub-section (1) of Section 23 of the
Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009) and in
pursuance of notification number S.O. 750(E), dated the 31st March, 2010 (2010-CCL-
III-3641[175]) issued by the Department of School Education and literacy, Ministry of
Human Resource Development, Government of India, the National Council for Teacher
Education (NCTE) hereby makes the following further amendments to the notification
number F.N. 61-03/20/2010/NCTE/(N&S), dated the 23rd August, 2010, published in
the Gazette of India, Extraordinary, Part III. Section 4, dated the 25th August, 2010,
hereinafter referred to as the said notification namely -
(1) In the said notification, in Para 1 in sub-para (I), in clause (a) after the
words and brackets “Graduation and two year Diploma in Elementary Education (by
whatever name known)”, the following shall be inserted, namely -
or
“Graduation with at least 50% marks and Bachelor of Education (B.Ed.)”
(2) In the said notification in para 3, for sub-para (a), the following sub-para
shall be substituted, namely -
“(a) who has acquired the qualification of Bachelor of Education from any
NCTE recognized institution shall be considered for appointment as a teacher in
Classes 1 to V provided the person so appointed as a teacher shall mandatorily
undergo a six months Bridge Course in elementary Education recognized by the NCTE,
within two years of such appointment as primary teacher.”
[381] Ministry of Social Justice and Empowerment (Deptt. of Social Justice and
Empowerment), Noti. No. G.S.R. 588(E), dated June, 27, 2018, published in the Gazette
of India, Extra., Part II, Section 3(i), dated 27th June, 2018, pp. 2-3, No. 430
In exercise of the powers conferred by sub-section (1) of Section 23 of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of
1989), the Central Government hereby makes the following rules further to amend the
Schedule Caste and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995,
namely: -
1. (1) These rules may be called the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Rules, 2018.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 (hereinafter referred to as the rules), in Rule 2, after clause (g),
the following clause shall be inserted, namely-
'(ga) “ voluntarily” shall have the same meaning as assigned to it in Section 39
of the Indian Penal Code (45 of 1860).”
3. In the said rules, in Rule 12, for sub-rule (5), the following sub-rule
shall be substituted, namely -
“(5) The relief provided to the victim of the atrocity or his/her dependent
under sub-rule (4)in respect of death, or injury or rape, or gang rape, or unnatural
offences, or voluntarily causing grievous hurt by use of acid, or voluntarily throwing or
attempting to throw acid, etc. or damage to property shall be in addition to any other
right to claim compensation respect thereof under any other law for the time being in
force”.
4. In the said rules. In sub-rule (1) of rule 16, the words and figures “of
not more than 25 members” shall be omitted.
5. In the said rules, in the Schedule, in Annexure I,-
(a) against Sl. No. 24, in column (2), for the entries, the following entries shall be
substituted, namely-
“Section 326-A f the Indian Penal Code (45 of 1860) – Voluntarily causing grievous hurt
by use of acid, etc.,
Section 326-B of the India Penal Code (45 of 1860) – Voluntarily
throwing or attempting to throw acid,
[Section 3(2)(v), 3(2)(va) read with Schedule to the Act+” shall be
substituted;
(b) against Sl.No. 26, in column (2), for the words, figures, brackets and letters
“Section 32(va)”, the words, figures, bracket and letters “Section 3 (a) (va)” shall be
substituted;
(c) against Sl. No. 44, in column (2),-
(i) For the words, “Rape of gang rape”, the words “Rape, unnatural Offences or
Gang rape” shall be substituted;
(ii) For item (i), the following item shall be substituted, namely-
“(i) Rape etc., or Unnatural offences (Sections 375, 376, 376-A, 376-E and 377 of the
Indian Penal Code (45 of 1860)+”.
Succession Act:
S. 273, 274 – Succession Act – Probate court – jurisdiction – is limited to determine
genuiness of will – right of deceased/testator over property in respect of which letter
of administration is claimed cannot be adjudicated by probate court
Though letters of administration in this petition has been claim with respect to
House No. C-23/88-1(Ka) along with appurtenant land, but as per their own averment
contained in written statement filed in Original Suit No. 667 of 2013, the plaintiff
petitioner has admitted share of deceased to be 1/4th. Respective rights of the parties
over the house situated at Varanasi as well as share of the deceased, in respect of
which he could execute a Will are seriously disputed. The question of legality of Will or
right of deceased over the property in respect of which letter of administration is
claimed cannot be adjudicated by the probate court. Such issues can be gone into by a
court having orginal civil jurisdiction. Under the rules of the Court, this Court does not
exercise any such jurisdiction. Rai Sharwan Kumar V. In the matter of Rai Bharat
Kumar, 2018 (5) ALJ 349
U.P. Entertainment and Betting Tax Act:
Ss. 12, 15 – Constitution of India, Art. 14 – Tax assessment – Appeal against – cannot
be rejected without recording any reasons
In the present cases, perusal of the impugned order dated 12.1.2018 in Appeal
No. - C2015170000131 (Imtiaz Ahmad) under Sections 12 and 15 of U.P.
Entertainment and Betting Tax Act 1979, shows that the Divisional Commissioner,
Basti, while deciding the appeal of the petitioner has not recorded even a single
reason for rejection of the submissions of the petitioner. An abrupt conclusion has
been drawn without giving any reason to reject the appeal.
The appellate authority is under the statutory obligation to consider with due
care every fact for and against the assessee and to record its finding in a manner which
would clearly indicate as to whether the facts on which the order was passed have
been established? Whether the facts so established afford sufficient ground for taking
action? and whether assessment is excessive, adequate or inadequate? Absence of the
findings to disclose reasons in an appellate order in the manner indicated above
renders the order to be indefensible/unsustainable.
Reason is the heart beat of every conclusion. In the absence of reasons the
order becomes lifeless. Non recording of reasons renders the order to be violative of
principles of natural justice. Reasons ensures transparency and fairness in decision
making. It enables litigant to know reasons for acceptance or rejection of his prayer. It
is statutory requirement of natural justice Reasons are really linchpin to administration
of justice. It is link between the mind of the decision taker and the controversy in
question. Thus failure to give reasons amounts to denial of justice. Imtiaz Ahmad v.
State of U.P., 2018 (5) ALJ 162
U.P. Panchayat Raj Act
Sec. 95(1)(g)-U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members)
Enquiry Rules, 1997-Rr. 3, 4 and 5- Cessation of financial and administrative power or
Pradhan-Power of the District Magistrate exercised under the Act under delegated
authority of the State Government/District Magistrate exercise under proviso to
section 95(1)(g) is a quasi-judicial authority-District Magistrate has to act according to
rules exercising inherent judicial power of the State Government-He is not dictated by
the policy or expediency of the State-District Magistrate exercising delegated authority
of the State Government is a Tribunal-Decision rendered by the Division Bench in Smt.
Sonia v. State of U.P. lays down the correct position in law-Reference answered
accordingly.
In Vivekanand, Hafiz Ataullah Ansari (2013) 4 SCC 301, and thereafter
reiterated in Paras Jain that the elected representative would have to be given an
opportunity to raise objection to the findings returned in the preliminary enquiry and
his/or her objections will have be considered, though prima facie, by the State
Government/District Magistrate before an order ceasing the financial and
administrative power and functions is passed. The consequence of the order passed in
exercise of power under section 95(1)(g) is serious consequence as it divests the
elected representative from exercising power until exonerated in final enquiry and the
decision of the State Government is final. The decision taken by the State Government
is not based on any expediency or policy of the State, rather, it is a statutory power
conferred upon the State Government exercising inherent judicial power after
confronting the elected representative, with show cause notice based on the
preliminary report, thereafter, taking a decision upon due application of mind on the
objections of the elected Pradhan. Once such an order is passed, it is not open for the
State Government to either review or modify the order during the course of final
enquiry. The order, therefore, finally decides the issue between Pradhan and the
Authority (State Government) in so far it relates to exercise of financial and
administrative power. The office of the local body is an elected office of the
constitutional democratic institution; the elected head is not a government servant
and it would be improper to compare these proceeding with departmental proceeding
in service jurisprudence. A head of a local body is elected for a limited term. If during
the removal proceedings, he is denuded from exercising financial and administrative
powers then even if he is exonerated in the enquiry the time spent during enquiry is
lost, he does not get his period extended. The consideration about the presence of all
or some of the trappings of a court is really not decisive. The main and basic test is
whether the adjudicating power which a particular authority is empowered to exercise
has been conferred on it by a statute and can be described as part of the State's
inherent power exercised in discharging its judicial function. Applying this test there
can be no doubt that the power which the State Government/District Magistrate
exercises under proviso to section 95(1)(g) is a quasi-judicial power exercised by a
quasi-judicial authority.
We accordingly proceed to answer the reference in the following terms:
(A). The District Magistrate exercising delegated authority of the State
Government, is a Tribunal exercising quasi judicial power by a quasi
judicial authority under the proviso to section 95(1)(g) of the Panchayat
Raj Act while proceeding to cease the administrative and financial
authority of the Pradhan pending final enquiry.
(B). Re-Question (i):The decision of the Division Bench in Smt. Sonia vs.
State of U.P. (supra) lays down the correct position of law.
The reference to the Full Bench accordingly stands answered. The
special appeal shall now be placed before the regular Bench according to
roster for disposal in light of the questions so answered. Shamim V. State
of U.P., 2018 (140) RD 639
Ss. 12J – 110 – U.P. Panchaya Raj enquiry rules Rr. 5, 6 – Temporary vacancy in office
of village pradhan – Nomination of officiating pradhan to function as Gram Pradhan
without consent of other members of gram panchayat illegal
In the present circumstances, we are of the considered opinion that once
learned Single Judge has allowed the writ petition in question on 30.5.2018 and after
setting aside the order dated 19.4.2018, by which the appellant has been removed
from the post of Gram Pradhan, the matter was remitted back to the District
Magistrate to hold a fresh enquiry under Rules 5 and 6 of Uttar Pradesh Panchayat Raj
(Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 within one
month from the date of receipt of certified copy of the order, then the observation
"However, since it has been bought to the notice of the Court that one Naseem has
now been given the charge of Pradhan, it shall be in the interest of justice that the
charge be not taken from him for the next one month as it would destabilize the
working of Gram Panchayat" is contrary to the view taken by this Court in aforesaid
judgements and the same was unwarranted. There was no requirement to make such
an observation and the same is liable to be set aside. Shaukat Hussain V. State of U.P.,
2018 (5) ALJ 94
U.P. Public Premises Act:
Sec. 5 – U.P. Tenancy Act – S. 180 – Evoiction of unauthorized occupant – applicability
of Act
It may be noticed that the U.P. Tenancy Act, 1939 is a general law and and
after coming into force of the Act of 1972, which has received the assent of the
President on 28.4.1972 and published in the government extraordinary gazette on
1.5.1972, the same would prevail over the general law as already settled by the
Hon'ble Apex Court. Thus, the argument of learned counsel for the petitioner that the
provisions of the Act of 1972 would not be applicable in the present case is
misconceived and is hereby rejected. Buddu Miya v. Additional District & Sessions
Judge, Court No. 5, Agra, 2018 (5) ALJ 90
Urban Land (Ceiling and Regulation) Act
Sec. 10(5), (6) – Urban Land Ceiling and Regulation Repeal Act, S. 3 – surplus land –
abatement of - proceedings – consideration for
It seems that on an earlier occasion the State was called upon to get with itself
the records available in order to assist the Court as no supporting document had been
filed along with the counter affidavit to establish that the possession had been taken
over from the petitioner. However, learned Standing Counsel submits that he has a
copy of the notice under Section 10(5) with him. Learned counsel for the petitioner
has produced a certified copy of the notice under Section 10(5) as also of the
possession memo which has been made the basis to claim that the possession was
taken from the petitioner on 29th October, 1992. Since certified copies are before the
Court same can be taken cognizance of.
Contention of the petitioner is that the disputed land of the petitioner, came
to be declared surplus against which an appeal had been filed under the Urban Land
Ceiling Act, 1976 that was pending. It is during the pendency of the appeal that the
Repeal Act came into effect on 20th March, 1999. The appeal stood abated and
thereafter the petitioner proceeded for retention of the land in terms of the Repeal
Act. It is urged that the learned District Judge, Saharanpur wrongly held that since the
Act has been repealed therefore the appeal was liable to be rejected, but to the
contrary the appeal could have been abated and not rejected. Prayer has been made
to quash the District Judge's order dated 04.01.2001 as also the order whereby the
land was declared surplus.
We are satisfied that the actual physical possession of the land had not been
taken in accordance with the procedure prescribed in law and consequently the writ
petition deserves to be allowed.
Learned Standing Counsel urged that appropriate relief has not been claimed
for by the petitioner. This argument cannot be countenanced because it is settled
proposition of law that the Court has always the power to mould the relief to which
the petitioner is entitled. In the present case the petitioner has made a appropriate
prayer claiming appropriate relief and even otherwise the entire case relates to the
benefits arising out of Repeal Act No. 15 of 1999 to which we find the petitioner to be
entitled.
We accordingly allow the writ petition and declare that the petitioner shall be
entitled to retain the disputed land which shall not be treated to be surplus in the
hands of the petitioner and the same shall stand exempted accordingly. Any
consequential action taken by the State for either retaining the land or handing it over
to any other body, would stand annulled. Rati Ram v. State of U.P., 2018 (4) ALJ 338
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act:
Sec. 21 (1)(a) – Release application – maintainability – tenant not disputing
issuance of rent receipts by predecessor of landlord – property held not waqf property
– proceedings under Act, maintainable
For maintaining the Release Application the applicability of U.P. Act No. 13 of
1972 must first be proved. Thereafter, the relationship of landlord and tenant must be
pro ed, ten only bona fide need of the landlord can be see and comparative hardship
of the tenant can be considered. The applicability of the U.P. Act No. 13 of 1972 was
clearly looked into by the learned courts below ad a concurrent finding of facts has
been given that the shop in question is not the Waqf property even the Sunni Central
Waqf Board in its order dated 10.11.2012 had said that the shop in question was not
the Waqf property.
With regard to the bona fide need, the learned courts below have found that
the landlord may have been carried out any business or may have been alternatively
employed, but that would not in any case, lessen the need for them to establish a
business of their own in the shop in question. Atul Rastogi V. Mohammad Salim, 2018
(4) ALJ 792
U.P. Zamindari Abolition and Land Reforms Act:
Ss. 198 (4), 132, 117 and 4-U.P. Zamindari Abolition and Land Reforms Rules 1952-
Rule 176 A – Cancellation of ‘patta’ –After expiry of five years- Validity of
Facts of the present case are that the controversy involved in the present case
relates to the land recorded as Khata No. 324 Gata No. 194/0.077 hectare, and Gata
No. 326/0.142 hectare situated at Village Thakurnath, Pargana Aurangabad, Tehsil
Mishrikh, District Sitapur (hereinafter referred to as the land in dispute).
In respect to the land in dispute, a notice to the petitioners have been issued
by the competent authority inter alia stating therein that why the petitioners' patta in
respect to the land in question should not be cancelled. Thereafter a report was
submitted by Bhulekh Nirikshak, Mishrikh, District Sitapur to the effect.
Tehsildar by letter dated 09.1.2009 forwarded the same to respondent No. 2
to take necessary action. Accordingly, the order dated 12.03.2015 (Annexure No. 1)
has been passed by Sub-Divisional Officer/respondent No. 2, under challenge in the
present writ petition.
In the instant case also the Assami lease of the petitioner stands determined
by the Statute itself i.e. by virtue of Rule 176-A of the Rules on the expiry of five years
from the date of initial grant. So, the same stands determined with efflux of time.
Therefore, there was no necessity for any fresh determination and the petitioners are
liable for eviction by expunging of their names in the revenue records for which even
notice or opportunity of hearing would have been an empty formality as the
petitioners are unable to justify their continuance in possession over the land in
dispute after expiry of the lease period. As such, the argument advanced by learned
counsel for petitioners that neither any notice nor any opportunity has been given,
hence the impugned order is violative of principles of natural justice, has got no force
because petitioners have got no right over the land in question after the expiry of five
years from the date of grant of patta as they are assami patta holders.
Further, the argument raised by learned counsel for petitioners that the lease
of the petitioners cannot be cancelled without invoking the provisions as provided
under Section 198 (4) of the U.P.Z.A. & L.R. Act has got no force because provisions of
Section 198(4) of the Act for cancellation of the lease comes into play only when the
land is being given by way of patta to any person by the Gaon Sabha/Land
Management Committee whereas the same has no applicability because as per the
petitioner case they have been granted Assami Patta by the erstwhile Zamindar prior
to vesting, so after the expiry of five years from its grant, the land is a public utility
land as per Section 132 of the Act and managed by the Gaon Sabha.
So far as the argument advanced by learned counsel for petitioner that the
petitioner has deposited the rent after expiry of the term of the lease cannot confer
any right to the petitioners as the principles of holding over as enshrined under
Section 116 of the Transfer of Properties Act, 1882 do not apply to agricultural leases.
For the foregoing reasons, I do not find illegality or infirmity in the impugned
order under challenge in the present writ petition. Kalika Prasad and others v. State of
U.P. and others, 2017 (1) AWC 448
Ss. 333(1) and 331(3) – Order allowing impleadment application in an appeal, whether
revisable- Held, revisable
In order to decide the controversy involved in the present case, it will be
appropriate to go through the provisions as provided under Section 333 of U. P. Z. A. &
L. R. Act, relevant portion is quoted herein below :-
"The Board or the Commissioner or the Additional Commissioner may call for
the record of any suit or proceeding (other than proceeding under sub-section (4-A) of
Section 198) decided by any court subordinate to him in which appeal lies or where an
appeal lies but has not been preferred, for the purpose of satisfying himself as to the
legality or propriety of any order passed in such suit or proceeding and if such
subordinate court appears to have;
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in the exercise of jurisdiction illegally or with material irregularity;
the Board or the Commissioner or the Additional Commissioner, as the case may be,
may pass such order in the case as he thinks fit."
From bare perusal of the provisions of Section 333 of the Act, it is crystal clear
that revision lies before the Board of Revenue or Additional Commssioner, Lucknow
Division, Lucknow against any order passed in a suit or proceedings, other than,
proceedings under sub-Section (4-A) of Section 198 of the Act.
Further, an order dated 11.01.2016 passed by opposite party no.1 comes
within the ambit and scope of the word "proceedings", so the same is revisable under
Section 333 of the Act before the Board of Revenue. Accordingly, once the legislature
as given a mandate by virtue of Section 333 of the Act that if any order is passed in a
proceeding, the same will be revisable. Shiv Mangal v. Additional Commissioner
(Adm.) Lucknow Divisions, 2017 (35) LCD 303
U.P. Zamindari Abolition and Land Reforms Rules:
Sec. 331 – Bar to civil courts jurisdiction – suit for cancellation of sale deed of
agricultural land – ground of fraud and misrepresentation – declaration of title of
plaintiff not involved – suit would be maintainable before civil court – suit not barred
u/s 331
A bare perusal of the plaint assertions reveals that the suit was instituted on
the ground that sale deed dated 20.3.1998 was obtained by defendant no.1 by fraud
and misrepresentation. It was without sale consideration and according to the
plaintiff, it was a sham transaction. In pith and substance, the case of the plaintiff was
that the sale deed dated 20.3.1998 was a voidable document having been obtained by
fraud and misrepresentation. The trial court has decided the issue in favour of the
plaintiff and against the defendants by holding that relief for cancellation of sale deed
on the ground that the sale deed was obtained by fraud or misrepresentation, could
only be granted by the civil court and not by the revenue court. The revisional court
has affirmed the order of the trial court.
In the present case the plaintiff was the recorded tenure holder at the time
when he had executed the sale deed. Name of defendant no.1 came to be recorded
only on the basis of the said sale deed. In the considered opinion of this Court. No
declaration of title of the plaintiff is involved and it is only the civil court which can
grant relief for cancellation of the sale deeds. Mamta Devi V. Kedar (deceased)
Purushotam Das and others, 2018 (4) ALJ 224
U.P. Government Servants Seniority Rules:
Rr. 8 (2) (a) and 8 (3) –Seniority- Determination of –Inter se seniority- Date of
appointment- Effect of –Rule 8 provided for determination of substantive
appointment- Subsequent appointees cannot claim seniority for earlier period when
they were not in service taking recourse to Rule 8(2) (a)
In the present case, merit list prepared by Commission exhausted when
appointment letters were issued by Government in 1997. Since some candidates in the
merit list, to whom appointment letters were issued did not join, vacancies remained
unfilled, therefore, appointing authority requested Commission to send some more
names from wait list so as to fill in the vacancies in the quota of direct recruitment.
Subsequent recommendees were appointed in 2000. Reading Rule-8 of Rules, 1991 in
its entirety and also in view of discussion made above, we have no manner of doubt
that subsequent appointees cannot claim seniority for earlier period when they were
not in service taking recourse to Rule 8(2)(a) of Rules, 1991 in isolation and to the
exclusion of Rule 8(3). In fact, it is Rule 8(3) which is attracted in the case in hand.
However, if candidates of wait list would have been appointed at the same
time, their inter se seniority may have followed order of merit prepared by
Commission but this will not apply vis-a-vis candidates who were appointed
subsequently. We, therefore, find no error in the judgment of Tribunal warranting
interference. Ravi Kumar Srivastava V. State of U.P. and others, 2018 (4) AWC 3572
Words and Phrases
Word 'ascertain' – means to investigate so that one knows and is certain about
something
The word "ascertain" has been defined in the Oxford Advanced learned
Dictionary 5th edition as "to investigate so that one knows and is certain; to find
out". Thus, a duty was cast upon the Labour Commissioner to have first ascertained as
to whether the wages which were being sought for by the respondent no.-1 were
actually due or not particularly taking into consideration the fact that upon notice
being issued on the application filed by the respondent no.-1 under the provisions of
1978 Act, the petitioner company instead of submitting a parawise reply, submitted its
preliminary objection pertaining to the jurisdiction of the Labour Commissioner to
entertain the matter. Hindustan Aeronautics Ltd. V. Hindustan Aeronautics Karmchari
Sabha, 2018 (4) ALJ 387