Quarterly Digest
169
JUDICIAL TRAINING & RESEARCH INSTITUTE, U.P., LUCKNOW Quarterly Digest CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court) October - December, 2017 EDITOR-IN-CHIEF Anil Kumar Ojha Volume: XIX Issue No.: 4
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Transcript of Quarterly Digest
JUDICIAL TRAINING & RESEARCH INSTITUTE, U.P.,
LUCKNOW
Quarterly Digest
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court)
October - December, 2017
EDITOR-IN-CHIEF
Anil Kumar Ojha
Volume: XIX Issue No.: 4
Director
EDITOR-IN-CHARGE
Sri Anoop Kumar Goel, Addl. Director
(REDITORS
Dr. Babbu Sarang, Addl. Director (Research) Sudhir Kumar – V, Addl. Director (Trg.)
Pradeep Kumar Singh, Addl. Director (Admin.) Pankaj Jaiswal, Dy. Director
Mohinder Kumar, Dy. Director Saurabh Saxena, Dy. Director
FINANCIAL ADVISOR
Ram Prakash Pal, Addl. Director (Finance) ASSOCIATE
B.K. Mishra, Research Officer
ASSISTANCE
Waqar Hasan Girish Kumar Singh
Anoop Kumar
SUBJECT INDEX
(Supreme Court)
Sl. No. Name of Act
1. Administration of Justice
2. Administrative Law
3. Adverse Possession
4. Advocates Act
5. Arbitration Act
6. Arbitration and Conciliation Act
7. Civil Procedure Code
8. Constitution of India
9. Contempt of Courts Act
10. Contract Act
11. Criminal Procedure Code
12. Criminal Jurisprudence
13. Criminal Trial
14. General Clauses Act
15. Hindu Marriage Act
16. Indian Penal Code
17. Interpretation of Statute
18. Land Acquisition Act
19. Limitation Act
20. Motor Vehicles Act
21. Negotiable Instruments Act
22. Practice and Procedure
23. Prevention of Corruption Act
24. Prevention of Money Laundering Act
25. Prison Laws
26. Property Law
27. Protection of Women from Domestic Violence Act
28. Recovery of Debts due to Bank and Financial Institution
Act
29. Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act
30. Sentencing
31. Service Law
32. Special Marriage Act
33. Succession Act
34. Transfer of Property Act
35. Wakf Act
36. Words and Phrases
SUBJECT INDEX
(High Court)
Sl. No. Name of Act
1. Allahabad High Court Rules
2. Civil Procedure Code
3. Constitution of India
4. Court Fee Act
5. Criminal Trial
6. Evidence Act
7. Hindu Adoptions and Maintenance Act
8. Hindu Marriage Act
9. House and Rents
10. Interpretation of Statutes
11. Motor Vehicles Act
12. Practice & Procedure
13. Provincial Small Cause Court Act
14. Stamp Act
15. Statutory Provisions
16. Succession Act
17. Transfer of Property Act
18. U.P. Agricultural Credit Act
19. U.P. Municipalities Act
20. U.P. Panchayat Raj Act
21. U.P. Muslim Wakf Act
22. U.P. Urban buildings (Regulation of Letting, Rent and
Eviction) Act
23. U.P.Z.A. & L.R. Act
24. U.P. Recruitment of Dependents of Government
Servants (Dying-in-Harness) Rules
25. Workmen‘s Compensation Act
26. Words and Phrases
27. Legal Quiz
NOTE: This journal is meant only for reference and guidance.
For authentic detailed information, readers are
advised to consult referred Journal(s).
LIST OF THE CASES COVERED IN THIS ISSUE
(SUPREME COURT)
Sl. No. Name of the Case & Citation
1. Abudl Hamid V. Union of India 2017 (7) Supreme 417
2. Adiveppa V. Bhimappa 2017 (6) Supreme 692
3. Amardeep Singh v. Harveen Kaur, 2017 (35) LCD
2523
4. Amina Marwa Sabreen A (Minor) and others V. State
of Kerala and others 2017 (6) Supreme 763
5. Ankush V. Hanmanta, 2017 ACJ 2878
6. Asfaq V. State of Rajasthan 2017 (7) Supreme 53
7. B.N. Srivastava V. CBI, EOU –IV, New Delhi 2017 (6)
Supreme 567
8. Baliraj Singh V. State of Madhya Pradesh, 2017 (6)
Supreme 578
9. Bharvagi Construction V. Kathapapu Muthyam
Reddy, 2017 (6) Supreme 698
10. Bibi Fatima V. M. Ahamed Hussain 2017 (6) Supreme
325
11. Bijender V. State of Haryana 2017 (8) Supreme 99
12. Bimal Kishore Paliwal V. Commissioner of Wealth Tax
2017 (7) Supreme 4767
13. Binod Kumar @ Binod Kumar Bhagat V. The state of
Bihar 2017 (6) Supreme 378
14. C. Venkata Swamy v. H.N. Shivanna (D) by L.R. &
Anr. Etc., 2017 (14) SCALE 14
15. Campaign for Judicial Accountability and Reforms v.
Union of India and another, 2017 (13) Scale 381
16. Chandrasekar V. State of Tamil Nadu 2017 (6)
Supreme 638
17. Damini V. Managing Director, Jokhpur Vidyut Vitran
Nigam Ltd., 2017 ACJ 2865
18. Deepak Kumar & Ors. V. Principal Secretary Home,
Govt. of U.P. Lucknow (U.P.) & Ors, 2017 (13) Scale
231
19. Deo Nath Rai V. State of Bihar 2017 (7) Supreme 473
20. Dharampal (Dead) through LRs. V. Punjab Wakf
Board 2017 (7) Supreme 156
21. Dhurukumar S/o. Radhakishan Pitti & ANR. Vs. State
of Maharashtra 2017 (7) Supreme 568
22. Dr. Prakash Soni v. Deepak Kumar 2017 (7) Supreme
190
23. Extra Judl. Exec. Victim Families Assn. V. Union of
India 2017 (7) Supreme 393
24. Gandhe Vijay Kumar V. Mulji @ Mulchand, 2017 (35) LCD
2533
25. Ganpat Singh V. The State of Madhya Pradesh 2017
(7) Supreme 377
26. Heera Lal V. State of Rajasthan 2017 (6) Supreme 564
27. Himangni Enterprises V. Kamaljeet Singh Ahluwalia
2017 (7) Supreme 456
28. Independent Thought V. Union of India 2017 (7)
Supreme 673
29. International Asset Reconstruction Company of India
Ltd. v. The Official Liquidator of Aldrich
Pharmaceuticals Ltd. 2017 (12) Scale 748
30. Jaskaran Singh V. State of Punjab 2017 (6) Supreme
594
31. Jasmine Charaniya v. Ahmed Charaniya, 2017 (13)
Scale 64
32. K.S. Puttaswamy V. Union of India, (2017) 10 SCC 1
33. KSB Ali V. State of Andhra Pradesh 2017 (8) Supreme
1
34. M.D. Frozen Foods Exports Pvt. Ltd. V. Hero Fincorp
Ltd.2017 (7) Supreme 322
35. M/s Bhushan Steel Strips Ltd. (Now Known as
Bhushan Steel Ltd.) v. State of U.P. & Anr., 2017 (13)
Scale 525
36. M/s. Meters and Instruments Pvt. Ltd. V. Kanchan
Mehta 2017 (7) Supreme 558
37. Machindra V. Sajjan Galpha Rankhamb 2017 (6)
Supreme 509
38. Managing Director M/s Castrol India Ltd. V. State of
Karnataka 2017(7) Supreme 383
39. Mihir Kumar Hazara Chaudhury V. Life Insurance
Corpn. 2017 (7) Supreme 40
40. Mobilox Innovations Pvt. Ltd. V. Kirusa Software Pvt.
Ltd. 2017 (7) Supreme 265
41. Ms. Indira Jaising V. Supreme Court of India through
Secretary General 2017 (7) Supreme 510:2017 (12)
SCALE 532
42. Ms. Z V. The State of Bihar 2017 (6) Supreme 417
43. Mukhtiar Singh (Since Deceased ) through his L.R. V.
State of Punjab 2017 (7) Supreme 405
44. N.A.L. Layout Residents Association V. Bangalore
development Authority 2017 (6) Supreme 331
45. Narendra & Ors. Ajabrao s/o Narayan Katare (d)
Through LRS. 2017 (13) SCALE 254
46. Narendra V. State of Uttar Pradesh, 2017 (7) Supreme
45
47. National Insurance Co. Ltd. V. Pranay Sethi, 2017 ACJ
2700 : 2017 (13) SCALE 12
48. Nikesh Tarachand Shah v. Union of India & Anr. 2017
(13) Scale 609
49. Om Prakash V. Reliance General Insurance Co. Ltd., 2017
ACJ 2747
50. P.N. Mohanan Nair V. State of Kerala 2017 (7)
Supreme 391
51. Pankajbhai Rameshbhai Zalvadia V. Jethabhai
Kalabhai Zalavadiya (D) through LRs. 2017 (7)
Supreme 727
52. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur V. State of Gujarat 2017 (7) Supreme 549
53. Pooranlal V. The State of Madhya Pradesh 2017 (7)
Supreme 59
54. Rajbir and Ors. V. State of Haryana and Ors., 2017
(12) SCALE 344
55. Rakhi Mishra V. State of Bihar 2017 (6) Supreme 447
56. Rampratap V. State of Rajasthan 2017 (7) Supreme
376
57. Ratanlal V. Prahlad Jat (2017) 9 SCC 340:2017 (7)
Supreme 212
58. Re- Inhuman Conditions In 1382 Prisons. 2017 (7)
Supreme 194
59. Royal Medical Trust V. Union of India 2017 (7)
Supreme 117
60. S. Mohammed Ispahani V. Yogendra Chandak 2017
(7) Supreme 537
61. Santhini v. Vijaya Venketesh, 2017 (12) SCALE 359
62. Securities and Exchange Board of India V. Sri
Kanaiyalal Baldevbhai Patel 2017 (7) Supreme 425
63. Shalu Ojha V. Prashant Ojha 2017 (6) Supreme 673
64. Shyam Sharma V. State of Madhya Pradesh 2017 (7)
Supreme 567
65. Sri Chittaranjan Maity V. Union of India 2017 (8)
Supreme 61
66. Sri Srinivasaiah V. H.R. Channabasappa (since dead)
by his LRs 2017 (6) Supreme 569
67. State Bank of India V. Kingfisher Airlines Ltd 2017 (6)
Supreme 626
68. State of Jammu and Kashmir V. M/s. Trikuta Roller
Flour Mills Pvt. Ltd. 2017 (6) Supreme 442
69. State of Maharashtra & Anr. V. Vijay Ghogre & Ors.
2017 (13) SCALE 564
70. State of Uttarakhand v. Jairnail Singh, 2017 (13)
SCALE 410
71. Sukhendu Das V. Rita Mukherjee 2017 (8) Supreme 33
72. Sumaina Sharma V. State of Jammu and Kashmir
2017 (7) Supreme 611
73. Suresh Kumar Wadhwa V. state of M.P. 2017 (7)
Supreme 598
74. Union of India V. Ex. LAC Nallam Shiva 2017(6)
Supreme 354
75. Union of India v. Savitri Devi & Anr. 2017 (13) SCALE
264
76. United India Insurance Co. Ltd. V. Sunil Kumar &
Anr. 2017 (13) SCALE 652
77. Vijay Singh V. Shanti Devi 2017 (6) Supreme 719
78. Vishnu Bhagwan Agrawal & Anr. V. National
Insurance Co. Ltd., 2017 (13) Scale 470
79. Yashchandra (D) by LRs. V. The State of Madhya
Pradesh 2017 (7) Supreme 421
LIST OF THE CASES COVERED IN THIS ISSUE
(HIGH COURT)
Sl. No. Particulars
1. Alok Sahkari Grih Nirman Samiti Ltd. Agra, v. Shia
Central Waqf Board, U.P. and others, 2017 (6) AWC
5848
2. Anjuman Islamia Muslim Orphanage v. Miuslim
Association and others, 2017 (3) ARC 851
3. Arun Kumar Dean Vs. Additional District Judge, Court
No. 4 Sultanpur & Others., 2017 (3) ARC 254
4. Babu Lal V. Smt Manju Jain andanother, 2017(3) ARC
744
5. Bharat Singh v. Additional Commissioner and others,
2017 (6) AWC 5696
6. Brijkishore Neekhara, Advocate V. Hari Prasad and
others, 2017 (6) AWC 6035 : 2017(3) ARC 755
7. Hari Krishna Srivastava V. Additional District Judge,
Allahabad and 7 others, 2017(3) ARC 844
8. Harish Chandra v. Rahul Kumar , 2017 (6) ALJ 769
9. Jahan Singh v. State of U.P. and others, 2017 (6) ALJ 25
10. Jodha Ram and another V. Pramod Kumar Gupta.,
2017(3) ARC 459
11. Kirty Prabha W/o Rajiv Kuamr Jain v. Additional
Registrar, Law cooperative Societies, U.P. and another,
2017 (35) LCD 2683
12. Manohar Lal and others v. State of U.P., 2017 (101)
ACC 570
13. Mohammad Zaid V. Ram Gopal and 7 others., 2017 (3)
ARC 773
14. Mohd. Mohsin Khan and another v. State of U.P. and
others, 2017 (6) AWC 5538
15. Narayana Prasad Saraswat v. Smt. Shaifali alias
Muniya, 2017 (6) ALJ 119
16. National Insurance Co. Ltd. V. Anusha A. Nair, 2017 ACJ
2533
17. National Insurance Co. Ltd. V. Vimla, 2017 ACJ 2695
18. National Insurance Co. Ltd. V. Vinesh, 2017 ACJ 2325
19. Neeraj Khanna V. Firm M/s. Hind Cloth House and
others., 2017 (3) ARC 403
20. Prabhakant Shukla V. Prabhat Motor Co., 2017 (6)
AWC 6029
21. Prashant Pandey V. District Magistrate, Ambedkar
Nagar and others, 2017 (6) ALJ 336
22. Rajendra Prasad V. Smt. Meena and another, 2017 (6)
AWC 5963
23. Ram Babu V. Meera Devi, 2017 ACJ 2315
24. Ram Murti Pandey V. State of U.P. and others, 2017 (6)
ALJ 82
25. Rama Kant v. Ram Raj, 2017 (6) AWC 5927
26. Sattan and others V. Deputy director of Consolidation
and Others, 2017 (35) LCD 2638
27. Shri Niwas & others v. State of U.P. & others, 2017 (6)
ALJ 464
28. Shweta Gupta V. Rahul Keshav Jadhao and another,
2017 (6) AWC 5459
29. Smt. Jaswnat Kaur v. Additional District Judge Court
No. 1, Faizabad and Ors. 2017 (6) ALJ 199
30. Smt. Kubra Khatoon and others v. Allahatala Malik
Waqf Masoom Hasan, Amroha, 2017 (6) ALJ 491
31. Smt. Sadhana v. State of U.P. and others, 2017 (6) ALJ
242
32. Smt. Shanti Devi Sahu v. State of U.P. and others, 2017
(6) ALJ 337
33. Smt. Sheela Srivastava V. Addl. Commissioner,
First/CCRA, Allahabad and others, 2017 (35) LCD 2739
34. Smt. Sushila Devi v. State of U.P. and others, 2017 (6)
AWC 5607
35. State of U.P. and others V. Pawan Kumar Sharma and
another, 2017 (6) ALJ 16
36. Surendra Kumar Ahuja v. Wazeer Chand Ahuja., 2017
(6) ALJ 515
37. Sureshwar Singh V. Saral Chauhan (Dead) and others.,
2017 (3) ARC 895
38. U.P. State Road Transport Corp. and And. V. Indra Raj
Verma and Anr. 2017 (6) ALJ 774
39. Umesh Kumar v. State of U.P. and others, 2017 (6) AWC
6096
40. Union of India Through The Supreintendent of Post
Office V. Prem Nath Malhtro., (2017 (2) ARC 198
41. United India Insurance Co. Ltd. V. Baby, 2017 ACJ
2456
42. Ved Ram @ Badela v. State of U.P., 2017 (101) ACC 453
43. Vijay Prakash Chaurasia and another V. Om Prakash
Chaurasia., 2017(3) ARC 405
Part –I (Supreme Court)
Administration of Justice:
Judgment of single Judge of High Court, to the extent against
appellants, never challenged in writ appeal – Cannot be challenged
before Supreme Court.
The judgment of the learned Single Judge insofar as it was against
the appellants, was never challenged by them by filing any writ appeal(S).
KSB Ali V. State of Andhra Pradesh 2017 (8) Supreme 1
Judicial discipline – Law laid down by a larger Bench – Binding on
smaller benches.
In our view, the decision rendered in the case of State of Punjab
(supra) is by the larger Bench (Three Judge) and is, therefore, binding on
us. No efforts were made and rightly to contend that the said decision
needs reconsideration on the issue in question. That apart, when this Court
has laid down a particular remedy to follow for challenging the award of
Lok Adalat then in our view, the same is required to be followed by the
litigant in letter and spirit as provided therein for adjudication of his
grievance in the first instance, the reason being that it is a law of the land
under Article 141 of the Constitution of India. Bharvagi Construction V.
Kathapapu Muthyam Reddy, 2017 (6) Supreme 698
Judicial propriety – Plaintiffs failing to prove their main case set up
in the plaint – Any alternative submission cannot be accepted.
If the plaintiffs failed to prove their main case set up in the plaint
and thereby failed to discharge the burden, we cannot accept their any
alternative submission which also has no substance. Adiveppa V.
Bhimappa 2017 (6) Supreme 692
Judicial propriety – Parole – Conviction in a serious and heinous
crime cannot be the reason for denying the parole per se
The conviction in a serious and heinous crime cannot be the reason
for denying the parole per se. Another observation made by the High
Court is that since this Court had decided the appeal of the appellant
affirming the conviction, it would not be appropriate for the High Court to
exercise its discretion in favour of the appellant and if he so desires he
may approach this Court for the said purpose. This again amounts to
abdication of the power vested in the High Court. Insofar as conviction for
the offence for which he was charged, i.e. under the provisions of TADA,
is concerned, no doubt that has been upheld till this Court. However, the
issue before the High Court was entirely different. It was as to whether the
appellant is entitled to the grant of parole for twenty days which he was
claiming. Merely because the matter of conviction of the appellant had
come up to this Court would not mean that the appellant has to be
relegated to this Court every time, even when he is seeking the reliefs
unconnected with the main conviction. It is more so when in the first
instance it is the High Court which is supposed to decide such a prayer for
parole made by the appellant. With these remarks, we advert to the issue
at hand. Asfaq V. State of Rajasthan 2017 (7) Supreme 53
Judicial review – Exercise of power of judicial review and its extent
varies from case to case
Exercise of power of judicial review and its extent varies from case
to case. Court is duty bound to zealously guard the human rights,
fundamental rights and the citizens‘ right of life and liberty as also many
non-statutory powers of governmental bodies as regards their control over
property and assets of various kinds. Royal Medical Trust V. Union of
India 2017 (7) Supreme 117
Practice and procedure – Amendment of statute during pendency of
appeal – Would have no effect on the decree appealed against.
It would be pertinent to refer to the Constitution Bench judgment of
this Court in the case of Shyam Sunder & Ors. V. Ram Kumar & Anr.,
(2001)8 SCC 24: [2001] 5 Supreme 492 wherein this Court considered the
effect of the amendment made to the 1913 Act was amended during the
pendency of the appeal before the Supreme Court, the decree of pre-
emption would not be affected by such amendment. Vijay Singh V.
Shanti Devi 2017 (6) Supreme 719
Practice and Procedure – Plea not raised before any of the courts
below – Cannot be raised for the first time before Supreme Court
The appellant did not raise this plea in any of the Courts below and
nor invited finding of any Court on this plea. In this view of the matter,
we cannot now permit the appellant to raise this plea for the first time in
this Court. Dharampal (Dead) through LRs. V. Punjab Wakf Board
2017 (7) Supreme 156
Next of kin deceased in many cases not approaching court – Third
parties taking up the cause and filing PILs – No illegality in
entertaining such petitions.
Access to justice is certainly a human right and it has been given a
special place in our constitutional scheme where free legal aid and advice
is provided to a large number of people in the country. The primary reason
is that for many of the deprived sections of society, access to justice is
only a dream. To provide access to justice to every citizen and to make it
meaningful, this Court has evolved its public interest jurisprudence where
even letter-petitions are entertained in appropriate cases. The history of
public interest litigation over the years has settled that the deprived
sections of society and the downtrodden such as bonded labourers,
trafficked women, homeless persons, victims of natural disasters and
others can knock on the doors of our constitutional courts and pray for
justice. This is precisely what has happened in the present petitions where
the next of kin could not access justice even in the local courts and the
petitioners have taken up their cause in public interest. Our constitutional
jurisprudence does not permit us to shut the door on such persons and our
constitutional obligation requires us to give justice and succour to the next
of kin of the deceased. Extra Judl. Exec. Victim families Assn. V.
Union of India 2017(7) Supreme 393
Administrative Law:
Policy decision by State - State has power to review – Could be
withdrawn or modified at any time – Just and valid reasons – Not
open to court to examine sufficiency or adequacy of the reasons or
materials.
The policy rested on an executive decision to encourage
entrepreneur investment. It naturally includes the power of the State to
review the policy from time to time, including on considerations for the
manner in which the policy was proving beneficial or detrimental to the
larger public interest, and the State exchequer. The policy could therefore
well be withdrawn or modified at any time for just, valid and cogent
reasons. Judicial review of a policy decision, especially an economic
policy decision, shall have to be restricted to the presence of just and valid
reasons eschewing arbitrariness, so as not to fall foul of Article 14 of the
Constitution. But, in the garb of judicial review, the Court will not
examine the sufficiency or adequacy of the reasons or materials, in the
manner of an appellate authority, to substitute its own wisdom for that of
the government. That would tantamount to taking over of the executive
decision making process. State of Jammu and Kashmir V. M/s. Trikuta
Roller Flour Mills Pvt. Ltd. 2017 (6) Supreme 442
Adverse Possession:
Adverse possession – Meaning of - Cannot be set up by way of
counter claim to claim ownership because counter claim is treated as
a plaint.
This Court in Gurdwara Sahib vs. Gram Panchayat Village Sirthala & Anr.,
2014 (1) SCC 669, has held in para 8 that a plea of adverse possession cannot be
set up by the plaintiff to claim ownership over the suit property but such plea
can be raised by the defendant by way of defence in his written statement in
answer to the plaintiff's claim. We are bound by this view.
In the light of law laid down in the case of Gurdwara Sahib (supra), in our view,
the plea raised by the original appellant (defendant No.1) in his counter-claim
filed against the plaintiff wherein he sought a declaration of his ownership over
the suit land only on the plea of ―adverse possession‖ was not permissible. It is
for the reason that a counter-claim is treated as a plaint under Order 8 Rule
6A(4) of the Code. In other words, in counter-claim, the status of the defendant
is that of the plaintiff because he seeks a relief for passing decree in his favour
relating to the suit land and against the plaintiff, who is sued in counter-claim as
the defendant as provided in Rule 6-A (4) of Order 8 of the Code.
That apart, even on merits, we find that the plea of adverse possession
raised by defendant No.1 (original appellant) in his counter-claim was
wholly misconceived and untenable both on facts and in law. Dharampal
(Dead) through LRs. V. Punjab Wakf Board 2017 (7) Supreme 156
Advocates Act:
Sec. 16 – High Court having power to designate Senior Advocates –
Can depart from usual practice.
The power of designating any person as a Senior Advocate is always
vested in the Full Court either of the Supreme Court or of any High Court.
If an extraordinary situation arises requiring the Full Court of a High
Court to depart from the usual practice of designating an advocate who
has practiced in that High Court or in a court subordinate to that High
Court, it may always be open to the Full Court to so act unless the norms
expressly prohibit such a course of action.If the power is always there in
the Full Court, we do not see why an express conferment of the same by
the Rules/Guidelines is necessary. It is instances like these that bring the
system of designation of Senior Advocates into disrepute. Beyond the
above, we do not consider it necessary to say anything further as Shri P.S.
Patwalia, learned Senior Counsel appearing for the High Court of
Meghalaya has submitted, on instructions received, that the High Court
would be willing to reconsider the changes brought in by the amendments
and remedy the situation by taking appropriate measures. Ms. Indira
Jaising V. Supreme Court of India through Secretary General 2017
(7) Supreme 510
Sec. 16 - Supreme Court Rules, 2013 –Rule 2 of Chapter IV –
Constitution –Article 18 –System of designation of Senior Advocates
in the Supreme Court of India- System of parameters- Need for
maximum objectivity in the process- Constitution of a permanent
Committee to be known as ‗Committee for Designation of Senior
Advocates‘- This Court modifies the norms/guidelines which would
govern the exercise of designation of Senior Advocates by the
Supreme Court and all High Courts
The exercise of the power vested in the Supreme Court and the High
Courts to designate an Advocate as a Senior Advocate is circumscribed by
the requirement of due satisfaction that the concerned advocate fulfills the
three conditions stipulated under Section 16 of the Advocates Act, 1961,
i.e., (1) ability; (2) standing at the bar; and/or (3) special knowledge or
experience in law that the person seeking designation has acquired. It is
not an uncontrolled, unguided, uncanalised power though in a given case
its exercise may partake such a character. However, the possibility of
misuse cannot be a ground for holding a provision of the Statute to be
constitutionally fragile. The consequences spelt out by the intervener,
namely, (1) indulgence perceived to be shown by the Courts to Senior
Advocates; (2) the effect of designation on the litigant public on account
of high fees charged; (3) its baneful effect on the junior members of the
bar; and (4) the element of anti-competitiveness, etc. are untoward
consequences occasioned by human failures. Possible consequences
arising from a wrong/improper exercise of power cannot be a ground to
invalidate the provisions of Section 16 of the Act.
The guidelines governing the exercise of designation by the Supreme
Court have already been noticed so also the guidelines in force in the
various High Courts. Though steps have been taken to bring in some
objective parameters, we are of the view that the same must be more
comprehensively considered by this Court to ensure conformity of the
actions/decisions taken under Section 16 of the Act with the requirement
of constitutional necessities, particularly, in the domain of a fair,
transparent and reasonable exercise of a statutory dispensation on which
touchstone alone the exercise of designation under Section 16 of the Act
can be justified.
The sole yardstick by which we propose to introduce a set of guidelines to
govern the matter is the need for maximum objectivity in the process so as
to ensure that it is only and only the most deserving and the very best who
would be bestowed the honour and dignity. The credentials of every
advocate who seeks to be designated as a Senior Advocate or whom the
Full Court suo motu decides to confer the honour must be subject to an
utmost strict process of scrutiny leaving no scope for any doubt or
dissatisfaction in the matter.
It is in the above backdrop that we proceed to venture into the exercise
and lay down the following norms/guidelines which 90 henceforth would
govern the exercise of designation of Senior Advocates by the Supreme
Court and all High Courts in the country. The norms/ guidelines, in
existence, shall be suitably modified so as to be in accord with the present.
I. All matters relating to designation of Senior Advocates in the Supreme
Court of India and in all the High Courts of the country shall be dealt with
by a Permanent Committee to be known as ―Committee for Designation
of Senior Advocates‖; II. The Permanent Committee will be headed by the
Hon‘ble the Chief Justice of India and consist of two senior-most Judges
of the Supreme Court of India (or High Court(s), as may be); the learned
Attorney General for India (Advocate General of the State in case of a
High Court) will be a Member of the Permanent Committee. The above
four Members of the Permanent Committee will nominate another
Member of the Bar to be the fifth Member of the Permanent Committee;
III. The said Committee shall have a permanent Secretariat the
composition of which will be decided by the Chief Justice of India or the
Chief Justices of the High Courts, as may be, in consultation with the
other Members of the Permanent Committee; IV. All applications
including written proposals by the Hon‘ble Judges will be submitted to
the Secretariat. On receipt of such applications or proposals from Hon‘ble
Judges, the Secretariat will compile the relevant data and information with
regard to the reputation, conduct, integrity of the Advocate(s) concerned
including his/her participation in pro-bono work; reported judgments in
which the concerned Advocate(s) had appeared; the number of such
judgments for the last five years. The source(s) from which
information/data will be sought and collected by the Secretariat will be as
decided by the Permanent Committee; V. The Secretariat will publish the
proposal of designation of a particular Advocate in the official website of
the concerned Court inviting the suggestions/views of other stakeholders
in the proposed designation; VI. After the data-base in terms of the above
is compiled and all such information as may be specifically directed by
the Permanent Committee to be obtained in respect of any particular
candidate is collected, the Secretariat shall put up the case before the
Permanent Committee for scrutiny; VII. The Permanent Committee will
examine each case in the light of the data provided by the Secretariat of
the Permanent Committee; interview the concerned Advocate; and make
its overall assessment on the basis of a point-based format indicated
below: S.NO. Matter Points 1. Number of years of practice of the
Applicant Advocate from the date of enrolment. [10 points for 10-20 years
of practice; 20 points for practice beyond 20 years] 20 points 2.
Judgments (Reported and unreported) which indicate the legal
formulations advanced by the concerned Advocate in the course of the
proceedings of the case; pro bono work done by the concerned Advocate;
domain Expertise of the Applicant Advocate in various branches of law,
such as Constitutional law, Inter-State Water Disputes, Criminal law,
Arbitration law, Corporate law, Family law, Human Rights, Public
Interest Litigation, International law, law relating to 40 points 95 women,
etc. 3. Publications by the Applicant Advocate 15 points 4. Test of
Personality & Suitability on the basis of interview/interaction 25 points
VIII. All the names that are listed before the Permanent
Committee/cleared by the Permanent Committee will go to the Full Court.
IX. Voting by secret ballot will not normally be resorted to by the Full
Court except when unavoidable. In the event of resort to secret ballot
decisions will be carried by a majority of the Judges who have chosen to
exercise their preference/choice. X. All cases that have not been
favourably considered by the Full Court may be reviewed/reconsidered
after expiry of a period of two years following the manner indicated above
as if the proposal is being considered afresh; XI. In the event a Senior
Advocate is guilty of conduct which according to the Full Court
disentitles the Senior Advocate concerned to continue to be worthy of the
designation the Full Court may review its decision to designate the
concerned person and recall the same; court are not oblivious of the fact
that the guidelines enumerated above may not be exhaustive of the matter
and may require reconsideration by suitable additions/deletions in the
light of the experience to be gained over a period of time. Ms. Indira
Jaisingh v. Supreme Court of India Through Secretary General and
Ors. 2017 (12) SCALE 532
Arbitration Act
Sections 30 & 33- Arbitration Award –Validity- Arbitration award is
not to be lightly interfered with
It has been settled by a catena of judgments under the Arbitration Act,
1940, that an arbitration award is not to be lightly interfered with. So far
as the grounds for challenge are concerned, no legal error apparent on the
face of the award of misconduct in the sense of legal misconduct, i.e. that
material evidence that is vital has been ignored, is made out on the facts of
the present case, the arbitrator‘s findings can be said to be a possible one
on the facts of the case. Court find that none of these findings is ,
therefore, impeachable and that, therefore, the impugned judgment
deserves to be set aside. The Umpire‘s award is thus resuscitated by us,
and payments that have to be made under the Award shall be made by the
Insurance Company within a period of three months from the date of this
judgment. Mr. Manor Swarup, learned counsel for the appellant, states
that the Bank is no longer involved in this matter, in that, all dues to the
Bank has since been paid off. Court accepts this statement and, therefore,
direct the Insurance Company to pay the appellant his dues within a
period of three months from today. Vishnu Bhagwan Agrawal & Anr.
V. National Insurance Co. Ltd., 2017 (13) Scale 470
Arbitration and Conciliation Act:
Sec. 8 – Scope of – Does not apply to eviction suits despite existence of
arbitration clause in the lease and licence agreement - Civil court does
have jurisdiction.
Yet in another case of Booz Allen & Hamilton Inc. (supra), this
Court (two Judge Bench) speaking through R.V.Raveendran J. laid down
the following proposition of law after examining the question as to which
cases are arbitrable and which are non-arbitrable:
―36. The well-recognized examples of non-arbitrable disputes are: (i)
disputes relating to rights and liabilities which give rise to or arise out of
criminal offences; (ii) matrimonial disputes relating to divorce, judicial
separation, restitution of conjugal rights, child custody; (iii) guardianship
matters; (iv) insolvency and winding-up matters; (v) testamentary matters
(grant of probate, letters of administration and succession certificate); and
(vi) eviction or tenancy matters governed by special statutes where the
tenant enjoys statutory protection against eviction and only the specified
courts are conferred jurisdiction to grant eviction or decide the disputes.‖
(emphasis supplied)
Keeping in view the law laid down by this Court in aforementioned two
decisions and applying the same to the facts of this case, we have no
hesitation to hold that both the Courts below were right in dismissing the
appellant's application filed under Section 8 of the Act and thereby were
justified in holding that the civil suit filed by the respondent was
maintainable for grant of reliefs claimed in the plaint despite parties
agreeing to get the disputes arising there from to be decided by the
arbitrator. Himangni Enterprises V. Kamaljeet Singh Ahluwalia 2017
(7) Supreme 456
Sec. 31(7) (a) – Bar on award of interest if the contract does not
provide for it.
Sec. 31(7)(a) of the 1996 Act provides for payment of interest, as
under:
―Unless otherwise agreed by the parties, where and insofar as an arbitral
award is for the payment of money, the arbitral tribunal may include in the
sum for which the award is made interest, at such rate as it deems
reasonable, on the whole or any part of the money, for the whole or any
part of the period between the date on which the cause of action arose and
the date on which the award is made.‖
In this Section, a specific provision has been created, whereby if the
agreement prohibits award of interest for the pre-award period (i.e. pre-
reference and pendente lite period), the Arbitrator cannot award interest
for the said period.
The Arbitral Tribunal had determined the amount payable to the appellant
in a sum of Rs.11,13,136/- and interest of Rs.12,44,546/-. A sum of
Rs.38,82,150/- was deposited by the respondent which includes the award
amount, interest for the pre-reference period, pendente lite and post-award
interest. Sri Chittaranjan Maity V. Union of India 2017 (8) Supreme
61
Civil Procedure Code:
Sec. 11 – Res judicata – Scope of – Application under O. 22, R. 4
dismissed as not maintainable – Held, will not operate as res judicata
for subsequent application under O. 1, R. 10.
Merely because the earlier application filed by the appellant under Order
22 Rule 4 of the Code was dismissed on 09.09.2009 as not maintainable, it
will not prohibit the plaintiff from filing another application, which is
maintainable in law. There was no adjudication of the application to bring
legal representatives on record on merits by virtue of the order dated
09.09.2009. On the other hand, the earlier application filed under Order 22
Rule 4 of the Code was dismissed by the trial Court as not maintainable,
inasmuch as defendant no. 7 had died prior to the filing of the suit and that
Order 22 Rule 4 of the Code comes into the picture only when a party dies
during the pendency of the suit. The only course open to the appellant in
law was to file an application for impleadment to bring on record the legal
representatives of deceased defendant no. 7 under Order 1 Rule 10 of the
Code. Hence, the order passed by the trial Court on the application filed
under Order 22 Rule 4 of the Code, dated 09.09.2009, will not act as res-
judicata. Pankajbhai Rameshbhai Zalvadia V. Jethabhai Kalabhai
Zalavadiya (D) through LRs. 2017 (7) Supreme 727
Sec. 25; O. 32A; Rules 2,3, & 4- Family Courts Act, 1984- Sections 11,
22, 23 & 26 – Hindu Marriage Act, 1955 –Section 13- Transfer
petitions seeking transfer of matrimonial disputes –No direction can
be issued for video conferencing- Discretion has to rest with the
Family Court to be exercised after the Court arrives at a definite
conclusion that the settlement is not possible and both parties file a
joint application or each party filing his/her consent memorandum
seeking hearing by video conferencing
The ―constitutional identity‖, ―freedom of choice‖, ―dignity of a woman‖
and ―affirmative rights conferred on her by the Constitution‖ cannot be
allowed to be abrogated even for a moment. In this context, we have to
scan and appreciate the provision contained in Section 11 of the 1984 Act.
The provision, as has been stated earlier, mandates the proceedings to be
held in camera if one of the parties so desires. Equality of choice has been
conferred by the statute. That apart, Section 22 of the 1955 Act lays down
the proceedings to be held in camera and any matter in relation to any
such proceeding may not be printed or published except a judgment of the
High Court or of the Supreme Court with the previous permission of the
Court.
The language employed in Section 11 of the 1984 Act is absolutely clear.
It provides that if one of the parties desires that the proceedings should be
held in camera, the Family Court has no option but to so direct. This
Court, in exercise of its jurisdiction, cannot take away such a sanctified
right that law recognizes either for the wife or the husband. That apart, the
Family Court has the duty to make efforts for settlement. Section 23(2) of
the 1955 Act mandates for reconciliation. The language used
under Section 23(2) makes it an obligatory duty on the part of the court at
the first instance in every case where it is possible, to make every
endeavour to bring about reconciliation between the parties where it is
possible to do so consistent with the nature and circumstances of the case.
There are certain exceptions as has been enumerated in the proviso which
pertain to incurably of unsound mind or suffering from a virulent and
incurable form of leprosy or suffering from venereal disease in a
communicable form or has renounced the world by entering any religious
order or has not been heard of as being alive for a period of seven years,
etc. These are the exceptions carved out by the legislature. The Court has
to play a diligent and effective role in this regard.
The procedure of videoconferencing which is to be adopted when one
party gives consent is contrary to Section 11 of the 1984 Act. There is no
provision that the matter can be dealt with by the Family Court Judge by
taking recourse to videoconferencing. When a matter is not transferred
and settlement proceedings take place which is in the nature of
reconciliation, it will be well nigh impossible to bridge the gap. What one
party can communicate with other, if they are left alone for sometime, is
not possible in videoconferencing and if possible, it is very doubtful
whether the emotional bond can be established in a virtual meeting during
videoconferencing. Videoconferencing may create a dent in the process of
settlement.
The two-Judge Bench had referred to the decisions where the affirmative
rights meant for women have been highlighted in various judgments. We
have adverted to some of them to show the dignity of woman and her
rights and the sanctity of her choice.
The principle of exception that the larger Bench enunciated is founded on
the centripodal necessity of doing justice to the cause and not to defeat it.
In matrimonial disputes that are covered under Section 7 of the 1984 Act
where the Family Court exercises its jurisdiction, there is a statutory
protection to both the parties and conferment of power on the court with a
duty to persuade the parties to reconcile. If the proceedings are directed to
be conducted through videoconferencing, the command of the Section as
well as the spirit of the 1984 Act will be in peril and further the cause of
justice would be defeated.
A joint application should be filed before the Family Court Judge, who
shall take a decision. However, we make it clear that in a transfer petition,
no direction can be issued for video conferencing. We reiterate that the
discretion has to rest with the Family Court to be exercised after the court
arrives at a definite conclusion that the settlement is not possible and both
parties file a joint application or each party filing his/her consent
memorandum seeking hearing by videoconferencing.
Be it noted, sometimes, transfer petitions are filed seeking transfer of
cases instituted under the Protection of Women from Domestic Violence
Act, 2005 and cases registered under the IPC. As the cases under the said
Act and the IPC have not been adverted to in Krishna Veni Nagam (supra)
or in the order of reference in these cases, we do intend to advert to the
same.
In view of the aforesaid analysis, we sum up our conclusion as follows :-
(i) In view of the scheme of the 1984 Act and in particular Section 11, the
hearing of matrimonial disputes may have to be conducted in camera.
(ii) After the settlement fails and when a joint application is filed or both
the parties file their respective consent memorandum for hearing of the
case through videoconferencing before the concerned Family Court, it
may exercise the discretion to allow the said prayer.
(iii) After the settlement fails, if the Family Court feels it appropriate
having regard to the facts and circumstances of the case that
videoconferencing will sub-serve the cause of justice, it may so direct.
(iv) In a transfer petition, video conferencing cannot be directed.
(v) Our directions shall apply prospectively.
(vi) The decision in Krishna Veni Nagam (supra) is overruled to the
aforesaid extent. Santhini v. Vijaya Venketesh, 2017 (12) SCALE 359
Sec. 96 r/w O. 41 R. 31- Remand of case to the High Court for
deciding the appeal afresh- it is the duty of the High Court to deal
with all the issues and the evidence led by the parties before recording
its findings
The need to remand the case to the High Court has occasioned for the
reason that the Single Judge dismissed the appeals very cursorily and
without undertaking any appreciation of evidence, dealing with various
issues arising in the case and discussing the arguments raised by the
parties in support of their case. In other words, the disposal of the two first
appeals could not be said to be in conformity with the requirements of
Section 96 read with Order 41 Rule 31 of the Code.
It is a settled principle of law that a right to file first appeal against the
decree under Section 96 of the Code is a valuable legal right of the
litigant. The jurisdiction of the first Appellate Court while hearing the first
appeal is very wide like that of the Trial Court and it is open to the
appellant to attack all findings of fact or/and of law in first appeal. It is the
duty of the first Appellate Court to appreciate the entire evidence and
arrive at its own independent conclusion, for reasons assigned, either of
affirmance or difference.
Similarly, the powers of the first Appellate Court while deciding the first
appeal are indeed well defined by various judicial pronouncements of this
Court and are, therefore, no more res integra. It is apposite to take note of
the law on this issue.
In the light of foregoing discussion, court has no option but to allow these
appeals, set aside the impugned judgment and remand the case to the High
Court for deciding the appeals afresh on merits in accordance with law
keeping in view our observations made supra.
Court , however, make it clear that court has refrained from making any
observation on merits of the controversy having formed an opinion to
remand the case to the High Court. The High Court would, therefore,
decide the appeals uninfluenced by any of the observations in accordance
with law. Since the appeals are quite old, Supreme Court request the High
Court to ensure expeditious disposal of the appeals. C. Venkata Swamy
v. H.N. Shivanna (D) by L.R. & Anr. Etc., 2017 (14) SCALE 14
Sec. 100- Second appeal- Jurisdiction of the High Court- Plea of
adverse possession – Maintainability
In court considered opinion, the approach of the High Court in deciding
the second appeal which resulted in dismissal of appellants‘ suit is wholly
perverse and against the well settled principle of law applicable to second
appeals and to the factual controversy involved in the case as would be
clear from our reasons set out herein below.
In the first place, we find that the High Court decided the second appeal
like a first appeal under Section 96 of the Code inasmuch as the High
Court went on appreciating the entire oral evidence and reversed the
findings of fact of the First Appellate Court on the question of adverse
possession. Such approach of the High Court, in court opinion, was not
permissible in law.
Second, the High Court failed to see that a plea of adverse possession is
essentially a plea based on facts and once the two courts, on appreciating
the evidence, recorded a finding may be of reversal, such finding is
binding on the Second Appellate Court. It is more so as it did not involve
any question of law much less substantial question of law. This aspect of
law was also overlooked by the High Court.
Third, the High Court has the jurisdiction, in appropriate cases, to
interfere in finding of fact provided such finding is found to be wholly
perverse to the extent that no judicial person could ever record such
finding or when it is found to be against any settled principle of law or
pleadings or evidence. Such errors constitute a question of law and
empower the High Court to interfere. However, court does not find any
such error here.
Fourth, the High Court failed to see that the plea of adverse possession
was neither properly pleaded and nor made out by the respondents.
Applying the aforementioned principle of law to the facts of the case on
hand, court find absolutely no merit in the plea of respondents for the
following reasons.
Court cannot, therefore, concur with the reasoning and the conclusion
arrived at by the High Court which, in court opinion, is neither factually
and nor legally sustainable. It, therefore, deserves to be set aside.
Narendra & Ors. V. Ajabrao s/o Narayan Katare (d) Through LRS. 2017
(13) SCALE 254
Sec. 115 - Revisional Jurisdiction –Scope- Held, in revisional
jurisdiction, the Court is expected to see only whether the findings are
illegal or perverse in the sense that a reasonably informed person will
not enter such a finding
In revisional jurisdiction, the Court is expected to see only whether the
findings are illegal or perverse in the sense that a reasonably informed
person will not enter such a finding. For proper guidance, it would be
appropriate to refer to a recent Signature Not Verified Constitution Bench
judgment in Hindustan Petroleum Digitally signed by ANITA
MALHOTRA Date: 2017.08.01 11:28:49 IST Reason: Corporation Ltd. v.
Dilbahar Singh (2014) 9 SCC78, at paragraphs-30, 31 and 43:
We have already noted in the earlier part of the judgment that although
there is some difference in the language employed by the three Rent
Control Acts under consideration which provide for revisional jurisdiction
but, in our view, the revisional power of the High Court under these Acts
is substantially similar and broadly such power has the same scope save
and except the power to invoke revisional jurisdiction suo motu unless so
provided expressly. None of these statutes confer on revisional authority
the power as wide as that of the appellate court or appellate authority
despite such power being wider than that provided in Section 115 of the
Code of Civil Procedure. The provision under consideration does not
permit the High Court to invoke the revisional jurisdiction as the cloak of
an appeal in disguise. Revision does not lie under these provisions to
bring the orders of the trial court/Rent Controller and the appellate
court/appellate authority for rehearing of the issues raised in the original
proceedings.
We are in full agreement with the view expressed in Sri Raja Lakshmi
Dyeing Works that where both expressions ―appeal‖ and ―revision‖ are
employed in a statute, obviously, the expression ―revision‖ is meant to
convey the idea of a much narrower jurisdiction than that conveyed by the
expression ―appeal‖. The use of two expressions ―appeal‖ and ―revision‖
when used in one statute conferring appellate power and revisional power,
we think, is not without purpose and significance.
Ordinarily, appellate jurisdiction involves a rehearing while it is not so in
the case of revisional jurisdiction when the same statute provides the
remedy by way of an ―appeal‖ and so also of a ―revision‖. If that were so,
the revisional power would become coextensive with that of the trial court
or the subordinate tribunal which is never the case. The (2014) 9 SCC 78
classic statement in Dattonpan that revisional power under the Rent
Control Act may not be as narrow as the revisional power under Section
115 of the Code but, at the same time, it is not wide enough to make the
High Court a second court of first appeal, commends to us and we
approve the same. We are of the view that in the garb of revisional
jurisdiction under the above three rent control statutes, the High Court is
not conferred a status of second court of first appeal and the High Court
should not enlarge the scope of revisional jurisdiction to that extent.‖
We hold, as we must, that none of the above Rent Control Acts entitles the High
Court to interfere with the findings of fact recorded by the first appellate
court/first appellate authority because on reappreciation of the evidence, its view
is different from the court/authority below. The consideration or examination of
the evidence by the High Court in revisional jurisdiction under these Acts is
confined to find out that finding of facts recorded by the court/authority below is
according to law and does not suffer from any error of law. A finding of fact
recorded by court/authority below, if perverse or has been arrived at without
consideration of the material evidence or such finding is based on no evidence
or misreading of the evidence or is grossly erroneous that, if allowed to stand, it
would result in gross miscarriage of justice, is open to correction because it is
not treated as a finding according to law. In that event, the High Court in
exercise of its revisional jurisdiction under the above Rent Control Acts shall be
entitled to set aside the impugned order as being not legal or proper. The High
Court is entitled to satisfy itself as to the correctness or legality or propriety of
any decision or order impugned before it as indicated above. However, to satisfy
itself to the regularity, correctness, legality or propriety of the impugned
decision or the order, the High Court shall not exercise its power as an appellate
power to re-appreciate or reassess the evidence for coming to a different finding
on facts. Revisional power is not and cannot be equated with the power of
reconsideration of all questions of fact as a court of first appeal. Where the High
Court is required to be satisfied that the decision is according to law, it may
examine whether the order impugned before it suffers from procedural illegality
or irregularity.‖ These principles hold good generally for exercise of revisional
power. Gandhe Vijay Kumar V. Mulji @ Mulchand, 2017 (35) LCD 2533
O. 1 R. 10 – Defendant 7 already dead prior to filing of suit – His legal
representatives, held, necessary party – Needed to be brought on
record subject to Sec. 21, Limitation Act.
The purchaser of the property, i.e. defendant no.7, though dead at the time
of filing the suit, was made one of the defendants erroneously. The
persons who are now sought to be impleaded under Order 1 Rule 10 of the
Code are the legal representatives of the deceased defendant no. 7.
Therefore, there cannot be any dispute that the presence of the legal
representatives of the deceased is necessary in order to enable the Court to
effectively and completely adjudicate upon and settle all the questions in
the suit. Their presence is necessary in the suit for the determination of the
real matter in dispute. Therefore, they are needed to be brought on record,
of course, subject to the law of limitation, as contended under Section 21
of the Limitation Act.
The legal heirs of the deceased person in such a matter can be added in the
array of parties under Order 1 Rule 10 of the Code read with Section 151
of the Code subject to the plea of limitation as contemplated under Order
7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided
during the course of trial. Pankajbhai Rameshbhai Zalvadia V.
Jethabhai Kalabhai Zalavadiya (D) through LRs. 2017 (7) Supreme
727
O. 9, R.9 – Ex parte decree – Only when defendant does not appear
despite service – On setting aside, such decree become non est and
cannot be called decree of the first court – The fresh decree passed on
merits after setting aside the ex parte decree would be the decree of
the first court.
An ex parte decree is passed when the court believes that the defendant
has been served but is not appearing in court despite service of summons.
In the present case, the appellate court while setting aside the ex parte
decree, has come to the conclusion that the defendant Shanti Devi
(respondent no. 1 herein) was not served and, therefore, the court had
wrongly proceeded against her ex parte. That finding has been upheld till
this Court. In our view, the effect of this would be that the ex parte decree,
on its being set aside, would cease to exist and become non-est. After the
ex parte decree is set aside, it is no decree in the eyes of law. The decree
passed by the trial court on merits should be treated as the decree of the
first court. We may make it clear that we are not dealing with those cases
where a case has been decided on merits and the decree is set aside by the
appellate court on any other ground and the matter remanded to the trial
court for decision afresh. We leave that question open.
Here, we are dealing with a case where the defendant was proceeded
against ex parte and that order has been set aside on the ground that she
has not been served and, therefore, she has been relegated to the position
existing on the date she was proceeded against ex-parte, i.e., 6th
April, 1990. After the amendment was introduced on 17th
May, 1995,
there was no right existing in the plaintiff to file a suit for pre-emption.
Since the decree on contest was passed on 27th
November, 1999 the
plaintiff had no existing right of pre-emption on that date and the suit was
rightly dismissed. This decree is the only subsisting decree of the first
court. Vijay Singh V. Shanti Devi 2017 (6) Supreme 719
O. 22, R 4 – Applicability of – Bringing legal representatives of
deceased defendant on record – Instantly, defendant 7 dying prior to
filing of suit – O. 22, R. 4 applies only in case defendant dies during
subsistence of suit
The bare reading of O. 22 R. 4 of the Code makes it clear that O. 22 R. 4
of the Code applies only in the case where the death of one of the several
defendants or the sole defendant occurs during the subsistence of the suit.
If one of the defendants has expired prior to the filing of the suit, the legal
representatives of such deceased defendant cannot be brought on record in
the suit under O. 22 R. 4 of the Code. Pankajbhai Rameshbhai Zalvadia
V. Jethabhai Kalabhai Zalavadiya (D) through LRs. 2017 (7)
Supreme 727
Constitution of India:
Arts. 16 (4), 16(4A) & 16(4(b) & 145 (3) –Interpretation of Article
16(4), 16(4A) and 16(4B) –Backwardness of the SC/ST – An order
passed by two judge Bench in State of Tripura v. Jayanta
Chakraborty: 2017 (13) Scale 564, for reference of the matter to be
heard by a Constitution Bench-Whether the decision in M.Nagaraj
Requires reconsideration –This Court refers the matter for
consideration by Constitution Bench
Having heard learned counsel for the parties in the present case, court do
not intend to get into the arena whether the two-Judge Bench could have
directly referred the matter to a larger Bench under Article 145(3) of the
Constitution of India, when there is already a decision by the Constitution
Bench and, therefore, it is thought appropriate to constitute a issue
whether the decision in M. Nagarj and others v. Union of India and others
requires reconsideration or not.
Court may hasten to clarify that court has not expressed any opinion on
the correctness of the said judgment. Court is only passing his order, as
there is an order passed by a two-Judge Bench of this Court to place the
matter before a Constitution Bench. Learned counsel for the parties,
though cited the authorities yet very fairly stated that it can be heard by a
Constitution Bench to be constituted by the Chief Justice of India. State
of Maharashtra & Anr. V. Vijay Ghogre & Ors. 2017 (13) SCALE
564
Pt. III and Arts. 21, 19, 14, 25, 28 and Preamble—Right to privacy—
Held, is a basic fundamental right—It forms an intrinsic part of Art.
21 and freedoms guaranteed in Pt. III—Being a basic fundamental
right covered by Pt. III, decisions of Supreme Court in M.P. Sharma,
AIR 1954 SC 300 and Kharak Singh, AIR 1963 SC 1295, to the extent
they hold that it is not a fundamental right protected by the
Constitution, overruled.
In the instant case, Hon‘ble Supreme Court observed that Bench of
three judges of the Supreme Court, while considering the constitutional
challenge to the Aadhaar card scheme of the Union government noted in
its order dated 11 August 2015 that the norms for and compilation of
demographic biometric data by government was questioned on the ground
that it violates the right to privacy. The Attorney General for India urged
that the existence of a fundamental right of privacy is in doubt in view of
two decisions : the first – M P Sharma, AIR 1954 SC 300
(―M.P.Sharma‖), rendered by a Bench of eight judges and the second, in
Kharak Singh, AIR 1963 SC 1295 (―Kharak Singh‖), rendered by a Bench
of six judges. Each of these decisions, in the submission of the Attorney
General, contained observations that the Indian Constitution does not
specifically protect the right to privacy. On the other hand, the submission
of the petitioners was that M P Sharma and Kharak Singh were founded
on principles expounded in A K Gopalan, AIR 1950 SC 27 (―Gopalan‖).
Gopalan case, which construed each provision contained in the Chapter on
fundamental rights as embodying a distinct protection, was held not to be
good law by an eleven-judge Bench in Rustom Cavasjee Cooper, (1970) 1
SCC 248 (―Cooper‖). Hence the petitioners submitted that the basis of the
two earlier decisions is not valid. Moreover, it was also urged that in the
seven-judge Bench decision in Maneka Gandhi, (1978) 1 SCC 248
(―Maneka‖), the minority judgment of Subba Rao, J. in Kharak Singh
case was specifically approved and the decision of the majority was
overruled.
While addressing these challenges, the Bench of three judges of the
Supreme Court took note of several decisions of the Supreme Court in
which the right to privacy has been held to be a constitutionally protected
fundamental right. Those decisions include : Gobind, (1975) 2 SCC 148,
R. Rajagopal, (1994) 6 SCC 632 and PUCL, (1997) 1 SCC 301
(―PUCL‖). These subsequent decisions which affirmed the existence of a
constitutionally protected right of privacy, were rendered by Benches of a
strength smaller than those in M P Sharma and Kharak Singh case. Faced
with this predicament and having due regard to the far-reaching questions
of importance involving interpretation of the Constitution, it was felt that
institutional integrity and judicial discipline would require a reference to a
larger Bench. On 18 July 2017, a Constitution Bench presided over by the
learned Chief Justice considered it appropriate that the issue be resolved
by a Bench of nine judges. The order of the Constitution Bench read:
―……….it seems that it has become essential for us to determine whether
there is any fundamental right of privacy under the Indian Constitution.
The determination of this question would essentially entail whether the
decision recorded by the Supreme Court in M.P. Sharma case by an eight-
Judge Constitution Bench, and also, in Kharak Singh case by a six-Judge
Constitution Bench, that there is no such fundamental right, is the correct
expression of the constitutional position.‖
Thus the following two questions arose for consideration by the
present Bench:
1. Whether there is any fundamental right of privacy under the
Constitution and if so, where is it located and what are its contours?
2. What is the ratio decidendi of M.P. Sharma and Kharak
Singh cases and whether those cases are rightly decided.
Answering the reference in terms below, the nine-Judge Bench of
the Supreme Court
Held:
The right to privacy is protected as an intrinsic part of the right to
life and personal liberty under Article 21 and as a part of the freedoms
guaranteed by Part III of the Constitution. The decision in M.P. Sharma
case which holds that the right to privacy is not protected by the
Constitution stands overruled. The decision in Kharak Singh case to the
extent that it holds that the right to privacy is not protected by the
Constitution also stands overruled. K.S. Puttaswamy V. Union of India,
(2017) 10 SCC 1
Art. 32 – Petitioners, by argument, challenging vires of a GO – No
reference to the G.O. in entire writ petition – GO not even part of the
writ petition – No foundational facts and / or pleadings challenging
the G.O. as unconstitutional – More importantly, no prayer weeking
quashing of the G.O. – Writ petition held not maintainable.
There is no reference to the G.O. in the entire writ petition. This
document is not even part of the writ petition. Therefore, there are no
foundational facts and / or pleadings in the writ petition challenging this
G.O. as unconstitutional. More importantly, there is no prayer in the writ
petition seeking quashing of this G.O. Even when learned counsel for the
State had pointed out fundamental infirmity in the writ petition, no
attempt was made by the petitioners to amend the writ petition so as to
incorporate challenge to the said G.O. as well. In the absence of any
pleadings and the prayer seeking quashing of the said G.O., it is not
permissible for the petitioners to seek a relief by making oral submissions
in this behalf. Amina Marwa Sabreen A (Minor) and others V. State of
Kerala and others 2017 (6) Supreme 763
Art. 136 – Meaning of - Does not confer a right to appeal but only to
apply for special leave to appeal – Power under Art. 136 being
discretionary, anyone can apply for special leave to appeal.
Article 136 does not confer a right to appeal on any party but it
confers a discretionary power on the Supreme Court to interfere in
suitable cases. The exercise of the power of the court is not circumscribed
by any limitation as to who may invoke it. It does not confer a right to
appeal, it confers only a right to apply for special leave to appeal.
Therefore, there was no bar for the appellant to apply for special leave to
appeal as he is an aggrieved person. Ratanlal V. Prahlad Jat 2017 (7)
Supreme 212
Art. 136 – Nature of – Jurisdiction of Supreme Court under Art. 136
is discretionary and equitable
The Constitution did not for best of reasons choose to
fetter or circumscribe the power exercisable under
Article 136 in any way. The jurisdiction of this
Court under Article 136 is discretionary and
equitable in nature. Article 136 begins with non
obstante clause ―notwithstanding anything‖. The
words ‗notwithstanding anything‘ in Chapter IV of
Part V are words of overriding effect and clearly
indicate the intention of the framers of the
Constitution that it is a special jurisdiction residuary
power unfettered by any statute or other
provisions of Chapter IV of Part V of the Constitution. N.A.L.
Layout Residents Association V. Bangalore development Authority
2017 (6) Supreme 331
Art. 142 – Order of dismissal from service modified to one of
discharge from service simplicitor.
In this case, counsel for the respondent made a fervent alternative
submission that even if the direction given by the Tribunal to reinstate
the respondent in service was to be set aside, this Court may take a
sympathetic view as the respondent has already suffered the sentence
period for the stated offence. He submitted that this Court may modify the
order of dismissal from service to one of discharge from service, so that
the respondent may not be disqualified from applying for employment
elsewhere, considering that he is young and has to support his family. The
counsel for the appellants, in all fairness, submits that so long as the
respondent is not ordered to be reinstated in this Indian Air Force service
and there is no financial implication for the department, he may leave it to
the discretion of this Court to pass orders as may be deemed appropriate.
As a result, even though we are inclined to set aside the order of
reinstatement of the respondent in service and to treat the period between
the date of dismissal of the respondent and the date of his rejoining
service as non-qualifying service, to do complete justice we accept the
prayer of the respondent to modify the order of dismissal from service to
one of discharge from service simplicitor. Union of India V. Ex. LAC
Nallam Shiva 2017(6) Supreme 354
Contempt of Courts Act:
Sec. 12 – Orders clear and unambiguous – Not open to contemnor to
interpret the same.
The orders passed by this court were clear and unambiguous and
Respondent No.3 was called upon to make complete disclosure of his
assets. Whether the assets to be so disclosed were covered by the personal
guarantee given by Respondent No.3 or not was immaterial. He was
called upon to make a complete disclosure and was bound to comply with
the directions. The assertion made by the petitioners-banks that the details
of the bank account held in Edmond De Rothschild Bank were never
disclosed by Respondent No.3 is correct. In fact, no details of any bank
account with overseas banks were given by Respondent No.3. The
violation by Respondent No.3 could not be termed as a mere infraction.
The violation by Respondent No.3 regarding non-disclosure becomes
more pronounced because it is this very account held in Edmand De
Rothschild Bank that was utilized to transmit funds to the tune of US$ 40
Million.
On plain reading of the Orders, in our view, whether the properties were
in the hands of the concerned respondents on the date when the orders of
restraint were passed by the High Court or had come in their hands or
under their control at a later point in time, regardless of such qualification
all properties whether movable or immovable were governed by the orders
of restraint. There is no ambiguity of any sort and the Orders of restraint
are quite clear. Consequently, funds amounting to US$ 40 million which
came to be under the control of and in the hands of Respondent No.3 were
completely covered and governed by said orders of restraint. State Bank
of India V. Kingfisher Airlines Ltd 2017 (6) Supreme 626
Contract Act:
Sec. 74 – Forfeiture of earnest money or security – Not permissible
unless there is express stipulation in the contract
Reading of Section 74 would go to show that in order to forfeit the sum
deposited by the contracting party as "earnest money" or ―security" for the
due performance of the contract, it is necessary that the contract must
contain a stipulation of forfeiture. In other words, a right to forfeit being a
contractual right and penal in nature, the parties to a contract must agree
to stipulate a term in the contract in that behalf. A fortiori, if there is no
stipulation in the contract of forfeiture, there is no such right available to
the party to forfeit the sum.
Equally well settled principle of law relating to contract is that a party to
the contract can insist for performance of only those terms/conditions,
which are part of the contract. Likewise, a party to the contract has no
right to unilaterally ―alter" the terms and conditions of the contract and
nor they have a right to ―add" any additional terms/conditions in the
contract unless both the parties agree to add/alter any such
terms/conditions in the contract.
Similarly, it is also a settled law that if any party adds any additional
terms/conditions in the contract without the consent of the other
contracting party then such addition is not binding on the other party.
Similarly, a party, who adds any such term/condition, has no right to insist
on the other party to comply with such additional terms/conditions and
nor such party has a right to cancel the contract on the ground that the
other party has failed to comply such additional terms/conditions.
Keeping in view the aforementioned principle of law, when we examine
the facts of the case at hand then we find that the public notice
(advertisement), extracted above, only stipulated a term for deposit of the
security amount of Rs.3 lakhs by the bidder (appellant) but it did not
publish any stipulation that the security amount deposited by the bidder
(appellant herein) is liable for forfeiture by the State and, if so, in what
contingencies.
So far as the four special conditions are concerned, these conditions were
also not part of the public notice and nor they were ever communicated to
the bidders before auction proceedings. There is no whisper of such
conditions being ever considered as a part of the auction proceedings
enabling the bidders to make their compliance, in case, their bid is
accepted.
Since these four conditions were added unilaterally and communicated to
the appellant by respondent No. 3 while accepting his bid, the appellant
had every right to refuse to accept such conditions and wriggle out of the
auction proceedings and demand refund of his security amount. The State,
in such circumstances, had no right to insist upon the appellant to accept
such conditions much less to comply and nor it had a right to cancel the
bid on the ground of non-compliance of these conditions by the appellant.
Suresh Kumar Wadhwa V. State of M.P. 2017 (7) Supreme 598
Criminal Procedure Code:
Sec. 198 (6) – Indian Penal Code, 1860 – Sec. 376 – Rape –
Cognizance of offence – Sec. 198 (6) of Code will apply to cases of
rape of ―wives‖ below 18 years, and cognizance can be taken only in
accordance with provisions of Sec. 198(6) of Code.
We have also adverted to the issue of reproductive choices that are
severely curtailed as far as a married girl child is concerned. There is
every possibility that being subjected to sexual intercourse, the girl child
might become pregnant and would have to deliver a baby even though her
body is not quite ready for procreation. The documentary material shown
to us indicates that there are greater chances of a girl child dying during
childbirth and there are greater chances of neonatal deaths. The results
adverted to in the material also suggest that children born out of early
marriages are more likely to be malnourished. In the face of this material,
would it be wise to continue with a practice, traditional though it might
be, that puts the life of a girl child in danger and also puts the life of the
baby of a girl child born from an early marriage at stake? Apart from
constitutional and statutory provisions, constitutional morality forbids us
from giving an interpretation to Exception 2 to Section 375 of the IPC that
sanctifies a tradition or custom that is no longer sustainable. Independent
Thought V. Union of India 2017 (7) Supreme 673
Sec. 311—Discretionary power of court under, to summon any person
as a witness or examine any person in attendance though not
summoned as a witness or recall or re-examine any person already
examined—Object of—Explained
In present case, PWs 4 and 5 were examined between 29-11-2010 and 11-
3-2011 and were also cross-examined at length. During police
investigation and in their evidence, they supported prosecution story. Trial
Judge recorded a finding that said witnesses were not under any pressure
while recording their evidence. After a passage of 14 months, PWs 4 and
5 filing application u/s. 311 Cr.P.C. for their re-examination on ground
that statements made by them earlier were under pressure. No reason
assigned for delay in moving that application. It was obvious that said
witnesses had been won over. Hence held, trial Judge was justified in
rejecting aforesaid application moved u/s. 311 Cr.P.C. High Court erred in
setting aside that order. Since, pursuant to proceed with matter without
taking into consideration evidence of PWs 4 and 5 recorded after order of
High Court.
The power u/s. 311 Cr.P.C. must be exercised with caution and
circumspection and only for strong and valid reasons. Recall of a witness
already examined is not a matter of course and discretion given to court in
this regard has to be exercised judicially to prevent failure of justice.
Reasons for exercising said power should be spelt out in order. Delay in
filing application for recalling a witness is one of the important factors
which has to be explained in the application. Therefore, an appeal allowed
by Supreme Court. Ratanlal V. Prahlad Jat, (2017) 9 SCC 340
Sec. 319 – Power to summon persons not named in charge sheet to
appear and face trial unquestionable – However, the power can only
be exercised on evidence recorded in the court – Not on the basis of
material gathered at investigation stage already utilized at stage of
sections 190 and 204 Cr.P.C.
Insofar as power of the Court under Section 319 of the Cr.P.C. to summon
even those persons who are not named in the charge sheet to appear and
face trial is concerned, the same is unquestionable. Section 319 of the
Cr.P.C. is meant to rope in even those persons who were not implicated
when the charge sheet was filed but during the trial the Court finds that
sufficient evidence has come on record to summon them and face the trial.
In Hardeep Singh‘s case, the Constitution Bench of this Court has settled
the law in this behalf with authoritative pronouncement, thereby removing
the cobweb which had been created while interpreting this provision
earlier. As far as object behind Section 319 of the Cr.P.C. is concerned,
the Court had highlighted the same as under:
―The court is sole repository of justice and a duty is cast upon it to uphold
the rule of law and, therefore, it will be inappropriate to deny the existence
of such powers with the courts in our criminal justice system where it is
not uncommon that the real accused, at times, get away by manipulating
the investigating and/or the prosecuting agency. The desire to avoid trial is
so strong that an accused makes efforts at times to get himself absolved
even at the stage of investigation or inquiry even though he may be
connected with the commission of the offence.‖
At the same time, the Constitution Bench has clarified that the power
under Section 319 of the Cr.P.C. can only be exercised on ‗evidence‘
recorded in the Court and not material gathered at the investigation stage,
which has already been tested at the stage under Section 190 of the
Cr.P.C. and issue of process under Section 204 of the Cr.P.C. This
principle laid down in Hardeep Singh‘s case has been explained in
Brjendra Singh and Others v. State of Rajasthan6 in the following manner:
―10. It also goes without saying that Section 319 CrPC, which is an
enabling provision empowering the Court to take appropriate steps for
proceeding against any person, not being an accused, can be exercised at
any time after the charge-sheet is filed and before the pronouncement of
the judgment, except during the stage of Sections 207/208 CrPC, the
committal, etc. which is only a pre-trial stage intended to put the process
into motion.‖
The moot question, however, is the degree of satisfaction that is required
for invoking the powers under Section 319 CrPC and the related question
is as to in what situations this power should be exercised in respect of a
person named in the FIR but not charge-sheeted. These two aspects were
also specifically dealt with by the Constitution Bench in Hardeep Singh
case and answered in the following manner: (SCC pp. 135 & 138, paras
95 & 105-106)
―95. At the time of taking cognizance, the court has to see whether a
prima facie case is made out to proceed against the accused. Under
Section 319 CrPC, though the test of prima facie case is the same, the
degree of satisfaction that is required is much stricter. A two-Judge Bench
of this Court in Vikas v. State of Rajasthan [Vikas v. State of Rajasthan,
(2014) 3 SCC 321 : (2014) 2 SCC (Cri) 172] , held that on the [Ed.: The
words between two asterisks have been emphasized in original.] objective
satisfaction [Ed.: The words between two asterisks have been emphasised
in original.] of the court a person may be ―arrested‖ or ―summoned‖, as
the circumstances of the case may require, if it appears from the evidence
that any such person not being the accused has committed an offence for
which such person could be tried together with the already arraigned
accused persons.
105. Power under Section 319 CrPC is a discretionary and an
extraordinary power. It is to be exercised sparingly and only in those cases
where the circumstances of the case so warrant. It is not to be exercised
because the Magistrate or the Sessions Judge is of the opinion that some
other person may also be guilty of committing that offence. Only where
strong and cogent evidence occurs against a person from the evidence led
before the court that such power should be exercised and not in a casual
and cavalier manner.‖
Keeping in view the aforesaid scope of Section 319 Cr.P.C., we now
proceed to examine the present case.
The High Court, in the impugned judgment, has been influenced by the
fact that names of the appellants were mentioned in the FIR and even in
the statement of witnesses recorded under Section 161 of the Cr.P.C. these
appellants were named and such statements under Section 161 Cr.P.C.
would constitute ‗documents‘. In this context, the High Court has
observed that ‗evidence‘ within the meaning of Section 319 Cr.P.C. would
include the aforesaid statements and, therefore, the appellants could be
summoned.
The aforesaid reasons given by the High Court do not stand the judicial
scrutiny. The High Court has not dealt with the subject matter properly
and even in the absence of strong and cogent evidence against the
appellant, it has set aside the order of the Chief Metropolitan Magistrate
and exercised its discretion in summoning in summoning the appellants as
accused persons.
The material/evidence collected by the investigating officer at the stage of
inquiry can only be utilized for corroboration and to support the evidence
recorded by the Court to invoke the power under Section 319 Cr.P.C. S.
Mohammed Ispahani V. Yogendra Chandak 2017 (7) Supreme 537
Sec. 360 – Appellants first time offenders – Held entitled to be tried
u/s 360 – Also held entitled to be benefit of Probation of Offenders
Act
In present case, learned counsel for the appellants submitted that
the appellants are the first offenders. Therefore, the appellants may be
dealt with under Section 360 of the Code of Criminal Procedure, 1908. It
is true that the appellants do not have antecedents of offender. Both of
them are the first offenders.
Having regard to the facts and circumstances of the case, we are of the
view that the appellants should have been dealt with under Section 360
Cr.P.C. The ends of justice would be met by granting the benefit of
Probation of Offenders Act, 1958 to the appellants. We order accordingly.
Hence, the appeal is allowed in part and while upholding the conviction
and sentence of fine awarded to the appellants, sentence of imprisonment
awarded against them is set aside and the trial court is directed to deal
with them under the provisions of Section 360 of the Code of Criminal
Procedure, 1908. Dhurukumar S/o. Radhakishan Pitti & ANR. Vs.
State of Maharashtra 2017 (7) Supreme 568
Sec. 427 (1) - Scope of - Sentence on a subsequent conviction while
the accused is already undergoing a sentence of imprisonment – Shall
commence at the expiration of previous sentence – Unless court
directs the sentences to run concurrently.
Sec. 427 (1), Cr. P.C. stipulates that where a person undergoing a
sentence of imprisonment is sentenced on a subsequent conviction to
imprisonment, it shall commence at the expiration of the imprisonment
previously sentenced, unless the court directs that the subsequent sentence
shall run concurrently with such previous sentence. The jurisdiction being
discretionary must be exercised on fair and just principles in the facts of
the case. P.N. Mohanan Nair V. State of Kerala 2017 (7) Supreme 391
Sec. 438 – Consideration for granting anticipatory bail.
FIR was lodged against the appellant on a complaint under Sec.
498A / 494/ 406/ 420/ 120B IPC The complainant has alleged that her
husband, the appellant herein, had married Karamveer Kaur during the
subsistence of her marriage. There are allegations of cruelty, harassment,
fraud and the threats being given by the appellant.
Appellant denied marriage with Karamveer Kaur.
The High Court rejected the application of the appellant seeking
anticipatory bail.
The Court should consider all relevant facts as also existence or
absence of criminal antecedent of the applicant while granting or rejecting
application for anticipatory bail. Jaskaran Singh V. State of Punjab
2017 (6) Supreme 594
Sec. 439 – Grant of Bail
According to the prosecution the Corex cough syrup has been
recovered from the go-down and the prosecution alleges that it has been
recovered from the appellant. It is evident that the Delhi High Court by
order dated 01.12.2016 quashed the notification issued under Section 26A
of the Drugs and Cosmetics Act, 1940 which has sought to prohibit the
manufacture, distribution and sale of 344 Fixed Dose of Combination. The
FIR was registered on 23.08.2016. Be that as it may, the appellant has
been in custody from 24.08.2016.
Having regard to the facts and circumstances of the case, we are of
the view that it is just and proper to release the appellant on bail.
Therefore, we order the appellant to be released on bail on execution of
his personal bond in sum of Rs. 25,000/- with two sureties in the like sum
to the satisfaction of the trial judge. We permit the trial judge to impose
such conditions as he feels necessary for ensuring the appellant‘s
attendance on the dates of posting in the trial court. Binod Kumar @
Binod Kumar Bhagat V. The state of Bihar 2017 (6) Supreme 378
Sec. 439 – Onerous conditions should not be imposed for grant of bail.
Since the allegations against the accused are too serious, causing heavy
financial losses to the government, therefore, the accused will deposit Rs.
50 lakh in the court within four weeks from the date of his release on
bail.‖
The appellant challenged the condition imposed in the order for depositing
Rupees fifty lakh as precondition while granting bail before the High
Court of Judicature at Allahabad in Crl.M.A.No.16764 of 2016. In the
said case an interim order was passed on 31st May, 2016 staying the
imposition of condition of the deposit of Rupees fifty lakh subject to the
appellant depositing Rupees ten lakh within one month from the date of
the order. Accordingly, the appellant has deposited a sum of Rupees ten
lakh. The High Court by its order dated 11th
November, 2016 has
dismissed the application filed by the appellant challenging the aforesaid
order.
It is clear that the appellant has already deposited a sum of Rupees ten
lakh in terms of an interim order passed by the High Court. It is also clear
from the materials on record that the co-accused, namely, B.N. Yadav and
R.K. Singh have been granted bail without a condition being imposed
upon them for depositing the amount. The appellant has been in custody
for more than four years. In the facts and circumstances of the case, we
are of the view that the Special Court was justified in granting the bail to
the appellant. However, the condition imposed by the court below for
depositing Rupees fifty lakh is onerous. The appellant has already
deposited Rupees ten lakh, which is sufficient for granting bail to him.
Therefore, direction issued by the trial court for deposit of Rupees fifty
lakh for grant of bail is accordingly modified.
The appellant shall be released on bail if he satisfies the other conditions
imposed by the Special Court in its order dated 28th
April, 2016. B.N.
Srivastava V. CBI, EOU –IV, New Delhi 2017 (6) Supreme 567
Sec. 482 – Exercise of power under –
When trial court takes cognizance finding a prima facie case, it
should not be quashed u/s 482 Cr.P.C.
It is settled law that the power under Section 482 Cr. P.C. is exercised by
the High Court only in exceptional circumstances only when a prima facie
case is not made out against the accused. The test applied by this Court for
interference at the initial stage of a prosecution is whether the
uncontroverted allegations prima facie establish a case.
A perusal of the complaint would disclose a prima facie case against
Respondent Nos.2, 4 to 10. The order passed by the Chief Judicial
Magistrate by which cognizance was taken ought not to have been
interfered with by the High Court. Rakhi Mishra V. State of Bihar 2017
(6) Supreme 447
Sec. 482 – Consideration for quashing
In absence of any specific acts of accused constituting alleged
offence the proceedings would be liable to be quashed. Managing
Director M/s Castrol India Ltd. V. State of Karnataka 2017(7)
Supreme 383
Sec. 482 – Compounding and quashing – An offence can be
compounded u/s 482 on basis of such settlement – Criminal
proceeding or FIR cannot be quashed on basis of such settlement –
Due regard must be had to nature and gravity of offence.
The broad principles which emerge from the precedents on the subject,
may be summarized in the following propositions :
(i) Section 482 preserves the inherent powers of the High Court to
prevent an abuse of the process of any court or to secure the ends of
justice. The provision does not confer new powers. It only recognizes
and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First
Information Report or a criminal proceeding on the ground that a
settlement has been arrived at between the offender and the victim is
not the same as the invocation of jurisdiction for the purpose of
compounding an offence. While compounding an offence, the power
of the court is governed by the provisions of Section 320 of the Code
of Criminal Procedure, 1973. The power to quash under Section 482
is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint
should be quashed in exercise of its jurisdiction under Section 482,
the High Court must evaluate whether the ends of justice would
justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and
plenitude it has to be exercised; (i) to secure the ends of justice or (ii)
to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report
should be quashed on the ground that the offender and victim have
settled the dispute, revolves ultimately on the facts and circumstances
of each case and no exhaustive elaboration of principles can be
formulated;
(vi) In the exercise of the power under Section 482 and while dealing
with a plea that the dispute has been settled, the High Court must
have due regard to the nature and gravity of the offence. Heinous and
serious offences involving mental depravity or offences such as
murder, rape and dacoity cannot appropriately be quashed though the
victim or the family of the victim have settled the dispute. Such
offences are, truly speaking, not private in nature but have a serious
impact upon society. The decision to continue with the trial in such
cases is founded on the overriding element of public interest in
punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases
which have an overwhelming or predominant element of a civil
dispute. They stand on a distinct footing in so far as the exercise of
the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial,
financial, mercantile, partnership or similar transactions with an
essentially civil flavour may in appropriate situations fall for
quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if
in view of the compromise between the disputants, the possibility of
a conviction is remote and the continuation of a criminal proceeding
would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii)
and
(xi) above. Economic offences involving the financial and economic
well-being of the state have implications which lie beyond the
domain of a mere dispute between private disputants. The High
Court would be justified in declining to quash where the offender is
involved in an activity akin to a financial or economic fraud or
misdemeanour. The consequences of the act complained of upon the
financial or economic system will weigh in the balance.
Bearing in mind the above principles which have been laid down in the
decisions of this Court, we are of the view that the High Court was justified in
declining to entertain the application for quashing the First Information Report
in the exercise of its inherent jurisdiction. Parbatbhai Aahir @ Parbatbhai
Bhimsinhbhai Karmur V. State of Gujarat 2017 (7) Supreme 549
Criminal Jurisprudence:
A crime involving death of a possibly innocent person cannot be over-
looked only because of a lapse of time. If a crime has been committed, a crime which involves the death
of a person who is possibly innocent, it cannot be over-looked only
because of a lapse of time. What is also not acceptable is that the law
having been laid down by the Constitution Bench, it was the obligation of
the State to have suo motu conducted a thorough inquiry at the appropriate
time and soon after each incident took place. Merely because the State has
not taken any action and has allowed time to go by, it cannot take
advantage of the delay to scuttle an inquiry. Extra Judl. Exec. Victim
Families Assn. V. Union of India 2017 (7) Supreme 393
Criminal Trial:
Appreciation of evidence – Evidence of injured witness – Carries
great weight.
Criminal jurisprudence attaches great weightage to the evidence of
a person injured in the same occurrence as it presumes that he was
speaking the truth unless shown otherwise. Though the law is well settled
and precedents abound, reference may usefully be made to Brahm
Swaroop v. State of U.P., (2011) 6 SCC 288 observing as follows:
"28. Where a witness to the occurrence has himself been injured in the
incident, the testimony of such a witness is generally considered to be
very reliable, as he is a witness that comes with an in-built guarantee of
his presence at the scene of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate someone."
Chandrasekar V. State of Tamil Nadu 2017 (6) Supreme 638
Appreciation of Evidence
The prosecution should prove its case beyond reasonable doubt and
the court should not convict an accused in a mechanical way.
In this case, the nature of injury, contradiction about the time of
arrival of the witnesses, contradictions between the ocular medical
evidence, non-examination of Police officer who conducted seizure and
subsequent improvement by one of the eye witness casts a serious doubt
on the prosecution‘s case. For these reasons, the Court cannot hold the
accused – appellant guilty of the offence in the present case. The
conviction against appellant as recorded by the trial court and upheld by
the High Court is therefore set aside and he is acquitted of the charges.
Baliraj Singh V. State of Madhya Pradesh, 2017 (6) Supreme 578
Burden of proof – prosecution is required to prove its case beyond
reasonable doubts – Not beyond all doubts.
The Hon‘ble Court wishes to supply emphasis on one of the
cardinal principles of criminal jurisprudence pertaining to the ‗burden of
proof on the prosecution‘ in criminal cases. This Court has in a recent
judgment in the case of Hogesh Singh V. Mahabeer Singh AIR 2016 SC
5160 = 2016 (10) JT 332, reiterated the said principle in the following
words:
―It is a cardinal principle of criminal jurisprudence that the guilt of
the accused must be proved beyond all reasonable doubts. However, the
burden on the prosecution is only to establish its case beyond all
reasonable doubt and not all doubts. Here, it is worthwhile to reproduce
the observations made by Venkatachaliah, J., in State of U.P. V. Krishna
Gopal and Anr. (1988) 4 SCC 302:
―25…… Doubts would be called reasonable if they are free from a
zest for abstract speculation. Law cannot afford any favourite other than
truth. To constitute reasonable doubt, it must be free from an
overemotional response. Doubts must be actual and substantial doubts as
to the guilt of the accused person arising from the evidence, or from the
lack of it, as opposed to mere vague apprehensions. A reasonable doubt is
not an imaginary, trivial or a merely possible doubt; but a fair doubt based
upon reason and common sense. It must grow out of the evidence in the
case. Machindra V. Sajjan Galpha Rankhamb 2017 (6) Supreme 509
Circumstantial Evidence – Ground of consideration – Every link in
the chain of circumstances necessary to establish the guilt of the
accused must be established beyond reasonable doubt – An all the
circumstances must be consistent only with the guilt of the accused.
In a case which rests on circumstantial evidence, the law postulates a two-
fold requirement. First, every link in the chain of circumstances necessary
to establish the guilt of the accused must be established by the prosecution
beyond reasonable doubt. Second, all the circumstances must be
consistent only with the guilt of the accused. The principle has been
consistently formulated thus :
―The normal principle in a case based on circumstantial evidence is that
the circumstances from which an inference of guilt is sought to be drawn
must be cogently and firmly established; that those circumstances should
be of a definite tendency unerringly pointing towards the guilt of the
accused; that the circumstances taken cumulatively should form a chain so
complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and they should be
incapable of explanation on any hypothesis other than that of the guilt of
the accused and inconsistent with his innocence‖. Ganpat Singh V. The
State of Madhya Pradesh 2017 (7) Supreme 377
Deceased, in his FIR and dying declaration, describing the incident,
role of the two appellants and their motive for assault on him – The
injuries not likely to cause death in normal course – High Court
rightly convicting the appellants u/s 304 Part II.
We say for the reasons that, first, there was no motive on the part of the
accused persons (appellants) to kill Hariya. Second, the intention was to
teach a lesson to Hariya because he had insulted Gaya Prasad in
Panchayat on an incident which had occurred in marriage in their
community in recent past. Third, Dr. Bharadwaj (PW-14) who performed
post mortem did not say in his evidence that injuries caused to Hariya
were sufficient in the ordinary course of nature to have caused death, and
lastly, Hariya survived for 14 days from the date of incident.
In the facts and circumstances of the case as taken note of supra, we are of
the considered opinion that these factors were rightly taken into
consideration for holding the appellants guilty for committing offence
falling under Section 304 Part II of IPC. Pooranlal V. The State of Madhya
Pradesh 2017 (7) Supreme 594
Evidence – Serious contradictions – Accused entitled to benefit of
doubt.
When he enquired regarding whereabouts of his mother, the Appellant
informed him that she had stayed back at the house of her sister. This,
coupled with the fact that the Appellant had absconded after the date of
the incident is a pointer to a strong suspicion that the Appellant was
responsible for the death of Shantabai. However, a strong suspicion in
itself is not sufficient to lead to the conclusion that the guilt of the
Appellant stands established beyond reasonable doubt. There are material
contradictions in the case of the prosecution. These have been noticed in
the earlier part of its judgment and are sufficient in our view to entitle the
Appellant to the benefit of doubt. Ganpat Singh V. The State of
Madhya Pradesh 2017 (7) Supreme 377
Last seen theory – Applicability of
When the time elapsed between time of deceased last seen with
accused and death of deceased is so minimal as to exclude the possibility
of a supervening event involving the death at the hands of another the last
seen theory comes into play. Ganpat Singh V. The State of Madhya
Pradesh 2017 (7) Supreme 377
Related witness – Not necessarily an interested witness – Motive loses
relevance in face of reliable evidence.
The fact that the witness may be related to the deceased by marriage,
cannot be sufficient reason to classify him as a related and interested
witness to reject his testimony. It may only call for greater scrutiny and
caution in consideration of the same. The animosity of the appellants was
primarily with the deceased on account of his acquittal the previous day,
in the criminal prosecution. The transfer of lands by the deceased in
favour of the witness, being a completed transaction, is considered too
remote a circumstance for enmity between the appellants and the witness
as a ground for false implication. In any event, because of the reliable
ocular evidence available, motive loses much of its relevance in the facts
of the case. Chandrasekar V. State of Tamil Nadu 2017 (6) Supreme
638
Fake Encounter - Compensation vis-à-vis prosecution –
Compensation awarded to next of kin to immediately tide over their
loss and for their rehabilitation – This cannot override law of the land
– If allowed, all heinous crimes would get settled through payment of
monetary compensation.
It was finally submitted by the learned Attorney General that
compensation has been paid to the next of kin for the unfortunate deaths
and therefore it may be not necessary to proceed further in the matter. We
cannot agree. Compensation has been awarded to the next of kin for the
agony they have suffered and to enable them to immediately tide over
their loss and for their rehabilitation. This cannot override the law of the
land, otherwise all heinous crimes would get settled through payment of
monetary compensation. Our constitutional jurisprudence does not permit
this and we certainly cannot encourage or countenance such a view. Extra
Judl. Exec. Victim families Assn. V. Union of India 2017(7) Supreme
393
General Clauses Act:
Sec. 21 – Applies to Land Acquisition Act, 1894.
The Land Acquisition Act, 1984 clearly falls within the definition
of Central Act. The applicability of Section 21 of the General Clauses Act
was considered by this Court in State of Madhya Pradesh and others V.
Vishnu Prasad Sharma and others, AIR 1966 SC1593, where it is held that
in a case where under Section 9 Notification has not been issued the
Government can cancel the Notification under Section 4 and Section 6 by
virtue of section 21 General Clauses Act.
The applicability of Section 21 in exercise of particular power granted
by Central Act can be
negated only when the statute in question itself
expressly or implicitly indicates so. As noted above, this Court
in Larsen & Toubro has rejected
the submission of learned counsel that Notification
under Section 4 and 6 with aid of Section 21 of
General Clauses Act can be cancelled at any time.
This Court held that when Notifications under
Section 4 and 6 are issued and much has been done
towards the acquisition process and that process
cannot be reversed merely by rescinding this Notification. N.A.L.
Layout Residents Association V. Bangalore development Authority
2017 (6) Supreme 331
Hindu Marriage Act
Sec. 13-B (2)- Decree of divorce based on mutual consent- Relaxation
of the minimum period of six months stipulated under the above
provision- Held, the Court dealing with a matter, on being satisfied
that a case is made out to waive the statutory period under Section
13-B(2) can do so
Applying the above to the present situation, we are of the view that where
the Court dealing with a matter is satisfied that a case is made out to
waive the statutory period under Section 13B(2), it can do so after
considering the following :
i. the statutory period of six months specified in Section 13B(2), in
addition to the statutory period of one year under Section 13B(1) of
separation of parties is already over before the first motion itself;
ii. all efforts for mediation/conciliation including efforts in terms of
Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of
the Family Courts Act to reunite the parties have failed and there is
no likelihood of success in that direction by any further efforts;
iii. the parties have genuinely settled their differences including
alimony, custody of child or any other pending issues between the
parties;
iv. the waiting period will only prolong their agony.
The waiver application can be filed one week after the first motion giving
reasons for the prayer for waiver.
If the above conditions are satisfied, the waiver of the waiting period for
the second motion will be in the discretion of the concerned Court.
Since we are of the view that the period mentioned in Section 13B(2) is
not mandatory but directory, it will be open to the Court to exercise its
discretion in the facts and circumstances of each case where there is no
possibility of parties resuming cohabitation and there are chances of
alternative rehabilitation. Amardeep Singh v. Harveen Kaur, 2017 (35)
LCD 2523
Indian Penal Code:
Sec. 302 – Appellants coming together variously armed – Assaulting
deceased indiscriminately on the head repeatedly – Number of
injuries on the head speaks for intention – Conviction not warranting
interference.
The appellants came together armed with a hammer, sickle and iron rod
respectively. They assaulted the deceased indiscriminately on the head
repeatedly, a very sensitive part of the human body reflecting the
individual intention of each one of them to ensure the death of the
deceased. The number of injuries caused on the head speaks for itself
regarding the intention of the appellants. There is no need for us to
consider and examine issues of common intention, in the facts of the case.
Chandrasekar V. State of Tamil Nadu 2017 (6) Supreme 638
Sec. 304 , Part II – Quarrel erupting suddenly and escalating within
short spell of time without any premeditation – Held, High Court
rightly converted conviction from one u/s 302/149 and 302 to one u/s
304, Part II.
Looking to the totality of the facts and circumstances of the case and the
evidence on record, it is clear that it was only the accused – Parsuram Rai
who had assaulted Mohan Rai with the help of sword, whose assault
resulted grievous injury, and the deceased Mohan Rai ultimately
succumbed to the said injury during the course of transit to the hospital.
The incident had taken place when the deceased was returning from the
disputed land and the accused persons were busy in the adjacent field
transplanting paddy seedlings from where they saw Mohan Rai crossing
their land. There was no premeditation of any kind on the part of the
accused to commit the murder of the deceased. However, the eye
witnesses have deposed that accused - Wakil Rai came and started
quarreling with Mohan Rai when other family members also joined. The
quarrel not only suddenly erupted but also escalated without any
premeditation. As rightly concluded by the High Court, the whole incident
was spontaneous and went out of hand that too within short spell of time.
In the facts and circumstances of the case, though the High Court was
justified in altering the conviction of the accused from Section 302 and
302/149 IPC to Section 304 Part-II IPC, it was not justified in imposing
lesser sentence on the accused, particularly on accused – Parsuram Rai,
who gave a sword blow on the right shoulder of the deceased – Mohan
Rai running up to the chest, which was grievous in nature and because of
which Mohan Rai died during the transit to the hospital. In our considered
opinion, the High Court ought to have imposed a sentence of 5 years on
the accused – Parsuram Rai along with a fine of Rs.50,000/- and on the
other accused, while altering the sentence to the period already undergone,
which in this case is approximately 2 years, the High Court ought to have
imposed a fine of Rs.5,000/- on each of the other accused, namely, Wakil
Rai, Ramayan Rai, Raj Ballam Rai, Ashok Rai and Sheo Kumar Rai. The
conviction and sentence ordered by the High Court in respect of other
offences stands confirmed. Since the sentences in respect of the other
offences run concurrently, there is no need for the accused to undergo
imprisonment in respect of these other offences inasmuch as the sentence
imposed on them is already suffered by them. Deo Nath Rai V. State of
Bihar 2017 (7) Supreme 473
Sec. 306 r/w Sec. 113A - Indian Evidence Act – Unless cruelty as
under Sec. 498–A IPC is not established, an accused cannot be
convicted u/s 306.
We find that having absolved he appellants of the charge of cruelty,
which is the most basic ingredient for the offence made out under Sec.
498A, the third ingredient for application of Section 113A is missing,
namely, that the relatives i.e., the mother-in-law and father-in-law who are
charged under sec. 306 had subjected the victim to cruelty. No doubt, in
the facts of this case, it has been concurrently found that the in-laws did
harass her, but harassment is something of a lesser degree than cruelty.
Also, we find on the facts, taken as a whole, that assuming the
presumption under section 113A would apply, it has been fully rebutted,
for the reason that there is no link or intention on the part of the in-laws to
assist the victim to commit suicide.
In the absence of this vital link, the mere fact that there is a finding
of harassment would not lead to the conclusion that there is ―abetment of
suicide‖.
On the facts, therefore, we find, especially in view of the fact that
the appellants have been acquitted for the crime under Sec. 498A of the
Code, that abetment of suicide under sec. 306 is not made out. Heera Lal
V. State of Rajasthan 2017 (6) Supreme 564
Sec. 307 –Arms Act, 1959- Sec. 25 (1-A)- Acquittal by High Court by
reversing judgment of conviction- Sustainability- when the High
Court while reversing decision of the Session Court acquits the
accused and assigns the reasons by appreciating the entire evidence in
support of the acquittal, then this Court would not be inclined to
interfere in the order of acquittal
In court view, the reasoning and the conclusion of the High Court in
acquitting the respondent of the charges under Section 307 IPC and
Section 25(1-A) appears to be just and proper as set out below and to
which we concur and hence it does not call for any interference by this
Court.
First, the parties involved in the case namely, the victim, his brother, who
was one of the eye-witnesses with other two eye-witnesses and the
accused were known to each other then why the Complainant-brother of
victim in his application (Ex-P-A) made immediately after the incident to
the Chief Medical Superintendent, Pilibhit did not mention the name of
the accused and instead mentioned therein "some sardars".
Second, according to the prosecution, the weapon used in commission of
offence was recovered from the pocket of the accused the next day, it
looked improbable as to why would the accused keep the pistol all along
in his pocket after the incident for such a long time and roam all over.
Third, the weapon (pistol) alleged to have been used in the commission of
the offence was not sent for forensic examination with a view to find out
as to whether it was capable of being used to open fire and, if so, whether
the bullet/palate used could be fired from such gun. Similarly, other seized
articles such as blood-stained shirt and soil were also not sent for forensic
examination.
Fourth, weapon (Pistol) was not produced before the concerned
Magistrate, as was admitted by the Investigating Officer.
Lastly, if, according to the prosecution case, the shot was hit from a very
short distance as the accused and the victim were standing very near to
each other, then as per the medical evidence of the Doctor (PW-6) a
particular type of mark where the bullet was hit should have been there
but no such mark was noticed on the body. No explanation was given for
this. This also raised some doubt in the prosecution case.
In court considered opinion, the aforesaid infirmities were, therefore,
rightly noticed and relied on by the High Court for reversing the judgment
of the Session Court after appreciating the evidence, which the High Court
was entitled to do in its appellate jurisdiction. Court finds no good ground
to differ with the reasoning and the conclusion arrived at by the High
Court. State of Uttarakhand v. Jairnail Singh, 2017 (13) SCALE 410
Ss. 307 and 324 – Appellant filing at deceased without premeditation
– Not intending to cause death of deceased – Liable to be punished u/s
324 and not 307
As rightly submitted by the learned counsel for the appellant, both Anoop
Bhargava (PW-1) and Ramprakash (PW-4) have turned hostile. It was
established that Manjeet Singh has sustained gunshot injury. Dr. Vikram
Singh Tomar (PW-2), on examination, found two entry wounds over the
lateral aspect of left shoulder and interior aspect of upper part of left
scapula region of Manjeet Singh. However, firearm injury suffered by
Manjeet Singh (PW-3) could not be impeached in their cross-examination.
It is also evident that the accused fired at Manjeet Singh without any pre-
meditation. The injury suffered by Manjeet Singh was not on the vital part
of his body. In our view, the prosecution has failed to prove that accused
intended to cause the death of the deceased. Therefore, the appellant can
only be convicted under Section 324 of the IPC and not under Section 307
of the IPC. Therefore, the appellant is convicted under Section 324 of the
IPC instead of Section 307 of the IPC. Shyam Sharma V. State of
Madhya Pradesh 2017 (7) Supreme 567
Sec. 375 Exception 2 – Rape – Sexual intercourse with a girl below 18
years of age is rape regardless of whether she is married or not.
The issue before us is limited but one of considerable public importance –
whether sexual intercourse between a man and his wife being a girl
between 15 and 18 years of age is rape? Exception 2 to Section 375 of the
Indian Penal Code, 1860 (the IPC) answers this in the negative, but in our
opinion sexual intercourse with a girl below 18 years of age is rape
regardless of whether she is married or not. The exception carved out in
the IPC creates an unnecessary and artificial distinction between a married
girl child and an unmarried girl child and has no rational nexus with any
unclear objective sought to be achieved. The artificial distinction is
arbitrary and discriminatory and is definitely not in the best interest of the
girl child. The artificial distinction is contrary to the philosophy and ethos
of Article 15(3) of the Constitution as well as contrary to Article 21 of the
Constitution and our commitments in international conventions. It is also
contrary to the philosophy behind some statutes, the bodily integrity of the
girl child and her reproductive choice. What is equally dreadful, the
artificial distinction turns a blind eye to trafficking of the girl child and
surely each one of us must discourage trafficking which is such a horrible
social evil.
It is quite clear that a rapist remains a rapist and marriage with the victim
does not convert him into a non-rapist. Similarly, a rape is a rape whether
it is described as such or is described as penetrative sexual assault or
aggravated penetrative sexual assault. A rape that actually occurs cannot
legislatively be simply wished away or legislatively denied as non-
existent. Independent Thought V. Union of India 2017 (7) Supreme
673
Interpretation of Statute:
Foreign judgment- No need to rely upon – But developments in other
countries must be kept in mind.
Although excessive reliance on foreign jurisprudence may not be
necessary as we have starkly deviated in many aspects from American
jurisprudence, but we need to keep in mind the developments which other
countries have undertaken regarding this issue. Securities and Exchange
Board of India V. Sri Kanaiyalal Baldevbhai Patel 2017 (7) Supreme
425
Mandatory or Directory- Nature of the provision- Held, Language
alone is not decisive- Court has to have the regard to the context, the
subject matter and the object of the provision
In determining the question whether provision is mandatory or directory,
language alone is not always decisive. The Court has to have the regard to
the context, the subject matter and the object of the provision. This
principle, as formulated in Justice G.P. Singh‘s ―Principles of Statutory
Interpretation‖ (9th Edn., 2004), has been cited with approval in Kailash
versus Nanhku and ors.15as follows:
15 (2005) 4 SCC 480 ―The study of numerous cases on this topic does
not lead to formulation of any universal rule except this that language
alone most often is not decisive, and regard must be had to the context,
subject-matter and object of the statutory provision in question, in
determining whether the same is mandatory or directory. In an oft-quoted
passage Lord Campbell said: ‗No universal rule can be laid down as to
whether mandatory enactments shall be considered directory only or
obligatory with an implied nullification for disobedience. It is the duty of
courts of justice to try to get at the real intention of the legislature by
carefully attending to the whole scope of the statute to be considered.‘ ―
‗For ascertaining the real intention of the legislature‘, points out Subbarao,
J. ‗the court may consider inter alia, the nature and design of the statute,
and the consequences which would follow from construing it the one way
or the other; the impact of other provisions whereby the necessity of
complying with the provisions in question is avoided; the circumstances,
namely, that the statute provides for a contingency of the non-compliance
with the provisions; the fact that the non-compliance with the provisions
is or is not visited by some penalty; the serious or the trivial
consequences, that flow therefrom; and above all, whether the object of
the legislation will be defeated or furthered‘. If object of the enactment
will be defeated by holding the same directory, it will be construed as
mandatory, whereas if by holding it mandatory serious general
inconvenience will be created to innocent persons without very much
furthering the object of enactment, the same will be construed as
directory.‖ Amardeep Singh V. Harveen Kaur, 2017 (35) LCD 2523
Penal statutes – Strict construction – Well established principle
Although strict construction is well established, principle when
interpreting a penal provision, but such interpretation should not result in
incongruence when compared with the purpose of the regulation.
Securities and Exchange Board of India V. Sri Kanaiyalal Baldevbhai
Patel 2017 (7) Supreme 425
Rule against redundancy – Legislature should be presumed to be
inserting every part of the statute for a purpose – True intention of
the legislature should be realized.
It is equally well settled that in interpreting a statute, effort should
be made to give effect to each and every word used by the Legislature.
The Courts should presume that the Legislature inserted every part of a
purpose and the legislative intention is that every part of the statute should
have effect. It must be kept in mind that whenever this Court is seized
with a matter which requires judicial mind to be applied for interpreting a
law, the effort must always be made to realize the true intention behind
the law. Securities and Exchange Board of India V. Sri Kanaiyalal
Baldevbhai Patel 2017 (7) Supreme 425
Taxing statute – Well settled that out of two possible interpretations
the one favourable to assessee should be adopted
The proposition which was laid down by this Court was that if two
reasonable constructions of taxing tatute
are possible, that construction which favours the assessee must be
adopted. The above proposition cannot be read to mean that
under two methods of valuation if the value which is favourable
to assessee should be adopted. Here in the present case,
the provisions of Section 7 are neither unambiguous
nor lead to two constructions. The construction of
Section 7 is clear as has already been elaborately
considered by this Court in the judgment of this
Court in Juggilal Kamlapat Bankers. Bimal Kishore Paliwal V.
Commissioner of Wealth Tax 2017 (7) Supreme 4767
Land Acquisition Act:
Ss. 4 & 23- Compensation claims- Circle rates provided for the
purpose of payment of stamp duty cannot be made the basis to
determine the actual price of the market value of the property- It may
vary considering the nature and situation of the land –Compensation
has to be determined on the basis of objective criteria
The circle rates for purpose of stamp duty could not have been made the
basis for determining the market value. Resultantly, court set aside the
judgment passed by the High Court. The appeal is allowed and the matters
are remitted to the High Court for deciding afresh. Union of India v.
Savitri Devi & Anr. 2017 (13) Scale 264
Sec. 23 – Compensation claim- Assessment of – Whether the High
Court erred in placing reliance on a subsequent acquisition and
adopting belting system- Held, Yes- This Court remits the matters to
the High Court for consideration afresh
It is not necessary to go into the various contentions except to note that, in
our view, the High Court has gone wrong in placing reliance on a
subsequent acquisition for which Section 4(1) Notification was issued on
17.11.2005 for Rajiv Gandhi Education City and fixing the land value for
the KMP Project by 2 introducing the method of an appropriate reduction.
Another error, in our opinion, is in adopting the belting system.
Being an acquisition for an Express Way passing through different parcel
of land, there is no need or justification for adopting the belting system.
Further, the High Court committed a mistake in introducing cuts. If the
land value is to be fixed for KMP Project acquisition, the relevant factors
which are to be noted are mainly the value that was prevalent in the
locality prior to 13.08.2004.
Court is informed that several documents are available for fixing the land
value. We are also of the view that the High Court should bear in mind,
while fixing the land value, that the road brings development and the
value of the land on either side of the Highway increases and the land
owners on either side of the land are also benefited by the construction of
a new road. However, the High Court has also to take into consideration
the reconstructions on use of the land to an extent of 200 feet on either
side of the road.
Court is also informed that certain matters pertaining to the very same
acquisition have already been remitted by this Court.
For all the above reasons, we set aside the impugned order and remit the
matters to the High Court for consideration afresh. Rajbir and Ors. V.
State of Haryana and Ors., 2017 (12) SCALE 344
Sec. 23 – Market value of acquired land – Comparable sale, the
features – Guidelines restated.
It is held that in comparable sale, the features are (1) it must be
within a reasonable time of the date of the notification (2) it should be a
bona fide transaction (3) it should be a sale of the land acquired or land
adjacent to the land acquired and (4) it should possess similar advantages.
These factors should be established by adducing material evidence by
examining the parties to the sale or persons having personal knowledge of
the sale transactions. The proof thereof focuses on the fact whether the
transactions relied on are genuine and bona fide transactions or not.
It is also held that the amount awarded by the Land Acquisition Collector
forms an offer and that it is for the landowners to adduce relevant and
material evidence to establish that the acquired lands are capable of
fetching higher market value and the amount offered by the Land
Acquisition Collector is inadequate and that he proceeded on wrong
principle.
This Court also examined the question as to how the Courts should judge
the potentiality of the acquired land and what are the relevant
consideration, which should be taken into consideration for deciding the
potentiality of the land.
It is held that potentiality means capacity or possibility for changing or
developing into state of actuality. The question as to whether the land has
a potential value or not is primarily one of fact depending upon its
condition, situation, user to which it is put or is reasonably capable of
being put and whether it has any proximity to residential, commercial or
industrial areas or institutions. The existing amenities such as water,
electricity, possibility of their further extension, whether near about town
is developing or has prospect of development need to be taken into
consideration. Bijender V. State of Haryana 2017 (8) Supreme 99
Sec. 25 – Just and fair compensation – Irrespective of claim made by
the land owner – There is no cap on the maximum rate of
compensation.
This Court in Ashok Kumar and Another vs. State of Haryana1 wherein it
is held that it is the duty of the Court to award just and fair compensation
taking into consideration true market value and other relevant factors,
irrespective of claim made by the land owner and there is no cap on the
maximum rate of compensation that can be awarded by the court and the
courts are not restricted to awarding only that amount that has been
claimed by the land owners/applicants in their application before it. The
relevant paras of this judgment is quoted as under:
6. Prior to amendment Act 68 of 1984, the amount of compensation that
could be awarded by the Court was limited to the amount claimed by the
applicant. Narendra V. State of Uttar Pradesh, 2017 (7) Supreme 45
Sec. 48 – Notification issued under Sec. 8 can be cancelled by another
notification – Provision of Sec. 21 of General Clauses Act, 1897
applies to exercise of power under Sec. 48 also.
When the State has exercised its power
under Section 48(1) by withdrawing from acquisition
there is nothing in the Land Acquisition Act, 1894
to indicate that such Notification cannot be amended
varied or rescinded by issuing a notification in like manner.
In the event, it is accepted that
after issuance of Notification under Section 48,
there is no power to amend, vary or rescind any such
Notifications, it may cause undue hardship. Take an
example of simple mistake whereby Notification under
Section 48 has been issued where acquisition has
been completed in all respects and acquired land had
already been utilized. We are thus of the opinion
that there may be several circumstances where
Notifications under Section 48 may be required to be
amended, modified or rescinded. As observed above, there is
nothing in the Act, which indicates that
after exercising power under Section 48, the State
Government exhaust its jurisdiction to vary, amend,
modify or rescind the notification. Thus, the
applicability of Section 21 of General Clauses Act
in exercise of power under Section 48 of Act 1894 by
a Notification cannot be denied. N.A.L. Layout Residents Association
V. Bangalore development Authority 2017 (6) Supreme 331
Limitation Act
Arts. 82 and 113—Suit for damages for death of a person—
Limitation—once a specific period of limitation is referable to any of
the entries in the Schedule, then residuary Article 113 cannot be
invoked
The learned counsel appearing for the respondents, once a specific
period of limitation is referable to any of the entries in the Schedule to the
Limitation Act, 1963, then the residuary Article 113 cannot be invoked. In
the instant case, for a suit for damages under the Fatal Accidents Act,
1855, Article 82 provides for a specific period of limitation, viz., two
years from the date of death of the person. Damini V. Managing
Director, Jokhpur Vidyut Vitran Nigam Ltd., 2017 ACJ 2865
Motor Vehicles Act:
Ss. 163 A & 166- Claim Proceedings u/s 163A of the Act- It is not open
for the insurer to raise any defence of negligence on the part of the
victim
It is clear that grant of compensation under Section 163-A of the Act on
the basis of the structured formula is in the nature of a final award and the
adjudication there under is required to be made without any requirement
of any proof of negligence of the driver/owner of the vehicle(s) involved
in the accident. This is made explicit by Section 163A(2). Though the
aforesaid section of the Act does not specifically exclude a possible
defence of the Insurer based on the negligence of the claimant as
contemplated by Section 140(4), to permit such defence to be introduced
by the Insurer and/or to understand the provisions of Section 163A of the
Act to be contemplating any such situation would go contrary to the very
legislative object behind introduction of Section 163A of the Act, namely,
final compensation within a limited time frame on the basis of the
structured formula to overcome situations where the claims of
compensation on the basis of fault liability was taking an unduly long
time. In fact, to understand Section 163A of the Act to permit the Insurer
to raise the defence of negligence would be to bring a proceeding under
Section 163A of the Act at par with the proceeding under Section 166 of
the Act which would not only be self-contradictory but also defeat the
very legislative intention.
For the aforesaid reasons, Court answer the question arising by holding
that in a proceeding under Section 163A of the Act it is not open for the
Insurer to raise any defence of negligence on the part of the victim.
United India Insurance Co. Ltd. V. Sunil Kumar & Anr. 2017 (13)
SCALE 652
Sec. 166 – Determination of compensation – Multiplier – The table of
multipliers as prepared in Sarla Verma should be applied
In this context, we may also refer to Sundeep Kumar Bafna v. State of
Maharashtra and another (2014) 16 SCC 623 which correctly lays down
the principle that discipline demanded by a precedent or the
disqualification or diminution of a decision on the application of the per
incuriam rule is of great importance, since without it, certainty of law,
consistency of rulings and comity of courts would become a costly
casualty. A decision or judgment can also be per incuriam if it is not
possible to reconcile its ratio with that of a previously pronounced
judgment of a co - equal or larger Bench of same strength. There can be
no scintilla of doubt that an earlier decision of co-equal Bench binds the
Bench of same strength.
As far as the multiplier is concerned, the claims tribunal and the Courts
shall be guided by Step 2 that finds place in paragraph 19 of Sarla Verma
read with paragraph 42 of the said judgment. For the sake of
completeness, paragraph 42 is extracted below : -
―42. We therefore hold that the multiplier to be used should be as
mentioned in Column (4) of the table above (prepared by applying
Susamma Thomas, Trilok Chandra and Charlie ), which starts with an
operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25
years), reduced by one unit for every five years, that is M -17 for 26 to 30
years, M - 16 for 31 to 35 years, M - 15 for 36 to 40 years, M - 14 for 41
to 45 years, and M - 13 for 46 to 50 years, then reduced by two units for
every five years, that is, M -11 for 51 to 55 years, M - 9 for 56 to 60 years,
M -7 for 61 to 65 years and M-5 for 66 to 70 years.
At this stage, we must immediately say that insofar as the aforesaid
multiplicand/multiplier is concerned, it has to be accepted on the basis of
income established by the legal representatives of the deceased. Future
prospects are to be added to the sum on the percentage basis and
―income‖ means actual income less than the tax paid. The multiplier has
already been fixed in Sarla Verma which has been approved in Reshma
Kumari with which we concur. National Insurance Copany Limited V.
Pranay Sethi 2017(8) Supreme 107
Sec. 168(1)—Just compensation—Claim before Tribunal was
confined to Rs. 3,00,000 but the amount which is legitimately due to
injured as just compensation on account of disability suffered should
be paid to him. Apex Court is empowered to award compensation in
excess of the amount claimed in exercise of its power under Article
142 of the Constitution of India
The counsel for the appellant submitted that though the appellant had
suffered 60 per cent disability resulting into loss of right hand, no amount
towards loss of future prospects has been awarded by the courts below.
The learned counsel for the appellant is right in his submission. Once
Court finds that there was a permanent disability to the extent of 60 per
cent and there is loss of right hand of the appellant, it is definitely going to
affect the future prospects of the appellant.
Court is of the opinion that the ends of justice would be subserved by
giving a consolidated sum of Rs. 1,50,000 towards loss of future
prospects. Court is conscious of the fact that the appellant in his petition
before the Tribunal has claimed only an amount of Rs. 3,00,000.
However, in a case like this where the compensation is to be given to the
appellant for suffering the accident due to the fault of the driver of the
truck and which has resulted in permanent disability to the extent of 60
percent, Court is of the opinion that whatever amount that is legitimately
due to the appellant in law should be paid to him and this court can
exercise such power by granting more amount than what he claimed once
that amount is found to be due and legitimately payable to the appellant
under Article 142 of the Constitution. Ankush V. Hanmanta, 2017 ACJ
2878
Quantum—Interest—Allowed at the rate of 8 per cent per annum
from the date of filing complaint till payment
In the instant case, the appellant has given cogent reasons for the
delay of 8 days in informing the respondent about the incident. The
Investigator had verified the theft to the genuine and the payment of Rs.
7,85,000 towards the claim was approved by the Corporate Claims
Manager, which, in our opinion, is just and proper. The National
Commission, therefore, was not justified in rejecting the claim of the
appellant without considering the explanation for the delay. Court is also
of the view that the claimant is entitled for a sum of Rs. 50,000 towards
compensation.
Hence, the appeal is allowed and the orders of the National
Commission, State Commission and the District Forum are set aside and
the claim petition filed by the appellant is allowed. The respondent Nos. 1
and 2 are directed to pay a sum of Rs. 8,35,000 to the appellant with
interest at the rate of 8 per cent per annum from the date of filing of the
claim petition till the date of payment. The payment, as above, shall be
made within a period of 8 weeks from today. Om Prakash V. Reliance
General Insurance Co. Ltd., 2017 ACJ 2747
Quantum—Fatal accident—Principles of assessment—Personal and
living expenses—Deduction for—Guidance provided in Sarla Verma,
2009 ACJ 1298 (SC) and Reshma Kumari, 2013 ACJ 1253 (SC),
upheld
The conclusions that have been summed up in Reshma Kumari are
as follows:-
―(40)(i) In the applications for compensation made under Section
166 of the 1988 Act in death cases where the age of the deceased is 15
years and above, the Claims Tribunals shall select the multiplier as
indicated in Column (4) of the Table prepared in Sarla Verma read with
para 42 of that judgment.
(ii) In cases where the age of the deceased is up to 15 years,
irrespective of Section 166 or Section 163-A under which the claim for
compensation has been made, multiplier of 15 and the assessment as
indicated in the Second Schedule subject to correction as pointed out in
Column (6) of the Table in Sarla Verma should be followed.
(iii) As a result of the above, while considering the claim applications
made under Section 166 in death cases where the age of the deceased is
above 15 years, there is no necessity for the Claims Tribunals to seek
guidance or for placing reliance on the Second Schedule in the 1988 Act.
(iv) The Claims Tribunals shall follow the steps and guidelines stated in
para 19 of Sarla Verma for determination of compensation in cases of
death.
(v) While making addition to income for future prospects, the
Tribunals shall follow para 24 of the judgment in Sarla Verma.
(vi) Insofar as deduction for personal and living expenses is concerned,
it is directed that the Tribunals shall ordinarily follow the standards
prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma 34
subject to the observations made by us in para 41 above.‖
On a perusal of the analysis made in Sarla Verma which has been reconsidered
in Reshma Kumari, Court think it appropriate to state that as far as the guidance
provided for appropriate deduction for personal and living expenses is
concerned, the tribunals and courts should be guided by conclusion 43.6 of
Reshma Kumari. Court concur with the same as Court has no hesitation in
approving the method provided therein. National Insurance Co. Ltd. V.
Pranay Sethi, 2017 ACJ 2700 : 2017 (13) SCALE 12
Quantum—Fatal accident—Principles of assessment—Multiplier—
Choice of—Age of the deceased should be the basis for applying the
multiplier—Multiplier as fixed in Sarla Verma, 2009 ACJ 1298 (SC)
and approved in Reshma Kumari, 2013 ACJ 1253 (SC), concurred
In Reshma Kumari, the aforesaid has been approved by stating, thus:-
―(34)…..It is high time that Court move to a standard method of selection
of multiplier, income for future prospects and deduction for personal and
living expenses. The courts in some of the overseas jurisdictions have
made this advance. It is for these reasons, Court think Court must approve
the Table in Sarla Verma for the selection of multiplier in claim
applications made under Section 166 in the cases of death. Court does
accordingly. If for the selection of multiplier, Column (4) of the Table in
Sarla Verma is followed, there is no likelihood of the claimants who have
chosen to apply under Section 166 being awarded lesser amount on proof
of negligence on the part of the driver of the motor vehicle than those who
prefer to apply under Section 163-A. As regards the cases where the age
of the victim happens to be up to 15 years, Court is of the considered
opinion that in such cases irrespective of Section 163-A or Section 166
under which the claim for compensation has been made, multiplier of 15
and the assessment as indicated in the Second Schedule subject to
correction as pointed out in Column (6) of the Table in Sarla Verma
should be followed. This is to ensure that the claimants in such cases are
not awarded lesser amount when the application is made under Section
166 of the 1988 Act. In all other cases of death where the application has
been made under Section 166, the multiplier as indicated in Column (4) of
the Table in Sarla Verma should be followed.‖
At this stage, Court must immediately say that insofar as the aforesaid
multiplicand/multiplier is concerned, it has to be accepted on the basis of
income established by the legal representatives of the deceased. Future
prospects are to be 36 added to the sum on the percentage basis and
―income‖ means actual income less than the tax paid. The multiplier has
already been fixed in Sarla Verma which has been approved in Reshma
Kumari with which Court concurs. National Insurance Co. Ltd. V.
Pranay Sethi, 2017 ACJ 2700 : 2017 (13) SCALE 12
Quantum—Fatal accident—Principles of assessment—Consortium—
Loss of—For bringing consistency a sum of Rs. 40,000 has been fixed
for loss of consortium enhanceable at the rate of 10 per cent in every 3
years.
It seems to us that reasonable figures on conventional heads, namely, loss
of estate, loss of consortium and funeral expenses should be Rs. 15,000/-,
Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the
said heads is an acceptable principle. But the revisit should not be fact-
centric or quantum-centric. Court think that it would be condign that the
amount that Court has quantified should be enhanced on percentage basis
in every three years and the enhancement should be at the rate of 10% in a
span of three years. National Insurance Co. Ltd. V. Pranay Sethi, 2017
ACJ 2700 : 2017 (13) SCALE 12
Quantum—Fatal Accident—Principles of assessment—Income—
Determination of—Whether established/actual income means income
minus tax component—Held: yes.
While determining the income, an addition of 50% of actual salary to the
income of the deceased towards future prospects, where the deceased had
a permanent job and was below the age of 40 years, should be made. The
addition should be 30%, if the age of the deceased was 48 between 40 to
50 years. In case the deceased was between the age of 50 to 60 years, the
addition should be 15%. Actual salary should be read as actual salary less
tax. National Insurance Co. Ltd. V. Pranay Sethi, 2017 ACJ 2700
Negotiable Instruments Act:
Sec. 138 – Procedure – Simpler procedure for disposal of cases u/s 138
as laid down – Restated
This Court in Indian Bank Association and Ors. versus Union of
India and Ors.20 approved the directions of the Bombay High Court,
Calcutta High Court and Delhi High Court in KSL and Industries Ltd. v.
Mannalal Khandelwal21, Indo International Ltd. versus State of
Maharashtra22, Harishchandra Biyani versus Stock Holding Corporation
of India Ltd.23, Magma Leasing Ltd. versus State of W.B.24 and Rajesh
Agarwal versus State25 laying down simpler procedure for disposal of
cases under Section 138 of the Act. This Court directed as follows:
"23. Many of the directions given by the various High Courts, in our view,
are worthy of emulation by the criminal courts all over the country dealing
with cases under Section 138 of the Negotiable Instruments Act, for which
the following directions are being given:
23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the
day when the complaint under Section 138 of the Act is presented, shall
scrutinize the complaint and, if the complaint is accompanied by the
affidavit, and the affidavit and the documents, if any, are found to be in
order, take cognizance and direct issuance of summons.
23.2. The MM/JM should adopt a pragmatic and realistic approach while
issuing summons. Summons must be properly addressed and sent by post
as well as by e-mail address got from the complainant. The court, in
appropriate cases, may take the assistance of the police or the nearby court
to serve notice on the accused. For notice of appearance, a short date be
fixed. If the summons is received back unserved, immediate follow-up
action be taken.
23.3. The court may indicate in the summons that if the accused makes an
application for compounding of offences at the first hearing of the case
and, if such an application is made, the court may pass appropriate orders
at the earliest.
23.4. The court should direct the accused, when he appears to furnish a
bail bond, to ensure his appearance during trial and ask him to take notice
under Section 251 Cr.P.C. to enable him to enter his plea of defence and
fix the case for defence evidence, unless an application is made by the
accused under Section 145(2) for recalling a witness for cross-
examination.
23.5. The court concerned must ensure that examination-in-chief, cross-
examination and re-examination of the complainant must be conducted
within three months of assigning the case. The court has option of
accepting affidavits of the witnesses instead of examining them in the
court. The witnesses to the complaint and the accused must be available
for cross-examination as and when there is direction to this effect by the
court.
24. We, therefore, direct all the criminal courts in the country dealing with
Section 138 cases to follow the abovementioned procedures for speedy
and expeditious disposal of cases falling under Section 138 of the
Negotiable Instruments Act. The writ petition is, accordingly, disposed of,
as above."
14. We may, however, note that this Court held that general directions
ought not to be issued which may deprive the Magistrate 13 to exercise
power under Section 205 Cr.P.C. M/s. Meters and Instruments Pvt.
Ltd. V. Kanchan Mehta 2017 (7) Supreme 558
Sec. 138 and Sec. 205, Code of Criminal Procedure, 1973 - Dispensing
with personal appearance of accused – Discretion of appearance of
accused – Discretion of Magistrate without causing prejudice to
prosecution proceedings.
This Court held that even in absence of accused, evidence can be recorded
in presence of counsel under Section 273 Cr.P.C. and Section 317 Cr.P.C.
permitted trial to be held in absence of accused. Section 205 Cr.P.C.
specifically enabled the Magistrate to dispense with the personal
appearance. Having regard to the nature of offence under Section 138, this
Court held that the Magistrates ought to consider exercise of the
jurisdiction under Section 205 Cr.P.C. to relieve accused of the hardship
without prejudice to the prosecution proceedings. It was observed:
―15. These are days when prosecutions for the offence under Section 138
are galloping up in criminal courts. Due to the increase of inter-State
transactions through the facilities of the banks it is not uncommon that
when prosecutions are instituted in one State the accused might belong to
a different State, sometimes a far distant State. Not very rarely such
accused would be ladies also. For prosecution under Section 138 of the NI
Act the trial should be that of summons case. When a magistrate feels that
insistence of personal attendance of the accused in a summons case, in a
particular situation, would inflict enormous hardship and cost to a
particular accused, it is open to the magistrate to consider how he can
relieve such an accused of the great hardships, without causing prejudice
to the prosecution proceedings.‖ M/s. Meters and Instruments Pvt. Ltd.
V. Kanchan Mehta 2017 (7) Supreme 558
Ss. 138 and 143 – Cheque amount with interest and cost as assessed
by the Court, if paid by a specified date – Court could claose the
proceedings – However, if trial is to proceed, Court may explore
possibility of settlement – It may also consider provisions of plea
bargaining – Subject to this, the trial can be on day to day basis so as
to conclude it within six months.
We hold that where the cheque amount with interest and cost as assessed
by the Court is paid by a specified date, the Court is entitled to close the
proceedings in exercise of its powers under Section 143 of the Act read
with Section 258 Cr.P.C. As already observed, normal rule for trial of
cases under Chapter XVII of the Act is to follow the summary procedure
and summons trial procedure can be followed where sentence exceeding
one year may be necessary taking into account the fact that compensation
under Section 357(3) Cr.P.C. with sentence of less than one year will not
be adequate, having regard to the amount of cheque, conduct of the
accused and other circumstances.
In every complaint under Section 138 of the Act, it may be desirable that
the complainant gives his bank account number and if possible e-mail ID
of the accused. If e-mail ID is available with the Bank where the accused
has an account, such Bank, on being required, should furnish such e-mail
ID to the payee of the cheque. In every summons, issued to the accused, it
may be indicated that if the accused deposits the specified amount, which
should be assessed by the Court having regard to the cheque amount and
interest/cost, by a specified date, the accused need not appear unless
required and proceedings may be closed subject to any valid objection of
the complainant. If the accused complies with such summons and informs
the Court and the complainant by e-mail, the Court can ascertain the
objection, if any, of the complainant and close the proceedings unless it
becomes necessary to proceed with the case. In such a situation, the
accused's presence can be required, unless the presence is otherwise
exempted subject to such conditions as may be considered appropriate.
The accused, who wants to contest the case, must be required to disclose
specific defence for such contest. It is open to the Court to ask specific
questions to the accused at that stage. In case the trial is to proceed, it will
be open to the Court to explore the possibility of settlement. It will also be
open to the Court to consider the provisions of plea bargaining. Subject to
this, the trial can be on day to day basis and endeavour must be to
conclude it within six months. The guilty must be punished at the earliest
as per law and the one who obeys the law need not be held up in
proceedings for long unnecessarily.
It will be open to the High Courts to consider and lay down category of
cases where proceedings or part thereof can be conducted online by
designated courts or otherwise. The High Courts may also consider
issuing any further updated directions for dealing with Section 138 cases
in the light of judgments of this Court. M/s. Meters and Instruments
Pvt. Ltd. V. Kanchan Mehta 2017 (7) Supreme 558
Practice and Procedure:
Name of party in cause title – Need to protect identity – Directed to be
substituted with Ms. Z in all records including official website and all
other search engines.
An interlocutory application being I.A. No. 64980 of 2017 has been filed
seeking certain directions. Having heard learned counsel for the parties, it
is directed that name of the appellant in the cause title be substituted with
Ms. Z so that her identity is not revealed; the Registry of the Court shall
substitute the name of the appellant with Ms. Z in all records, including on
the official website of this Court, and the Registry of the High Court of
Patna shall substitute the name of the appellant with Ms. Z in all records,
including the official website of the High Court. Leave is granted to the
appellant to seek substitution of her name with Ms. Z on all search
engines such as google.com, legal websites such as indiakanoon.org as
well as legal journals. Interlocutory application is accordingly allowed.
Ms. Z V. The State of Bihar 2017 (6) Supreme 417
Supreme Court Rules, 2013- Order VI Rule 2 –Constitution –Article
145 –Ambit and scope- Power of Chief Justice of India to constitute
Benches of the Court and allocate cases to the Benches so constituted-
Neither a two- Judge Bench nor a three-Judges Bench can allocate the
matter to themselves or direct the composition for constitution of a
Bench
There can be no doubt that the Chief Justice of India is the first amongst
the equals, but definitely, he exercises certain administrative powers and
that is why in Prakash Chand (supra), it has been clearly stated that the
administrative control of the High Court vests in the Chief Justice alone.
The same principle must apply proprio vigore as regards the power of the
Chief Justice of India. On the judicial side, he is only the first amongst the
equals. But, as far as the roster is concerned, as has been stated by the
three-Judge Bench in Prakash Chand (supra), the Chief Justice is the
master of the roster and he alone has the prerogative to constitute the
Benches of the Court and allocate cases to the Benches so constituted.
The aforesaid position though stated as regards the High Court, we are
absolutely certain that the said principle is applicable to the Supreme
Court. We are disposed to think so. Unless such a position is clearly
stated, there will be utter confusion. Be it noted, this has been also the
convention of this Court, and the convention has been so because of the
law. We have to make it clear without any kind of hesitation that the
convention is followed because of the principles of law and because of
judicial discipline and decorum. Once the Chief Justice is stated to be the
master of the roster, he alone has the prerogative to constitute Benches.
Needless to say, neither a two-Judge Bench nor a three-Judge Bench can
allocate the matter to themselves or direct the composition for constitution
of a Bench. To elaborate, there cannot be any direction to the Chief Justice
of India as to who shall be sitting on the Bench or who shall take up the
matter as that touches the composition of the Bench. We reiterate such an
order cannot be passed. It is not countenanced in law and not permissible.
In view of the aforesaid, any order passed which is contrary to this order
be treated as ineffective in law and not binding on the Chief Justice of
India. Campaign for Judicial Accountability and Reforms v. Union of
India and another, 2017 (13) Scale 381
Prevention of Corruption Act:
Ss. 7, 13 and 20 – Proof of demand of bribe is indispensable
essentiality of Ss. 7, 13 and 20
Mere possession and recovery of currency notes from an accused
without proof of demand would not establish an offence under Section 7
as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well
that in the absence of any proof of demand for illegal gratification, the use
of corrupt or illegal means or abuse of position as a public servant to
obtain any valuable thing or pecuniary advantage cannot be held to be
proved. Not only the proof of demand thus was held to be an
indispensable essentiality and an inflexible statutory mandate for an
offence under Sections 7 and 13 of the Act, it was held as well qua
Section 20 of the Act, that any presumption thereunder would arise only
on such proof of demand. This Court thus in P. Satyanarayana Murthy
(supra) on a survey of its earlier decisions on the pre-requisites of Sections
7 and 13 and the proof thereof summed up its conclusions as hereunder:
"23. The proof of demand of illegal gratification, thus, is the gravamen of
the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in
absence thereof, unmistakably the charge therefor, would fail. Mere
acceptance of any amount allegedly by way of illegal gratification or
recovery thereof, dehors the proof of demand, ipso facto, would thus not
be sufficient to bring home the charge under these 6 (2014) 13 SCC 55 11
two sections of the Act. As a corollary, failure of the prosecution to prove
the demand for illegal gratification would be fatal and mere recovery of
the amount from the person accused of the offence under Sections 7 and
13 of the Act would not entail his conviction thereunder." Mukhtiar
Singh (Since Deceased ) through his L.R. V. State of Punjab 2017 (7)
Supreme 405
Prevention of Money Laundering Act
Sec. 45- Constitution –Arts. 14 & 21- Constitutional validity of
Section 45 of the Act- Section 45 (1) of the Act, insofar as it imposes
two further conditions to release of bail, held to be unconstitutional as
it violates Article 14 and 21 of the Constitution
Article 21 is the Ark of the Covenant so far as the Fundamental Rights
chapter of the Constitution is concerned. It deals with nothing less
sacrosanct than the rights of life and personal liberty of the citizens of
India and other persons. It is the only article in the Fundamental Rights
chapter (along with Article 20) that cannot be suspended even in an
emergency (See Article 359(1) of the Constitution). At present, Article 21
is the repository of a vast number of substantive and procedural rights post
Maneka Gandhi v. Union of India (1978) 1 SCC 248
When the Prevention of Money Laundering Bill, 1999 was tabled before
Parliament, Section 44, which corresponds to Section 45 of the present
Act, provided that several offences punishable under ―this Act‖ are to be
cognizable, and the twin conditions for release on bail would apply only
insofar as the offences under the Act itself are concerned. When the Act
was finally enacted in 2002 and notified in 2005, this scheme changed
radically. Now, both the offence of money laundering and the predicate
offence were to be tried by the Special Court, and bail is granted only if
the twin conditions under Section 45(1) are met, where the term of
imprisonment is more than three years for the predicate offence. It is
important to note that Clause 44 of the Bill referred only to offences under
Sections 3 and 4 of the Bill, whereas Section 45 of the Act does not refer
to offences under Sections 3 and 4 of the Act at all. Reference is made
only to offences under Part A of the Schedule, which are offences outside
the 2002 Act. This fundamental difference between the Bill and the Act
has a great bearing on the constitutional validity of Section 45(1) with
which court are directly and immediately concerned.
The change made by Section 45 is that, for the purpose of grant of bail,
what was now to be looked at was offences that were punishable for a
term of imprisonment of three years or more under Part A of the Schedule,
and not offences under the 2002 Act itself.
Court must not forget that Section 45 is a drastic provision which turns on
its head the presumption of innocence which is fundamental to a person
accused of any offence. Before application of a section which makes
drastic inroads into the fundamental right of personal liberty guaranteed
by Article 21 of the Constitution of India, Court must be doubly sure that
such provision furthers a compelling State interest for tackling serious
crime. Absent any such compelling State interest, the indiscriminate
application of the provisions of Section 45 will certainly violate Article 21
of the Constitution. Provisions akin to Section 45 have only been upheld
on the ground that there is a compelling State interest in tackling crimes of
an extremely heinous nature.
Regard being had to the above, Court declare Section 45(1) of the
Prevention of Money Laundering Act, 2002, insofar as it imposes two
further conditions for release on bail, to be unconstitutional as it violates
Articles 14 and 21 of the Constitution of India. All the matters before us
in which bail has been denied, because of the presence of the twin
conditions contained in Section 45, will now go back to the respective
Courts which denied bail. All such orders are set aside, and the cases
remanded to the respective Courts to be heard on merits, without
application of the twin conditions contained in Section 45 of the 2002 Act.
Considering that persons are languishing in jail and that personal liberty is
involved, all these matters are to be taken up at the earliest by the
respective Courts for fresh decision. Nikesh Tarachand Shah v. Union
of India & Anr. 2017 (13) Scale 609
Prison Laws:
Unnatural custodial deaths – Violation of Art. 21, Constitution of
India – Directions given
Unnatural custodial deaths are violation of Art. 21. These deaths
call for accountability of officials and compensation to the victims. There
is urgent need for prison reforms and it may require performance audit by
CAG. Re- Inhuman Conditions In 1382 Prisons. 2017 (7) Supreme 194
Property Law:
Document creating interest in undivided property for
consideration of Rs. 2000 – Document neither witnessed by anybody
nor registered – A document creating interest of more than Rs. 100
has to be registered.
When we carefully peruse the original document, we notice that by this
document [Annexure P-2] Phoolchand states that he has received
Rs.2000/- from Yashchandra and that he has permitted Yashchandra to
enclose and cultivate 1/3rd of his land measuring 24 acres and cultivate
the same and only Rs. 500/- would be deducted. Even after payment of the
full amount of Rs. 2000/-, Yashchandra would be entitled to cultivate the
land for a period of 10 years. This document is signed only by Phoolchand
and it is neither witnessed by anybody nor registered. This document
transfers an interest in immovable property of more than rupees hundred.
It may be true that under the provisions of the Code oral leases of
agricultural holdings are permissible, but once the lease is created by a
document then the same has to be registered under the Registration Act.
This document is an unregistered document. The courts below have come
to the conclusion that this document is an ante-dated document. Therefore,
this document cannot be looked into for deciding whether this document
creates any right, title or interest in the appellants. In our view, in the
absence of any registration or any attesting witness, the document could
have easily been manipulated by Phoolchand and the plaintiff by ante-
dating it. Yashchandra (D) by LRs. V. The State of Madhya Pradesh
2017 (7) Supreme 421
Protection of Women from Domestic Violence Act
Sec. 12 – Amount of interim maintenance – Consideration for
granting
Amount of interim maintenance depends upon income of husband.
Final view thereabout can be taken only after evidence is led by both the
parties and the veracity of their respective stands is tested with their cross
– examination in the light of material which both the parties want to
produce.
We, therefore, dispose of this petition with the following
directions:
(a) Insofar as domestic violence proceedings before the Family Court
are concerned, necessary documents shall be filed by both the
parties within four weeks from today and evidence led pursuant
thereto. The trial court shall endeavour to decide the case finally,
within a period of eight months from today, on the basis of
evidence and fix the rate of maintenance finally; and
(b) Crl. MC. No. 850 of 2015, pending before the High Court, shall be
taken up for hearing immediately and the High Court shall
endeavour to dispose of the same as expeditiously as possible and
determine at what rate interim maintenance is to be given, i.e.
whether order dated February 13, 2015 passed by the learned ASJ
need any modification or not. Shalu Ojha V. Prashant Ojha 2017
(6) Supreme 673
Recovery of Debts due to Bank and Financial Institution Act
S. 2 (b), 19 (22) 20, 24 & 30- Limitation Act – Section 5 –Delay in
filing appeal before the Tribunal, Against an order of the RDB Act,
for filing an appeal against the order of the Recovery Officer –
Condonation of- Prescribed period of 30 days u/s 30 (1) of the RDB
Act, for filing an appeal against the order of the Recovery Officer
cannot be condoned by application of Section 5 of the Limitation Act.
The RDB Act was enacted to facilitate and expedite recovery of debts due
to banks and financial institutions by summary proceedings before a
statutory Tribunal. Section 18 bars the jurisdiction of any court or other
authority in such matters (except the Supreme Court/High Court under
Articles 226 and 227 of the Constitution). Section 31 provides for transfer
of pending cases from a Court to the Tribunal.The Act provides a
complete procedure for institution of recovery proceedings, the method of
its enforcement including the right to appeal. The RDB Act is
undoubtedly a special law and a complete code by itself with regard to
expeditious recovery of dues to banks and financial institutions.
Section 5 of the Limitation Act provides that the appeal or application,
with the exception of Order XXI, CPC may be admitted after the
prescribed period, if the applicant satisfies the court that he has sufficient
cause for not preferring the application within time. The pre-requisite,
therefore, is the pendency of a proceeding before a court. The proceedings
under the Act being before a statutory Tribunal, it cannot be placed at par
with proceedings before a court. The Tribunal shall therefore have no
powers to condone delay, unless expressly conferred by the Statute
creating it.
The scheme of the Act manifestly provides that the Legislature has
provided for application of the Limitation Act to original proceedings
before the Tribunal under Section 19 only. The appellate Tribunal has
been conferred the power to condone delay beyond 45 days under
Section of the Act. The proceedings before the Recovery officer are not
before a Tribunal. Section 24 is limited in its application to proceedings
before the Tribunal originating under Section 19 only. The exclusion of
any provision for extension of time by the Tribunal in preferring an appeal
under Section 30 of the Act makes it manifest that the legislative intent for
exclusion was express. The application of Section 5 of the Limitation Act
by resort to Section 29(2) of the Limitation Act, 1963 therefore does not
arise. The prescribed period of 30 days under Section 30(1) of the RDB
Act for preferring an appeal against the order of the Recovery officer
therefore cannot be condoned by application of Section 5 of the Limitation
Act. International Asset Reconstruction Company of India Ltd. v. The
Official Liquidator of Aldrich Pharmaceuticals Ltd. 2017 (12) Scale
748
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act:
Liberal policy for grant of loans – Has necessarily to be coupled with
quick and efficacious recovery process.
It need be emphasized that any impetus to the industrial
development of the country by encouraging banks and other financial
institutions to formulate a liberal policy for grant of loans had to be
necessarily coupled with a quick and efficacious recovery process. M.D.
Frozen Foods Exports Pvt. Ltd. V. Hero Fincorp Ltd.2017 (7)
Supreme 322
Sentencing:
Determination for
It is evident that the deceased and witnesses PW2, PW3 and PW4
while passing in front of the house of the accused, initiated pelting of
stones due to which one of the appellants, Bhagwati Devi, suffered
injuries on the leg which resulted into fracture of Fibula. Injuries were
first caused by the complainant party by pelting stones. Rampratap, being
young member of the family, in consequence of injuries caused to his
mother, caused lathi blow to the deceased Richhpal. It is evident that
Rampratap exceeded the right of self defence. As stated above, after
mutual pelting of stones that took place between the parties, Rampratap
caused two injuries in quick succession on the head of deceased Richhpal.
The other accused persons have also suffered simple injuries due to stone
pelting. Keeping this in view, the High Court converted the conviction of
the appellant, Rampratap from Section 302 IPC to Section 304 Part I of
IPC and sentenced him to ten years of imprisonment. Having regard to the
facts and circumstances of the case, we are of the view that ten years of
imprisonment would appear to be too harsh. Rampratap V. State of
Rajasthan 2017 (7) Supreme 376
Service Law:
Appointment subject to final outcome of writ petition – Writ petition
finally dismissed – Appointees continuing for 10 years – Such
appointments cannot be saved.
we may note that the learned Solicitor General had informed us that
fresh regular recruitment for Group-D posts and other posts in Bikaner
Division of the Railways is under process. On 24th August, 2017, 14
original applicants were granted age relaxation for a period of 13 years
and they were permitted to appear in the selection process wherein their
cases would be considered on merit. Mr. R. Venkatramni, learned senior
counsel had sought time to take instructions from his clients in this regard.
He now submits that his clients, having served for more than 10 years, are
not in a position to appear in the test. We are concerned with a large
number of appellants and in case the process for selection is still on, we
direct the Railways to give relaxation of age to the appellants by
deducting the period of service for which they have worked and they may
also be considered at par with the original applicants by allowing them to
take part in the selection process. In case the appellants or any of them do
not take part in the selection process, they will not be given relaxation of
age in any further selection process. Abudl Hamid V. Union of India
2017 (7) Supreme 417
Departmental proceedings – Principle of natural justice fully
observed in the proceedings – Dismissal not unjustified.
Firstly, the charges can be held proved by mere reading of the appellant's
reply (Annexure-B) wherein he, in no uncertain terms, admitted that he
had issued the disputed premium/special premium receipts to the
concerned policyholders and did not receive the amount from any of them.
Secondly, all he had said was that such mistake occurred on his part due
to heavy pressure of workload on him and some family
circumstances/worries that were troubling him during those days which, in
our opinion, was hardly any defense to the charges; and thirdly, he himself
requested for taking action against him with leniency.
We find that the principle of natural justice was fully observed in
departmental proceedings wherein the appellant throughout participated.
We have not been able to notice any kind of prejudice having been caused
to the appellant while participating in the Enquiry proceedings. That apart,
despite the appellant virtually admitting the charges, the respondent had
also adduced the evidence before the Enquiry officer and then before the
Tribunal to prove the charges independently, which found acceptance to
the Division Bench and, in our opinion, rightly.
In our opinion, having regard to the seriousness of the charges coupled
with virtually no defense taken by the appellant in answer to the charges
and lastly, the findings of the Enquiry Officer, the punishment of
dismissal was appropriate as provided in the service regulations and hence
does not call for any leniency in awarding such punishment. Mihir
Kumar Hazara Chaudhury V. Life Insurance Corpn. 2017 (7)
Supreme 40
Disciplinary Proceedings- Disciplinary proceedings initiated by
appellant against party respondents- During pendency of
proceedings, parties have entered into a proper settlement and the
terms of settlement have been filed along with the application- This
court disposes of the appeal in terms of the settlement
The appellant is before this Court aggrieved by the judgment dated
29.04.2015 in Civil Writ Petition No.24302 of 2015. The issue pertains to
the disciplinary proceedings initiated by the appellant against the party
respondent(s).
During the pendency of the proceedings, court find that the parties have
entered into a proper settlement dated 12.10.2017 and the terms of
settlement have been filed along with I.A. No.105769 of 2017.
Therefore, I.A. No.105769 of 2017 is allowed and the appeal is disposed
of in terms of the Settlement Signature Not Verified Digitally signed by
NARENDRA PRASAD Date: 2017.11.02 dated 12.10.2017, which shall
form part of this judgment.
Pending applications, if any, shall stand disposed of. M/s Bhushan Steel
Strips Ltd. (Now Known as Bhushan Steel Ltd.) v. State of U.P. &
Anr., 2017 (13) SCALE 525
Promotion – No person can be promoted with retrospective effect
from a date prior to his joining the service.
The normal rule is that a person is entitled to seniority only from the date
when the said person actually joins the post. True it is that there are
exceptions and sometimes ―in service‖ candidates can be granted
promotion from a date anterior to their being regularly
promoted/appointed. However, this can be done only if the rules enable
retrospective appointment and on fulfilling the other requirement of the
rules.
As far as the present case is concerned, Rule 23 of the Civil Services
Rules has been extracted hereinabove. It, no doubt, postulates the
appointment of a probationer to the service on a date anterior to his
regular appointment. However, this is subject to two conditions. The first,
is that the vacancy in his category should have existed and no appointment
can be made from a date prior to the date of existence of vacancy. The
second condition is that the person must have been continuously on duty
as member of service from the said date. As far as the first condition is
concerned there is no doubt that the promotees have been appointed from
the date when the vacancies existed in their promotional quota. It is the
second aspect of the matter which needs to be analysed in detail.
Therefore, on a combined reading of Rule 9 of the Excise Rules and Rule
23 and 24 of the Civil Services Rules, we are clearly of the view that
promotion can be granted on retrospective basis to promotee officers from
a date on which the clear-cut vacancy in the promotional cadre has
occurred subject however to the conditions that the promotee should have
worked against that post prior to his regular appointment. Sumaina
Sharma V. State of Jammu and Kashmir 2017 (7) Supreme 611
Termination –Reinstatement- Claim of entire salary for the period
from the date of termination to the date of reinstatement-
Maintainability
Having regard to the background of the allegations pursuant to which the
termination was effected, we are of the view that the State, having
resolved to take back all employees into service without further inquiry,
has itself shown sufficient grace to the appellants. The respondents,
having acted within three months from the final order passed by the
Division Bench of the High Court, we find that the tentative view taken by
this Court in the order dated 17.08.2017 needs to be revisited.
Having regard to the entire facts and circumstances of the case, we are of
the view that the interest of justice would be met in case the appellants
before this Court are granted litigation expenses, which would be in full
and final settlement of all their claims, which they have been pursuing
before the High Court. This benefit will be available only to those
Constables who have chosen to pursue their grievance before this Court
upto 17.08.2017, when this Court passed the order referred to in
Paragraph 4 above. The litigation expenses are quantified to Rs. 35,000/-
(Rupees Thirty Five Thousand). This amount shall be paid to each of
those Constables covered by this order on or before 20.12.2017. It is made
clear that in case the appellants are not paid the above amount within the
stipulated time, they shall be entitled to interest at the rate of 18% from
the date of termination.
Since the entire litigation has been given a quietus, we make it clear that
for all other purposes, the Constables concerned who had been terminated
in 2006-2007, will be treated to be ‗in continuous service‘ except for the
Assured Career Progression (ACP), for which the actual service, when
they discharged the duties, will be counted. Deepak Kumar & Ors. V.
Principal Secretary Home, Govt. of U.P. Lucknow (U.P.) & Ors, 2017
(13) Scale 231
Special Marriage Act:
Sec. 27, r/w Article 142, Constitution of India – Wife refusing to
participate in proceeding for divorce – Forcing the husband to stay in
a dead marriage – Itself constitutes mental cruelty – No point in
compelling parties to live together in matrimony.
The husband filed a divorce petition. Respondent wife filed written
statement but did not participate in the proceedings. Divorce petition was
dismissed. The husband filed appeal before the High Court which was
also dismissed. However, respondent wife did not appear before the High
Court either.
In the present case, the Respondent, who did not appear before the trial
court after filing of written statement, did not respond to the request made
by the High Court for personal appearance. In spite of service of Notice,
the Respondent did not show any interest to appear in this Court also. This
conduct of the Respondent by itself would indicate that she is not
interested in living with the Appellant. Refusal to participate in
proceeding for divorce and forcing the appellant to stay in a dead marriage
would itself constitute mental cruelty.
This court in a series of judgments has exercised its inherent powers under
Article 142 of the Constitution for dissolution of a marriage where the
Court finds that the marriage is totally unworkable, emotionally dead,
beyond salvage and has broken down irretrievably, even if the facts of the
case do not provide a ground in law on which the divorce could be
granted. Admittedly, the Appellant and the Respondent have been living
separately for more than 17 years and it will not be possible for the parties
to live together and there is no purpose in compelling the parties to live
together in matrimony. Sukhendu Das V. Rita Mukherjee 2017 (8)
Supreme 33
Sec. 28- Contempt of Court Act, 1971 –Section 2(b) –Dispute in the
family having arisen after a compromise- Parties have prayed for
divorce by mutual consent- This Court dissolves the marriage by a
decree of divorce by consent- In case the parties have nay grievances
with regard to the working of the terms of settlement, they shall
mention in only before this Court and shall not take any other
recourse before any other forum
In this case, court is of the view that there is no point in relegating the
parties to any other forum for a decree of divorce by mutual consent under
the Special Marriage Act, 1954. Contextually, we may also note that the
parties have already filed a petition under Section 28 of the Special
Marriage Act, 1954 before the Principal Judge, Family Court, Patiala
House, New Delhi.
Accordingly, Interlocutory Application No. 73033 of 2017 is allowed. The
marriage between Ms. Jasmine Charaniya and Mr. Ahmed Charaniya is
dissolved by a decree of divorce by consent. Since the terms of settlement
have been reduced in the application, the application shall form part of
this Order.
In case the parties have any grievances with regard to the working of the
terms of settlement, we make it clear that they shall mention it only before
this Court and shall not take any other recourse before any other forum.
Jasmine Charaniya v. Ahmed Charaniya, 2017 (13) Scale 64
Succession Act
Sec. 372 – Succession certificate – When cannot be granted?
Succession certificate claimed on basis of a Will cannot be granted
if execution of the Will is surrounded by suspicious circumstances. Dr.
Prakash Soni v. Deepak Kumar 2017 (7) Supreme 190
Transfer of Property Act:
Sec. 58 (C) - Interpretation of instrument – Mortgage by conditional
sale or a sale with a condition of re-purchase – Determination –
Intention of parties determinative factor.
The question whether a transaction is a mortgage by conditional
sale or a sale with a condition of re-purchase has to be decided on the
basis of interpretation of the document itself. The intention of the parties
is the determining factor. The intention has to be gathered, in the first
place, from the document.
If the words are express clear, effect must be given to them and any
extraneous enquiry into what was thought or intended is ruled out. The
real question in such a case is not what the parties intended or meant but
what is the legal effect of the words which they used. If, however, there is
ambiguity in the language employed, then it is permissible to look into the
surrounding circumstances to determine what was intended. Bibi Fatima
V. M. Ahamed Hussain 2017 (6) Supreme 325
Sec. 58 (C) – Mortgage by conditional sale or a sale out and out with a
condition of repurchase – Tests – Discussed and applied.
In our considered opinion, the aforesaid five reasons satisfies the third
condition of Section 58(c) of the T.P. Act, namely, ―on condition that such
payment being made, the buyer shall transfer the property to the seller‖. It
also satisfies the tests laid down by this Court in Chunchun Jha‘ case
(supra), namely, First, the transaction is concluded in one document;
Second, the document styled as a " Deed of Conditional Sale " itself
contains the condition of repurchase on offering the sale money without
interest for the reason that defendant No.1 was allowed to use the land till
the money is not paid back to him by the seller (plaintiff); and Third,
parties‘ intention as per terms of Ex.P-1 is also supported by the evidence
which was accepted by the two Courts - Trial Court and the High Court.
In the light of foregoing discussion, we are of the considered opinion that
the Trial Court and the High Court was right in decreeing the plaintiff's
suit whereas the first Appellate Court was not right in dismissing the suit.
In other words, the reasoning and the conclusion arrived at by the Trial
Court and the High Court while holding that Ex.P-1 is a " mortgage deed
by conditional sale " as defined under Section 58(c) of the T.P. Act is just
and proper and hence it deserves to be upheld by this Court. Sri
Srinivasaiah V. H.R. Channabasappa (since dead) by his LRs 2017 (6)
Supreme 569
Wakf Act:
Sec. 55-C – Bar on jurisdiction of civil court – Plea not raised before
courts below – Plea not tenable
In this case, learned counsel for the respondent (plaintiff) that
though the amendment in Section 55 was introduced in 1984 by Act No.
69 of 1984 in the Wakf Act, 1954 but the date of the amendment was
never notified with the result, the amendment was never brought into
force except two provisions with which we are not concerned here. In the
meantime, the entire Wakf Act, 1954 and the Wakf (Amendment) Act,
1984 were repealed by the Waqf Act, 1995. (See-Introduction of The
Waqf Act, 1995).
In other words, since the amendment made by Act No. 69 of 1984 in the
Wakf Act, 1954 which governs the constitution of Tribunal and creation
of bar of filing suit in civil court was never notified and the main Act of
1954 including the amending Act, 1984 was, in the meantime, repealed by
Act of 1995, the question of maintainability of the civil suit in the light of
such provisions did not arise. Dharampal (Dead) through LRs. V. Punjab
Wakf Board 2017 (7) Supreme 156
Words and Phrases:
‗And‘ and ‗also‘ – ‗And‘ may be read as ‗or‘ to further object of the
statute.
It is settled law that the expression ―and‖ may be read as ―or‖ in order to
further the object of the statute and/or to avoid an anomalous situation.
Thus, in Samee Khan v. Bindu Khan (1998) 7 SCC 59 at 64, this Court
held:
―14. Since the word ―also‖ can have meanings such as ―as well‖ or
―likewise‖, cannot those meanings be used for understanding the scope of
the trio words ―and may also‖? Those words cannot altogether be
detached from the other words in the sub-rule. Here again the word ―and‖
need not necessarily be understood as denoting a conjunctive sense. In
Stroud‘s Judicial Dictionary, it is stated that the word ―and‖ has generally
a cumulative sense, but sometimes it is by force of a context read as ―or‖.
Maxwell on Interpretation of Statutes has recognised the above use to
carry out the interpretation of the legislature. This has been approved by
this Court in Ishwar Singh Bindra v. State of U.P. [AIR 1968 SC 1450 :
1969 Cri LJ 19]. The principle of noscitur a sociis can profitably be used
to construct the words ―and may also‖ in the sub-rule.‖ Mobilox
Innovations Pvt. Ltd. V. Kirusa Software Pvt. Ltd. 2017 (7) Supreme
265
Nature and differences stated
Both the provisions providing for affording the prisoners an
opportunity to solve their personal and family problems and to enable
them to maintain their links with society – Tendency of the convict to
commit crime or reformation is the decisive factor for granting or refusing
parole or furlough. Asfaq V. State of Rajasthan 2017 (7) Supreme 53
Locus standi – meaning of
In Black‘s Law Dictionary, the meaning assigned to the term ‗locus
standi‘ is ‗the right to bring an action or to be heard in a given forum‘.
One of the meanings assigned to the term ‗locus standi‘ in Law Lexicon
of Sri P.Ramanatha Aiyar, is ‗a right of appearance in a Court of justice‘.
The traditional view of locus standi has been that the person who is
aggrieved or affected has the standing before the court, that is to say, he
only has a right to move the court for seeking justice. The orthodox rule of
interpretation regarding the locus standi of a person to reach the Court has
undergone a sea change with the development of constitutional law in
India and the Constitutional Courts have been adopting a liberal approach
in dealing with the cases or dislodging the claim of a litigant merely on
hyper-technical grounds. It is now well-settled that if the person is found
to be not merely a stranger to the case, he cannot be non-suited on the
ground of his not having locus standi.
However, criminal trial is conducted largely by following the procedure
laid down in Cr.P.C. Locus standi of the complaint is a concept foreign to
criminal jurisprudence. Anyone can set the criminal law in motion except
where the statute enacting or creating an offence indicates to the contrary.
This general principle is founded on a policy that an offence, that is an act
or omission made punishable by any law for the time being in force, is not
merely an offence committed in relation to the person who suffers harm
but is also an offence against the society. Ratanlal V. Prahlad Jat 2017
(7) Supreme 212
PART – 2 (HIGH COURT)
Allahabad High Court Rules
Chapter VR 12- Civil PC. S. 114- Power of review of Judgment
passed by High Court in exercise of civil appellate Jurisdiction U/s
173 of MV Act- High Court has inherent power to review its own
judgment
Jurisdiction of review of its own judgements by virtue of Section 114 CPC
is inherent in a court and there is no doubt that the High Court being a
court of record has inherent power to review. Tribunals unless such
jurisdiction is conferred cannot exercise jurisdiction of review. Plea that in
absence of enabling provision being made a Motor Vehicles Act, power of
review cannot be exercised by High Court, is not tenable. Power of review
being inherent in Court necessitates laying down procedure to deal with
review applications and it is in this context that Chapter V Rule 12 has
come to be framed u/Art. 225 of Constitution. High Court being court of
record hence power of review of its judgments is inherent by virtue of S.
114 CPC U.P. State Road Transport Corp. and And. V. Indra Raj
Verma and Anr. 2017 (6) ALJ 774
Civil Procedure Code
Doctrine of Adverse Possession –Scope & Applicability
Plea based on title and adverse possession are mutually inconsistent and
later does not being to operate until the former is renounced.
There could be not presumption that the property acquired during
jointness of the family belonged to joint family. Sattan and others V.
Deputy director of Consolidation and Others, 2017 (35) LCD 2638
Necessary Party and Proper Party- Scope- Law relating to discussed
In this case, the issue involved in the writ petition is whether the petitioner
is necessary/aggrieved party in the arbitration proceedings or not.
The Hon'ble Apex Court in the case of Prabodh Verma vs. State of U.P.
1984 (4) SCC 251 has held that all the parties whose rights are going to be
affected by the judgement of the court should be heard and an opportunity
of hearing should be allowed to such parties.
Undoubtedly, a party can be added at any stage of the proceedings as held
by the Hon'ble Supreme Court in Bal Niketan Nursery School Vs. Kesari
Prasad, AIR 1987 SC 1970.
In the present case, the petitioner apparently was allotted a flat no. 304-B,
Jeevan Apartments, GH-7, Sector-6, Vasundhara, Ghaziabad, U.P. by
opposite party no. 3 being its member vide allotment letter dated
17.09.2004 and on payment of the cost of the flat, while delivering the
possession an agreement was entered between the petitioner and opposite
party no. 2 (the society).
It appears that the earlier allottee raised her grievance invoking the
arbitration clause under Section 70 of the U.P. Co-operative Societies Act,
1965, in respect of the house which belongs to the petitioner and the
petitioner on coming to know about the said proceedings moved an
application for impleadment, which was rejected by the Arbitrator vide
order dated 26.05.2008 which resulted in filing the instant writ petition.
On examination of the facts of the present case, we come to conclusion
that if petitioner is not permitted to participate in the proceedings, then,
her right would definitely be affected, if any award is passed in favour of
the opposite party no. 2. It was the duty of the Arbitrator to examine the
application of the petitioner on merit. It appears that the application has
been rejected without application of mind and taking into consideration
the surrounding circumstances. Kirty Prabha W/o Rajiv Kuamr Jain v.
Additional Registrar, Law cooperative Societies, U.P. and another,
2017 (35) LCD 2683
Sec. 9- U.P. Zamindari Abolition and land Reforms Act – S. 331(1-A)
[ as inserted by amendment Act (4 of 1969)] Suit for cancellation of
sale deed and permanent injunction –Suit for cancellation of sale deed
can only by instituted in civil court and not in Revenue Court for
later can only deal with declaration alone
The contention as to lack inherent jurisdiction of court cannot be accepted
because a suit for cancellation of a sale-deed can be instituted only in a
Civil Court. Where the plaintiff does not have his name recorded in the
revenue record and his possession on the date of the institution of the suit
is also not reflected by way of an entry in the revenue record, and the sale
deed in question is either executed by some third party affecting the
interest of the plaintiff or the plaintiff claims the sale as void for the
reasons disclosed in the plaint, the appropriate course for such a plaintiff
would be to seek a declaration in respect of his right because that would
be the main relief and cancellation would be ancillary and, therefore, in
such a case the suit would be cognizable by a Revenue Court and such a
suit before a civil court would be barred by section 331 of the UPZA &
LR Act. Shri Niwas & others v. State of U.P. & others, 2017 (6) ALJ
464
Sec. 100-Jurisdiction of Court-To entertain suit-Raised at initial
stage-Non-consideration of by Court below- Sustainability of-The
question of jurisdiction a fundamental question of law which goes to
the root of the matter and if it has been raised by the party at the very
first instance in the suit and not decided that itself would be fatal to
the judgment of Trial Courts as well as Appellate Court and it was
the duty of the Courts to have decided the issue-Orders impugned set
aside, matter remitted to Lower Appellate Court to decide the
question of jurisdiction and maintainability of the suit.
In my opinion, the question of jurisdiction is a substantial question
of law which goes to root of the matter and if it has been raised by the
party at the very first instance in the suit and not decided and then again
raised before the first Appellate Court and not considered that itself would
be fatal to the judgment of the Trial Court as well as the Appellate Court
and it was the duty of the Courts to have decided the issue.
The matter is remitted to the lower Appellate Court to decide the
question of jurisdiction and maintainability of the suit itself in the light of
the observations made above. Sureshwar Singh V. Saral Chauhan
(Dead) and others., 2017 (3) ARC 895.
S. 115 –Revision- Adequacy of Court fees- Not maintainable
The question that falls for consideration is whether the civil revision
against the order of the Civil Judge in respect of Court fee is maintainable
or not. The Supreme Court as well as this Court has taken a consistent
view that a revision against the order relating to adequacy of court fee
paid by the plaintiff is not maintainable as the object of the Court fees Act
is to collect the revenue for the benefit of the State and it cannot be used
by the defendant to obstruct the progress of the suit.
Recently, this court in the case of Shankar Lal Sharma v. Babulal and
others, 2014 (4) ALJ 177 following the judgment in Rathnavarmaraj (AIR
1961) SC 1299) and Shamsher Singh v. Rajinder Prasad and others, AIR
1973 SC 2384 has held as under:
―6. The Apex court in AIR 1961 SC 1299 Sri Rathnavarmaraja v. Smt.
Vimla has ruled that no revision lies on the question of valuation and court
fees where jurisdiction of the court is not involved. The aforesaid decision
has been followed in, AIR 1973 SC 2384 Shamsher Singh v. Rajinder
Prasad and others. Admittedly, the jurisdiction of the court is not the
subject-matter. Therefore, in view of the above decisions the order, dated
12.3.2013 is not revisable and as such the revisional court has rightly not
interfered with the same‖
What emerges from the aforesaid judgments is that the civil revision is not
maintainable against the order of the court below, as such the revision is
dismissed as not maintainable. Surendra Kumar Ahuja v. Wazeer
Chand Ahuja., 2017 (6) ALJ 515
Sec. 151- Discretionary powers of Court- Exercise of scope
Sec. 151 of the Code recognizes the discretionary power inherent in every
court as a necessary corollary for rendering justice in accordance with
law, to do what is `right' and undo what is `wrong'. Thus this power can be
invoked to do all things necessary to secure the ends of justice and prevent
abuse of its process. The power under Section 151 C.P.C. cannot be
exercised by a court to do a thing which is prohibited by law or the Code
or where the Code contains provisions dealing with a particular topic or
aspect, and such provisions either expressly or by necessary implication
exhaust the scope of the power of the court or the jurisdiction that may
exercised in relation to that matter. Thus, where the remedy of procedure
is provided under the Code, the courts cannot invoke the special
provisions of Section 151 C.P.C. The inherent power under Section 151
C.P.C. Should be exercised by the court cautiously, in the absence of any
legislative guidance to deal with the procedural situation. The exercise of
this power depends upon discretion and wisdom of the court on the facts
and circumstances of each case to meet the ends of justice and to prevent
abuse of process of Court. The court should also see that the bonafides of
the applicant cannot be doubted. Harish Chandra v. Rahul Kumar ,
2017 (6) ALJ 769
O.1, R. 10(2) - Impleadment application-For impleadment of Bank-
Rejection of-On ground no relief sought against the Bank, etc.-O. 1,
R. 10(2), CPC gives wide discretion to the Court to meet every case of
defect of parties and is not affected by the in action of the plaintiff to
bring the necessary parties on record-Question of impleadment of a
party has to be decided on the touchstone of O. 1, R. 10, CPC which
provides that only a necessary or a proper party may be added-
Addition of parties is generally not a question of initial jurisdiction of
the Court but of a judicial discretion which has to be exercised in
view of all facts and circumstances of a particular case-No dispute
inter se the bank and the borrower, no relief sought against the bank-
Rejection proper.
Thus, Sub-rule (2) of Rule 10 of Order I C.P.C. gives wide discretion to
the Court to meet every case of defect of parties and is not affected by the
inaction of the plaintiff to bring the necessary parties on record. The
question of impleadment of a party has to be decided on the touchstone of
Order I, Rule 10 which provides that only a necessary or a proper party
may be added. A necessary party is one without whom no order can be
made effectively. A proper party is one in whose absence an effective
order can be made but whose presence is necessary for a complete and
final decision on the question involved in the proceeding. The addition of
parties is generally not a question of initial jurisdiction of the Court but of
a judicial discretion which has to be exercised in view of all the facts and
circumstances of a particular case.
There is no dispute inter se the bank and the borrower. No relief has been
sought against the Bank. The cause of action disclosed in the plaint is that
the plaintiff is the owner of the disputed premises and the defendant is its
lisencee who has not vacated it despite termination of lisence. As per
plaint, relief of mandatory injunction has been sought against the
defendants alleging them to be lisencee of the disputed property. Thus the
Bank and the borrower both are neither necessary nor proper party in the
case. Therefore, the findings recorded by the court below to reject the
impleadment application do not suffer from any infirmity.
In view of the aforesaid, I do not find any merit in this revision.
Consequently, the revision fails and is, therefore, dismissed. Vijay
Prakash Chaurasia and another V. Om Prakash Chaurasia., 2017(3)
ARC 405.
O. 6, R. 17 –Amendment application- Rejection of- Amendment was
being sought after evidence was over and case was fixed for final
hearing –Court declined to interfere in orders impugned –Petition
being devoid of merits dismissed
By the impugned order dated 3.3.2017 the application of the petitioner
filed under Order 6 Rule 17 CPC was rejected on the ground that the
evidence has been concluded and the case is fixed for final hearing and it
appears that the application has been filed for delaying the matter. The
aforesaid order of the trial court was affirmed in S.C.C. revision filed by
the petitioner. Submission of learned counsel for the petitioner is that
specific averments have been made in the written statement but the
relevant allotment order dated 22.10.1964 specifying the premises in
possession of the tenant petitioner could not be placed on record, which is
necessary for deciding real controversy between the parties and that a
liberal approach in allowing amendment in written statement should be
adopted and that delay is no ground for refusal of prayer for amendment
of written statement. Hence the impugned orders are liable to be set aside
and amendment should be permitted.
In the present case, amendment is being sought after the evidence is over
and the case is fixed for final hearing.
The courts below have noticed that evidence has been concluded and
several dates were fixed for hearing arguments and therefore, the
amendment application was rejected. In such view of the matter, Court is
not inclined to interfere in the orders impugned herein. Present petition is
devoid of merits and is accordingly dismissed. Brijkishore Neekhara,
Advocate V. Hari Prasad and others, 2017 (6) AWC 6035 : 2017(3)
ARC 755
O. 7, R. 11-Rejection of plaint-On ground the controversy in hand
already settled by writ Court-Application rejected-On ground the
evidences are being led and after conclusion of the evidence the said
issue can only be decided and as such the application could not
sustain-No manifest error apparent on the face of record in the
impugned orders-The scope of judicial review very limited and
narrow-Rejection proper.
Learned Counsel for the petitioner could not point out any manifest
error apparent on the face of record in the impugned orders so as to justify
interference by this Court in extra-ordinary jurisdiction under Article 227
of the Constitution of India.
Both the Courts below recorded concurrent findings of fact and
unless these findings are shown perverse or contrary to record resulting in
grave injustice to petitioner, in writ jurisdiction under Article 227, this
Court exercising restricted and narrow jurisdiction would not be justified
in interfering with the same.
In supervisory jurisdiction of this Court over subordinate Courts,
the scope of judicial review is very limited and narrow. It is not to correct
the errors in the orders of the Court below but to remove manifest and
patent errors of law and jurisdiction without acting as an appellate
authority.
In view thereof, I find no justification warranting interference with
the orders impugned in this writ petition.
The writ petition sans merit and is accordingly dismissed. Hari
Krishna Srivastava V. Additional District Judge, Allahabad and 7
others, 2017(3) ARC 844
O.8, Rule 1A, O. 13, R. 1 and Sec. 151- Admission of document in
evidence- Trial court could grant liberty to defendant to bring
documents to base his defence before it at later stage of suit
The short controversy being raised in the present petition is whether the
defendant could be permitted to bring those documents on record by the
Trial Court and the Court below had erred in granting leave to the
defendant in admitting them in evidence. The petitioner namely Shri
Prabhakant Shukla vehemently argued that in view of the mandate of
Order VIII Rule 1A and Order XIII Rule 1 of the Code of Civil Procedure,
1908, the documentary evidence in original can be filed only of those
documents, copies whereof have been filed along with the written
statement. Under Order VIII Rule 1A, the defendant is under obligation to
bring the documents in a list to be filed along with the written statement,
on which he based his defence. However, leave can be granted by the
Court only in a case where the document was either not in possession or
power of the defendant or it could not be produced by him despite best
efforts. No such situation could be contemplated in the present matter.
Moreover, there is no application of mind by the Trial Court before
proceeding to admit the documents filed by the defendant.
Considering the facts recorded by the Trial Court and the manner in which
the leave has been granted, it cannot be said that it had erred in allowing
application 111-Ga admitting the defendant's documents on record. The
Revisional Court had rightly refused to interfere in its limited jurisdiction
under Section 115 of the Code of Civil Procedure.
For the above noted reasons, this Court in exercise of its extraordinary
supervisory powers under Article 227 of the Constitution of India is not
inclined to interfere in the judicial discretion exercised by the Trial Court.
The present petition is found devoid of merits and hence dismissed.
Prabhakant Shukla V. Prabhat Motor Co., 2017 (6) AWC 6029
Sec. 9-Provincial Small Causes Courts Act, 1887, Sec. 15-Issue
relating to jurisdiction-To be decided first then to proceed with the
suit-Suit for arrears of rent, ejectment pending before Civil Court-
Application to that effect-Application rejected by Courts below- It is
clear that the Civil Courts does not lack jurisdiction to try the suit of
small causes nature in its plenary power Section 9, CPC-There is no
exclusion of the jurisdiction of the Civil Court under the Act, 1887, it
cannot be said to be lacking in jurisdiction to try the suit-In absence
of Court of Small causes, the Civil Court will have a jurisdiction to
entertain and decide such suit-Rejection of application proper, other
direction also issued.
Thus, from the discussion made above, it is clear that the Civil
Court does not lack jurisdiction to try the Suit of Small Causes nature in
its plenary power under Section 9 of the Code of Civil Procedure.
Having said so, it would be relevant to refer to the facts of the
instant case as noted above. The instant suit was being contested by the
defendant/petitioner‘s predecessor and only after his evidence was struck
off and the revision filed against the said order of the Trial Court was
dismissed, the legal representative of the contesting defendant filed an
application asking the Trial Court to firstly decide the issue of jurisdiction.
The said issue No. 5 has been decided by the Trial Court considering the
decision of this Court in Radha Devi (supra) with the observation that
even if the defence is struck off, the jurisdiction plea raised by the
defendant can be decided. The Revisional Court has affirmed the order of
the Trial Court with the observation that jurisdiction of Small Causes
Court being preferential jurisdiction the regular Civil Court will not lose
its jurisdiction as the powers of the Civil Court are of plenary nature under
Section 9 of C.P.C. and all kinds of suits of civil nature can be tried by it
unless jurisdiction of the Civil Court is barred either expressly or
impliedly. As thereis no exclusion of the jurisdiction of the Civil Court
under the Act, 1887, it cannot be said to be lacking in jurisdiction to try
the suit. There is not error in the decisions of the Civil Court on the legal
principles, noted above.
However, in view of the submission of the learned Counsel for the
petitioner that a Competent Court of Small Causes is operating in District
Basti, looking to the object for which the Small Causes Court have been
established, it is provided that in an area where a Court of Small Causes
exercises jurisdiction i.e. the Court of preferential jurisdiction is available,
the suit for arrears of rent up to its pecuniary jurisdiction shall have to be
filed and tried in the Court of Small Causes and not in the ordinary Court
of Civil jurisdiction. However, in absence of the Court of Small Causes,
the Civil Court will have a jurisdiction to entertain and decide such suit.
In any case, the observations made hereinabove, would not be
treated as a direction to transfer the suit and it is kept open for the District
Judge to pass an order on the application under Section 24 of C.P.C.
independently, in accordance with law.
Subject to the observations and directions, the present petition is
disposed of. Mohammad Zaid V. Ram Gopal and 7 others., 2017 (3)
ARC 773
O. 13, R. 1, S. 151- Production of additional document- Application
for- Inherent powers of court- Exercise of
In this case court find that the certified copy of Tax Assessment Register
of Nagar Nigam, Aligarh relating to the disputed shop was a relevant
public document admissible in evidence, for the purpose of correct
determination of issues to render justice. Facts of the case shows that the
application for taking in evidence the document in question was
bonafidely filed by the petitioner. Therefore, the revisional court, in the
interest of justice, has not committed any error of law to permit the
plaintiff/ respondent to produce the said evidence, subject to payment of
cost of Rs. 2,000/-.
In view of the aforesaid, I do not find any infirmity in the impugned
order. Consequently, the petition is dismissed. Harish Chandra v. Rahul
Kumar , 2017 (6) ALJ 769
O. 18 Rr. 17 and 17-A- (Since omitted), S. 151- Recalling of witness-
Application for- Exercise of discretionary power by court
Power under order 18 Rule 17 is discretionary power which may be
exercised by court either on its own motion or on application filed by any
of parties to suit requesting court to exercise said power. However, it
should be used sparingly in appropriate cases to enable court to clarify any
doubts it may have in regard to evidence led by parties. This power should
not be used to fill up omissions on evidence of witness who has already
been examine. Harish Chandra V. Rahul Kumar , 2017 (6) ALJ 769
Constitution of India
Art. 16- Compassionate appointment- Exhaustion of right –claim and
accepting appointment to lower past extinguishing his right to claim
further appointment on other equivalent or higher post- claimant not
entitled to appointment on group c post
In Shyamdhar Mishra Vs. State of U.P., 2006(2) AWC 1415 reiterating the
aforesaid view following Umrao Singh (supra), this Court in para 9 of the
judgment held:
"In my view, once the appointment is made on the compassionate ground,
the said rule comes to an end and no further appointment could be made
under the said Rules. The authority could not, in any manner, reconsider
the case of the petitioner or of any other person where an appointment had
already been given at some anterior point of time, on compassionate
ground under the Dying-in-Harness Rules."
Another Division Bench of this Court, following Umrao Singh (supra), in
Shardendu Tiwari Vs. State of U.P. & others in Special Appeal 908 of
2006 decided on 22.8.2006 held as under :
"The submission of learned Standing Counsel that once compassionate
appointment is accepted, the right is exhausted and there cannot be any
second consideration for the same right is well founded. The judgment of
Apex Court in State of Rajasthan (supra) fully support the said
submission."
In Rajesh Mahajan Vs. State of U.P. and others 2014 (2) ADJ 55, this
Court said "Once an appointment is made on compassionate basis, the
incumbent ceased to have any right to claim further appointment on any
other post equivalent or higher status".
In view of the above discussion, we are of the view that Tribunal has
clearly erred in law in holding otherwise. Judgment impugned in this writ
petition, therefore, cannot be sustained. State of U.P. and others v.
Pawan Kumar Sharma and another, 2017 (6) ALJ 16
Art. 226- Character certificate- District magistrate refusing to grant
character certificate on ground of pendency of criminal case against
petitioner is –Refusal, improper
Court find is that the police report, which has been discussed in the
impugned order does not indicate any element of deficiency in the
character or involvement of the petitioner in any such activity, which may
be an ingredient so as to deny a character certificate to the petitioner. The
involvement of the petitioner‘s father in some criminal cases, therefore,
cannot be a ground, in our opinion, to deny a character certificate to the
petitioner, who is nowhere involved in the criminal activities alleged to be
that of his father more so in the wake of the fact that the petitioner was a
student and had been pursuing his studies abroad.
The petitioner cannot be punished or denied the enforcement of his right
moreso, in relation to a criminal activity of the petitioner‘s father unless it
can be shown that the petitioner‘s character is also affected by any such
activity of his father. Prashant Pandey V. District Magistrate,
Ambedkar Nagar and others, 2017 (6) ALJ 336
Arts. 309, 16- U.P. Civil Service Regulations, Regns. 351, 351A-
Pension- Part of person and /or gratuity cannot be withheld in
absence of statutory provision during pendency of
department/Criminal proceedings
After considering the provisions of Rule 43A and 43 (b) of Bihar Pension
Rules, which in effect are pari material with Regulations 351 and 351-A
of Civil Service Regulations applicable in the State of U.P., it was held
that in the absence of any provision in the rule providing for withholding
of the pension/gratuity, there is no power with the Government to
withhold gratuity and pension etc. during the pendency of the
departmental or criminal proceedings. Ram Murti Pandey V. State of
U.P. and others, 2017 (6) ALJ 82
Court Fee Act
Sec.7 (V) (ii), Schedule 1 - Counter-claim for possession - In
suit for permanent injunction - Court fee payable thereto-Valuation
of suit property Rs. 12,10,000/- and Rs. 91, 15750/- determined as
Court fee - The requisite amendment in the plaint has been made and
the Court fee paid] and[ therefore, the valuation of the counter claim
in respect of the same property in the facts of the present case cannot
be changed - Court fee rightly determined.
Having heard the petitioner in person and perused the record, the Court is
of the view that the orders impugned do not requite any interference in
exercise of its extra-ordinary jurisdiction under Article 226 of the
Constitution of India nor under Article 227 thereof. The pendency of the
amendment application does not make any difference to the valuation for
the reason as per amendment proposed to be made the petitioner still seeks
the relief of a decree of mandatory injunction and consequentially
possession in favour of respondent herein and a counter claim which is
obviously for the same property, therefore, the relief does not bring any
change in respect of point or issue no. Decided by the Courts below
regarding valuation of counter claim and the court fee payable thereon. As
per the determination of calculation of the suit property i.e Rs. 12,10,000/-
the requisite amendment in the plaint has also been made and the court fee
paid, and therefore, the valuation of the counter claim in respect of the
same property in the facts of the present case cannot be changed.
Considering the claim, the learned Additional Chief Judicial Magistrate
has referred to schedule 1 of Court Fee Act for determination of court fee
which does not suffer from any error. The Revisional Court has
considered the provisions of Section 7(v)(ii) of the Court Fee Act, 1870
andalso the fact that the petitioner-defendant in his counter claim is
seeking possession of the property in question market value of which is
Rs. 12,10,000/-, therefore, the court fee payable is Rs. 91,157.50. The
Revisional Court has given cogent reason for declining to exercise its
revisional power in the impugned order.
As regards the contention of the petitioner that consequent to the
valuation of the suit the trail court has ceased to have jurisdiction in the
matter this plea can be raised before the Court concerned as it does not
appear to be the subject matter of the impugned orders.
The writ petition lacks merit and is hereby dismissed. Interim order, if
any[ stands discharged. Arun Kumar Dean Vs. Additional District
Judge, Court No. 4 Sultanpur & Others., 2017 (3) ARC 254
Criminal Trial
Continuing offence - Jurisdiction of Court
Hon‘ble Court held that where there is allegation that her in-laws have
thrown out her out of their house and have refused to keep her therein,
therefore, the complainant is residing in the house of her parents. Thus, it
cannot be said that she is ling in her parental house happily with her own
wish, rather it is established that she is living therein in compelling
circumstances and definitely in the state of harassment, which comes
under the category of offence and is termed as continuing offence.
As cruelty includes mental as well as physical torture it would be
immaterial whether the victim was living at her matrimonial house or at
her parental house. It would be treated as continuing offence. In returning
the articles or Istridhan would also constitute the mental cruelty.
Manohar Lal and others v. State of U.P., 2017 (101) ACC 570
Evidence Act
Sec. 32 - Evidentiary value of dying declaration
Hon‘ble Court held that if the dying declaration has been recorded in
accordance with law, is reliable and gives a cogent and possible
explanation of the occurrence of the events, then the dying declaration can
certainly be relied upon by the Court could form a sole piece of evidence
resulting in the conviction of the accused. Ved Ram @ Badela v. State of
U.P., 2017 (101) ACC 453
Hindu Adoptions and Maintenance Act
Sec. 9 -Adoption of minor child- Consideration of
These proceedings, under Article 226 of Constitution of India, have been
instituted by the petitioner impeaching an order dated 03.07.2017 passed
by the Special Judge (Prevention of Corruption), CBI Court no.5,
Lucknow, whereby the application preferred by the petitioner under
Section 9 of Hindu Adoptions and Maintenance Act, 1956 (for short
''Act,1956') has been rejected and the learned court below has refused to
accord its permission as required under Section 9 of the Act, 1956 to give
petitioner's minor child in adoption to respondent no.1, whom the
petitioner has re-married following annulment of her first marriage with
respondent no.3 vide judgment and decree dated 27.05.2015.
In the present case, there cannot be any denial of the fact that the
petitioner i.e. the mother of Master Lakshya is his guardian. It can also not
be denied that the respondent no.3-Gaurav Gupta, the biological father of
Master Lakshya has completely forsaken him and has given up all his
rights including the right of visitation and has also categorically given the
responsibility of bringing up the minor to the petitioner. In the
proceedings before the Principal Judge, Family Court concerned under
section 13-B of the Hindu Marriage Act, the affidavit filed by respondent
no.3, contents whereof have been quoted herein before, is self speaking
and explanatory. Biological father of the child, in the present case has
abandoned him; rather has renounced him and has not performed any of
his duties, which he owes to the child. He has also given up all his rights
including the right of visitation.
Master Lakshya also requires an atmosphere of more enduring
relationship. In this background, I am in complete agreement with the
judgment of the Division Bench of Hon'ble Delhi High Court in the case
of Teesta Chattoraj (supra) and reiterate that if the biological father in this
case has not taken any measures to bear his responsibility, the laws and
the Court will hesitate to grant any such right in favour of a parent who
has failed to do so.
Accordingly, the writ petition is allowed and the impugned order dated
03.07.2017 passed by the learned court below, as is contained in annexure
no.1 to the writ petition, is hereby quashed and the application moved by
the petitioner seeking leave to give Master Lakshya in adoption is
allowed. Shweta Gupta V. Rahul Keshav Jadhao and another, 2017
(6) AWC 5459
Hindu Marriage Act
Maintenance pendent lite- Grant of
The instant First Appeal under Section 19(1) of the Family Court Act has
been filed against the order dated 2.2.2017 passed by Judge,Family
Court/Addl. District Judge (FTC) in Case No. 760 of 2011 whereby the
application preferred by Smt. Meena under Section 24 of the Hindu
Marriage Act has been allowed partially and the appellant has been
directed to pay Rs. 2000/- per month towards maintenance to Smt. Meena
{wife} during pendency of the case. In the said suit, respondent no.1 filed
an application under Section 24 of the Hindu Marriage Act which was
contested by the appellant by filing objections.
The Court below after hearing the parties and considering the fact that
during the pendency of the aforesaid case it would be appropriate that as
the first respondent is not having any source of income and needs
financial help so as to enable herself to maintain herself and the child. The
Court below considering the fact that the appellant is running a General
store shop and also has an agricultural land and is earning around Rs.
20000/- per month directed that the appellant shall pay Rs. 2000/- per
month to his wife so as to enable her to meet the necessary expenses.
Having considered the material on record, court is of the view that
obligation of the husband to pay such expenses cannot be deferred till
final adjudication of the suit. Thus the assertion of the appellant that when
the proceedings under Section 125 CrPC are pending, the Family Court
erred in granting maintenance under Section 24 of the Hindu Marriage Act
is not tenable. For the reasons aforesaid, the impugned order 2.2.2017
passed by the Judge,Family Court is approved and the appeal is hereby
dismissed. However,it is provided that the amount awarded under Section
125 of the CrPC would be adjustable towards the amount awarded under
Section 24 of the Hindu Marriage Act. Rajendra Prasad V. Smt. Meena
and another, 2017 (6) AWC 5963
S. 13 (1) (i)- Divorce- on ground of adultery- Consideration of
Original suit Matrimonial Petition no. 397/2002 (Narayan Prasad
Saraswat v. Smt. Shaifali @ Muniya) was initially filed for the relief of
restitution of conjugal rights. After it some criminal case was instituted by
opposite-party (wife Smt. Shaifali @ Muniya). Then plaint was amended
for the relief of divorce on ground of desertion, adultery and cruelty.
In the present case the third ground for divorce taken by petitioner-
appellant was that of adultery. Section 497 IPC reads- "whoever has
sexual intercourse with a person who is and whom he knows or has reason
to believe to be the wife of another man, without the consent or
connivance of that man, such sexual intercourse not amounting to the
offence of rape, is guilty of the offence of adultery". In this regard trial
court had given finding that when Smt. Kamlesh saw her husband during
physical relationship with respondent (Smt. Shaifali @ Muniya) then she
(respondent) was not married. So at the relevant time respondent was un-
married, therefore this allegation of involvement in adultery after marriage
of respondent was rightly held not proved by lower courts. Narayana
Prasad Saraswat v. Smt. Shaifali alias Muniya, 2017 (6) ALJ 119
House and Rents
Application for consolidation of two P.A. cases - Rejection of-One of
the P.A. case already decided against which Rent Control Appeal
pending-The application moved for consolidation of already decided
P.A. case misconceived-Rejection proper.
The petitioner herein is not a party in Rent Control Appeal No. 11
of 2016. The P.A. case No. 21 of 2009 has already been decided and
against which the Rent Control Appeal No. 11 of 2016 is pending.
Therefore the application 10-C moved by him for consolidation the
already decided P.A. Case No. 21 of 2009 with P.A. case No. 13 of 2015,
was misconceived.
Thus, the impugned order dated 21.7.2017 rejecting the application
10-C filed by the petitioner herein, does not suffer from any infirmity. The
recall application 28-C was also lawfully rejected by the District Judge,
Moradabad, by the second impugned order dated 9.8.2017. Neeraj
Khanna V. Firm M/s. Hind Cloth House and others., 2017 (3) ARC
403
Interpretation of Statutes
Rule of- Literal construction –Statute is open to interpretation only if
there is ambiguity in language
It is trite that the real purpose in construing a statute is to ascertain the
intention of the legislature. The legislature speaks its mind by use of
correct expression which has to be given effect to. If there is ambiguity in
the language of the provision only then the court can interpret the
provision. If the language is clear and unambiguous, there is not need to
look somewhere else to discover the intention or meaning. If the literal
construction leads to absurdity, only in that case external aids to
construction can be resorted to. Smt. Sadhana v. State of U.P. and
others, 2017 (6) ALJ 242
Same meaning is to be attached to words used in same sense
throughout statute- unless something repugnant is found in context
requiring a different view
If literal meaning is clear then Court cannot resort to any other principle of
interpretation whether it likes or not consequences. As held by Supreme
Court, Courts are not concerned with consequences, it is domain of
legislature to amend law but under garb of interpretation Court cannot
legislate. Smt. Sadhana v. State of U.P. and others, 2017 (6) ALJ 242
Motor Vehicles Act
Ss. 163-A and 167—Claim application—Option of forum—
Determination of—As per section 167, if any right accrues for
claiming compensation under Motor Vehicles Act and also under
Workmen‘s Compensation Act, the option lies with the person
entitled to compensation and he may take recourse to provisions of
either of the two Acts for claiming compensation
It has been contended by the learned counsel for the appellant that
the claimant should have preferred the claim petition under Workmen's
Compensation Act, 1923 instead of the Motor Vehicles Act, 1988, since
the cause of accident is attributable to the negligence of the Power
Corporation as the deceased sustained fatal injuries on account of falling
down of electric wire on the vehicle during the course of employment.
Further contention is that the accident is not attributable to the use of a
motor vehicle. As such, the claim petition of the claimant-respondent no.1
is not maintainable within the ambit of Section 163A of Motor Vehicles
Act, 1988.
Admittedly, the petition has been preferred under Section 163 of
the Motor Vehicles Act. Section 167 of the Motor Vehicles Act, 1988
deals with the options regarding the claim for compensation in certain
cases.
From bare reading of this section it is explicit that if any right has accrued
for compensation under the Motor Vehicles Act and also under the
Workmen's Compensation Act, the option lies with the person entitled to
compensation and he may take recourse to provisions of either of the two
Acts for claiming the compensation. In view of the legal proposition as
enunciated under Section 167 of the Motor Vehicles Act, if the claimant-
respondent has taken recourse to Section 163 A of the Motor Vehicles
Act, 1988, it does not per se disclose any illegality in the claim petition.
The argument of the learned counsel for the appellant regarding
maintainability of the claim petition does not appear to have substance
and as such, it cannot be sustained. Ram Babu V. Meera Devi, 2017
ACJ 2315
Sec. 173- Valuation of appeals Determinable on amount set up as
claim before Tribunal
This Court in view of the provisions quoted above, is of the considered
opinion that the valuation of appeals filed before this Court would be
determinable on the amount as it is set out in the claim filed before the
Tribunal. The court fee under the Motor Vehicles Rules, 1998 is fixed,
therefore, nothing turns on the question of payment of court fee but
pecuniary jurisdiction of this court has to be viewed in the light of
valuation of appeal mentioned therein. U.P. State Road Transport Corp.
and And. V. Indra Raj Verma and Anr. 2017 (6) ALJ 774
F.I.R.—Delay in lodging—Effect of—Delay in lodging F.I.R. do not
fatal to claim application if accident is proved
In the present case, learned counsel for the insurance company has
contended that F.I.R. was lodged after 11 days of accident having taken
place which causes doubt about involvement of vehicle. Second aspect is
that deceased did not die due to accidental injuries but died from
septicemia and, therefore, it cannot be said that death was due to accident
as cause was septicemia and shock. Learned counsel for insurance
company even contended that if it is believed that vehicle was involved
then accident arose due to sole negligence of the deceased. Learned
counsel for appellant has submitted that negligence attributed to deceased
was on lesser side. He was solely negligent and if not sole negligent, his
contributory negligence be considered at 50 per cent or more. Against this,
counsel for claimants has submitted that he was not at all negligent. Indica
car is a bigger vehicle, his negligence should be held more than 60 per
cent and it was his sole negligence.
First submission of appellant about delay in filing F.I.R. has been
answered by Tribunal and Court concur with the same as a person would
see that his family members get treatment and delay in filing of F.I.R.
would not disentitle claimants from claiming compensation. The Tribunal
has sought support on the decision in New India Assurance Co. Ltd. v.
Virendra Kumar Sharma, 2013 (3) TAC 497 (All.). The delay in lodging
of F.I.R. would not be fatal if accident is proved. In this case, charge-sheet
is also filed against driver of Indica car, who has not stepped into the
witness-box. PW 2 has seen the accident and proved that Indica car was
involved in the accident. National Insurance Co. Ltd. V. Vimla, 2017
ACJ 2695
Quantum—Fatal accident—Principles of assessment—Income—
Determination of—Deceased a BCA student—Claimants: parents—
Tribunal assessed notional income at Rs. 6,000 p.m. and awarded
compensation
In this case, the award has been challenged by the appellant
insurance company inter alia on the grounds:
(1) The Tribunal has failed to consider that accident was
attributable to negligence of driver of motor cycle as well and it
was a case of contributory negligence.
(2) The Tribunal has erred in selecting the multiplier for computing
the compensation on the age of the deceased, whereas it ought
to have been computed considering the age of the claimants-
dependants.
(3) The Tribunal has wrongly determined the notional income of
the deceased to be Rs. 6,000 per month whereas the notional
income ought to have been considered as Rs. 3,000 per month.
The legal propositions now been crystallized that the age of the
deceased would be a criteria for applying the appropriate multiplier in
accordance with law. Thus, the Tribunal has not committed any error in
applying the appropriate multiplier as per the age of the deceased, hence
the arguments in this regard cannot be sustained.
From the perusal of the award, it clearly reveals that the claimant
has filed admission form of I.I.M.T. Group of Colleges, which goes to
indicate that deceased was a student of BCA.
In the instant case, the deceased was a student of BCA and died
consequent to the accident. Court is of the considered opinion that in the
case in hand, the learned Tribunal has not committed any mistake in
fixing the notional income of the deceased to be Rs. 6,000 per month.
Thus, the Tribunal has not erred in awarding the compensation to the tune
of Rs. 8,94,000. National Insurance Co. Ltd. V. Vinesh, 2017 ACJ
2325
Quantum—Fatal accident—Principles of assessment—Widow—
Remarriage—Whether the widow of the deceased can be denied
compensation for death of her husband on the ground that she
remarried—Held: no
Section 166 of the Motor Vehicles Act provides that any of the
representatives can file the claim petition. Widow even after remarriage
continues to be the legal representative of her husband as there is no
provision under the Hindu Succession Act or any other law laying down
that after remarriage she does not continue to be the legal representative.
The right of succession accrues immediately on death of her husband and
in the absence of any provision, she cannot be divested from the property
vested in her due to remarriage.
In view of the above facts, Court is of the considered opinion that
remarriage cannot be held to be a disqualification for getting
compensation. Merely by the remarriage, the legal heirship of the claimant
does not vanish. The right to claim compensation is a statutory right and
second marriage does not prohibit the same. Moreover, there is no such
provision or restriction or exclusion of the right in the Act in the event of
remarriage after becoming widow. United India Insurance Co. Ltd. V.
Baby, 2017 ACJ 2456
Practice & Procedure
Limitation –Objection –Maintainability- Held, plea of limitation
being a question of law can be raised at any stage of proceeding
The plea of limitation is a question of law which can be raised at any stage
of the proceedings and therefore, the objection raised by the learned
Standing Counsel has to be necessarily rejected. Smt. Sheela Srivastava
V. Addl. Commissioner, First/CCRA, Allahabad and others, 2017 (35)
LCD 2739
Provincial Small Causes Court Act`
Sec. 15-Tenat pleading permanent tenancy on account of repairs
made to property- No condition relating to repairs mentioned in
Izzatnama- Tenant not entitled to claim permanent tenancy
S.C.C. Suit No. 5 of 2008 was instituted by plaintiff-respondent against
the defendant-petitioners for arrears of rent and eviction in respect of a
shop. The plaintiff respondent claimed itself to be a registered Wakf and
owner/landlord of the disputed shop. Wakf being owner of the disputed
shop it was claimed that U.P. Act No. 13 of 1972 was not applicable. It
was claimed that the defendants were tenant on a monthly rent of Rs. 15
per month; that they have been in arrears of rent since 01.11.1994; and
that by a notice dated 16.07.2008 arrears of rent, with effect from
01.11.1994 up to 30.06.2008, was demanded and the tenancy was
terminated; and that despite service of notice, the defendants neither
vacated the premises nor paid the rent, hence were liable to be evicted. It
was also alleged that the defendants had made material alterations in the
accommodation in dispute and had thereby damaged the accommodation.
The contention that the tenancy became permanent on account of
permission granted to make repairs cannot be accepted because there is no
such condition in the 'Izazatnama' (permission letter) which has been
brought to the notice of the Court. Accordingly, the second submission of
the learned counsel for the petitioners also fails.
In respect of the third contention of the learned counsel for the petitioners
that since the claim relating to tenant being a defaulter as also of making
material alterations without permission of the landlord was found to be
false, there was no valid termination of tenancy because the foundation of
notice had gone, suffice to say that it was not a case of forfeiture of
tenancy under the terms and conditions of lease agreement between the
parties. The tenancy was terminated in exercise of right under Section 106
of the Transfer of Property Act. The notice terminating tenancy clearly
terminated tenancy of the defendants by giving one month time to vacate
the premises. Smt. Kubra Khatoon and others v. Allahatala Malik
Waqf Masoom Hasan, Amroha, 2017 (6) ALJ 491
Sec. 25 - Ejectment suit-Arrears of rent-Suit decreed-Notice
terminating tenancy invalid etc- Plea of- Held-Revisionists failed to
show any illegality in the notice and as such the tenancy validly
terminated- Building constructed in 1987 therefore, not covered
under U.P. Act No. 13/1972-Since Rent Act not applicable, therefore,
no ground for eviction required to be proved by O.P.- Decretal
proper.
In reply to the aforesaid arguments, the submissions of the learned counsel
for the opposite party is that the notice terminating tenancy was issued on
20.01.1998 which was served on 27.01.1998. There is a clear finding of
the court below that the opposite party accepted the rent only upto
February 1997 and thereafter he did not accept any rent from the
revisionist. Thus, the question of wavier of notice does not arise. He has
also submitted that the building was not covered under U.P. Act No. 13 of
1972, therefore, no ground was required to be proved by the land lord for
eviction. The opposite party could terminate the tenancy any time by
serving thirty days clear notice. The revisionist has failed to show any
illegality in the notice and as such the tenancy was validly terminated. The
learned court below has, therefore, rightly passed the decree for eviction
and recovery of arrears of rent.
Having heard the learned counsel for the parties and having gone through
the record, I find that is not in dispute that the building was constructed in
1987 and it was, therefore, not covered under U.P. Act No. 13 of 1972. I
also found the record that the notice under Section 106 of the Transfer of
Property Act was validly served upon the revisionist and the tenancy was
validly terminated. Since the building was not within the purview of U.P.
Act No. 13 of 1972, therefore, no ground for eviction was required to be
proved by the opposite party. The judgment and decree passed by the
court below. Therefore, does not suffer from any illegality. The revision
being devoid merit is liable to be dismissed.
In the result, the revision is dismissed. However, considering the fact that
the revisions is running post office in the building in question, eight
weeks‘ time is granted to the revisionist to vacate the premises and hand
over its possession to the opposite party. It is further provided that in case
the revisionist fails to hand over its vacant possession to the
plaintiff/opposite party within the aforesaid period, it shall be open for the
opposite party to execute the decree in accordance with law. Union of
India Through The Supreintendent of Post Office V. Prem Nath
Malhtro., (2017 (2) ARC 198
Stamp Act;
Sec. 47 A- Deficiency in Stamp Duty- initiation of Action- Limitation-
Proceedings for computation of deficiency in stamp duty initiated
after about 11 years from the date of execution of sale deed in
question –Validity
The proposition of law is no longer res integra having been settled by a
Full Bench of this Court in the case of Girjesh Kumar Srivastava and
another Vs. State of U.P. and others reported in AIR 1998 Allahabad 237
(Special Bench) wherein the Full Bench has held that the period of
limitation will run from the date when the Collector takes cognisance of
the matter and initiates proceedings. The submission of the report or
presentation of the document by the Registrar or the Tehsildar or any
other authority is not the starting point of limitation.
In the present case also, what is noticed is that the sale deed was executed
on 19.12.1989 whereas the proceedings under Section 47A of the Act,
1899 were initiated for computation of deficiency of stamp duty in the
year 2000 and therefore, the entire proceedings against the petitioner were
initiated beyond the period of limitation as prescribed under Section 47A
(3) of the Act, 1899.
For reasons aforesaid and the law laid down by the Full Bench in the case
of Girjesh Kumar Srivastava, the impugned orders dated 18.11.2000 and
24.12.2002 are absolutely illegal and without jurisdiction and are
accordingly, quashed. Smt. Sheela Srivastava v. Addl. Commissioner,
First/CCRA, Allahabad and others, 2017 (35) LCD 2739
Statutory Provisions:
English translation of Nyay Anubhag-2 (Adhisnasth Nyayalaya), Noti.
No. 08/2017/1141(3)/VII-Nyaya-2-2017-134G-2017, dated September
5, 2017, published in the U.P. Gazette, Extra., Part 4, Section (Kha),
dated 5th
September, 2017, p.2
In exercise of the powers under Section 5-A of the Provincial Insolvency
Act, 1920 (Act No. V of 1920) and in consultation with the High Court of
Judicature at Allahabad, the Governor is pleased to empower the District
Judge, Sambhal at Chandausi with effect from the date of his taking over
charge, as District Judge, Sambhal at Chandausi to do all acts mentioned
in the said section within the local limts of his territorial jurisdiction
English translation of Nyay Anubhag-2 (Adhisnasth Nyayalaya), Noti.
No. 08/2017/1141(3)/VII-Nyaya-2-2017-134G-2017, dated September
5, 2017, published in the U.P. Gazette, Extra., Part 4, Section (Kha),
dated 5th
September, 2017, p.2
In exercise of the powers under clause (d) of Section 3 of the Land
Acquisition Act, 1894 (Act No. 1 of 1984) and in consultation with the
High Court of Judicature at Allahabad, the Governor is pleased to appoint
the District Judge, Sambhal at Chandausi to be Special Judicial Officer
with effect from the date of his taking over charge, as District Judge,
Sambhal at Chandausi to to perform the function of the ―Court‖ under the
said Act, the local limits of his territorial jurisdiction
English translation of Karmik Anubhag-2, Noti. No. 4/2017/1/1/2017-
Ka-2, dated August 31, 2017, published in the U.P. Gazette, Extra.,
Part4, Section (Ka), Dated 31 August, 2017, pp. 2-3
In exercise of the powers conferred by the proviso to Article 309 of the
Constitution and in supersession of all existing rules and orders on the
subject, the Governor is pleased to make the following rules:
1. Short title, commencement and application
(1) These rules may be called the Uttar Pradesh Direct Recruitment To
Junior Level Posts (Discontinuation Of Interview) Rules, 2017.
(2) They shall come into force at once.
(3) They shall apply to direct recruitment to junior level posts under the
rule making power of the Governor under the proviso to Article 309 of the
Constitution, except the posts and Departments, which are excluded from
application of these rules by the Government by notified order.
2. Overriding effect
These rules shall have effect notwithstanding anything to the contrary
contained in any other rules or orders.
3. Definitions 3- In these rules, unless there is anything repugnant in
the subject or
context:
(a) "appointing authority" means the authority empowered to make
appointment under the relevant service rules;
(b) "Constitution" means the constitution of India;
(c) "Government" means the State Government of Uttar Pradesh;
(d) "Governor" means the Governor of Uttar Pradesh;
(e) "Junior Level Posts" means the posts as classified in group
'B' (non gazetted), group 'C' and group 'D' by the Government from time
to time.
4. Discontinuation of Interview in making direct
recruitment of junior lever posts.-
The provision of interview prescribed in the selection procedure in the
relevant Service Rules in making direct recruitment to junior level posts
shall stand discontinued, and upon such discontinuation:-
(a) Where the procedure for direct recruitment to a junior level post is
prescribed on the basis of interview only, such selection shall be made on
the basis of written examination only.
(b) Where separate marks are prescribed for written test and interview in
the selection procedure, the marks for interview shall be included in the
marks prescribed for written examination. In case there is no provision for
written examination, the marks prescribed for interview shall be presumed
as the marks prescribed for written examination.
(c) For selection to the posts where skill test or technical examination is
required, the marks prescribed for such test/examination shall be only
qualifying in nature and such marks shall not be counted in the overall
selection procedure.
(d) If prior to commencement of these rules, the advertisement for
selection to any junior level post has been made and the selection process
is ongoing, such selection shall remain unaffected and shall be made in
accordance with the advertisement issued in this behalf.
(e) If in special circumstances, the Administrative Department of the
Government finds a justification to prescribe the interview for selection to
a particular junior level post, the Administrative Department will submit
the appropriate proposal to the Personnel Department of the Government,
which will take a well-considered decision on such proposal.
5. Other terms and conditions for direct recruitment to remain
unaffected.-
Subject to the provisions of rule-4, the other provisions contained in the
relevant Service Rules shall remain unaffected.
Ministry of Home Affairs, Noti. No. G.S.R. 1342 (E) , dated October
27, 2017, published in the Gazzete of India, Extra, Part II, Section
3(i), dated 27th
October, 2017, pp 4-6 No.
In exercise of the powers conferred by section 44 of the Arms Act, 1959
(54 of 1959), the Central Government hereby makes the following rules to
amend the Arms Rules, 2016, namely:—
1. (1) These rules may be called the Arms (Amendment) Rules, 2017.
(2) They shall come into force on the date of their publication in the
Official Gazette.
2. In the Arms Rules, 2016, ─
(i) in rule 2, in sub-rule (I), after clause (21), the following clause shall
be inserted, namely:-
‗(21a) ―existing manufacturer‖ means any manufacturer holding
manufacturing licence under the Arms Rules, 1962 in Form IX or under
the Industrial Development (Regulation) Act, 1951 or rules framed there
under on the date of notification of these rules;‘;
(ii)in rule 19, after sub-rule (3), the following shall be inserted, namely:-
―(4) The Area validity granted under sub-rule (3) shall not terminate with
the validity period of the licence and the renewing authority shall not vary
the area validity at the time of renewal of licence:
Provided that where in any case, the renewing authority on the basis of
some material evidence, is satisfied that area validity for the whole of
India is not required anymore, it may send the recommendations to the
licensing authority concerned for review of the area validity.‖;
(iii) in rule 29, the following proviso shall be inserted, namely:-
―Provided that in case of a licence in Form VII for the manufacture and/or
proof test of arms and ammunition, the fee shall be payable at the time of
grant of a licence.‖;
(iv) in rule 51, -
(a) sub-rule (4) shall be omitted;
(b) for sub-rule (5), the following sub-rule shall be substituted,
namely:—
―(5) Single licence in Form VII may be issued to an applicant company
applying for a multi-unit facility which may be set-up within the same
State or in different States within the country, for the grant of a licence
under these rules:
Provided that an applicant company may apply for a separate licence for
each unit and in that case, separate licence shall be issued for each of the
units.‖;
(v) in rule 54, for sub-rule (2), the following sub-rule shall be
substituted, namely:—
―(2) A licence granted in Form VII shall be valid for the life time of the
licensee company:
Provided that the licensee shall be required to setup the facility for
manufacture or proof test of arms and/or ammunition, recruit technical
and administrative staff, develop and proof test proto-types of arms and
ammunition, conduct trial runs and any other activity related to the setting
up of the facility for the manufacture or proof-test of arms and
ammunition, within a period of seven years from the date of grant of a
licence:
Provided further that the licensing authority may extend the period of
seven years by a further period of three years, on the basis of a written
representation received from the licensee and after recording reasons for
granting such an extension:
Provided also that if during the period of seven years or the extended
period of three years, as the case may be, the licensee fails to setup the
manufacturing or proof-test facility or is unable to take other operating
steps required for starting commercial production, the licence shall be
suspended or revoked.‖;
(vi) in rule 55, for sub-rule (6), the following sub-rule shall be
substituted, namely:-
―(6) The small arms and light weapons produced by the manufacturers
may be allowed for export subject to the approval of the Ministry of
Home Affairs in consultation with the Ministry of External Affairs, the
Ministry of Defence and the Ministry of Commerce, on a case to case
basis.‖;
(vii) in rule 55, after sub-rule (10), the following sub-rule shall be
inserted, namely:-
―(11) A licensee company having a licence in Form VII shall be permitted
to have enhanced annual production of firearms and/or ammunition upto
fifteen per cent. of the quantity endorsed on his licence, by giving prior
intimation to the licensing authority for which no further endorsement on
the licence as to capacity shall be required.‖;
(viii) in rule 59, ─
(a) in sub-rule (7), for the words ―Every licensee having a proof-test
facility‖, the words and figures ―Every licensee holding a licence in Form
VII‖ shall be substituted;
(b) in sub-rule (9), for the words ―Every licensee under this rule‖, the
words and figures ―Every licensee having a licence in Form VII‖ shall be
substituted;
(ix) in rule 60, for sub-rule (4), the following sub-rules shall be
substituted, namely:-
―(4) Every existing manufacturer shall be issued a fresh licence in Form
VII, within a period of two years of the notification of these rules, by the
licensing authority and any permission or any exemption granted for
procurement of raw materials to the existing manufacturers under the
Arms Rules, 1962 or under the Industrial Development (Regulation) Act,
1951 or rules framed thereunder, shall be deemed to have been issued
under the corresponding provisions of these rules.
(5) Every fresh licence issued in Form VII under sub-rule (4) shall be
valid for the life time of the licensee and such licensee shall be permitted
to have enhanced annual production of firearms and/or ammunition upto
fifteen per cent. of the quantity endorsed on his licence by giving prior
intimation to the licensing authority and for which no further endorsement
on the licence as to capacity, shall be required.‖;
(x) in Schedule IV, in Part II of Table A, for serial numbers
7,8,9,10,15 and 20 and the entries relating thereto, the following serial
numbers and entries shall, respectively, be substituted, namely:—
Sr
No. Form No.
Licence Fee
at the time of
grant of
licence (in
Rs.)
Renewal fee for
each subsequent
year wherever
applicable (in
Rs.)
―7. VII Manufacture and Proof Test
I Firearms - Annual Licensed
Capacity
(a) Not exceeding 1000 units Rs. 5000 N/A
(b) More than 1000 units but not
exceeding10000 units Rs. 15000 N/A
(c) More than 10000 units Rs. 50000 N/A
II Ammunition - Annual
Licensed Capacity
(a) Not exceeding 1 lac
cartridges Rs. 5000 N/A
(b)
More than 1 lac cartridges but
not exceeding 10 lac
cartridges
Rs.15000 N/A
(c) More than 10 lac cartridges Rs. 50000 N/A
8. VII-
A
Manufacture of Category V
arms of Schedule I (arms
other than firearms)
Rs. 5000 N/A
9. VII-
B
Manufacture of replica of
firearms including of antique
muzzle loading weapons and
air weapons including air
rifles/ air guns
Rs. 5000 N/A
10. VII-
C Manufacture of air weapons Rs. 5000 N/A
15. X
Composite Import/Export
licence for arms and
ammunition including parts
thereof (for each
consignment)
Rs. 5000 N/A
20. XV
For import and
Transportation for Govt. of
Nepal (for each consignment)
Rs. 5000 N/A‖
Succession Act
Ss. 263, 264, 295 and 2 (bb)- General Clauses Act, 1897- Section 2
(17)- Probate- Revocation of- Jurisdiction of Additional District
Judge to deal with matters- Order impugned passed by Additional
District Judge could not be interfered with on ground of lack of
jurisdiction – Court below was to proceed to conclude probate
proceedings expeditiously
This F.A.F.O. filed under Section 299 of the Indian Succession Act, 1925
assails the order passed in Misc. Case No. 118 of 1998(R) whereby the
application filed by the opposite parties under Section 263 of Indian
Succession Act, 1925 for revoking the order dated 9.5.1994 was allowed
and the probate proceedings were restored for fresh adjudication. It may
be noted that the order dated 9.5.1994 was passed by the learned District
Judge, Sultanpur whereas the application for revoking the order on being
filed by the opposite party before the district judge was assigned to the
Additional District Judge-court no. 2, Sultanpur where the same was
decided by annulling the order, hence the present appeal.
this Court is of the considered opinion that in so far as the jurisdictional
aspect of the matter highlighted in the interim order dated 3.2.2005 passed
by this Court is concerned, the same does not have any sanctity of law and
the order impugned in this appeal passed by additional district judge
cannot be interfered with on the ground of lack of jurisdiction. So far as
challenge to the impugned order on merit is concerned, it is clear that the
contentious dispute has arisen between the parties before the court below
and once there is a dispute, the same deserves to be adjudicated upon in
accordance with law. The impugned order thus does not call for any
interference in the exercise of appellate jurisdiction and the appeal is thus
rejected. The court below shall proceed to conclude the probate
proceedings expeditiously in accordance with law. Rama Kant v. Ram
Raj, 2017 (6) AWC 5927
Transfer of property Act
Sec. 106-Notice determining tenancy- Held, invalid by Trial Court
holding the notice period specified therein was 30 days while under
law, the period of issue should have been 15 days only-Justification of-
The amendment incorporated vide U.P. Act No. 24 of 1954 clearly
specifies a notice under S. 106 TP Act to be a period of 30 days and
not 15 days-Reason assigned by Trial Court erroneous hence set
aside.
This Court finds that the view is patently erroneous. The U.P.
amendment incorporated vide U.P. Act No. 24 of 1954 clearly specifies a
notice under S. 106 Transfer of Properties Act to be a period of 30 days
and not 15 days. The amendment provision reads as follows:-
―(ii) For the words ―fifteen days notice‖ the words ―thirty days notice‖
shall be substituted.‖
Since, this Court finds that the Trial Court held the registered
notice to be invalid, for an erroneous reason, the impugned order cannot
be sustained and must necessarily be set aside.
Accordingly, I allow the revision and set aside the impugned order
dated 29-3-2012, passed in SCC Suit No. 26/2002 Anjuman Islamia
Muslim Orphanage v. Miuslim Association and others and remand the
matter back to the Trial Court to re-decide all the issues in the suit
expeditiously and positively within a period of six months from the date
of the certified copy of this order is filed before it. Anjuman Islamia
Muslim Orphanage v. Miuslim Association and others, 2017 (3) ARC
851
Sec. 106 (4)- General clauses Act- Sec. 27 –Evidence Act Sec. 114 (f)-
Service of quit notice presumption- Denial to grant benefit of
presumption of service on mere rebuttal of tenant denying service- is
perverse
In so far as the question of sending notice is concerned, undisputedly the
envelope containing the notice was correctly addressed and the notice was
re-directed to a place where the respondents were carrying on business.
Notice by speed post is no less than a notice by registered post for the
reason that it is quicker mode of service available in the developed urban
areas. The only distinction is that a registered letter is handed over to the
addressee alone whereas a letter by speed post can be received by any
person present at the address. The respondents have not disputed the
address mentioned on the envelop, therefore, denial of presumption in
favour of the revisionist under Section 27 of the General Clauses Act is
clearly perverse.
It is significant to note that service of summons of the suit and execution
proceedings was likewise denied by the respondents although the notice
was affixed. Insofar as service of notice by speed post is concerned, it is
clear beyond doubt that the article on payment of due postal stamp is
registered and booked for delivery through a quicker mode of service at
the address mentioned on the envelop. Thus refusal recorded by the
postman was unquestionable.
The service by speed post for the reason recorded above is to be read as if
the notice was sent by registered post. The statutory presumption under
Section 27 of the General Clauses Act in relation to a postal service i.e.
speed post was thus bound to be construed as if the notice was sent by
registered post. The mode of service adopted by the revisionist being
unquestionable hence the benefit of Section 114 also becomes available
even if the article was not sent by registered post in its rigid sense.
In other words notice through speed post ought to have been read as if the
same was sent through registered post inasmuch as the article is booked
for delivery at the place of addressee without there being any material
distinction. Smt. Jaswnat Kaur v. Additional District Judge Court No.
1, Faizabad and Ors. 2017 (6) ALJ 199
U.P. Agricultural Credit Act
Section 11A –Recovery proceedings- Petitioner‘s attitude in not
depositing loan amount as agreed upon found to be clear breach of
terms and conditions of loan –She declined to make any Contention of
petitioner that recovery proceedings were vitiated on account of
applicability of wrong provisions of law not acceptable –Petition was
filed only with view to avoid repay-Writ petition dismissed without
prejudice to rights of bank to proceed with recovery in accordance
with law
The writ petition questions the validity of the recovery proceedings
initiated against the petitioner against a loan advanced by the respondent
no. 4-bank to the petitioner for setting up a Dairy under the Mini
Kamdhenu Dairy Scheme promulgated by the State Government in terms
of the Government Order dated 14.11.2013 read with Government Order
dated 17.08.2015.
The result of this dispute between the petitioner and the bank led to the
filing of a consumer claim before the District Consumer Forum by the
petitioner being Case No. 71 of 2016 which according to paragraph 31 of
the writ petition is pending, wherein, a stay application was filed on 25th
May, 2017 that was rejected.
The bank after default proceeded to take action by issuing a notice to the
petitioner on 31st January, 2017 for initiating action under the SARFAESI
Act, 2002 and also stated therein that the balance of the loan amount of
Rs.2,26,000/- would stand cancelled. The petitioner was called upon to
repay the entire loan together with the Principal amount and interest
thereon.
A second demand was raised on 20th February, 2017 by the bank
whereafter, the same was followed by a legal notice given by the bank to
the petitioner on 2nd March, 2017. On failure of deposit, the impugned
certificate of recovery has been issued by the authorized officer of the
bank on 20th April, 2017 invoking the provisions of Section 11-A of the
U.P. Agricultural Credit Act, 1973. The petitioner has also narrated that
on 5th May, 2017, the petitioner was communicated that the bank account
of the petitioner was declared as a non-performing asset. The bank in its
counter affidavit has, however, stated that the account was classified as a
non-performing asset on 30.10.2016, itself. A prayer, therefore, has been
made to quash the certificate of recovery dated 20.04.2017 and the notice
dated 05.05.2017 and for a mandamus to reschedule the repayment of the
outstanding amount in easy installments.
In view of what has been stated above, and the ratio of the decisions as
noted above, we are unable to accept the contention raised on behalf of the
petitioner that the recovery proceedings are vitiated on account of
applicability of wrong provisions of law.
We may also put on record that throughout the hearing we had called upon
Sri Udit Chandra to obtain instructions from the petitioner about the
intention of the petitioner to repay the loan upon which Sri Chandra
informed the Court that the petitioner is not in a position to make any such
concession for repayment of the loan. We may put on record that this is
public money that was given in the shape of a loan for a scheme for the
benefit of public at large. The petitioner's attitude in not depositing the
loan amount as agreed upon is a clear breach of the terms and conditions
of the loan and before this Court the petitioner has declined to make any
offer for any such deposit.
We are therefore not inclined to exercise our discretion in favour of the
petitioner for fixing or rescheduling the loan or grant any indulgence to
that effect as the petitioner now even does not intend to repay the loan.
The petition therefore has been filed only with a view to avoid repayment
and is not a bonafide effort to seek protection of law. We therefore
dismiss the writ petition without prejudice to the rights of the bank to
proceed with the recovery in accordance with law. Smt. Sushila Devi v.
State of U.P. and others, 2017 (6) AWC 5607
U.P. Municipalities Act
S. 48 (2) –Cessation of financial and administrative powers of
president – Validity of
Smt. Shanti Devi Sahu w/o Radhey Shyam Sahu is before this Court
assailing the validity of order dated 29.12.2016 passed by the State
Government wherein the State Government has proceeded to cease
financial and administrative powers of the petitioner in exercise of
authority conferred under sub-section 2 of Section 48 of U.P.
Municipalities Act, 1916.
This Court has observed that Once the financial and administrative power
is to be ceased, then one cannot be permitted to proceed with the closed
mind as State Government is obligated to take into account the view point
of petitioner also, as stated in reply so submitted to the show cause notice
and here what we find that blind reliance has been placed upon the report
of City Magistrate dated 17.05.2016 by lifting word by word from the
same and here even before passing final orders under sub-section 2 of
Section 48 for removal, qua each and every charge the State Government
has proceeded to make a mention that all the charges stood proved, in
view of this, in our considered opinion the action taken by State
Government cannot be subscribed as before proceeding to cease financial
and administrative powers, finding has to be returned of prima facie guilt
on the grounds that have been noted in notice and not that each and every
charge stood proved, in view of this, the order dated 29.12.2016 passed by
the State Government is not sustainable and the same is accordingly set
aside but we make it clear that passing of this order will not at all come in
the way of the State Government to pass fresh order in accordance with
law but the financial and administrative power of petitioner be restored
forthwith. Smt. Shanti Devi Sahu v. State of U.P. and others, 2017 (6)
ALJ 337
U.P. Panchayat Raj Act,
Section 27-U.P. Panchayat Raj Rules, 1947- Rule 259 (1) –Recovery of
amount –As arrears of land revenue- Appeal against- Admitted but
rejecting stay application against recovery order
The facts of the case in brief are that against the petitioners, who happens
to be ex- Pradhan and Gram Vikas Adhikari, respectively, an order under
section 27 of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as
the Act) was passed on 31.12.2015 for recovery of Rs. 1,87,797/- as
arrears of land revenue. Aggrieved by the aforesaid order the petitioners
herein have filed Civil Misc. Writ Petition No. 13064 of 2017 (Mohd.
Mohsin vs. State of U.P. and others). The aforesaid writ petition was
disposed of on 29.3.2017 with the direction to avail the remedy of appeal.
Pursuant to the aforesaid order, the petitioners, herein, have preferred an
appeal before the Divisional Commissioner, Basti. The Divisional
Commissioner, Basti although admitted the appeal, but rejected the stay
application vide order dated 25.5.2017.
I have gone through the impugned order dated 25.5.2017. From the
perusal of the same it transpires that the appeal has been admitted
meaning thereby the delay, if any, has been condoned. So far as rejection
of the application for interim protection is concerned, the order passed by
the Divisional Commissioner, Basti suffers from non consideration of the
proviso (1) of Rule 259 of the U.P. Panchayat Raj Rules, 1947
In view of the aforesaid proviso, till the appeal is decided all the
proceedings of recovery of the surcharge from the persons who have
preferred the appeal cannot proceed, therefore, I am of the considered
opinion that the Divisional Commissioner has erred in rejecting the
petitioner's stay application.
In the result the writ petition succeeds and is allowed. The order to the
extent by which the petitioner's stay application has been rejected is
quashed. It is further observed that in view of Rule 259 (1) of the Rules
there shall be no recovery of the amount against the petitioners pursuant to
the order dated 31.12.2015 till the appeal is finally decided. Mohd.
Mohsin Khan and another v. State of U.P. and others, 2017 (6) AWC
5538
U.P. Muslim Wakf Act
Sections 49B, 49 A and 52- Waqf Act, 1995 –Section 52- Sale deed-
Executed in favour of petitioner- Society by Mutawalli- Declared to
be illegal by controller of shia Waqf Board- Issuance of notice by
Collector for delivery of possession- Petitioner having already filed
appeal before Tribunal against order passed by Collector impugned
herein also it was found appropriate to relegate it to statutory remedy
available under Waqf Act- As issue raised herein involved disputed
question of fact not involved disputed question of fact not liable to be
decided at first instance by writ court
The case set up by the counsel for the petitioner is that the petitioner is a
Cooperative Housing Society which has purchased certain Plots of land,
namely Plot No. 807 (area 1 Bigha 11 Biswa) and Plot No. 924 (area 2
Bigha 18) in village Bhogipura, Tahsil Sadar, District Agra which was
earlier property of Waqf Mir Niaz Ali record in the Revenue Records. In
1973 one Syed Athar Ali Jafri was Mutawalli and he had applied to the
Shia Waqf Board for grant of permission to sell the suit property and the
Board had granted permission on 22.5.1973. Before such transfer could be
actually made, the Mutawalli Syed Athar Ali Jafri died and one Syed Ali
Qaisar was appointed as Mutawalli and a fresh permission was obtained
from the Board on 27.12.1973 for transfer of Plot No. 807 and Plot No.
924 situated at village Bhogipura, Tahsil Sadar, District Agra district.
After such grant of permission, the Mutawalli executed the sale deed in
favour of the petitioner society on 24.10.1977 and the name of the
petitioner society was recorded in the Revenue Records.
However, another notice was sent to the petitioner society on 23.6.1995 to
show cause notice as to why proceedings under Section 49-B of the Act
be not initiated. The petitioner submitted a written reply and its Secretary
also appeared before the Board on the date fixed, on which date no
hearing took place and it was conveyed to him that as and when hearing
would take place, the petitioner shall be intimated. Suddenly, without
giving any notice or opportunity of being heard, an order was passed on
28.4.1997 declaring the sale deed dated 24.10.1977 to be illegal. This
order was passed by the Controller, Shia Waqf Board, Uttar Pradesh,
Lucknow. Later a notice was issued by the Collector, Agra on 20th
January 1998 under Rule 51 and Section 52 of the Old Act, referring to a
requisition being sent by the Shia Waqf Board under sub-section 1 of
Section 52 for delivery of possession of the land under notice in the
alleged occupation of the petitioner, the transfer being in contravention of
Section 49-A of the Old Act and Section 51 of the New Act. In the said
notice, the Collector had asked the petitioner society to deliver possession
of the property to the Shia Waqf Board, Uttar Pradesh, Lucknow within a
period of thirty days, failing which ejectment proceedings would be
initiated, as provided in Rule 7 of the U.P. Muslim Waqf Board
(Regulation of Waqf Property) Rules 1972 under Section 52 of the Waqf
Act.
Having regard to the argument made regarding statutory remedy being
available under the Waqf Act to the petitioner herein and the petitioner
already having filed an appeal before the Tribunal against the order passed
by the Collector, Agra under Section 52 impugned in this writ petition
also, it would be appropriate that the petitioner is relegated to the statutory
remedy available to him under the Waqf Act, as the issue raised in this
writ petition involves disputed question of fact, which cannot be decided
at the first instance by this Court sitting in writ jurisdiction. The Tribunal
being the statutory forum available for deciding both questions or fact as
well as law.
The writ petition is dismissed. Alok Sahkari Grih Nirman Samiti Ltd.
Agra, v. Shia Central Waqf Board, U.P. and others, 2017 (6) AWC
5848
U.P. Urban buildings (Regulation of Letting, Rent and Eviction) Act
Ss. 12 and 16-Declaration of vacancy-In the premises in dispute-The
premises released thereafter-Rent Revision also dismissed-Challenge
under-On ground on notice served on tenant and clear violation of
principles of natural justice as well as non-compliance of Rule 8 (2) of
the Rules, 1972- Held-The notice issued to petitioner by registered
post as well as personal service upon the petitioner/tenant-Bona fide
and pressing need was proved by landlord who had in fact purchased
the property for their own need- Finding of fact cannot be re-
appreciated by this Court-Petition dismissed time to vacate the
premises on conditions allowed.
Perusal of record reflects that it has been clearly observed in both
the judgments, a notice was issued to tenant-petitioner by registered post
as well as personal service upon petitioner was also affected by Process
Server. A notice was accepted by the petitioner but he did not file any
objection and also did not appear before authority concerned, as such, the
matter was directed to proceed ex-parte against him after recording of
sufficiency of service vide order dated 2.5.2017.
In the revisional order, it has been noticed that notice sent to the
revisionist was received by revisionist himself and he has put his signature
on the first page but he did not appear in the Lower Court. Notice sent by
Rent Control Inspector was received by the petitioner herein on 5.5.2014
but no reply was given since the petitioner had not filed any objection and
had not adduced any evidence to controvert the facts and evidence
regarding contesting the vacancy as well as challenging the bona fide need
the landlord. The Revisional Court did not interfere in the impugned
orders of the Court below.
In such view of the matter, Court below has not committed any
mistake in recording sufficiency of notice upon the petitioner. The
bonafide and pressing need was proved by landlord who had in fact
purchased the property for their own need.
Having considered the facts and circumstances of the case, subject
to filing of an undertaking by the petitioner-tenant before the Court below,
it is provided that:
(1) The tenant-petitioner shall handover the peaceful possession of
the premises in question to the landlord-opposite party on or
before copy of this order;
(2) The tenant-petitioner shall file the undertaking before the Court
below to the said effect within two weeks from the date of
receipt of certified copy or this order;
(3) The tenant-petitioner shall pay entire decretal amount within a
period of two months from the date of receipt of certified copy
of this order;
(4) The tenant-petitioner shall pay damages @ Rs. 2,000/- per
month by 7th
day of every succeeding month and continue to
deposit the same in the Court below till 30-4-2018 of till the
date he vacates the premises, whichever is earlier and the
landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he
will not create any interest in favour of the third party in the
premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-petitioner
shall not be evicted from the premises in question till the
aforesaid period;
(7) It is made clear that in case of default of any of the conditions
mentioned herein-above, the protection granted by this Court
shall stand vacated automatically.
(8) In case the shop is not vacated as per the undertaking given by
the petitioner, he shall also be liable for contempt. Babu Lal V.
Smt Manju Jain andanother, 2017(3) ARC 744.
Sec. 21(1) (a)-Release application-For need of three sons of landlord
for starting business-Allowed by Courts below-Sons of landlord were
having sufficient income and thus there was no bona fide need of the
disputed shop-Plea of-Held-Even if it is assumed sons of landlord
assisting his father in his business and thereby getting some
remuneration/income or even if they have some income from their
investment in equity shares, it does not mean that their bona fide need
of the disputed shop to commence business would come to an and-
Nothing on record to show the need set up not bona fide-Concurrent
findings of fact with regard to bona fide need recorded by Courts
below-Release application rightly allowed.
It is undisputed that the disputed shop is situate in house no.3/70 B, Chatta
Sarai, P.S. Chatta, Agra, which is owned by the respondent-plaintiff and
in a portion of which the petitioner-defendant is a tenant at a monthly rent
of Rs.300/-. The validity of service of notice given by the respondent-
plaintiff/landlord dated 4.10.2011 to the petitioners-defendants/tenants is
undisputed. The petitioners-defendants/tenants have not complied with the
notice which caused the respondent-plaintiff to file a P.A. Case No.27 of
2012 (Pramod Kumar Gupta Vs. Jodha Ram and another) under Section
21(1)(a) of the Act. before the Prescribed Authority/Additional Civil
Judge (S.D.), Court No.6, Agra. Before the Prescribed Authority the
parties have led oral and documentary evidences. The respondent-
plaintiff/landlord has clearly demonstrated and established his bonafide
need for start of business by his three unemployed sons. The Prescribed
Authority as well as the appellate court have recorded concurrent findings
of fact with regard to the bonafide need of the respondent-
plaintiff/landlord for the disputed shop. The petitioners-defendants/tenants
could not point out any perversity in the findings of fact so recorded by
the courts below. Under the circumstances, the concurrent findings of fact
with regard to the bonafide need of the respondent-plaintiff/landlord with
respect to the disputed shop, can not be interfered with in writ jurisdiction
under Article 226 of the Constitution of India.
The second argument of learned counsel for the petitioners-
defendants/tenants with respect to non production of copies of income tax
return of five years by the respondent-plaintiff and his sons, has no
substance inasmuch as even if it is assumed for a moment that the sons of
the respondent-plaintiff are assisting his father in his business and thereby
getting some remuneration/income or even if they have some income from
their investment in equity shares, it does not mean that their bonafide need
of the disputed shop to commence business would come to an end. There
is nothing on record to show that the need set up the respondent-plaintiff
was not bonafide.
In view of the above discussion, I do not find any merit in this petition.
Consequently, the petition fails and is hereby dismissed.
After this order was dictated in open court, learned counsel petitioners-
defendants/tenants states on instruction that the petitioners-
defendants/tenants undertake to vacate the disputed shop on or before
31.12.2017 and shall handover its vacant and peaceful possession to the
respondent-plaintiff on or before the said date and shall also file an
undertaking to this effect before the court below. Therefore, no coercive
action may be taken against them till 31.12.2017. It is further stated by
learned counsel for the petitioners-defendants/tenants that for use and
occupation of the disputed shop for the period from 4th September 2017
to 31st December 2017, the petitioners-defendants/tenants shall deposit a
sum of Rs. 15,000/- in the trial court within three weeks which may be
withdrawn by the respondent-plaintiff.
Considering the statement made by learned counsel for petitioners-
defendants/tenants on instruction as aforenoted, it is provided that the
petitioners-defendants/tenants shall file an undertaking before the
concerned court below as noted above, within three weeks from today and
shall also deposit sum of Rs.15,000/- within the same period and
thereupon no coercive action shall be taken against them with respect to
the disputed shop till 31.12.2017. On or before 31.12.2017, the
petitioners-defendants/tenants shall vacate the disputed shop and shall
handover its vacant and peaceful possession to the respondent-plaintiff
and in case of failure to do so respondent-plaintiff shall be at liberty to
initiate appropriate proceedings against the petitioners-defendants/tenants
including proceedings for contempt. In case of non submission of
undertaking and non deposit of Rs.15000/- within three weeks, the
aforesaid interim protection shall automatically stand vacated. Jodha
Ram and another V. Pramod Kumar Gupta., 2017(3) ARC 459
U.P.Z.A. & L.R. Act
S. 169 (3) (as amended by Amendment Act- Transfer of agricultural
land- by way of registered instrument –Validity of
All matters relating to right in or over agricultural land including transfer,
alienation and devolution were exclusively within domain of State
Legislature. Under U.P. Zamindari Aboliatioin and Land Reforms Act,
restriction has been imposed by State Legislature by way of amendment in
S. 169 (3) regarding devolution of agricultural land except by way of
written and registered deep. Restriction so imposed by State Legislature
upon right of bhumidhar under special Act is in conformity with objects
and purpose of Act which has been framed to reform law relating to land
tenure so as to chek any unscrupulous person from claiming land of
bhumidhar to exclusion of his heirs and legal representatives.
U/s 17 of Registration Act, registration has been made compulsory for all
non-testamentary instruments. Registration of Will has not been made
compulsory under Succession Act. Whereas U.P.Z.A. & L.R. Act
provides restriction in this field. Restriction imposed by State Govt.
cannot be said to be in conflict with laws made by Central Legislature.
There is not repugnancy as such and it cannot be said that State
Legislature was not competent to legislate. It is settled law that when
question arises with regard to legislative competence of legislature in
regard to particular enactment with reference to entries in various lists, it
is necessary to examine the pith and substance of Act and find out in
matter comes under scrutiny, its object and purpose, its true nature and
character and the pith and substance of legislature are to be focused at. It
is fundamental principle of Constitutional law that everything necessary to
exercise of power is included for grant of power itself. Jahan Singh v.
State of U.P. and others, 2017 (6) ALJ 25
Sec. 198 (4) –Patta- Cancellation of- Determination of
This writ petition has bee filed by the petitioner challenging the order
dated 03.09.2001 (Annexure - 6 to writ petition), 04.01.2001 (Annexure -
1 to writ petition) and 19.09.1997 (Annexure - 2 to the writ petition) by
means of which the Additional District Magistrate, Etawah firstly
cancelled the Patta issued in favour of petitioner and the Additional
Commissioner, Kanpur Division, Kanpur rejected the revision filed by
him thereafter. The case set up by the petitioner in his writ petition is to
the effect that he was granted 2.01 acres of land through agricultural Patta
on 27. 02.1998 in village Avinepur Pathakpur. Against the grant of such
Patta one Ram Das (arrayed as Respondent No. 4) filed objections under
Section 198(4) of the U.P.Z.A. & L.R. Act. These proceedings were
initiated by Ram Das in the year 1996-1997 against not only the petitioner
but three other persons also.
This Court is of the considered opinion that as and when it came to the
notice of the authority concerned that allotment of land of Gaon Sabha
had been made illegally to ineligible person ignoring the rightful claim of
several others of the same village who came within the eligibility
zone/order of preference given under sub-section (1) of Section 1998 of
the Act, the authority concerned was duty bound to set up an inquiry and
take action as legally permissible to remedy the wrong. Hence, the
allotment order being ex-facie illegal, even if the suo motu inquiry was set
up by the Revenue Authority and action taken thereafter to correct the
wrong could be said to be a bit delayed, this Court would not interfere
and set aside such an order as it would revive the illegal allotment made in
favour of the petitioner.
The allotment of the petitioner was a result of nepotism and corruption
amounting to fraud played upon the Statute. Each day passing with the
allotment of petitioner over the land in question continuing a fresh cause
of action would arise. Being a continuing cause of action of which suo
motu cognizance was taken by the Additional District Magistrate, it
cannot be said to be an illegal or arbitrary exercise of jurisdiction by the
Revenue Authorities. As such, I do not think that there is any good ground
on which extra-ordinary jurisdiction under Article 226 of the Constitution
should be exercised by me to quash the order impugned.
The writ petition is dismissed. Bharat Singh v. Additional
Commissioner and others, 2017 (6) AWC 5696
Workmen‘s Compensation Act
Sec. 2 (1)(m)—Wages—Daily allowance—Whether daily allowance is
a part of wages of the workman for purposes of computation of
compensation for his death—Held: yes.
In the present case in hand, the respondent No.1- claimant had
projected that his deceased son was drawing a salary of Rs. 1,500 per
month and a daily allowance of Rs. 80, which amounted to Rs. 3,900 as
total salary received from the respondent No. 2 herein. Moreover, the
respondent No. 2 had also proved by his oral statement that deceased was
drawing a salary of Rs. 3,900 per month, inclusive of daily allowance.
However, the learned Commissioner had held that the monthly earnings of
the deceased was Rs. 3,000. Hence, the first substantial question of law is
held in favour of the respondent No. 1-claimant and against the appellant
by holding that the daily allowance received by the claimant formed a part
of the monthly wages. Oriental Insurance Co. Ltd. V. Md. Abdul
Rahim, 2017 ACJ 2842
U.P. Recruitment of Dependents of Government Servants (Dying-in-
Harness) Rules:
Rule 5 (2)- Scope of Compassionate appointment – On contract basis
–Clearly in violation of 1974 Rules- There was no justification to
place petitioner in position of contractual employee as his engagement
was solely on account of his being son of erstwhile employee
This then leaves the Court to consider the issue whether the respondents
were legally justified in continuing the petitioner on contract basis even
though they were ultimately accorded the requisite permissions to effect
appointment on compassionate grounds. The answer to this must
necessarily be in the negative and against the respondents. There was no
justification to place the petitioner in the position of a contract employee
even though his engagement was solely on account of him being the son
of an erstwhile employee of the Corporation. The Court is further
compelled to note that all the applications from serial number 83 to 159
mentioned in the chart filed along with the affidavit dated 6 August 2017,
were made after the application of the petitioner dated 25 August 2008.
The Corporation never effected compliance with the first proviso to Rule
5 by forwarding the application of the petitioner to the State Government
for it to consider exercising its powers to condone delay. This quite apart
from the fact that at the time of initial engagement of the petitioner on
contract basis, it was not the stand of the respondents that an appointment
could not have been offered to him consequent to five years having
elapsed from the date of death of his father.
In the end, the only circumstance which the Court would have to take into
consideration is the fact that although the petitioner joined and has been
working as per his own admission since July 2011 as a contractual
employee, he instituted these proceedings only in 2016. In the entire writ
petition there is no explanation as to why the petitioner did not approach
this Court earlier. There is also no foundation in the writ petition on the
question of whether the petitioner was performing duties equivalent or
similar to regular employees. Relief (iii) as claimed in the writ petition
would, therefore, have to be necessarily molded so as to even the scales of
justice.
In view of the above, the writ petition shall stand allowed in the following
terms. The third respondent shall in consequence to the findings returned
herein above, treat the petitioner as a regularly appointed compassionate
appointee. This shall however not entitle the petitioner to claim
differential pay and other emoluments for the period commencing from
July 2011 till the filing of the writ petition. Umesh Kumar v. State of
U.P. and others, 2017 (6) AWC 6096
Words and phrases
Difference between ‗contributory negligence‘ and ‗composite
negligence‘ explained
There is a clear difference between ‗contributory negligence‘ and
‗composite negligence‘. Where a person is injured without any act or
omission on his part, but as a combined effect of the negligence of two or
more persons, it is a case of ‗composite negligence‘ and not a case of
‗contributory negligence.‘ National Insurance Co. Ltd. V. Anusha A.
Nair, 2017 ACJ 2533
―Liberty‖—Meaning of
The most basic understanding of the expression ―liberty‖ is the
freedom of an individual to do what he pleases. But the idea of liberty is
more complex than that a better view of the whole scheme of Pt. III is to
look at each one of the guaranteed fundamental rights not as a series of
isolated points, but as a rational continuum of the legal concept of liberty
i.e. freedom from all substantial, arbitrary encroachments and purposeless
restraints sought to be made by the State. K.S. Puttaswamy V. Union of
India, (2017) 10 SCC
LEGAL QUIZ
1 Query: Which Rules (Central Rules 2007 or State Rules 2004) will
prevail for holding age determination Enquiry of Juvenile?
Ans.: Sec. 88 of the Juvenile Justice (Care & Protection of Children) Act
2000 provides that only such rules made by State shall apply which
conform to Central Rules.
Rules 96 of the Juvenile Justice (Care & Protection of Children) Act 2007
has also declared that until the new rules conforming to these rules are
framed by the State Govt. concerned u/s 68 of that Act, these rules 2007
shall mutatis mutandis apply in that State.
It is pertinent here to mention that UP Juvenile Justice (Care & Protection
of Children) Rules 2004 were made in the year 2004
It is settled principle that if here is a conflict between the provisions of
two similar statutes, the provisions of subsequent enactment will
ordinarily prevail over the earlier enactment
You are advised to go through above provisions carefully and act
accordingly,
2 Query : मदि वक्प प्राऩर्टी येण्रे्टड है तो उसको इववक्षऺन सूर्ट भें राई कयेगा मा नह ॊ। मदि नह ॊ तक कहाॉ राई कयेगा।
Ans. The Eviction suit of rented wakf property will lie in Civil Court
Please see:
1. Suresh Kumar vs. Managing Committee, 2009 Indian Law All
1770
2. Ramesh Govindram V. Sugra Humayun Mirza wakf (2010) 8
SCC726
3 Query : The Police are investigating a case in which a 15 years old girl
committed suicide after being pregnant after a supposed rape or
consensual sex, The I O has submitted an application for allowing him to
get the 5 or 6 suspects of DNA profiling for the purpose of nailing the real
Culprit. None of them has so far been arrested. I want to know whether
such an application could be allowed or not and if yes, then under which
provision of case law.
Ans. Kindly refer to your query about DNA profiling of suspected
accused of committing rape on a minor girl. In this connection, your
attention is drawn onwards Sec. 53A and 54 Cr.P.C. and you are also
advised to go through the following SC rulings on the point:
1 Smt Selvi and others vs. State of Karnataka, AIR 2010 SC 1974
2 Bhabani Prasad Jena vs. Convener Secretary, Orissa State Commission
for Women and Another AIR 2010 SC 2851
4 Query : क्मा आिेष 15 ननमभ 5 सी.ऩी.सी. के अधीन प्रनतयऺा अन्ततभ फहस के स्तय ऩय बी सभाप्त की जा सकती है?
Ans. Order 15 Rule 5 CPC confer a discretion upon the Civil Court that if
order 15 Rule 5 has not been complied with then after adopting the
procedure prescribed in sub rule (2) the court may strike off the defence of
the defendant. This can be done at any stage of the proceeding. But the
court is not bound to strike off defence and it can refuse to do so for valid
reasons. See. Vimal Chand Jain v. Gopal Agarwal. AIR 1981 SC 1657,
Smt Leela Devi v. Smt Shanti Devi AIR 1986 All 90.
5 Query : Whether an accused can be convicted applying S 149 IPC if it
is not mentioned in the charge?
Ans. ―Omission to mention the provision of S. 149 CPC specially in the
charge is only a irregularity and in the absence of prejudice shown to have
been caused to accused persons, conviction is not affected.‖ Ram Krishna
v. State of Rajasthan (1997) 7 SCC 518
It has also been clarified in Ratan Lal & Dhiraj lal‘s IPC on page
770 that likewise if charge is framed u/s 302/149 IPC no prejudice will be
caused if accused in convicted u/s 302 IPC simplicitor so mere
imperfection in the charge is not enough by itself for purpose of setting
aside the conviction.
