Supreme Court Monthly Digest February 2019

Administrative Law - Haj Policy - Registration - Eligibility - Policy decisions of the Executive are best left to it and a court cannot be propelled into the unchartered ocean of Government policy. Public authorities must have liberty and freedom in framing the policies. It is well accepted principle that in complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors and it is not possible for the courts to consider competing claims and to conclude which way the balance tilts. Courts are illequipped to substitute their decisions. It is not within the realm of the courts to go into the issue as to whether there could have been a better policy and on that parameters direct the Executive to formulate, change, vary and/or modify the policy which appears better to the court. Such an exercise is impermissible in policy matters. The scope of judicial review is very limited in such matters. It is only when a particular policy decision is found to be against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide, the court would interfere with such policy decisions. A.K. Sikri, S. Abdul Nazeer & M.R. Shah, JJ. Federation Haj Ptos of India v. Union of India, 2019 (2) Scale 460 W.P. (C) No. 4 of 2019 04-02-2019

Administrative Tribunals Act, 1985 - Ss. 5, 24 & 25 - Whether the Chairman of the Tribunal, sitting singly and exercising his power under Section 25 of the Act, to transfer proceedings from one Bench to another, could have stayed proceedings before a two member Bench and rendered interim orders passed by that Bench inoperative. R. Banumathi & Indira Banerjee, JJ. All India Institute of Medical Sciences v. Sanjiv Chatrvedi, 2019 (2) Scale 403 C.A. No. 1392 of 2019 01-02-2019

Arbitration and Conciliation Act, 1996 - Award - Jurisdiction - Power of the arbitral tribunal in granting pre-reference and/or pendente lite interest - Principles. A.K. Sikri, S. Abdul Nazeer & M.R. Shah, JJ. Jaiprakash Associates Ltd. (JAL) through its Director v. Tehri Hydro Development Corporation India Ltd. (THDC) Through Its Director, JT 2019 (2) SC 508 : 2019 (2) Scale 718 C.A. No. 1539 of 2019 07-02-2019

Arbitration and Conciliation Act, 1996 - S. 11(6) - Expressions such as – “pertaining to”, “in relation to” and “arising out of”, are used in the expansive sense, and must be construed accordingly. U.U. Lalit & Indu Malhotra, JJ. Giriraj Garg v. Coal India Ltd., AIR 2019 SC 1015 : JT 2019 (2) SC 535 : 2019 (4) Scale 406 C.A. No. 1695 of 2019 15-02-2019

Arbitration and Conciliation Act, 1996 - S. 34 - Both the Executing Court and the High Court completely erred and awarded compound interest in favour of the respondents when the award had stipulated it to be 7% per annum simplicitor. The Award did not even remotely suggest that such award of interest would be with a direction that interest be capitalized on yearly or quarterly basis. It was pure and simple award of interest @ 7% and could not be taken to be a direction to award compound interest. U.U. Lalit & D.Y. Chandrachud, JJ. Municipal Council Thanesar v. Viernder Kumar, 2019 (3) Scale 684 19-02-2019

Arbitration and Conciliation Act, 1996 - S. 34 - The Court does not sit in appeal over the arbitral award and may interfere on merits on the limited ground provided under Section 34(2)(b)(ii), i.e. if the award is against the public policy of India. Mohan M. Shantanagoudar & Vineet Saran, JJ. MMTC Ltd. v. Vedanta Ltd. 2019 (4) Scale 391 C.A. No. 1862 of 2014 18-02-2019

Arbitration and Conciliation Act, 1996 - S. 48 - Enforceability of the Foreign Awards - Scope of interference has been consciously constricted by the legislature in relation to the execution of foreign awards. A.M. Khanwilkar & Ajay Rastogi, JJ. Sri. Munisuvrata Agri International Ltd. v. Sleepwell Industries Co. Limited, S.L.P. (C) No. 5493 of 2019 20-02-2019

Arbitration and Conciliation Act, 1996 - the scheme of Section 48 of the Act does not envisage piecemeal consideration of the issue of maintainability of the execution case concerning the foreign awards, in the first place; and then the issue of enforceability thereof. Whereas, keeping in mind the legislative intent of speedy disposal of arbitration proceedings and limited interference by the courts, the Court is expected to consider both these aspects simultaneously at the threshold. Taking any other view would result in encouraging successive and multiple round of proceedings for the execution of foreign awards. We cannot countenance such a situation keeping in mind the avowed object of the Arbitration and Conciliation Act, 1996, in particular, while dealing with the enforcement of foreign awards. A.M. Khanwilkar & Ajay Rastogi, JJ. LMJ International Ltd. v. Sleepwell Industries Co. Ltd., JT 2019 (2) SC 460 : 2019 (3) Scale 703 S.L.P. (C) No. 540 of 2018 20-02-2019

Army Act 1950 - the High Court was manifestly in error in entering upon an area which relates to the exercise of the disciplinary jurisdiction of the Army. D.Y. Chandrachud & Hemant Gupta, JJ. Union of India v. Lt. Colonel Dharmvir Singh, 2019 (4) Scale 559 C.A. No. 1714 of 2019 15-02-2019

Bihar Service Code - Rr. 282 & 283 - On fair reading of Rule 283(c) and Rule 283(e), it can be seen that it is permissible for the foreign service to pay something more than what the employees were getting in the parent department. Therefore, the interpretation on behalf of the Corporation on reading Rule 283 that the employee sent on deputation to a foreign service has to be paid the same salary/pay scale which he was getting in the parent department, cannot be accepted. Therefore, reliance placed on Rule 282 and 283 of the Bihar Service Code while passing the resolution dated 27.3.2012 was absolutely either misplaced and/or on misinterpretation and, therefore, the same is rightly set aside by the High Court. L. Nageswara Rao & M.R. Shah, JJ. Bihar State Beverages Corporation Ltd. v. Naresh Kumar Mishra, AIR 2019 SC 1051 : 2019 (1) JLJR 512 : 2019 (1) PLJR 584 : 2019 (2) Scale 509 C.A. No. 1468 of 2019 05-02-2019

Central Excise Act, 1944 - S. 11B - Claim for refund of duty - Whether the period of limitation of six months shall apply where the refund of central excise duty has been claimed by the buyer and paid by the manufacturer (M/s. Fenner (India) Ltd.) under protest - Application was filed by the appellant as a buyer of the goods (conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for - the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944. A.M. Khanwilkar & Ajay Rastogi, JJ. Western Coalfields Ltd v. Commissioner of Central Excise Trichy / Madurai, AIR 2019 SC 1069 : 2019 (4) Scale 384 C.A. No. 807 of 2006 20-02-2019

Central Excise Act, 1944 - S. 35L - Central Excise Rules, 2002 - R. 12B - Job work in textiles and textile articles - What Rule 12B introduces is nothing but a legal fiction that in case the conditions stipulated therein are satisfied, the person concerned is to be treated as an assessee. If he is an assessee, all the clearances by him so long as they come within the parameters of Rule12B, would make him liable. The Exemption Notification again does not put the matter at individual clearances of job workers and what is to be considered is an aggregate value of the clearances. It is well settled that if a legal fiction is introduced that legal fiction must be taken to the logical end. U.U. Lalit & Indu Malhotra, JJ. Dinesh Textiles v. Commissioner of Central Excise, Customs and Service Tax, Calicut, 2019 (3) Scale 839 C.A. No. 9740 of 2018 28-02-2019

Circumstantial Evidence - In a case based on circumstantial evidence it is always better for the courts to deal with each circumstance separately and then link the circumstances which have been proved to arrive at a conclusion. Sanjay Kishan Kaul & Deepak Gupta, JJ. Chandru @ Chandrasekaran v. State Rep. By Deputy Superintendent of Police CB CID, 2019 (3) Scale 280 Crl.A. No. 1193 of 2011 12-02-2019

Civil Law - Plaint - Amendment - Trial Court allowed the application for amendment of the plaint - Plaintiff filed the application when the trial in the suit was almost over and the case was fixed for final arguments - the suit could still be decided even without there being any necessity to seek any amendment in the plaint - amendment in the plaint was not really required for determination of the issues in the suit. impugned order is legally unsustainable. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Vijay Hathising Shah v. Gitaben Parshottamdas Mukhi, JT 2019 (3) SC 5 : 2019 (3) Scale 811 C.A. No. 2012 of 2019 25-02-2019

Civil Procedure Code, 1908 - An order of refusal to re-admit the appeal passed by the Appellate Court under Order 41 Rule 19 of the Code is made expressly appealable under Order 43 Rule 1(t) of the Code to the High Court. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Commissioner, Mysore Urban Development Authority v. S.S. Sarvesh, 2019 (1) JLJR 502 : 2019 (2) MLJ 350 : 2019 (1) PLJR 574 : 2019 (1) RCR (Civil) 982 : 2019 (2) Scale 475 C.A. No. 1463 of 2019 05-02-2019

Civil Procedure Code, 1908 - O. 47 R. 1 - Every error whether factual or legal cannot be made subject matter of review under Order 47 Rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 7 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Asharfi Devi (d) Thr. Lrs. v. State of U.P., AIR 2019 SC 832 : 2019 ALT (Rev) 17 : 2019 (2) Scale 421 C.A. No. 5217 of 2010 01-02-2019

Civil Procedure Code, 1908 - O. 9 R. 6(1)(a) & 13, O.17 Rr. 2 & 3 - Procedure when only plaintiff appears When summons duly served - Procedure if parties fail to appear on day fixed - Court may proceed notwithstanding either party fails to produce evidence, etc. - Scope of Order 17 Rule 2 and Order 17 Rule 3 of the Code. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. G. Ratna Raj (d) by Lrs. v. Muthukumarasamy Permanent Fund Ltd., JT 2019 (3) SC 524 : 2019 (2) Scale 425 C.A. No. 2582 of 2011 01-02-2019

Civil Procedure Code, 1908 - O. IX R. 13 - Application for setting aside the ex-parte decree - Sufficient Cause - When an application is filed for setting aside ex-parte decree under Order IX Rule 13 of CPC, the only aspect which is required to be considered is whether any sufficient cause is shown for absence in the matter when the matter was called. R. Banumathi & R. Subhash Reddy, JJ. A. Murugesan v. Jamuna Rani, 2019 (2) ALT 159 : JT 2019 (2) SC 314 : 2019 (3) Scale 559 C.A. No. 1545 of 2019 07-02-2019

Civil Procedure Code, 1908 - O. V R. 1 (1), O. VIII R. 1 & 10 - Procedure when party fails to present written statement called for by Court - Beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. R.F. Nariman & Vineet Saran, JJ. SCG Contracts India Pvt. Ltd v. K.S. Chmankar Infrastructutre Pvt. Ltd., 2019 (4) Scale 574 C.A. No. 1638 of 2019 12-02-2019

Civil Procedure Code, 1908 - O. VI R. 17 - Amendment of the Plaint - Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money. N.V. Ramana & Mohan M. Shantanagoudar, JJ. R. Revanna v. Anjanamma (dead) by Lrs., 2019 (3) Scale 412 C.A. No. 1669 of 2019 14-02-2019

Civil Procedure Code, 1908 - S. 75, O. XXVI R. 10 (3) - If the Local Commissioner’s report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Ram Lal v. Salig Ram, AIR 2019 SC 729 : 2019 (2) ALD 70 : 2019 (2) ALT 1 : JT 2019 (2) SC 106 : 2019 (1) RCR (Civil) 969 : 2019 (2) Scale 524 C.A. No. 8285 of 2009 04-02-2019

Civil Procedure Code, 1908 - Section 89 - Ram Janmabhoomi Case - Ayodhya Matter - Mediation - the mediation suggested is only to effectively utilize the time of eight weeks that would be taken to make the cases ready for hearing. Ranjan Gogoi (CJI), Sharad Arvind Bobde, D.Y. Chandrachud, Ashok Bhushan, JJJ. M. Siddiq (d) Thr. Lrs. v. Mahant Suresh Das, C.A. 10866 of 2010 26-02-2019

Civil Procedure Code, 1908 - Ss. 15 to 20 - “place of suing” - Suits to be instituted where subject matter situate - Suits for immovable property situate within jurisdiction of different Courts - For a suit filed in a Court pertaining to properties situated in jurisdiction of more than two courts, the suit is maintainable only when suit is filed on one cause of action. Ashok Bhushan & K.M. Joseph, JJ. Shivnarayan (d) by Lrs. v. Maniklal (d) Thr. Lrs., 2019 (2) ALT 35 : JT 2019 (2) SC 295 : 2019 (2) Scale 620 C.A. No. 1052 of 2019 C.A. No. 1052 of 2019 06-02-2019

Civil Procedure Code, 1973 - S. 115 - Revision Petitions are not maintainable against interlocutory orders - Revisional Jurisdiction is to be exercised to correct jurisdictional errors only. R.F. Nariman & Vineet Saran, JJ. Tek Singh v. Shashi Verma, AIR 2019 SC 1047 : 2019 (1) ALT 77 : 2019 (3) Scale 86 C.A. No. 1416 of 2019 04-02-2019

Constitution of India - Art. 136 - When the two Courts below in their respective jurisdiction have appreciated the entire ocular evidence, then Supreme Court would be very slow in exercise of its appellate jurisdiction to appreciate the evidence afresh unless the appellants are able to point out that the concurrent finding of two Courts below is wholly perverse or is recorded without any evidence or is recorded by misreading or ignoring the material evidence. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Madan Mohan Mahto v. State of Jharkhand thr. its Chief Secretary Secretariat, Jharkhand at Ranchi, 2019 (1) Crimes 74 : JT 2019 (2) SC 99 : 2019 (2) Scale 730 Crl.A. No. 379 of 2010 07-02-2019

Constitution of India - Art. 142 - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - S. 3(1)(xi) - Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc. - Punishments for offences of atrocities - Assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty - Where minimum sentence is provided for, the Court cannot impose less than the minimum sentence - Provisions of Article 142 of the Constitution cannot be resorted to impose sentence less than the minimum sentence. D.Y. Chandrachud & Hemant Gupta, JJ. State of Madhya Pradesh v. Vikram Das, AIR 2019 SC 835 : 2019 (1) CGLJ 457 : 2019 (2) JLJ 1 : JT 2019 (2) SC 121 : 2019 (1) RCR (Criminal) 986 : 2019 (2) Scale 695 Crl.A. No. 208 of 2019 08-02-2019

Constitution of India - Art. 226 - A writ of mandamus is issued, when there is a right and correspondingly there is a legal duty to perform. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Municipal Corporation of Greater Mumbai v. Rafiqunnisa M. Khalifa (d) Thr. His Legal Heir Mr. Mohd. Muqueen Qureshi, JT 2019 (2) SC 410 : 2019 (4) Scale 655 C.A. No. 1727 of 2019 18-02-2019

Constitution of India - Article 226(2) of the Constitution, in clear terms, empowers the High Court (let us say “A” High Court) to entertain the writ petition if the cause of action to file such writ petition against the respondents of the said writ petition has arisen wholly or in part within the territorial jurisdiction of “A” High Court. Clause (2) further empowers a High Court to issue any order, directions or writ as provided in clause (1) of Article 226 of the Constitution in such writ petition notwithstanding that seat of such Government or the Authority or the residence of such person against whom the writ petition is filed does not fall within the territories of the “A” High Court but falls in the territories of the “B” High Court. Abhay Manohar Sapre & Dinesh Maheswari, JJ. Cement Workers' Mandal v. Global Cements Ltd. (HMP Cements Ltd.), 2019 (4) Scale 661 C.A. No. 5360 of 2010 14-02-2019

Constitution of India - Article 239AA - Power - Status - National Capital Territory of Delhi - Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Delhi Legislative Assembly. A.K. Sikri & Ashok Bhushan, JJ. Govt. of Nct of Delhi v. Union of India, 2019 (3) Scale 107 C.A. No. 2357 of 2017 14-02-2019

Constitution of India - Article 32 - Student of Medicine - Loss of an Academic Year - Compensation. D.Y. Chandrachud & Hemant Gupta, JJ. Riya Goerge v. Kannur Medical College, 2019 (3) Scale 662 W.P. (C) No. 1247 of 2018 21-02-2019

Constitution of India - Neither the Ramakrishna Mission, nor the hospital would constitute an authority within the meaning of Article 226. D.Y. Chandrachud & Hemant Gupta, JJ. Ramakrishna Mission v. Kago Kunya, C.A. No. 2394 of 2019 28-02-2019

Constitution of India - Show Cause Notice - the High Court has committed error in entertaining the writ petition at the stage of show cause notices. Uday Umesh Lalit & R. Subhash Reddy, JJ. Union of India v. Coastal Container Transporters Association, 2019 (3) Scale 758 C.A. No. 2276 of 2019 26-02-2019

Constitution of India, 1950 - Art. 32 - Delhi Special Police Establishment Act, 1946 - S. 4A - Committee for appointment of Director - Since the regular Director has been appointed the main prayer of the petitioner stands satisfied and there is absolutely no justification to continue with this writ petition in the aforesaid circumstances. In case the due process has not been followed in the appointment, it is always open to any incumbent, if so advised, to question the appointment in accordance with law but not in the routine manner and undue haste as shown in the petition. Arun Mishra & Navin Sinha, JJ. Common Cause v. Union of India, 2019 (3) Scale 678 W.P. (C) No. 54 of 2019 19-02-2019

Consumer Law - Developer - Possession of the Apartments - Deficient in rendering service - Refund of Money along with interest - Compensation for delayed delivery of possession - Governing Principles. U.U. Lalit & Hemant Gupta, JJ. DLF Homes Panchkula (P) Ltd. v. Sushila Devi, C.A. No. 2285 of 2019 26-02-2019

Consumer Protection Act, 1986 - S. 12 (1) (c) - Since possession has not been handed over, the developer cannot avoid the liability to pay interest at the rate awarded by the NCDRC until the date when possession is actually handed over. D.Y. Chandrachud & Hemant Gupta, JJ. R.V. Rasannakumaar v. Mantri Castles Pvt. Ltd., 2019 (4) Scale 570 C.A. No. 1232 of 2019 11-02-2019

Contempt of Court - A party can be proceeded for disobedience of the order of the court only when there is willful disobedience and noncompliance of the order passed by the court. In the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed. R. Banumathi & R. Subhash Reddy, JJ. Er. K. Arumugam v. V. Balakrishnan, AIR 2019 SC 818 : 2019 (2) ALD 76 : 2019 ALT (Rev) 20 : 2019 (2) MLJ 517 : 2019 (1) RCR (Civil) 974 : 2019 (2) Scale 599 C.A. No. 1510 of 2019 06-02-2019

Contempt of Courts Act, 1971 - S. 12 - Punishment for Contempt of Court - Disobedience of an order to pay a sum of money may be countered by orders of attachment instead of committal to prison. On the other hand, in cases of perverse and deliberate flouting of undertakings, it had no option except to convict. So-called apologies, which are only tactful moves when contemnors are in a tight corner, should not be accepted and a jail sentence should be awarded. R.F. Nariman & Vineet Saran, JJ. Reliance Communication Limited v. State Bank of India, 2019 (3) Scale 428 W.P. (C) No. 845 of 2018 20-02-2019

Contract Act, 1872 - Section 74 - Law on compensation for breach of contract. R.F. Nariman & Vineet Saran, JJ. Mahanagar Telephone Nigam Ltd. v. Tata Communications Ltd., JT 2019 (3) SC 350 : 2019 (3) Scale 864 C.A. No. 1766 of 2019 27-02-2019

Criminal Law - Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted. L. Nageswara Rao & M.R. Shah, JJ. Kamal Shivaji Pokarnekar v. State of Maharashtra, AIR 2019 SC 847 : JT 2019 (2) SC 243 : 2019 (3) Scale 277 Crl.A. No. 255 of 2019 12-02-2019

Criminal Law - The benefit of rehearing of the appeal cannot be denied to other co-accused. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Deep Narayan Chourasia v. State of Bihar, 2019 (3) Scale 603 Crl.A. No. 180 of 2019 25-02-2019

Criminal Procedure Code, 1973 - It is mandatory for the Magistrate to specify as to whether the sentences awarded to the accused would run concurrently or consecutively when the accused is convicted for more than one offence in a trial. Abhay Manohar Sapre & Dinesh Maheswari, JJ. Gagan Kumar v. State of Punjab, AIR 2019 SC 1009 : 2019 (3) Scale 390 Crl.A. No. 266 of 2019 14-02-2019

Criminal Procedure Code, 1973 - S. 235 - Judgment of Acquittal or Conviction - Section 235 (2) of the CrPC is not a mere formality. It is obligatory on the part of the trial Judge to hear the accused on the question of sentence and deal with it. N.V. Ramana, Mohan M. Shantanagoudar & Indira Banerjee, JJ. Md. Mannan @ Abdul Mannan v. State of Bihar, R.P. (Crl. ) No. 308 of 2011 14-02-2019

Criminal Procedure Code, 1973 - S. 456 - Power to restore possession of immovable property - The Trial Court can pass an order for restoration of the possession of the property to the person who was forcibly dispossessed - No such order shall be passed after one month of the date of conviction - If the Court trying the offence has not made such an order, the Court of appeal, confirmation or revision can also make such an order while disposing of the proceedings pending before it - No limitation has been provided for the higher courts to make such order. Sanjay Kishan Kaul & Deepak Gupta, JJ. Mahesh Dube v. Shivbodh, AIR 2019 SC 938 : 2019 (3) Scale 268 Crl.A. No. 1104 of 2011 12-02-2019

Criminal Procedure Code, 1973 - S. 482 - Guiding principles for exercise of power under Section 482 Cr. P.C. while dealing with the proposition of settlement and for quashing the criminal proceedings. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Satish Sharma v. State (NCT of Delhi), AIR 2019 SC 910 : JT 2019 (2) SC 256 : 2019 (2) Scale 658 Crl.A. No. 234 of 2019 08-02-2019

Criminal Procedure Code, 1973 - S. 482 - Penal Code, 1860 - Ss. 120B r/w. 409, 420, 468, 471 - Prevention of Corruption Act, 1988 - Ss. 13(2) r/w. 13(i) (c) & (d) - there is no criminality issue surviving qua those accused, who are alive so as to allow the prosecuting agency to continue with the criminal trial on merits. Indeed, it would be an abuse of process, as was rightly held by the High Court to which we concur. Abhay Manohar Sapre & L. Nageswara Rao, JJ. C.B.I New Delhi v. B.B. Agarwal, AIR 2019 SC 1045 : JT 2019 (3) SC 130 : 2019 (4) Scale 389 Crl.A. No. 2107 of 2011 18-02-2019

Criminal Procedure Code, 1973 - S. 482 - Penal Code, 1860 - Ss. 307, 294 r/w. 34 & 394 - Madhya Pradesh Dacoity Vihavran Prabhavit Kshetra Act, 1981 - Ss. 11 & 13 - Arms Act, 1959 - Ss. 25 & 27 - Settlement between Parties - Quashing of the FIR / Complaint / Criminal Proceedings - Antecedents of the Accused. L. Nageswara Rao & M.R. Shah, JJ. State of Mahya Pradesh v. Dhruv Gurjar, JT 2019 (3) SC 82 Crl.A. No. 336 of 2019 22-02-2019

Criminal Procedure Code, 1973 - S. 482 - Penal Code, 1860 - Ss. 405, 406, 415 & 420 r/w. 34 - Criminal breach of trust - Cheating and dishonestly inducing deliver of property - Ingredients of - Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court. D.Y. Chandrachud & Hemant Gupta, JJ. Prof. R.K. Vijayasarthy v. Sudha Seetharam, JT 2019 (3) SC 420 : 2019 (3) Scale 56 315-02-2019

Criminal Procedure Code, 1973 - Ss. 190 (1) (b) & 397 (2) - Summons - Revision - While taking cognizance of an offence under Section 190(1) (b) Cr.P.C., whether the court has to record reasons for its satisfaction of sufficient grounds for issuance of summons - Whether revision under Section 397(2) Cr.P.C. against order of issue of process is maintainable - Discussed. R. Banumathi & Indira Banerjee, JJ. State of Gujarat v. Afroz Mohammed Hasanfatta, 2019 (1) Crimes 56 : JT 2019 (2) SC 212 : 2019 (1) MLJ(Cri) 495 : 2019 (1) RCR (Criminal) 946 : 2019 (2) Scale 634 Crl.A. No. 224 of 2019 05-02-2019

Criminal Procedure Code, 1973 - Ss. 195 & 340 - Penal Code, 1860 - S. 193 - Punishment for False Evidence - Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - Procedure in cases mentioned in Section 195. A.K. Sikri & S. Abdul Nazeer, JJ. Sh. Narendra Kumar Srivastava v. State of Bihar, 2019 (1) Bom.C.R.(Cri.) 634 : 2019 (1) CGLJ 391 : 2019 (1) Crimes 49 : 2019 (1) JLJR 505 : 2019 (1) PLJR 577 : 2019 (2) SCALE 591 : (2019) 3 SCC 318 Crl.A. No. 211 of 2019 04-02-2019

Criminal Procedure Code, 1973 - Ss. 216, 386 & 464 - Powers of the Court to alter the charge - Effect of omission to frame, or absence of, or error in framing the charge - An alteration of charge where no prejudice is caused to the accused or the prosecution is well within the powers and the jurisdiction of the Court including the Appellate Court - It is only when any omission to frame the charge initially or till culmination of the proceedings or at the appellate stage results in failure of justice or causes prejudice, the same may result in vitiating the trial in appropriate case. Abhay Manohar Sapre & R. Subash Reddy, JJ. Mala Singh v. State of Haryana, AIR 2019 SC 1026 : JT 2019 (2) SC 447 : 2019 (3) Scale 224 Crl.A. No. 1144 of 2009 12-02-2019

Criminal Procedure Code, 1973 - Under Section 319 Cr.P.C., a person can be added as an accused invoking the provisions not only for the same offence for which the accused is tried but for “any offence”; but that offence shall be such that in respect of which all the accused could be tried together. R. Banumathi & R. Subhash Reddy, JJ. Sunil Kumar Gupta v. State of Uttar Pradesh, JT 2019 (3) SC 25 : 2019 (3) Scale 813 Crl.A. No. 395 of 2019 27-02-2019

Customs Act, 1962 - Ss. 2 (39), 11, 11A, 132 & 135 - Antiquities and Art Treasures Act, 1972 - Ss. 3, 4, 24, 25, 26 & 30 - Ancient Monuments Preservation Act, 1904 - Ss. 2, 17 & 22 - Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Antiquity (Export Control) Act, 1947 - Ancient Monuments Preservation Act, 1904 - Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 - Ss. 2 (b), 25, 26, 30 & 39 - Definitions - "ancient monument" - "antiquities" - ”Commissioner” - ”maintain” and “maintenance” - “land” - “owner” - “smuggling” - Regulation of export trade in antiquities and art treasures - Application of Act 52 of 1962 - Power to determine whether or not an article, etc., is antiquity or art treasure - Penalty - Cognizance of Offences - Application of other laws not barred - Principles of ejusdem generis - Transfer of ownership, etc., of antiquities to be intimated to the registering officer - Jurisdiction - Power of Central Government to control moving of antiquities - Purchase of antiquities by Central Government - Penalties - Repeals and Saving - Power to prohibit importation or exportation of goods - Power to Exempt - ‘Offences and Prosecutions’. Ashok Bhushan & K.M. Joseph, JJ. Department of Customs v. Sharad Gandhi, 2019 (4) Scale 312 Crl.A. No. 174 of 2019 27-02-2019

Delay - What is more striking is that the delay to the tune of 721 days was condoned by the High Court when there was no satisfactory explanation. There was gross negligence on part of the respondent and the explanation offered in support of the prayer for condonation does not appear to be correct. This is evident from the fact that no effective steps were taken to pursue the complaint which was lodged against the then advocate. In the petition for special leave, it was asserted that the complaint against the Advocate was not being proceeded with and the respondent had remained absent on the relevant date. Said assertion was not answered satisfactorily in the affidavit in reply filed in this Court. Taking totality of the circumstances, the delay ought not to have been condoned by the High Court. U.U. Lalit & Ashok Bhushan, JJ. Sanjay Singh v. Central Himalayan Land Development Co. Ltd., JT 2019 (3) SC 364 : 2019 (3) Scale 882 C.A. No. 1928 of 2019 21-02-2019

Dying Declaration - Courts cannot expect a victim like the deceased herein to state in exact words as to what happened during the course of the crime, inasmuch as it would be very difficult for such a victim, who has suffered multiple grievous injuries, to state all the details of the incident meticulously and that too in a parrot-like manner. Mohan M. Shantanagoudar & Dinesh Maheshwari, JJ. Laltu Ghosh v. State of West Bengal, AIR 2019 SC 1058 : 2019 (3) Scale 894 Crl.A. No. 312 of 2010 19-02-2019

Education - Minority Educational Institution - What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority? Referred to a Bench of Hon’ble Seven Judges. Ranjan Gogoi (CJI), L. Nageswara Rao & Sanjiv Khanna, JJ. Aligarh Muslim University v. Naresh Agarwal, 2019 (3) Scale 330 C.A. No. 2286 of 2006 12-02-2019

Education - the students who have been admitted to this particular private Institute, namely, Himalayan Institute of Medical Sciences, will pay whatever fees they have to pay in law both as of today and in future. It is only on this express premise that the students have been permitted to begin/continue their studies at this Institute. R.F. Nariman & Navin Sinha, JJ. Sourabh Brala v. Union of India, 2019 (5) Scale 274 W.P. (C) No. 571 of 2018 19-02-2019

Electricity Act, 2003 - S. 2(18) - Special Economic Zones Act, 2005 - S. 26 - Power Purchase Agreements [PPAs] - Article 13 - Change in Law - Application and Principles for computing impact of - Notification of - Tariff Adjustment Payment - Adjustment in monthly tariff payment has to be effected from the date on which the exemptions given were withdrawn. R.F. Nariman & Navin Sinha, JJ. Uttar Haryana Bijli Vitran Nigam Ltd. (UHBVNL) v. Adani Power Ltd. C.A. No. 5865 of 2018 25-02-2019

Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 - Ss. 2(b)(ii) r/w. 6 - If the special allowances paid by an establishment to its employees would fall within the expression “basic wages” for computation of deduction towards Provident Fund. Arun Mishra & Navin Sinha, JJ. Regional Provident Fund Commissioner (II) West Bengal v. Vivekananda Viyamandir, JT 2019 (3) SC 45 : 2019 (3) Scale 831 C.A. No. 6221 of 2011 28-02-2019

Environment (Protection) Act, 1986 - S. 3 (3) - Municipal Corporation Act, 1994 (Haryana) - Ss. 43, 87, 88, 177, 193, 194, 195, 196 & 205 - Obligatory functions of Corporation - Supply of water to connected premises - Public drains etc. to vest in Corporation - Control of drain and sewage disposal works - Certain matters not to be passed into municipal drains - Application by owners and occupiers to drain into municipal drain - Connection with water works and drains not to be made without permission - the Corporation was well within its right to claim user charges for the use of Municipal drains for discharge of waste water from the tubewells installed by the Schools. D.Y. Chandrachud & Hemant Gupta, JJ. Municipal Corporation, Faridabad v. Modern School, Faridabad, AIR 2019 SC 919 : 2019 (2) MLJ 477 : 2019 (1) RCR (Civil) 1003 : 2019 (2) Scale 688 C.A. No. 1555 of 2019 08-02-2019

Environmental Law - National Green Tribunal Act, 2010 - Air (Prevention and Control of Pollution) Act, 1981 - Water (Prevention and Control of Pollution) Act, 1974 - S. 18 - the State Government order made under Section 18 of the Water Act, not being the subject matter of any appeal under Section 16 of the NGT Act, cannot be “judicially reviewed” by the NGT. The NGT has no general power of judicial review akin to that vested under Article 226 of the Constitution of India possessed by the High Courts of this country. R.F. Nariman & Navin Sinha, JJ. Tamil Nadu Pollution Control Board v. Sterlite Industries (i) Ltd., AIR 2019 SC 1074 : 2019 (3) Scale 721 C.A. No. 4763 of 2013 18-02-2019

Equity - Comparative Convenience - Principles of - The party seeking the remedy has to make out a prima facie case on merits, and has to satisfy the court that there is some basis to its claim regarding the existence of his right. Further, the court must balance the comparative hardship or mischief which is likely to occur from withholding the relief, against that which would likely arise from granting it. It has to be further established that noninterference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except to grant the relief sought. N.V. Ramana & Mohan M. Shantanagoudar, JJ. Lullu Vas (Since Deceased) Through Lrs. v. State of Maharashtra, 2019 (3) Scale 653 C.A. No. 1973 of 2019 22-02-2019

Evidence Law - ‘Interested’ and ‘Related’ Witnesses - A related witness cannot be said to be an ‘interested’ witness merely by virtue of being a relative of the victim. L. Nageswara Rao & Mohan M. Shantanagoudar, JJ. Md. Rojali Ali v. State of Assam, Ministry of Home Affairs Thru The Secretary, 2019 (3) Scale 877 Crl.A. No. 1839 of 2010 19-02-2019

Evidence Law - The general principle of appreciation of evidence is that even if some part of the evidence of witness is found to be false, the entire testimony of the witness cannot be discarded. Sanjay Kishan Kaul & Hemant Gupta, JJ. Mahendran v. State of Tamil Nadu, 2019 (4) Scale 707 Crl.A. No. 1266 of 2010 21-02-2019

Excise Act, 1915 - S. 18 - Country Spirit Rules, 1995 (Madhya Pradesh) - R. 3 - Power to grant lease of right to manufacture, etc. - Grant of Licence - Request for grant of a CS-1 license - State must comply with the equality clause while granting the exclusive right or privilege of manufacturing or selling liquor. L. Nageswara Rao & M.R. Shah, JJ. Gwalior Distilleries Pvt. Ltd v. State of Madhya Pradesh, C.A. No. 1701 of 2019 15-02-2019

Family Courts Act, 1984 - Ss. 6 & 12 - Family Courts (Procedure) Rules, 1992 – R. 8 - Who is the “Counsellor” - Procedure to be followed to arrive at a settlement - Assistance of Medical and Welfare Experts - Guardianship of any child or children - Ground of Confidentiality - the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues. Abhay Manohar Sapre & U.U. Lalit, JJ. Perry Kansagra v. Smriti Madan Kansagra, JT 2019 (2) SC 426 : 2019 (3) Scale 573 C.A. No. 1694 of 2019 15-02-2019

Foreign Service - Indian Foreign Service (Pay, Leave, Compensatory Allowance and other Conditions of Service) Rules, 1981 - Meaning of the term “civilian counterparts” - there were no valid grounds for the High Court while passing the impugned judgment to grant parity between the Bhutan Compensatory Allowance (BCA) payable to Indian Military Training Team (IMTRAT) personnel and the Foreign Allowance (FA) payable to Ministry of External Affairs (MEA) personnel. N.V. Ramana & Mohan M. Shantanagoudar, JJ. Union of India thr. Cabinet Secretary v. Captain Gurdev Singh, 2019 (3) Scale 93 C.A. No. 2763 of 2009 11-02-2019

Foreigner - Whether the appellant herein has been declared to be a foreigner incorrectly. Held, It is not possible to state that Kematullah is not the same despite being named Kefatullah in some of the documents. This being so, the grandfather’s identity, father’s identity etc. has been established successfully by the appellant. Further, the mere fact that the father may later have gone to another village is no reason to doubt this document. R.F. Nariman & Vineet Saran, JJ. Sirajul Hoque v. State of Assam, 2019 (4) Scale 586 Crl.A. No. 267 of 2019 14-02-2019

Forest (Conservation) Act, 1980 - It would be necessary for this Court to put in place an administrative mechanism that would ensure that a decision to release water for industrial purposes is monitored by the Collector of the District who shall conduct a due verification of the data which is available with the TWAD Board. The Collector should independently assess the situation so as to ensure that the need for drinking water and irrigation is not compromised. D.Y. Chandrachud & Hemant Gupta, JJ. M/s. Southern Petrochemical Industries Corpn. Ltd. v. S. Joel, 2019 (3) Scale 303 C.A. No. 11935 of 2018 04-02-2019

Hindu Minority & Guardianship Act, 1956 - Section 8 - Powers of natural guardian - transfer of immovable property by a registered deed by a natural guardian of minor - Whether a transferee from a minor after he attained majority, can file a suit to set aside the alienation made by the minor’s guardian or the said right is one to be exercised only by the minor? Ashok Bhushan & K.M. Joseph, JJ. Murugan v. Kesava Gouner, JT 2019 (3) SC 54 : 2019 (3) Scale 627 C.A. No. 1782 of 2019 25-02-2019

Income Tax Act, 1961 - S. 12AA - Registered Trust - Bogus Donations. R. Banumathi & R. Subhash Reddy, JJ. Commissioner of Income Tax (Exemptions), Kolkata v. Jagannath Gupta Family Trust, JT 2019 (2) SC 117 : 2019 (2) Scale 417 C.A. No. 1381 of 2019 01-02-2019

Income Tax Act, 1961 - S. 80-IC - Exemption - Period - Whether an assessee who sets up a new industry of a kind mentioned in sub-section (2) of Section 80-IC of the Act and starts availing exemption of 100 per cent tax under sub-section (3) of Section 80-IC (which is admissible for five years) can start claiming the exemption at the same rate of 100% beyond the period of five years on the ground that the assessee has now carried out substantial expansion in its manufacturing unit? A.K. Sikri, S. Abdul Nazeer & M.R. Shah, JJ. Commissioner of Income Tax Shimla v. Aarham Softronics, 2019 (3) Scale 688 C.A. No. 1784 of 2019 20-02-2019

Income Tax Act, 1961 - Section 260A - In the absence of any discussion or / and the reasoning / ground as to why the order of ITAT does not suffer from any illegality and why the grounds of Revenue are not acceptable and why the appeal does not involve any substantial question(s) of law or though framed cannot be answered in Revenue’s favour, the impugned order suffers from jurisdictional errors and, therefore, legally unsustainable for want of compliance of the requirements of subsections (4) and (5) of Section 260A of the Act. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Commissioner of Income Tax-I v. Rashtradoot (Huf), JT 2019 (3) SC 77 : 2019 (3) Scale 849 C.A. No. 2362 of 2019 27-02-2019

Indian Medicine Central Council Act, 1970 - S. 13 (4) - Inspection Reports - Bachelor of Siddha Medicine and Surgery (BSMS Course) - Central Council of Indian Medicine (CCIM) - Assessment of the facilities in 2015- 16 and 2016-17 cannot be done by inspection in 2018. L. Nageswara Rao & Sanjay Kishan Kaul, JJ. Secretary, Govt. of India, Ministry of Health & Family Welfare, Dept. of Ayush v. A.T.S.V.S. Siddha Medical College & Hospital, 2019 (2) Scale 683 M.A. No. 2867 of 2018 08-02-2019

Industrial Disputes Act, 1947 - S. 10 (1) - Every party to a lis has a right to contest the case on merits. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Bundi Zila Petrol Pump Dealers Association Bundi v. Sanyojak Bundi Zila Petrol Pump Mazdoor Sangh (B.M.S.), 2019 (3) Scale 357 C.A. No. 2784 of 2009 12-02-2019

Injunction - When the plaintiff's injunction application stood dismissed by the Trial Court and the same was not carried in appeal at his instance, the same could not have been revived by the High Court in a writ petition filed by the plaintiff. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Shri Revansiddeshwar Pattan Sahakari Bank Niyamit v. Taluka Tokrekoli, JT 2019 (3) SC 6 : 2019 (3) Scale 600 C.A. No. 2013 of 2019 25-02-2019

Insolvency and Bankruptcy Code, 2016 - the NCLAT has justly concluded in the impugned decision that the resolution plan of the concerned corporate debtor(s) has not been approved by requisite percent of voting share of the financial creditors; and in absence of any alternative resolution plan presented within the statutory period of 270 days, the inevitable sequel is to initiate liquidation process under Section 33 of the Code. That view is unexceptional. Resultantly, the appeals must fail. A.M. Khanwilkar & Ajay Rastogi, JJ. K. Sashidhar v. Indian Overseas Bank, AIR 2019 SC 1329 : 2019 (3) Scale 6 C.A. No. 10673 of 2018 05-02-2019

Judgment - Applications for recall of the Judgment - Arithmetical errors in the Judgment - The modifications set out in para 9 shall be effected in the Judgment and a corrected copy shall again be uploaded by the Registry. Any certified copy of the Judgment issued hereafter must reflect the modifications as set out in para 9 of this order. U.U. Lalit & D.Y. Chandrachud, JJ. Hukum Singh v. State of Haryana, 2019 (2) Scale 662 S.L.P. (C) No. 4354 of 2019 08-02-2019

Judicial Service - The Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 - Rule 5A(3) clearly provides that only 10% of the total number of candidates appeared have to be called for final written examination as per the rounding off provided in rule 5A(3) of the Rules - No useful purpose is going to be served by restricting the number of candidates for final written examination - Rule 5A(3) of the Rules is struck down. Arun Mishra & Navin Sinha, JJ. Rahul Dutta v. State of Bihar, 2019 (4) Scale 580 W.P. (C) No. 71 of 2019 14-02-2019

Juvenile Justice (Care and Protection of Children) Act, 2015 - Ss. 57, 58 & 59 - Adoption - Eligibility of prospective adoptive parents - Procedure for adoption by Indian prospective adoptive parents living in India - Procedure for inter-country adoption of an orphan or abandoned or surrendered child - Seniority of the prospective adoptive parents - Before expiry of sixty days, child could not have been offered for adoption to parents, who are eligible for adoption under Section 59 - the statutory procedure and the statutory regime, which is prevalent as on date and is equally applicable to all aspirants, i.e., Indian prospective adoptive parents and prospective adoptive parents for inter-country adoption. Ashok Bhushan & K.M. Joseph, JJ. Union of India v. Ankur Gupta, 2019 (3) Scale 801 C.A. No. 2017 of 2019 25-02-2019

Labour Law - Whether the Directors of Company, who are receiving remuneration, come within the purview of “employee” under sub-section (9) of Section 2 of the Employees' State Insurance Act, 1948 ? Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Employees' State Insurance Corporation v. Venus Alloy Pvt. Ltd., AIR 2019 SC 807 : 2019 LLR 237 : 2019 (2) Scale 481 C.A. No. 1464 of 2019 05-02-2019

Land Acquisition - the landowners will be entitled to withdraw 50% of the awarded sum on furnishing solvent security to the satisfaction of the High Court and remaining 50% amount shall be invested in FDR Scheme in any Nationalized Bank in the name of the Registrar of the High Court. The withdrawal and deposit shall be subject to the result of the appeals. Depending upon the final outcome of the appeals, the amount, which is allowed to be withdrawn by the landowners and which is deposited in the Bank including the interest earned thereon, will be adjusted/given, as the case may be, to the parties concerned as directed in the final order. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Greater Mohali Area Development Authority (GMDA) Thr. Its Estate Officer v. Arminderjit Kaur, 2019 (4) Scale 620 C.A. No. 2383 of 2019 26-02-2019

Land Acquisition Act, 1894 - S. 4 - Principles laid down by Apex Court for the purpose of deductions to be made on the market value. L. Nageswara Rao & M.R. Shah, JJ. Mahanti Devi v. Jaiprakash Associates Ltd., 2019 (2) Scale 686 C.A. No. 1572 of 2019 08-02-2019

Land Acquisition Act, 1894 - S. 4(1) - Contention that the date for determining the compensation should be the date on which the Land Acquisition Officer passed the award. This argument does not have any basis and is, therefore, not acceptable for the simple reason that such date is not provided either in the old Act, 1894 or in the Act, 2013. Abhay Manohar Sapre & R. Subhash Reddy, JJ. Hori Lal v. State of Uttar Pradesh, 2019 ALT (Rev) 30 : 2019 (1) RCR (Civil) 968 : 2019 (2) Scale 479 C.A. No. 1462 of 2019 05-02-2019

Land Acquisition Act, 1894 - Section 28A - The idea under Section 28A is certainly to extend benefit of equal compensation to landholders who, for some reasons had not preferred appropriate applications for Reference in time but for a company having profile such as the petitioner, inaction on the front followed by delay in filing petition in the High Court disentitles the petitioner from claiming any relief under Article 226 of the Constitution. Uday Umesh Lalit & Hemant Gupta, JJ. Model Eonomic Township Ltd v. Land Acquisition Collector, JT 2019 (3) SC 39 : 2019 (3) Scale 765 S.L.P. (C) No. 618 of 2018 26-02-2019

Land Acquisition Act, 1894 - Section 4 (1). R. Banumathi & R. Subhash Reddy, JJ. U.P. Avas Evam Vikas Parishad v. Ganga Saran (dead) Thr. Lrs. C.A. No. 2562 of 2019 26-02-2019

Land Law - Compensation for Tenants Improvements Act 1958 (Kerala) - A claim under Section 4 (1) has to be addressed to the court which passes a decree for eviction - the failure to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of Sections 4 and 5 of the Act of 1958 and to the provisions of Order XXI Rules 97 to 101 of the CPC. D.Y. Chandrachud & Hemant Gupta, JJ. Asgar v. Mohan Varma, 2019 (2) Scale 530 C.A. No. 1500 of 2019 05-02-2019

Land Law - Every person, who on the date immediately preceding the appointed date, was recorded as occupant of the land held by a hissedar or a khaikar as such in the last revision of records made under Chapter IV of the U.P. Land Revenue Act, 1901 shall be called Asami of land and entitled to take or retain possession thereof. For acquiring right under Section 10 sub-clause (e) it has to be established that person claiming Asami right was recorded as occupant of land. Ashok Bhushan & K.M. Joseph, JJ. Dharam Singh (d) Thr. Lrs. v. Prem Singh (d) Thr. Lrs. 2019 (2) Scale 583 C.A. No. 516 of 2009 05-02-2019

Land Law - Urban Land (Ceiling and Regulation) Act, 1976 - Jurisdiction of the Civil Courts to try the civil Suits with respect to the lands, which were subjected to ceiling proceedings under the Act, are held to be impliedly barred, since the Act excludes the jurisdiction of the Civil Court. Abhay Manohar Sapre & Indu Malhotra, JJ. Competent Authority Calcutta, under the Land (Ceileing and Regulation) Act, 1976 v. David Mantosh, JT 2019 (3) SC 506 : 2019 (3) Scale 778 C.A. No. 10629 of 2014 26-02-2019

Land Law - Whether the land recorded as ‘Charnoi’ i.e. Common land for grazing of cattle of villagers vests in State on abolition of intermediaries on 02.10.1951 or it was saved from vesting in favour of proprietor being grove under section 5(f) of the Madhya Bharat Abolition of Zamindari Act. Arun Mishra & Navin Sinha, JJ. Chattar Singh v. Madho Singh, 2019 (4) Scale 625 C.A. No. 8718 of 2012 06-02-2019

Maintainability - If the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the Trial Court or the First Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding. It is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Deepak Tandon v. Rajesh Kumar Gupta, AIR 2019 SC 924 : JT 2019 (2) SC 259 : 2019 (1) RCR (Rent) 278 : 2019 (2) Scale 733 07-02-2019

Maritime Law - ‘ballasting’ a vessel - “deballasting” - “draft” of the vessel - Meaning of. Abhay Manohar Sapre & U.U. Lalit, JJ. Essar Shipping Ltd. v. Board of Trustees for the Port of Calcutta, 2019 (4) Scale 695 C.A. No. 5654 of 2007 15-02-2019

Medical Education - A candidate who has secured minimum marks in the NEET UG-2018 shall be eligible for admission to the 1st year BHMS course for the academic year 2018-19. The Appellants to complete the process of admissions strictly on the basis of the merit by 15th February, 2019. The Managements of the colleges are directed to hold extra classes for students who will be admitted pursuant to this order to comply with the requirements of minimum working days. L. Nageswara Rao & M.R. Shah, JJ. Association of Managements of Homeopathic Medical Colleges of Maharashtra v. Union of India, 2019 (2) Scale 436 C.A. No. 1393 of 2019 01-02-2019

Medical Negligence - Enhancement of Compensation. D.Y. Chandrachud & Hemant Gupta, JJ. Shilaben Ashwinkumar Rana v. Bhavin K. Shash, JT 2019 (2) SC 289 C.A. No. 1442 of 2019 04-02-2019

Medical Negligence - Sympathy cannot translate into a legal remedy. L. Nageswara Rao & Sanjay Kishan Kaul, JJ. Vinod Jain v. Santokba Durlabhji Memorial Hospital, JT 2019 (3) SC 9 : 2019 (3) Scale 794 C.A. No. 2024 of 2019 25-02-2019

Medical Practitioners Act, 1961 (Maharashtra) - Ss. 33 & 36 - Practice of medicine without possessing valid degree or diploma or permission from the Maharashtra Government - the guilt of the appellants has not been proved beyond reasonable doubt and they are entitled to benefit of doubt. R. Banumathi & R. Subhash Reddy, JJ. Dharmendra v. State of Maharashtra, Crl.A. No. 646 of 2010 06-02-2019

Mercy Petition - The mercy petition is the last hope of a person on death row. Every dawn will give rise to a new hope that his mercy petition may be accepted. By night fall this hope also dies. Inordinate and unexplained delay in deciding the mercy petition and the consequent delay in execution of death sentence for years on end is another form of punishment which was awarded by the Court. In cases where death sentence has to be executed the same should be done as early as possible and if mercy petitions are not forwarded for 4 years and no explanation is submitted we cannot but hold that the delay is inordinate and unexplained. N.V. Ramana, Deepak Gupta & Indira Banerjee, JJ. Jagdish v. State of Madhya Pradesh, JT 2019 (3) SC 361 : 2019 (3) Scale 888 R.P. (Crl.) No. 591 of 2014 21-02-2019

Metropolitan Water Supply and Sewerage Act, 1989 (Hyderabad) - S. 55 - Sewerage Cess. R. Banumathi & Indira Banerjee, JJ. Vasant Chemicals Limited v. Managing Director, Hyderabad Metropolitian Water Supply and Sewerage Board, 2019 (3) Scale 360 C.A. No. 4616 of 2009 13-02-2019

Minimum Wages Act, 1948 - Though, it was the discretion of the Courts / Authority to award compensation with different percentage in every case but it was necessary to give reasons in support of award of such compensation. Abhay Manohar Sapre & L. Nageswara Rao, JJ. Union of India v. Avtar Chand, C.A. No. 3416 of 2010 19-02-2019

Motor Accidents Claims - The claimant-appellant overtly suggested in the claim application that he had suffered injuries to his private parts and at the age of 25 years, such injuries resulted in his inability to have the bliss of marital life. The appellant has, unfortunately, expired during the pendency of this appeal and his legal representatives, being his wife, mother and three children are substituted as appellants in his place. The very extent of the family left behind by the appellant, inclusive of his wife and three children, obviously falsify his suggestions about inability of having marital life. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. S. Kumar (d) v. United India Insurance Co. Ltd. JT 2019 (2) SC 405 : 2019 (3) Scale 872 C.A. No. 6038 of 2003 18-02-2019

Motor Vehicles Act, 1988 - In motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal’s role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases. A.M. Khanwilkar & Ajay Rastogi JJ. Sunita v. Rajasthan State Road Transport Corp., AIR 2019 SC 994 : JT 2019 (2) SC 492 : 2019 (3) Scale 393 C.A. No. 1665 of 2019 14-02-2019

Narcotic Drugs and Psychotropic Substances Act, 1985 - S. 20(ii)(c) - The law laid down in Mohan Lal v. State of Punjab, AIR 2018 SC 3853 is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations - All pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case. Ranjan Gogoi (CJI), Navin Sinha & K.M. Joseph, JJ. Varinder Kumar v. State of Himachal Pradesh, 2019 (3) Scale 50 Crl.A. No. 2450 of 2010 11-02-2019

National Food Security Act, 2013 - Sections 4, 5 and 6 - The Supplementary Nutritional (under ICDS) Rules, 2015 - Rules 7 and 9 - Nutritional support to pregnant women and lactating mothers - Nutritional support to children - Prevention and management of child malnutrition - Preparation of meal and maintenance of its standard and quality - Responsibility to monitor and review arrangement for supplementary nutrition. Arun Mishra & Deepak Gupta, JJ. Vaishnorani Mahila Bachat Gat v. State of Maharashtra, 2019 (5) Scale 1 C.A. No. 2336 of 2019 26-02-2019

Negotiable Instruments Act, 1881 - S. 138 - the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. R. Banumathi & Indira Banerjee, JJ. Bir Singh v. Mukesh Kumar, 2019 (1) GLH 338 : 2019 (1) JLJR 542 : 2019 (1) KLT 598 : 2019 (1) OLR 447 : 2019 (1) PLJR 614 : 2019 (2) Scale 698 Crl.A. No. 230 of 2019 06-02-2019

Penal Code, 1860 - S. 302 - Murder - Circumstantial Evidence - Whether in a case of circumstantial evidence inability on the part of the prosecution to establish a motive is fatal to the prosecution case - Held, while it is true that if the prosecution establishes a motive for the accused to commit a crime it will undoubtedly strengthen the prosecution version based on circumstantial evidence, but that is far cry from saying that the absence of a motive for the commission of the crime by the accused will irrespective of other material available before the court by way of circumstantial evidence be fatal to the prosecution. A.M. Khanwilkar & K.M. Joseph, JJ. Sukhpal Singh v. State of Punjab, 2019 (3) Scale 271 Crl.A. No. 1697 of 2009 12-02-2019

Penal Code, 1860 – S. 302 – Murder - Voluntary provocation on the part of the offender cannot come to the rescue of the accused to claim that he is not liable to be convicted under Section 302 IPC. L. Nageswara Rao & Sanjay Kishan Kaul, JJ. State of Uttar Pradesh v. Faquirey, AIR 2019 SC 844 : JT 2019 (2) SC 245 : 2019 (3) Scale 80 Crl.A. No. 1842 of 2012 11-02-2019

Penal Code, 1860 - S. 302 - the statement of eyewitness PW13, the injury attributed to the accused appellant, recovery of weapon and the motor cycle and the statement of PW6 and PW7 that the injury on the head attributed to the appellant could have been sufficient to cause death, clearly corroborates the prosecution case which leaves no manner of doubt that the appellant was actively involved in the commission of crime and once that fact is predicated beyond reasonable doubt, the partial statement which has been doubted could not be used by the appellant as a defence to shake the prosecution case which has been discussed by us in detail, deserves rejection. A.M. Khanwilkar & Ajay Rastogi, JJ. Kripal Singh v. State of Rajasthan, AIR 2019 SC 947 : JT 2019 (2) SC 388 : 2019 (3) Scale 494 Crl.A. No. 2100 of 2008 15-02-2019

Penal Code, 1860 - S. 304 Part II - Punishment for culpable homicide not amounting to murder - the High Court had been in error in extending undue sympathy and in awarding the punishment of the rigorous imprisonment for the period already undergone i.e., 3 months and 21 days for the offence under Section 304 Part II IPC - there was absolutely no reason for the High Court to interfere with the punishment awarded by the Trial Court, being that of rigorous imprisonment for 3 years. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. State of M.P. v. Suresh, JT 2019 (2) SC 480 : 2019 (4) Scale 673 Crl.A. No. 319 of 2019 20-02-2019

Penal Code, 1860 - S. 307 - Attempt to murder - Lack of forensic evidence to prove grievous or a life-threatening injury cannot be a basis to hold that Section 307 is inapplicable. D.Y. Chandrachud & M.R. Shah, JJ. State of Madhya Pradesh v. Kanha @ Omprakash, AIR 2019 SC 713 : 2019 (2) JLJ 138 : 2019 (1) JLJR 519 : JT 2019 (2) SC 112 : 2019 (1) KLJ 655 : 2019 (1) PLJR 591 : 2019 (2) Scale 454 Crl.A. No. 1589 of 2018 04-02-2019

Penal Code, 1860 - S. 307 - Attempt to Murder - There is no requirement for the injury to be on a “vital part” of the body, merely causing ‘hurt’ is sufficient to attract S. 307 I.P.C. L. Nageswara Rao & Indu Malhotra, JJ. State of Madhya Pradesh v. Harjeet Singh, 2019 (4) Scale 666 Crl.A. No. 1190 of 2009 19-02-2019

Penal Code, 1860 - S. 376(2)(g) - Juvenile Justice (Care and Protection of Children) Act, 2000 - Ss. 2(k), 2(l), 7A r/w. 20 - A juvenile who had not completed eighteen years on the date of commission of the offence is entitled to the benefit of the 2000 Act. The claim of juvenility can be raised at any stage before any Court by an accused, including Supreme Court, even after the final disposal of a case, in terms of Section 7A of the 2000 Act. N.V. Ramana, Mohan M. Shantanagoudar & Indira Banerjee, JJJ. Raju v. State of Haryana, JT 2019 (3) SC 121 : 2019 (4) Scale 398 Crl.A. No. 1175 of 2014 22-02-2019

Penal Code, 1860 - Section 302 to Section 304 Part-I - Murder - No premeditation for the occurrence - High Court has rightly modified the conviction. R. Banumathi & R. Subhash Reddy, JJ. Kishan Singh @ Actor v. State of Uttranchal (Now Uttrakhand) Crl.A. No. 389 of 2019 26-02-2019

Penal Code, 1860 - Section 340 - Matrimonial Proceedings - Anticipatory Bail - False statements deliberately made in order to get favourable orders from the Court - Held, there should be something deliberate - a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise. Rohinton Fali Nariman & Vineet Saran, JJ. Aarish Asgar Qureshi v. Fareed Ahmed Qureshi, 2019 (4) Scale 606 Crl.A. No. 387 of 2019 26-02-2019

Penal Code, 1860 - Sections 436 and 323 r/w. 34 - It would not be appropriate to compound the offence which is not compoundable under the Code ignoring the statutory provisions. However, taking into consideration the relationship of the parties and the factum of compromise between the parties which is a relevant circumstance, the sentence of imprisonment imposed upon the appellants no.1 and 3 under Sections 436 read with Section 34 I.P.C. is modified to the period already undergone by them. R. Banumathi & R. Subhash Reddy, JJ. Shankar v. State of Maharashtra, Crl.A. No. 390 of 2019 26-02-2019

Penal Code, 1860 - Ss. 147, 148, 149, 341, 294, 323, 506B, 302 - Arms Act, 1959 - S. 25(1A) r/w. 27 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - S. 3(2)(V) - Mention of Inquest Number in the FIR - Delay in FIR - Inconsistency between the Medical Evidence and Oral Evidence - Recovery of pistol and FSL report - Common intention of Accused. R. Banumathi & R. Subhash Reddy, JJ. Balvir Singh v. State of M.P., 2019 (4) Scale 631 Crl.A. No. 1115 of 2010 19-02-2019

Penal Code, 1860 - Ss. 148, 302 & 324 / 149 - the acquittal of the co-accused by giving benefit of doubt, by itself can be no ground to discard the otherwise reliable evidence which has remained unshaken, pointing towards the complicity of the accused in the commission of crime. A.M. Khanwilkar & Ajay Rastogi, JJ. Pappi @ Mehboob v. State of Rajasthan, AIR 2019 SC 904 : 2019 CriLJ 1511 : JT 2019 (2) SC 522 : 2019 (2) Scale 613 Crl.A. No. 497 of 2009 05-02-2019

Penal Code, 1860 - Ss. 279 & 304 A - Just and adequate punishment in a vehicular accident cases - A 15 year old boy lost his life due to the rash and negligent driving of the truck by the appellant and where, after causing the accident, the appellant fled from the site and was surrendered by his commandant more than 3 weeks later - No reason to reduce the punishment awarded or to extend the benefit of probation. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Subhash Chand v. State of Punjab, JT 2019 (3) SC 1 : 2019 (4) Scale 722 Crl.A. No. 1827 of 2009 25-02-2019

Penal Code, 1860 - Ss. 279, 337 & 304A - Reduction of Sentence - For rash and negligent driving by the appellant, as many as four persons died and three other sustained injuries. Yet, the Trial Court had been considerate in awarding the sentence only of four months' imprisonment for each count of the offence under Section 304-A IPC and only of fine of Rs. 100 for each count of the offence under Section 337 IPC and Rs. 200/- for the offence under Section 279 IPC. To say the least, the punishment awarded in this matter had been rather on the lower side. There being no appeal for enhancement of sentence and looking to the time that has elapsed, we would not be making any further comment in the matter. Suffice it to conclude that no case for reducing the punishment awarded to the appellant is made out. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Thangasamy v. State of Tamil Nadu, JT 2019 (3) SC 113 : 2019 (4) Scale 681 Crl.A. No. 698 of 2010 20-02-2019

Penal Code, 1860 - Ss. 302 & 34 - Object of Section 34 IPC incorporated in the Indian Penal Code - Distinction between Section 149 & Section 34 IPC - Essence of the joint liability during the criminal act in furtherance of such common intention - Mere similarity of the facts in one case cannot be used to determine the conclusion of the fact in another - Common intention being the state of mind can be gathered by inference drawn from the facts and circumstances established in a given case - The cases involving almost similar facts and circumstances cannot be used as precedent to determine the conclusions on facts in the case in hand. A.M. Khanwilkar & Ajay Rastogi, JJ. Ezajhussain Sabdarhussain v. State of Gujarat, JT 2019 (2) SC 317 : 2019 (3) Scale 513 Crl.A. No. 2007 of 2008 15-02-2019

Penal Code, 1860 - Ss. 302 / 34 - Whether the offence of Section 302 of I.P.C. can be converted to Section 304 (II) of I.P.C. A.M. Khanwilkar & K.M. Joseph, JJ. Bikash Bora v. State of Assam, JT 2019 (2) SC 531 : 2019 (2) Scale 577 : (2019) 4 SCC 280 Crl.A. No. 164 of 2011 05-02-2019

Penal Code, 1860 - Ss. 302 / 394 - Special Investigating Team (SIT) for Re-investigation - the CBI has to look into the report of the SIT and take a decision in the matter. A.K. Sikri & S. Abdul Nazeer, JJ. Sunita Devi v. Union of India, JT 2019 (2) SC 489 : 2019 (4) Scale 414 W.P. (Crl.) No. 188 of 2015 20-02-2019

Penal Code, 1860 - Ss. 302 r/w. 34 - Murder - Motive - When the prosecution has been successful in proving the conspiracy between the accused as well as the accused committed the murder of the deceased, motive may not have that much relevance. U.U. Lalit & M.R. Shah, JJ. Vidyalakshmi @ Vidya v. State of Kerela, 2019 (3) Scale 504 Crl.A. No. 971 of 2012 15-02-2019

Penal Code, 1860 - Ss. 302, 364 & 201 r/w. 34 - killed a minor child - the accused at the time of commission of the offence was aged of 22 years - he has spent 18 years in the jail - while in jail, his conduct is good - the accused has tried to join the society and has tried to become a civilized man and has completed his graduation in B.A. from jail - He has tried to become reformative - from the poems, written by him in the jail, it appears that he has realised his mistake which was committed by him at the time when he was of young age and that he is reformative - therefore the appellant can be reformed and rehabilitated. A.K. Sikri, S. Abdul Nazeer & M.R. Shah, JJJ. Dnyaneshwar Suresh Borkar v. State of Maharashtra, Crl.A. No. 1411 of 2018 20-02-2019

Penal Code, 1860 - Ss. 323, 506, 148, 149, 170, 171 & 302 - Juvenile Justice (Care and Protection of Children) Rules, 2001 - Rules 12 (3) and 22 (5) - Procedure to be followed in determination of age - Procedure to followed by a board in the holding inquiry in the determination of age - High Court had no occasion to consider the issue since the appellant has not pressed the issue before the High Court - It shall be appropriate that the High Court be requested to consider the question of juvenility of the appellant afresh before proceeding to decide the appeal. Ashok Bhushan, K.M. Joseph, JJ. Gaurav Kumar @ Monu v. State of Haryana, 2019 (3) Scale 540 Crl.A. No. 283 of 2019 15-02-2019

Penal Code, 1860 - Ss. 376 & 506 - There is admittedly a delay of 7 months in lodging the FIR in the case of alleged rape. If the case is reported immediately apart from the inherent strength of the case flowing from genuineness attributable to such promptitude, the perceptible advantage would be the medical examination to which the prosecutrix can be subjected and the result of such examination in a case where there is a resistance. It is the case of the prosecution that she raised hue and cry and therefore apparently she would have resisted. Possibly, a medical examination may have revealed signs of any resistance or injuries. Ranjan Gogoi (CJI), Sanjay Kishan Kaul & K.M. Joseph, JJ. Parkash Chand v. State of Himachal Pradesh, AIR 2019 SC 1037 : 2019 (3) Scale 289 Crl.A. No. 2393 of 2010 12-02-2019

Penal Code, 1860 - Ss. 379, 427, 447, 504 & 506 r/w. 149 - Appeal against Acquittal - The High Court was not justified in setting aside the well considered findings of the Trial Judge. D.Y. Chandrachud & Hemant Gupta, JJ. Puni Devi v. Tulsi Ram, 2019 (4) Scale 563 Crl.A. No. 263 of 2019 13-02-2019

Penal Code, 1860 - Ss. 406, 468 & 120B - Offences alleged are Noncompoundable - Dispute between the parties predominantly or overwhelming seems to be of a civil nature and that the dispute is a private one and between the two private parties - Parties have settled the dispute amicably - Criminal Proceedings Quashed. L. Nageswara Rao & M.R. Shah, JJ. Srinivasan Iyenger v. Bimla Devi Agarwal, 2019 (3) Scale 522 Crl.A. No. 277 of 2019 15-02-2019

Penal Code, 1860 - Ss. 409 & 477A r/w. 120B - Prevention of Corruption Act, 1947 - Ss. 5(2) r/w. 5(1)(c) & (d) - Merely because misappropriation of 540 bags of urea is mentioned in the initial complaint, Court cannot ignore the chargesheet which was filed after investigation which revealed misappropriation of entire qualtity of 1040 bags of urea. Abhay Manohar Sapre & R. Subhash Reddy, JJ. Shiv Shankar Prasad Singh`v. State of Bihar, 2019 (3) Scale 824 Crl.A. No. 1804 of 2011 28-02-2019

Practice and Procedure - Where a question is a mixed question of fact and law, a concession made by a lawyer or his authorised representative at the stage of arguments cannot preclude the party for whom such person appears from re-agitating the point in appeal. R.F. Nariman & Vineet Saran, JJ. Bharat Heavy Electricals Ltd. v. Mahendra Prasad Jakhmola, 2019 (4) Scale 738 C.A. No. 1799 of 2019 20-02-2019

Prevention of Corruption Act, 1947 - S. 5(2) - Penal Code, 1860 - S. 161 - the Court is empowered to impose a sentence, which may vary from 1 year to 7 years with fine. However, in a particular case, the Court finds that there are some special reasons in favour of the accused then the Court is empowered to impose imprisonment of less than one year provided those special reasons are set out in writing in support of imposing sentence less than one year. So far as imposing of fine is concerned, it is mandatory while imposing any jail sentence. How much fine should be imposed depend upon the facts of each case. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Ambi Ram v. State of Uttarakhand, 2019 (1) Crimes 76 : JT 2019 (2) SC 102 : 2019 (1) MLJ (Cri) 637 : 2019 (1) RCR (Criminal) 960 : 2019 (2) Scale 488 Crl.A. No. 1723 of 2009 05-02-2019

Prevention of Corruption Act, 1988 - Ss. 7 & 13(1)(d) r/w. 13(2) - Whether in the absence of evidence of complainant / direct or primary evidence of demand of illegal gratification, is it not permissible to draw inferential deduction of culpability / guilt of a public servant based on other evidence adduced by the prosecution - Question referred to Larger Bench. R. Banumathi & R. Subhash Reddy, JJ. Neeraj Dutta v. State (Govt. of NCT of Delhi), JT 2019 (3) SC 16 : 2019 (3) Scale 818 Crl.A. No. 1669 of 2009 28-02-2019

Protection of Children from Sexual Offences Act, 2012 - Ss. 5(i), 5(m) & 5(r) r/w. 6 - Penal Code, 1860 - Ss. 376 (2) (f) & 201 - Murder of the minor girl aged 71/2 years after raping her - the accused was last seen together with the victim - The offence committed, undoubtedly, can be said to be brutal, but does not warrant death sentence - accused was not a previous convict or a professional killer. At the time of commission of offence, he was 19 years of age. His jail conduct also reported to be good. Considering the aforesaid mitigating circumstances it will be in the interest of justice to commute the death sentence to life imprisonment. A.K. Sikri, S. Abdul Nazeer & M.R. Shah, JJ. Vijay Raikwar v. State of Madhya Pradesh, 2019 (2) JLJ 103 : JT 2019 (2) SC 292 : 2019 (3) Scale 221 Crl.A. No. 1112 of 2015 05-02-2019

Public Policy - the grant of appointment to persons displaced as a result of acquisition is a matter which is within the purview of the policy discretion. No mandamus can lie in the absence of a policy. D.Y. Chandrachud & Navin Sinha, JJ. Anil Kumar v. Union of India, 2019 (4) Scale 594 C.A. No. 1958 of 2019 22-02-2019

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - S. 6 - Meaning, interpretation and applicability of. A.K. Sikri, Ashok Bhushan & S. Abdul Nazeer, JJJ. Board of Trustees for the Port of Kolkata v. APL (India) Pvt. Ltd., JT 2019 (2) SC 545 : 2019 (4) Scale 687 C.A. No. 3910 of 2013 21-02-2019

Punjab Excise Act, 1914 - Haryana Liquor License Rules 1970 - Rule 24 (i-eeee) - Haryana Liquor License (Amendment) Rules 2017 - Financial Commissioner was not competent to amend the Rules with regard to grant of number of licences for the entire state, and which power was exclusive to the State Government under Section 6 read with Section 13(a) and 58(2)(e) of the Act - Rule 24(i-eeee) as amended by the Financial Commissioner in exercise of powers under Section 59(a) of the Act is ultra vires the powers of the Financial Commissioner under the Act and is therefore struck down. Ranjan Gogoi (CJI), Navin Sinha & K.M. Joseph, JJ. International Spirits and Wines Association of India v. State of Haryana, AIR 2019 SC 955 : 2019 (3) Scale 472 C.A. No. 9533 of 2018 12-02-2019

Railway Protection Force Act, 1957 - Whether in the facts and circumstances of the case, the High Court has committed any error in treating and/or considering the O.M. No. 96/E(GR)I/16/I dated 8.5.2003 of the DoPT, Government of India as ‘in principle’ decision for constitution of the RPF as an Organized Group “A” Central Service and thereby directing to take further steps of Cadre Structure of RPF as also to finalize the Service Rules with reference to the RPF being an Organized Group “A” Central Civil Service? R.F. Nariman & M.R. Shah, JJ. Union of India v. Sri Harananda, 2019 (2) Scale 558 C.A. No. 1474 of 2019 05-02-2019

Railways Act, 1989 - S. 160 (2) - If any person breaks any gate or chain or barrier set up on either side of a level crossing which is closed to road traffic, he shall be punished with imprisonment for a term which may extend to 5 years. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Nagaraj v. Union of India, JT 2019 (3) SC 358 : 2019 (3) Scale 886 Crl.A. No. 324 of 2019 21-02-2019

Representation of the People Act, 1951 - S. 29A - If the political group is not registered under Section 29A of the 1951 Act and is not recognized as per the provisions of Symbols Order, 1968, it may not be entitled to claim allotment of a common symbol which is reserved for a registered and recognized State/National political party. A.M. Khanwilkar & Ajay Rastogi, JJ. Edapaddi K. Palaniswami v. T.T.V. Dhinakaran, 2019 (3) Scale 309 S.L.P. (C) No. 7258 of 2018 07-02-2019

Review - The review, it must be noted is not a re-hearing of the main matter. A review would lie only on detection without much debate of an error apparent. Ashok Bhushan & K.M. Joseph, JJ. High Court of Tripura thr. the Registrar General v. Tirtha Sarathi Mukherjee, 2019 (1) OLR 467 : 2019 (2) Scale 708 C.A. No. 1264 of 2019 06-02-2019

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Section 24 - Whether the proviso contained in Section 24 of the 2013 Act is a proviso to Section 24(1)(b) or whether it is a proviso to Section 24(2) - Referred to Larger Bench. R.F. Nariman & Vineet Saran, JJ. Delhi Development Authority v. Virender Lal Bahri, JT 2019 (3) SC 96 : 2019 (3) Scale 853 27-02-2019

Right to Information Act, 2005 - Salient purpose which RTI Act is supposed to serve - This Act is enacted not only to sub-serve and ensure freedom of speech. On proper implementation, it has the potential to bring about good governance which is an integral part of any vibrant democracy. Attaining good governance is also one of the visions of the Constitution. It also has vital connection with the development. A.K. Sikri & S. Abdul Nazeer, JJ. Anjali Bhardwan v. Union of India, 2019 (3) Scale 447 W.P. (C) No. 436 of 2018 15-02-2019

Sale of Goods Act, 1930 - S. 4(1) - Sale and agreement to sell - Liability towards sales tax, in respect of the free replacement of defective parts in motor vehicles, during the period of warranty - It appropriate that the matter be considered by a larger Bench. L. Nageswara Rao & Sanjay Kishan Kaul, JJ. Tata Motors Ltd. v. The Depty Commissioner of Commercial Taxes (Spl.), 2019 (1) RCR (Civil) 999 : 2019 (2) Scale 470 C.A. No. 1822 of 2007 05-02-2019

Securities and Exchange Board of India Act, 1992 - S. 15J - Factors to be taken into account by the Adjudicating Officer - Whether the conditions stipulated in clauses (a), (b) and (c) of Section 15J of the Securities and Exchange Board of India Act, 1992 are exhaustive to govern the discretion in the Adjudicating Officer to decide on the quantum of penalty or the said conditions are merely illustrative? Held, Clauses (a) to (c) in Section 15J of the SEBI Act are merely illustrative and are not the only grounds/factors which can be taken into consideration while determining the quantum of penalty. Rajan Gogoi (CJI), Deepak Gupta & Sanjiv Khanna, JJ. Adjudicating Officer, Securities and Exchange Board of India v. Bhavesh Pabari, 2019 (4) Scale 58 C.A. No. 11311 of 2013 28-02-2019

Service Law - Andhra Pradesh Transmission Corporation (A.P. TRANSCO) & Andhra Pradesh Distribution Companies (DISCOMS) - Appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P. TRANSCO and the DISCOMS - Any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the law. L. Nageswara Rao & Sanjay Kishan Kaul, JJ. K. Amarnath Reddy v. Chairman & Managing Director, APSPDCL, 2019 (3) Scale 619 C.A. No. 2049 of 2019 25-02-2019

Service Law - Appointment on Compassionate Grounds - The decisions relied upon by the petitioner proceed on the premise that there is no vested right to have the matter considered under the former scheme and the governing scheme would be one which was in force when the applications came up for consideration. On the other hand, the decision relied upon by the respondent proceeds on a different principle and stipulates that the governing scheme would be the former scheme and any subsequent that came into force after the claim was raised would not be applicable. The principles emanating from these two lines of decisions, are not consistent and do not reconcile. The matter therefore requires consideration by a larger Bench of at least three Hon’ble Judges of this Court. U.U. Lalit & Indu Malhotra, JJ. State Bank of India v. Sheo Shanker Tewari, 2019 (1) CGLJ 418 : JT 2019 (2) SC 248 : 2019 (2) Scale 667 S.L.P. (C) No. 30335 of 2017 b08-02-2019

Service Law - Contempt of Court - Daily Wagers - Benefits - Regular employees are entitled to 12 days of casual leave in a year i.e. applicable to all Government employees. A.K. Sikri, S. Abdul Nazeer & M.R. Shah, JJ. State of Gujarat v. Pwd and Forest Employees Union, 2019 (3) Scale 642 C.A. No. 1684 of 2019 15-02-2019

Service Law - Dearness Allowance - the revision of wage or Dearness Allowance would depend upon the ability and the financial position of the employer. R. Banumathi & Indira Banerjee, JJ. Tamil Nadu Electricity Board Rep. By Its Chairman v. TNEB - Thozhilalar Aykkiya Sangam by its General Secretary, 2019 (3) Scale 416 C.A. No. 1653 of 2019 13-02-2019

Service Law - Exercise of the power of relaxation without informing the candidates about the existence of such power would be detrimental to the interests of others who did not possess the certificate and did not take part in the selection process. L. Nageswara Rao & Sanjay Kishan Kaul, JJ. Sanjay K. Dixit v. State of Uttar Pradesh, JT 2019 (4) SC 21 : 2019 (3) Scale 671 C.A. No. 1961 of 2019 22-02-2019

Service Law - Pension Rules - Voluntary Retirement Scheme (VRS) - To avail of the benefit of Pension Rules, an employee must qualify in terms of the Rules. Sanjay Kishan Kaul & Deepak Gupta, JJ. Delhi Transport Corporation v. Balwan Singh, JT 2019 (3) SC 31 : 2019 (3) Scale 771 C.A. No. 7159 of 2014 26-02-2019

Service Law - Railway - Halt Contractor - Appointment of heirs and successors of deceased halt contractors - Merely because the respondent-original petitioner was permitted by the appellant-Railway authorities to work in the place of his ailing father, he cannot, as a matter of right, claim preference as an heir of contractor. R. Banumathi & R. Subhash Reddy, JJ. Union of India v. Md. Samim Azad, (2019) 3 SCC 327 : JT 2019 (2) SC 311 : 2019 (2) Scale 432 C.A. No. 1382 of 2019 01-02-2019

Service Law - Reduction of Salary - Banking Service - Salary as well as perquisites are subject to change from time to time. Therefore, mere fact that the salary was changed subsequently, it will not confer any legally enforceable right in favour of the employee to challenge the same on the ground that the same is arbitrary or unjust. Since, the salary has been fixed for all Officers of the Public Sector Banks in a non-discriminatory manner keeping in view the Cost of Living Index, the High Court erred in law in setting aside the reduction in salary. U.U. Lalit & Hemant Gupta, JJ. State Bank of India v. Ravindra Nath, C.A. No. 12367 of 2017 12-02-2019

Service Law - Subordinate Offices Ministerial Staff (District Recruitment) Rules 1985 - Rule 22 - The status of the respondent at all material times has been of a daily wage employee. He has not been appointed on a regular basis. He has no vested right to claim regularization in service. D.Y. Chandrachud & Hemant Gupta, JJ. State of U.P. v. Mohd. Suleman Siddiqui, 2019 (4) Scale 588 C.A. No. 4262 of 2015 12-02-2019

Service Law - the higher pay scale which was given to Head Operators under note 13 was occasioned by the creation of an intermediate post of Senior Operators. Once the intermediate post was abolished since it was found to be ultra vires by the High Court, the pay scale of Head Operators was restored to the exactly corresponding pay scale under the revised scales of pay. D.Y. Chandrachud & Hemant Gupta, JJ. T.I. Jose v. Managing Director, Kerala Water Authority, 2019 (4) Scale 565 C.A. No. 4676 of 2012 13-02-2019

Service Law - The word ‘as’ and the words ‘experience as Company Secretary’ used in the advertisement are very clear and it means the candidate ought to be appointed and worked as such ‘as’ a Company Secretary. As appellant did not fulfil the eligibility criteria of having five years post qualification experience ‘as’ Company Secretary as on 30.11.2013, the services of the appellant have rightly been terminated. L. Nageswara Rao & M.R. Shah, JJ. Ritu Bhatia v. Ministry of Civil Supplies Consumer Affairs & Public Distribution, AIR 2019 SC 838 : 2019 (2) ALD 136 : 2019 (160) FLR 786 : 2019 (1) JLJR 497 : 2019 (1) PLJR 569 : 2019 (2) Scale 517 C.A. No. 1467 of 2019 05-02-2019

Service Law - Whether the claim of the applicant to be included in the Panel dated 09.01.2001 for promotion as APO was barred by delay and laches - Whether under 30% quota of LDCE, all the 05 vacancies ought to have been made unreserved and notification dated 14.10.1999 making 04 vacancies unreserved and 01 vacancy reserved for SC was illegal. Ashok Bhushan & K.M. Joseph, JJ. Union of India v. C. Girija, 2019 (3) Scale 527 C.A. No. 1577 of 2019 13-02-2019

Service Law - Writ of Mandamus - For grant of pay scale on the basis of parity - Writ Petition dismissed. R.F. Nariman & Navin Sinha, JJ. Anjali Arora v. Union of India, 2019 (3) Scale 83 W.P. (C) No. 333 of 2018 11-02-2019

Specific Relief Act, 1963 - In a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction. R. Banumathi & R. Subhash Reddy, JJ. Balkrishna Dattatraya Galande v. Balkrishna Rambharose Gupta, AIR 2019 SC 933 : 2019 (2) ALT 7 : 2019 (1) CGLJ 473 : JT 2019 (2) SC 398 : 2019 (1) RCR (Civil) 978 : 2019 (2) Scale 606 C.A. No. 1509 of 2019 06-02-2019

Specific Relief Act, 1963 - S. 16 - the plaintiff-appellant had failed to aver and prove his readiness and willingness to perform his part of the contract - Trial Court made a rather assumptive observation that he had proved such readiness and willingness - Thereafter, the plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the defendant - It was too late in the day for the plaintiff to fill up such a lacuna in his case only at the appellate stage - late attempt to improve upon the pleadings of the plaint at the appellate stage was only an exercise in futility. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Mehboob-Ur-Rehman (d) Thr Lrs. v. Ahsanul Ghani, JT 2019 (2) SC 417 : 2019 (3) Scale 545 C.A. No. 8199 of 2009 15-02-2019

Succession Act, 1925 - Sections 25, 372 and 383 - “lineal descendant” - Lineal Consanguinity - Application for Certificate - Revocation of Certificate - A Succession Certificate can be granted in an application in which necessary particulars are set out as mentioned in Section 372. Revocation cannot be granted unless anyone of sub-sections (a) to (e) of Section 383 is satisfied. Rohinton Fali Nariman & Vineet Saran, JJ. Joseph Easwaran Wapshare v. Shirley Katheleen Wheeler, 2019 (4) Scale 612 C.A. No. 2284 of 2019 26-02-2019

Temple - Private Temple and Public Temple - Shri Ram Mandir is a public temple and not a private temple and that the agricultural lands were given to the Deity and not to the pujaris. R. Banumathi & R. Subhash Reddy, JJ. Shri Ram Mandir Indore v. State of Madhya Pradesh, JT 2019 (4) SC 28 : 2019 (4) Scale 302 C.A. No. 5043 of 2009 27-02-2019

Tenancy and Agricultural Lands Act, 1950 (Andhra Pradesh Telangana Area) - Ss. 19, 40 & 48A - Appellants instead of cultivating the suit land transferred it to several persons for other purpose which was against the grant and the provisions of the Act. The appellants, however, failed to prove otherwise despite affording them an opportunity to file reply. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Gaddam Ramulu v. Joint Collector, Adilabad District, JT 2019 (3) SC 80 : 2019 (3) Scale 847 C.A. No. 8366 - 8367 of 2010 27-02-2019

Tenancy Law - Bombay Tenancy and Agricultural Lands Act, 1948 - S. 32 - Procedure of Taking Possession - Landlord’s right to terminate tenancy for personal cultivation and non agricultural purpose - Tenants deemed to have purchased land on tillers’ day - Tenants are deemed to have purchased upto ceiling area - Right of tenant to purchase where landlord is minor etc. - purchase price and its maxima - Discussed. Ashok Bhushan & K.M. Joseph, JJ. Bayaji Sambhu Mali @ Borate (d) Through Lrs. v. Nazir Mohammed Balal Zari Through Gpa Holder Gpa Holder, 2019 (3) Scale 253 C.A. No. 1644 of 2019 12-02-2019

Terrorist and Disruptive Activities (Prevention) Act, 1987 - Ss. 3, 4, 5 & 19 - Penal Code, 1860 - Ss. 121, 121A, 122 r/w. 34 - Arms Act, 1959 - Ss. 25(1)(A)(D), 25(1AA), 25(1B)(A B F G), 27(1), 29(A) - Telegraph Act, 1885 - S. 20 - Wireless Telegraphy Act, 1933 - S. 6(1A) - Prosecution has essentially relied upon the confessional statement of the accused recorded under the provisions of TADA. That will be of no avail and certainly not admissible against the accused in the trial for offences under other enactments, especially when the Designated Court could not have taken cognizance of the offence under TADA for lack of a valid sanction. A.M. Khanwilkar & Ajay Rastogi, JJ. State of Gujarat v. Anwar Osman Sumbhaniya, JT 2019 (3) SC 262 : 2019 (4) Scale 132 Crl.A. No. 1359 of 2007 27-02-2019

Town Planning - DDA was not entitled to raise any demand of unearned increase from the writ petitioner. Ashok Bhushan & K.M. Joseph, JJ. Delhi Development Authority v. M/s. Karamdeep Finance & Investment (i) Pvt. Ltd., 2019 (3) Scale 238 C.A. No. 1533 of 2019 12-02-2019

Transfer of Property Act, 1882 - S. 43 - Transfer by unauthorised person who subsequently acquires interest in property transferred. L. Nageswara Rao & M.R. Shah, JJ. Tanu Ram Bora v. Promod Ch. Das (d) thr Lrs., AIR 2019 SC 927 : 2019 (2) ALT 28 : JT 2019 (2) SC 236 : 2019 (2) Scale 672 C.A. No. 1575 of 2019 08-02-2019

Transfer of Property Act, 1882 - S. 60 - Right of mortgagor to Redeem - Considering Section 60 of the TP Act, mortgagor has a right to redeem the mortgage as provided under first part of Section 60 of the TP Act, however, provided the right conferred in favour of mortgagor has not been extinguished by act of the parties or by decree of the Court, as per Proviso to Section 60 of the TP Act. L. Nageswara Rao & M.R. Shah, JJ. Shri Gowramma v. Shri Kalingappa (d) By Lrs., AIR 2019 SC 1012 : JT 2019 (2) SC 252 : 2019 (2) Scale 678 C.A. No. 1574 of 2019 08-02-2019

Transfer of Property Act, 1882 - Section 122 - If the gift is evidenced by consideration, same cannot be valid one within the meaning of Section 122 of the T.P. Act. Mentioning of Rs.5,000/- in the first page, for the purpose of valuation, cannot be said to be a consideration received by the donor for executing the gift deed. R. Banumathi & R. Subhash Reddy, JJ. Jagdish Chander v. Satish Chander, JT 2019 (3) SC 22 : 2019 (4) Scale 127 C.A. No. 2361 of 2019 27-02-2019

Transfer of Property Act, 1882 - the Act is silent on arbitrability, and does not negate arbitrability. Rohinton Fali Nariman & Vineet Saran, JJ. Vidya Drolia v. Durga Trading Corporation, 2019 (4) Scale 749 C.A. No. 2402 of 2019 28-02-2019

University - Permanent Faculty - It is interesting to note that even after such stand was taken by the University in the year 2001, in its communications with AICTE, at every stage the faculty position in said College of Engineering was always referred to and described as permanent faculty. Progress Profile of the existing Technical Institution prepared by AICTE which was referred to by the Single Judge is very clear that the appellants were shown to be part of permanent faculty and were projected to be permanent employees of the University. It would not therefore be proper on part of the University to brand the very same faculty to be on contractual basis or for a limited duration of time. U.U. Lalit & Indira Banerjee, JJ. Abdul Hakeem M.A. v. Mahatma Gandhi University, 2019 (4) Scale 347 C.A. No. 2388 of 2019 28-02-2019

Unlawful Activities (Prevention) Act, 1967 - S. 43D - Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind. Ranjan Gogoi (CJI), L. Nageswara Rao & Sanjay Kishan Kaul, JJ. State of Maharashtra v. Surendra Pundlik Gadling, AIR 2019 SC 975 : 2019 (3) Scale 379 Crl.A. No. 264 of 2019 13-02-2019

Wakf Act, 1995 - Ss. 83 & 85 - Constitution of Tribunals - Bar of jurisdiction of Civil Courts - Whether suit filed by the appellant before the Wakf Tribunal praying for decree of possession of suit property was maintainable in Wakf Tribunal or would lie only in a Civil Court - Whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5. Ashok Bhushan & K.M. Joseph, JJ. Punjab Wakf Board v. Sham Singh Harike, JT 2019 (2) SC 263 : 2019 (3) Scale 56 C.A. No. 92 of 2019 07-02-2019

Writ Petition - Maintainability of - Against private school receiving grant in aid to the extent of dearness allowance - the Writ Application is maintainable. Arun Mishra & Navin Sinha, JJ. Marwari Balika Vidyalaya v. Asha Srivastava, 2019 (4) Scale 600 C.A. No. 9166 of 2013 14-02-2019

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