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Supreme Court Monthly Digest: February 2021

Akshita Saxena
11 March 2021 5:33 AM GMT
Supreme Court Monthly Digest: February 2021
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JUDGMENTS 1. Collusive Commercial Transactions With Corporate Debtor Will Not Constitute 'Financial Debt' Under IBC: Supreme Court [Case: Phoenix Arc Private Limited v. Spade Financial Services Limited; Citation: LL 2021 SC 55] A Bench comprising of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee held that collusive or sham transactions with a corporate debtor will...

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JUDGMENTS

1. Collusive Commercial Transactions With Corporate Debtor Will Not Constitute 'Financial Debt' Under IBC: Supreme Court

[Case: Phoenix Arc Private Limited v. Spade Financial Services Limited; Citation: LL 2021 SC 55]

A Bench comprising of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee held that collusive or sham transactions with a corporate debtor will not amount to "financial debt" within the meaning of IBC.

The Bench also held that a financial creditor which is not a "related party" to the corporate debtor at present can also be excluded from the Committee of Creditors if it is found that its removal of the "related party" label was a part of strategy to bypass the bar under Section 21(2), first proviso of the IBC.

2. Violation Of Fundamental Right To Speedy Trial Is A Ground For Constitutional Court To Grant Bail In UAPA Cases: Supreme Court

[Case: Union of India v. KA Najeeb; Citation: LL 2021 SC 56]

A bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose held that Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on ground of violation of Fundamental Right to Speedy Trial. It held, "Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence."

The court observed thus while dismissing the appeal filed by NIA against an order of the Kerala High Court granting bail to the accused in palm chopping of Thodupuzha Newman College professor TJ Joseph in 2011.

3. 'It Provided Back Door Entry': Supreme Court Approves Scrapping Of LARSGESS Scheme For Railway Employees

[Case: Manjit v. Union of India; Citation: LL 2021 SC 57]

A bench comprising Justices DY Chandrachud, Indira Banerjee and Sanjiv Khanna upheld the termination of Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS) for Railway Employees. The Court was of the opinion that the Scheme provided for an avenue of a back door entry into the service of the railways.

LARSGESS scheme, introduced in the year 2004 and modified in the year 2010, enabled certain category of railway employees (jobs related to safety, drivers, gangmen, etc.) to seek 'voluntarily retirement' after they reach the age group of 55-57 years or complete qualifying service of 33 years and they can seek appointment of their wards (children) in their place.

4. Corruption Is An Offence Against Society: Supreme Court Sets Aside Gujarat HC Judgment Acquitting An Accused

[Case: State of Gujarat v. Bhalchandra Laxmishankar Dave; Citation: LL 2021 SC 58]

A bench comprising of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed that Offences under the Prevention of Corruption Act are offences are against the society. The bench made the observation while setting aside a Gujarat High Court judgment acquitting an accused in a corruption case.

"An Appellate Court while dealing with an appeal against acquittal passed by the Learned trial Court, is required to bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Therefore, while dealing with the cases of acquittal by the trial Court, the Appellate Court would have certain limitations," the bench said.

5. Mere Recovery Of Currency Notes From Public Servant Does Not Constitute Offence U/s 7 Of Prevention Of Corruption Act: Supreme Court

[Case: N.Vijayakumar v. State of Tamil Nadu; Citation: LL 2021 SC 59]

A bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed that mere possession or recovery of currency notes is not sufficient to constitute an offence under Section 7 of the Prevention of Corruption Act. To prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe.

In this case, the accused, a Sanitary Inspector of Madurai Municipal Corporation, was acquitted in a corruption case by the Trial Court. The High Court, allowing the appeal filed by the State, reversed the Trial Court judgment and convicted the accused. In appeal, taking note of the evidence on record, the bench observed that the demand for and acceptance of bribe amount and cell phone by the appellant, is not proved beyond reasonable doubt.

6. Creditor Will Not Become 'Financial Creditor' Under IBC If A Corporate Debtor Has Only Given Security By Pledging Shares, Without Undertaking To Discharge Borrower's Liability: Supreme Court

[Case: Phoenix Arc Pvt Ltd v. Ketulbhai Ramubhai Patel; Citation: LL 2021 SC 60]

A Bench comprising of Justices Ashok Bhushan, R Subhash Reddy and MR Shah held that if a corporate debtor has only offered security by pledging shares, without undertaking to discharge the borrower's liability, then the creditor in such a case will not become 'financial creditor' as defined under IBC. The Court held that such a creditor could be a secured creditor but will not be a financial creditor under the IBC entitled to take part in the insolvency resolution process.

"A person having only security interest over the assets of corporate debtor, even if falling within the description of 'secured creditor' by virtue of collateral security extended by the corporate debtor, would not be covered by the financial creditors as per definitions contained in sub-section (7) and (8) of Section 5," the Court held.

7. 'Belief Of Commission Of Act Of Money Laundering' Has To Be Recorded Before Directing Freezing Of Bank Accounts Under PMLA: Supreme Court

[Case: OPTO Circuit India Ltd. v. Axis Bank; Citation: LL 2021 SC 61]

A bench headed by CJI SA Bobde observed that before directing freezing of bank accounts under Prevention of Money Laundering Act, the Authority has to record the belief of commission of the act of money laundering. Referring to Section 17 of PMLA, the Bench observed, "It certainly is not the requirement that the communication addressed to the Bank itself should contain all the details. But what is necessary is an order in the file recording the belief as provided under Section 17(1) of PMLA before the communication is issued and thereafter the requirement of Section 17(2) of PMLA after the freezing is made is complied.

The observation came while dealing with the case of Deputy Director, Directorate of Enforcement who had, through the communication addressed to the Anti Money Laundering Officer of some Banks, instructed them that the accounts maintained by the a company be 'debit freezed/stop operations' until further orders, with immediate effect. The High Court had upheld this, while disposing the writ petitions filed by the Company.

8. Delhi Sealing: Premises Originally Purchased As Shops Not To Be Sealed, Says Supreme Court

[Case: MC Mehta v. Union of India; Citation: LL 2021 SC 62]

A Bench headed by CJI SA Bobde observed that there is no reason to continue the sealing of premises by the Municipal Corporation of Delhi if they were actually sold as shops. The observation was made while considering an application filed by Defence Colony Market Welfare Association.

Senior Advocate P S Narasimha, appearing for the association, submitted that many shops were sealed by the authorities alleging unauthorized conversion of residential use to commercial use. The senior counsel submitted that the premises were originally purchased as shops and hence there was no question of unauthorized conversion of user.

9. Migration From Unrecognised Medical College To Recognised One Restricted By MCI Regulations: Supreme Court

[Case: Medical Council of India vs. Anchal Parihar; Citation: LL 2021 SC 63]

A bench of Justices L. Nageswara Rao and Indira Banerjee held that migration cannot be permitted from an unrecognised medical college to a recognised medical college in view of Regulation 6 of the Medical Council of India Regulations on Graduate Medical Education, 1997.

"Regulation 6(2) provides that migration is permissible only if both the Colleges are recognised u/s 11(2) of the Indian Medical Council Act, 1956...The term 'Migration' cannot be read out of context without reference to the Regulation which clearly provides that both colleges should be recognised u/s 11(2) of the Act", ruled the bench.

10. 'Approach Of Union Of India Exasperates Us' : Supreme Court Imposes Rs. 1 Lakh Costs On Centre For Filing SLP With Delay Of 6616 Days

[Case: Union Of India v. Central Tibetan Schools Admin; Citation: LL 2021 SC 64]

The approach of the Union of India in the manner it has filed the present special leave petition exasperates us, the Supreme Court remarked while dismissing Special Leave Petitions filed by the Central Government with a delay of 6616 days. All earlier counsel appears to have been thrown in the dustbin, said the bench comprising Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy said.

In this case, the Centre had filed an appeal before the Division Bench of the Delhi High Court against a single bench judgment delivered on 07.05.2002. This appeal was dismissed for non-prosecution on 15.12.2008. In the year 2016, the Centre filed an application seeking restoration of the LPA seeking condonation of delay of 2590 days. This application was dismissed by the Division Bench observing that Central Government cannot be compared to an illiterate litigant.

11. Litigant Cannot Seek Recusal Of A Judge On The Ground That He/She May Not Get A Favourable Order: Supreme Court

[Case: Neelam Manmohan Attavar v. Manmohan Attavar (D) through LRs; Citation: LL 2021 SC 65]

A division bench comprising of Justices DY Chandrachud and MR Shah observed that a litigant cannot seek recusal of a judge from hearing his/her case on the ground that he/she may not get a favourable order. The observation came while the bench rejected a plea seeking recusal of Justice Chandrachud from hearing a case.

"We see no valid and good ground for recusal by one of us. Merely because the order might not be in favour of the applicant earlier, cannot be a ground for recusal. A litigant cannot be permitted to browbeat the Court by seeking a Bench of its choice. Therefore, the prayer of the applicant­ petitioner in person that one of us (Dr. Dhananjaya Y Chandrachud, J.) should recuse from hearing the present miscellaneous application is not accepted and the said prayer is rejected," the bench observed.

12. Illegal Occupants Of Government/Panchayat Land Cannot Claim Regularization As A Matter Of Right: Supreme Court

[Case: Joginder v. State of Haryana; Citation: LL 2021 SC 66]

A bench comprising Justices DY Chandrachud and MR Shah observed that persons in illegal occupation of the Government Land/ Panchayat Land cannot, as a matter of right, claim regularization. "Regularization of the illegal occupation of the Government Land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules," it added.

In this case, the applicants who were in illegal possession of the land belonging to Gram Panchayat, made an application under Rule 12(4) of the Punjab Village Common Lands (Regulation) Rules, 1964. This application was rejected by the competent authority by holding that applicants were in illegal occupation of area more than the required area up to a maximum of 200 square yards. The High Court dismissed the writ petition challenging the order passed by the authority. The Supreme Court in appeal held that the applicants were found to be in illegal occupation of the area of more than 200 square yards and therefore one of the conditions mentioned in Rule 12(4) is not satisfied.

13. Recruitment Of Candidates In Excess Of Notified Vacancies Would Be Unconstitutional: Supreme Court

[Case: Gajanan Babulal Bansode v. State Of Maharashtra; Citation: LL 2021 SC 67]

While setting aside orders passed by the Maharashtra Administrative Tribunal and the Bombay High Court, bench comprising Justices L. Nageswara Rao, Indu Malhotra and Vineet Saran held that recruitment of candidates in excess of the notified vacancies is violative of Articles 14 and 16 (1) of the Constitution of India. It ruled that an authority cannot fill up more than the notified number of vacancies advertised.

The observation came while dealing with a Government Circular issued by the State of Maharashtra dated 27.06.2016 which notified 828 vacancies for promotion to the post of Police Sub-Inspector through the LDCE– 2016. Later, vide a Government Resolution, it notified a policy decision to accommodate 636 additional candidates who had secured more than 230 marks in the LDCE – 2016 examination.

14. 'No Allegations Whatsoever': Supreme Court Quashes FIR Against Man Accused Of Abducting Woman Who Later Married The Main Accused

[Case: Vishwas Bhandari v. State of Punjab; Citation: LL 2021 SC 68]

A Division Bench comprising of Justices Hemant Gupta and S. Ravindra Bhat quashed criminal proceedings against a man accused of abducting a woman who later married the main accused. The Court noted that there is no evidence against the accused and thus the proceedings initiated against him on the basis of FIR would be untenable.

In this case, the mother of the girl filed a complaint in the year 2013 alleging that one Vikram Roop Rai and the accused Vishwas Bhandari kidnapped her daughter by alluring her for the purpose of marriage. Later the girl married Rai who was acquitted by the Trial Court on the ground that no evidence was adduced to prove that the age of the prosecutrix was less than 18 years on the alleged date of occurrence of abduction. Vishwas Bhandari was not tried since he was absconding during that period.

15. Supreme Court Lowers NEET 2020 Qualifying Cut Off By 10 Percentile For Admission To First Year BDS Course For Year 2020-2021

[Case: Harshit Agarwal v. Union of India; Citation: LL 2021 SC 69]

A bench comprising Justices L. Nageswara Rao and Krishna Murari directed that the vacant seats in first year BDS course for the year 2020-2021 shall be filled up from the candidates who have participated in the NEET (UG) courses for the year 2020-2021 after lowering the percentile mark by 10 percentile. It observed that lowering the minimum marks and reducing percentile for admission to the first-year BDS course would not amount to lowering the standards of education.

NEET 2020 for admission to the first year of Bachelor of Dental Surgery (BDS) was conducted on 13-09-2020. Dental Council of India, recommended the lowering of qualifying cut off percentile for admission to BDS course for the academic year 2020-2021. The candidates who did not obtain the minimum marks prescribed by Sub-Regulation (ii) of Regulation II of the Dental Council of India, Revised BDS Course Regulations, 2007 approached the Apex Court aggrieved by non-acceptance of their representation seeking a lower cut-off.

16. Detailed Reasons Not Required In Disciplinary Authority's Order Imposing Punishment: Supreme Court

[Case: Boloram Bordoloi v. Lakhimi Gaolia Bank; Citation: LL 2021 SC 70]

A bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed that detailed reasons are not required to be recorded by the Disciplinary Authority in an order imposing punishment by accepting the findings recorded by the Enquiry Officer. It held that merely because a show cause notice is issued by indicating the proposed punishment, it cannot be said that disciplinary authority has taken a decision.

In this case, a manager of Lakhimi Gaolia Bank was imposed with a punishment of 'compulsory retirement'. The Disciplinary authority had accepted the report of the Enquiry Officer, that he has sanctioned and disbursed loans without following the due procedure contemplated under law and also there are allegations of misappropriation, disbursing loans irregularly. The Gauhati High Court had upheld the 'compulsory retirement' order. The Top Court, taking note of the records, observed that applicable procedure was followed by the Disciplinary authority in this case.

17. Even A Trespasser In Established Possession Can Obtain Injunction: Supreme Court

[Case: A. Subramanian v. R. Pannerselvam; Citation: LL 2021 SC 71

A bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah, while upholding a Madras High Court judgment decreeing an injunction suit, held that even a trespasser who is in established possession of the property could obtain injunction.

The bench observed that the principle that plaintiff cannot seek for a bare permanent injunction without seeking a prayer for declaration will not apply when the plaintiff's possession over the property is 'admitted and established'.

18. Bar Under Section 10A IBC Against Initiation Of CIRP Retrospective; Applies To Applications Filed From 25 March 2020

[Case: Ramesh Kymal vs. M/s Siemens Gamesa Renewable Power Pvt Ltd.; Citation: LL 2021 SC 72]

A bench comprising Justices DY Chandrachud and MR Shah held that Section 10A of IBC bars filing of applications for commencement of the Corporate Insolvency Resolution Process in respect of a corporate debtor for a default occurring on or after 25 March 2020, even if such application was filed before 5 June 2020 (the date on which the amendment came into force).

The bench also observed that that the retrospective bar on the filing of applications for the commencement of CIRP during the stipulated period does not extinguish the debt owed by the corporate debtor or the right of creditors to recover it.

19. 'Sudden Provocation Without Premeditation': Supreme Court Orders Release Of Murder Accused Farmer Who Spent 18 Years In Jail

[Case: Pardeshiram v. State of M.P.; Citation: LL 2021 SC 73]

A bench comprising of Justices Hemant Gupta and S. Ravindra Bhat while ordering for release of a murder accused farmer who spent 18 years in jail, held that he is liable to be convicted for the offence under Section 304 Part I of IPC and not under Section 302. The Supreme Court sentenced him to the sentence already undergone taking note of the period of custody undergone (eighteen years); the relationship between the accused and the deceased and the background in which the injuries were caused.

In this case, Pardeshiram was accused of murdering one Kartik Ram in an incident which occurred on 30.5.2002. Pursuant to a dispute between them over construction of a wall, Pardeshiram had allegedly assaulted the deceased with a spade and hit him with a stone on his head and as a result, the deceased died. The Trial Court convicted him under Section 302 of the Indian Penal Code and sentenced him to life imprisonment. The High Court dismissed his appeal.

20. Heart Ailment Not A 'Disability' Covered Under Rights of Persons with Disabilities Act: Supreme Court

[Case: Nawal Kishore Sharma v. Union of India; Citation: LL 2021 SC 74]

A bench comprising of Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy held that a heart ailment (Dilated Cardiomyopathy condition) is not covered within the definition of disability in the Rights of Persons with Disabilities Act.

The observation was made while dismissing an appeal against Patna High Court judgment which upheld the order of a Shipping Corporation of India that rejected a seaman's Claim for disability compensation. In his appeal challenging this judgment, one of the contentions raised before the Apex Court was that his heart ailment should be understood as a disability under the Disability Act and consequential benefits be accorded to him.

21. Dishonour Of Cheques- Blank Cheque Would Attract Presumption U/s 139 NI Act If Signatures Are Admitted: Supreme Court

[Case: M/s. Kalamani Tex v. P. Balasubramanian; Citation: LL 2021 SC 75]

A bench comprising of Justices NV Ramana, Surya Kant and Aniruddha Bose observed that 'reverse onus' clauses under Section 118 and Section 139 of the Negotiable Instruments Act become operative once the signature(s) of an accused on the cheque are established. The Court went ahead to observe that even a blank cheque leaf would attract presumption under Section 139 of the Negotiable Instruments Act when signatures are admitted by the accused.

"Though the presumptions raised under Section 118 and Section 139 are rebuttable in nature, a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility," the bench observed.

22. SC Judgment Which Excluded Persons With Over 50% Visual/Hearing Impairment From Judicial Service No Longer Binding Precedent: Supreme Court

[Case: Vikash Kumar v. UPSC; Citation: LL 2021 SC 76]

A bench comprising of Justices DY Chandrachud, Indira Banerjee and Sanjiv Khanna observed that the decision in V Surendra Mohan v. State of Tamil Nadu would "not be a binding precedent", after the coming into force of the Rights of Persons with Disabilities Act 2016. The Bench in the same judgment also held that facility of scribe can be provided for persons with disabilities other than those having benchmark disabilities.

In Surendra Mohan, a two-judge bench of the Supreme Court had held that stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post of a judicial officer is a legitimate restriction. In the present case, the Supreme Court said, "The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society."

Also Read: Benchmark Disability Not A Precondition To Obtain A Scribe: Supreme Court Allows Scribe For UPSC Candidate With 'Writer's Cramp'

23. Refusal To Condone Delay For Appeal Under Section 34 Of Arbitration Act Appealable Under Section 37: Supreme Court

[Case: Chintels India Ltd v. Bhayana Builders Pvt Ltd; Citation: LL 2021 SC 77]

A bench comprising Justices RF Nariman, Navin Sinha and KM Joseph held that an order refusing to condone the delay in filing an appeal under Section 34 of the Arbitration and Conciliation Act 1996 is appealable under Section 37 of the Act.

It observed that the expression "setting aside or refusing to set aside an arbitral award" does not stand by itself. The expression has to be read with the expression that follows-"under section 34". Section 34 is not limited to grounds being made out under section 34(2). "Obviously, therefore, a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been condoned under sub-section (3) of section 34 would certainly fall within section 37(1)(c)", the SC observed.

24. Consumer Fora Has No Power To Accept Written Statement Beyond Period Of 45 Days, Reiterates Supreme Court

[Case: Daddy's Builders Pvt. Ltd. v. Manisha Bhargava; Citation: LL 2021 SC 78]

A bench comprising of Justices DY Chandrachud and MR Shah reiterated that Consumer fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days.

In this case, the National Consumer Disputes Redressal Commission, confirmed the order passed by the Karnataka State Consumer Disputes Redressal Commission rejecting an application seeking condonation of delay in filing the written version/written statement to the consumer complaint. The rejection was on the ground that the written version/written statement was filed beyond the prescribed period of limitation provided under the Consumer Protection Act, 1986.

25. Consent Of Family, Community Or Clan Not Necessary Once Two Adult Individuals Agree To Enter Into Wedlock: Supreme Court

[Case: Laxmibai Chandaragi B v. State of Karnataka; Citation: LL 2021 SC 79]

A bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that consent of the family or the community or the clan is not necessary once two adult individuals agree to enter into a wedlock.

In this case, a father of a girl lodged 'missing persons complaint' after she eloped and married a person, without informing him. Even after knowing about their whereabouts and the factum of marriage, the Investigating officer insisted that the girl should appear at the police station to record a statement so that the case can be closed. "The investigating officer must be sent for counseling as to how to manage such cases," the bench said that while criticizing the conduct of the IO in adopting these tactics.

26. Grant Of Leave For Compounding Offences At Appellate Stage Is Not Automatic On Settlement Between Accused & Victim: Supreme Court

[Case: Pravat Chandra Mohanty v. State of Odisha; Citation: LL 2021 SC 80]

A division bench comprising of Justices Ashok Bhushan and Ajay Rastogi held that grant of leave as contemplated by Section 320(5) of CrPC is not automatic nor it has to be mechanical on receipt of request by the accused which may be agreed by the victim.

The observation came while the bench rejected a plea seeking compounding of offences of two police officers accused in a custodial violence case. Pravat Chandra Mohanty and Pratap Kumar Chaudhary were convicted under Section 324 of the Indian Penal Code. It was found that both the accused 'mercilessly beaten the deceased in the premises of the Police Station. This incident occurred in the year 1985. Before the Apex Court where they challenged their conviction, the accused made a prayer to compound the offence in view of the settlement reached between them and the legal heirs of the deceased.

27. More Clarity And Certainty Has To Be Brought In SEBI Mutual Fund Regulations: Supreme Court

[Case: Franklin Templeton Trustee Services Private Limited v. Amruta Garg; Citation: LL 2021 SC 81]

A bench comprising of Justices S. Abdul Nazeer and Sanjiv Khanna, while upholding the validity of e-voting process for winding up of six mutual fund schemes of Franklin Templeton, observed that more clarity and certainty has to be brought in the Mutual Fund Regulations. "We would neither hesitate in stating the obvious, that modern regulatory enactments bear heavily on commercial matters and, therefore, must be precisely and clearly legislated as to avoid inconvenience, friction and confusion, which may, in addition, have adverse economic consequences. The legislator in the present case must, therefore, reflect and take remedial steps to bring about clarity and certainty in the Mutual Fund Regulations," the bench said.

The Court held that, for the purpose winding up Mutual fund schemes, the 'consent of the unitholders' stipulated under Regulation 18(5)(c), would mean consent by majority of the unit holders who have participated in the poll, and not consent of majority of all the unitholders of the scheme.

Also Read: Supreme Court Upholds Validity Of E-Voting Process For Winding Up Of Franklin Templeton's Six Mutual Fund Schemes

Also Read: Franklin Templeton Case: Supreme Court Approves Distribution Mechanism Of SBI Mutual Fund And SBI Funds Management

28. Mere Absence Of Doctor's Certification Would Not Ipso Facto Render Dying Declaration Unacceptable: Supreme Court

[Case: Surendra Bangali v. State of Jharkhand; Citation: LL 2021 SC 82]

A division bench comprising of Justices Ashok Bhushan and Ajay Rastogi reiterated that mere absence of doctor's certification as to the fitness of the declarant's state of mind would not ipso facto render the dying declaration unacceptable.

The contention of the accused in this case was that the conviction is solely based on the dying declaration of the deceased which finds no corroboration. It was contended that the doctor's certificate was not there at the time of recording the dying declaration hence without there being certificate of doctor the dying declaration could not have been relied. Dismissing the appeal, the bench observed that the dying declaration of the deceased was promptly recorded and has been proved to be genuine.

29. "Right To Protest Cannot Be Any Time And Everywhere": Supreme Court Dismisses Review Petition Against 'Shaheen Bagh' Judgment

[Case: Kaniz Fatima v. Commissioner of Police; Citation: LL 2021 SC 83]

A three judge bench consisting of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari dismissed the review petition filed against the Shaheen Bagh Judgment in which it is held that the demonstrations expressing dissent have to be in designated places alone. Dismissing the review petition, the bench held that the right to protest cannot be anytime and everywhere.

"We have considered the earlier judicial pronouncements and recorded our opinion that the Constitutional scheme comes with a right to protest and express dissent but with an obligation to have certain duties. The right to protest cannot be anytime and everywhere. There may be some spontaneous protests but in case of prolonged dissent or protest, there cannot be continued occupation of public place affecting rights of others," the Court said.

30. Appellate Court Cannot Permit Production Of Additional Evidence Unless & Until Procedure Under Order XLI Rules 27-29 CPC Is Followed: Supreme Court

[Case: HS Goutham v. Rama Murthy; Citation: LL 2021 SC 84]

A bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed that unless and until the procedure under Order XLI Rules 27, 28 and 29 are followed, the parties to the appeal cannot be permitted to lead additional evidence and/or the appellate court is not justified to direct the court from whose decree the appeal is preferred or any other subordinate court, to take such evidence and to send it when taken to the Appellate Court.

31. Is It Mandatory To Seek Probate Or Letters Of Administration For Establishing A Right As Executor Or Legatee Under A Will? Supreme Court Explains

[Case: Ravinder Nath Agarwal v. Yogender Nath Agarwal; Citation: LL 2021 SC 85]

A Single Bench of Justice V. Ramasubramanian observed that the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories.

It stated that there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other relief.

32. Supreme Court Allows Himachal Pradesh Govt. Plea For Diversion Of Certain Extent Of Forest Land For Carrying Out Public Welfare Projects

[Case: Re: TN Godavarman Thirumulpad v. Union Of India & Ors.; Citation: LL 2021 SC 86]

A bench comprising CJI SA Bobde, Justices AS Bopanna and V. Ramasubramanian allowed some applications filed by the Government of Himachal Pradesh seeking diversion of certain extent of forest land for the purpose of carrying out certain public welfare projects.

The court granted permission to projects like Hydro Electric Projects, Roads, Indian Institute of Technology, Degree College, Model School, Construction/upgradation of Electric Sub­stations, Transmission line, Hybrid Power Project (Solar+wind+battery storage), Extraction of river bed minerals, Car parking etc. The extent of land sought to be diverted is more than 700 ha. It however, adjourned the application seeking to carry out silviculture felling of Khair (Acacia catechu) trees in the forest areas of the State in accordance with the approved Working Plans.

33. Timeline For Pronouncement Of Judgment Prescribed In Order XX CPC Does Not Apply To High Courts: Supreme Court

[Case: SJVNL v. M/s CCC HIM JV & Anr.; Citation: LL 2021 SC 87]

A Bench comprising of Justices RF Nariman and BR Gavai observed that timeline for pronouncement of judgment prescribed in Order XX of CPC does not apply to the High Court.

"It is true, that for the High Courts, no period for pronouncement of judgment is contemplated either under the Code of Civil Procedure or the Criminal Procedure Code, but as the pronouncement of the judgment is a part of justice dispensation system, it has to be without delay. In a country like ours where people consider the Judges only second to God, efforts be made to strengthen that belief of the common man. Delay in disposal of the cases facilitates the people to raise eye-brows, some time genuinely which, if not checked, may shake the confidence of the people in the judicial system," the bench held.

34. Supreme Court Confirms Life Imprisonment For Remainder Of Natural Life Awarded To Man Accused Of Murdering Two Kids

[Case: Gauri Shankar v. State Of Punjab; Citation: LL 2021 SC 88]

A bench comprising Justices Indu Malhotra and Ajay Rastogi confirmed punishment of life imprisonment for remainder of natural life awarded to a man accused of murdering two kids by administering celphos to them.

Gauri Shankar was found guilty for murder of two minor children aged 4 years and 2 years in brutal manner by administering celphos to them. The Trial Court convicted him under Section 302 IPC and punished him with imprisonment for life which would mean remainder of natural life and fine of Rs.5000/­ by judgment dated 1st July, 2013. The High Court dismissed his appeal.

35. Pre-Deposit For Filing Appeals Before DRAT Is A Mandatory Requirement: Supreme Court

[Case: Kotak Mahindra Bank Pvt. Limited v. Ambuj A. Kasliwal; Citation: LL 2021 SC 89]

A bench comprising of Chief Justice of India SA Bobde, Justice AS Bopanna and Justice V. Ramasubramanian observed that entire waiver of pre-­deposit for filing appeal before Debt Recovery Appellate Tribunal under Section 21 of the Recovery of Debts and Bankruptcy Act, is impermissible. In all cases fifty per cent of the decretal amount i.e. the debt due is to be deposited before the DRAT as a mandatory requirement, but in appropriate cases for reasons to be recorded the deposit of at least twenty-five per cent of the debt due would be permissible, but not entire waiver.

"In all cases fifty per cent of the decretal amount i.e. the debt due is to be deposited before the DRAT as a mandatory requirement, but in appropriate cases for reasons to be recorded the deposit of at least twenty-five per cent of the debt due would be permissible, but not entire waiver. Therefore, any waiver of pre­deposit to the entire extent would be against the statutory provisions and, therefore, not sustainable in law. The order of the High Court is, therefore, liable to be set aside," the bench observed.

36. Prior Knowledge Of Senior Secondary Level Biology Or Biological Science Is Essential For Admission To MBBS Course: Supreme Court

[Case: Kaloji Narayana Rao University Of Health Sciences v. Srikeerti Reddi Pingle; Citation: LL 2021 SC 90]

A bench comprising Justice L. Nageswara Rao and S. Ravindra Bhat observed that prior knowledge - both theoretical and practical, of senior secondary level in biology or biological sciences is an essential qualification to get admission to MBBS Course.

The Court also observed that equivalence in qualification is not merely at the level of a 10+2 requirement, but MCI regulation requires equivalence in 'standard and scope' in an examination where the candidate is tested in Physics, Chemistry and Biology including practical testing in these subjects, along with English.

37. Inappropriate To Entertain Art. 32 Plea By Homebuyers Against Developers: Supreme Courts Points To Provisions In CPA, RERA, IBC, Criminal Law

[Case: Upendra Choudhury v. Bulandshahar Development Authority; Citation: LL 2021 SC 91]

A bench of Justices DY Chandrachud and MR Shah declared that proceedings under Article 32 of the Constitution by a purchaser, seeking relief in respect of a real estate project, cannot be entertained. "On account of the economic meltdown and now the COVID pandemic, the real estate sector has taken a hit. If we entertain homebuyers' petitions against builders/developers under Article 32, it will open the flood-gates," the Bench said.

Opining that it would be inappropriate to entertain a petition under Article 32 for more than one reason, the bench indicated that there are specific statutory provisions holding the field, including among them: (i) The Consumer Protection Act 19863 and its successor legislation; (ii) The Real Estate (Regulation and Development) Act 20164; and (iii) The Insolvency and Bankruptcy Code 2016.

38. Presence Of Arbitration Clause In Contract Between State Instrumentality & Private Party Does Not Oust Writ Jurisdiction Under Article 226: Supreme Court

[Case: UNITECH Limited v. Telangana State Industrial Infrastructure Corporation; Citation: LL 2021 SC 92]

A bench comprising Justices DY Chandrachud and MR Shah observed that presence of an arbitration clause within a contract between a state instrumentality and a private party is not an absolute bar to availing remedies under Article 226 of the Constitution. It held that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract.

In this case, the Division Bench of the Telangana High Court had upheld the order of the Single Judge on the liability of Telangana State Industrial Infrastructure Corporation to refund an amount of Rs 165 crores to Unitech (Case pertains to a contractual dispute between TSIIC and Unitech). This order was passed while allowing a writ petition filed by Unitech. Modifying the single bench order, the Division Bench confined the liability to pay interest only with effect from 14 October 2015. TSIIC approached the Apex Court mainly contending that the High Court ought not to have entertained a writ petition under Article 226 of the Constitution "in a pure contractual dispute" which also contains an arbitration agreement.

39. Consent Decree Would Not Serve As An Estoppel Where The Compromise Was Vitiated By Fraud, Misrepresentation, Or Mistake: Supreme Court

[Case: Compack Enterprises India (P) Ltd. v. Beant Singh; Citation: LL 2021 SC 93]

A bench comprising Justices Mohan M. Shantanagoudar and Vineet Saran observed that a consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake.

It was also observed that consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties and therefore it it would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree, unless it is done with the revised consent of all the parties thereto.

40. NHAI Vs Progressive Construction: Supreme Court Appoints Justice (Rtd.) GS Singhvi As Sole Arbitrator

[Case: NHAI v. Progressive Construction Ltd.; Citation: LL 2021 SC 94]

A division bench of Justices Indu Malhotra and Ajay Rastogi while allowing an appeal filed by National Highways Authority of India (NHAI), directed the parties to the arbitral proceedings to approach the Indian Council of Arbitration within 2 weeks for the adjudication of the disputes in accordance with ICA Rules of Domestic Commercial Arbitration & Conciliation, 2016.

A single bench of the High Court vide order dated 10.04.2019 had set aside the arbitral award passed by a three-member tribunal in view of incorrect inferences drawn by the tribunal. Aggrieved by the judgment, cross appeals were filed by both the parties i.e. NHAI and Progressive Construction Ltd. under sec. 37 of the Arbitration and Conciliation Act, 1996 before the division bench of the High Court. The division bench thereafter directed that the appeals must be confined only to the findings of selective number of claims and counter claim. Therefore, challenging this order, the NHAI had preferred an appeal to the Apex Court.

41. Supreme Court Closes Suo Moto Case Taken To Probe "Larger Conspiracy" Behind Sexual Harassment Allegations Against Ex-CJI Gogoi

[Case: In Re: Matter Of Great Public Importance Touching Upon The Independence Of Judiciary; Citation: LL 2021 SC 95]

A bench comprising of Justices Sanjay Kishan Kaul, AS Bopanna and V. Ramasubramanian closed the suo moto proceedings which were instituted to examine if there was a "larger conspiracy" behind the allegations of sexual harassment against the then Chief Justice of India Ranjan Gogoi.

The bench observed that enquiry panel headed by former SC judge Justice AK Patnaik has submitted a report opining that a conspiracy behind the sexual harassment allegations cannot be "ruled out". The report also surmised that certain tough stances taken by ex-CJI Gogoi during his tenure could have triggered the allegations. The report also referred to an Intelligence Bureau input that several persons were unhappy with Justice Gogoi for driving the Assam-NRC process.

42. Deposit 15.72 Cr Refundable To Students And Extra 25 Cr With ASC To Claim Affiliation: Supreme Court Directs Kannur Medical College

[Case: Alitha R Nath v. Kannur Medical College; Citation: LL 2021 SC 96]

A bench comprising Justices S. Abdul Nazeer and Sanjeev Khanna directed the Kannur Medical College to deposit Rs.15,72,89,020/- with the Admission Supervisory Committee for Professional Colleges in Kerala along with full details of the guardians/students to whom the amounts have to be refunded within a period of one month. It also directed it to make a deposit of Rs.25 crores with the Admission Supervisory Committee as a pre-condition to claim affiliation.

The court said that, thereafter, ASC has to issue fresh notices to the remaining students (possibly 92 in number) and examine the objections or claims made by the guardians/students as to the actual amount paid by them on the basis of material placed by the guardians/students and the college. ASC was directed to complete this exercise preferably within a period of nine months.

The court issued these directives while disposing an appeal filed against the Kerala High Court order which had stayed the operation of the order dated 29th April, 2020 passed by the Kerala University of Health Sciences whereby the College was denied affiliation for conducting MBBS and post graduate courses for the academic year 2020-21.

43. Parties Who Privately Agree To Settle Disputes Without Court Intervention U/s 89 CPC Also Entitled To Refund Of Court Fee: Supreme Court

[Case: High Court of Judicature at Madras v. MC Subramaniam; Citation: LL 2021 SC 97]

A bench comprising Justices Mohan M. Shantanagoudar and Vineet Saran held that the parties who privately agree to settle their dispute outside the modes contemplated under Section 89 of CPC are also entitled to refund of Court fees.

"The narrow interpretation of Section 89 of CPC and Section 69­A of the 1955 Act sought to be imposed by the Petitioner would lead to an outcome wherein parties who are referred to a Mediation Centre or other centres by the Court will be entitled to a full refund of their court fee; whilst parties who similarly save the Court's time and resources by privately settling their dispute themselves will be deprived of the same benefit, simply because they did not require the Court's interference to seek a settlement. Such an interpretation, in our opinion, clearly leads to an absurd and unjust outcome, where two classes of parties who are equally facilitating the object and purpose of the aforesaid provisions are treated differentially, with one class being deprived of the benefit of Section 69­A of the 1955 Act," the Court observed.

44. 'Not Proper To Keep Him In Jail Forever': Supreme Court Reduces Sentence Imposed On Dacoity Cum Murder Convict To 22 Years Imprisonment

[Case: Shivalinga @ Shivalingayya v. State of Karnataka; Citation: LL 2021 SC 98]

A bench comprising of Justices Mohan M. Shantanagoudar and Vineet Saran reduced the sentence imposed on a man convicted in a dacoity­ cum­ murder case to 22 years actual imprisonment.

Shivalinga was convicted under Sections 396 and 307 of the Indian Penal Code and sentenced to death penalty by the Trial Court. The Karnataka High Court, partly allowing appeal, converted the death sentence to imprisonment for life. Shivalinga and other accused were accused of attacking the driver and cleaner of a lorry which resulted in cleaner's death.

45. Daiichi Sankyo Case: Supreme Court Asks Banks & Financial Institutions To Disclose Documents Related To Fortis Healthcare- IHH Healthcare Deal

[Case: M/S. Daiichi Sankyo Company Limited v. Oscar Investments Ltd; Citation: LL 2021 SC 99]

A three-Judge Bench of Justices UU Lalit, Indira Banerjee and KM Joseph directed the banks and financial institutions to place on record several documents to determine their role in alienation of Fortis Healthcare's shares through its deal with IHH healthcare, on or before 22nd Feb 2021.

46. Pass Reasoned Judgment Along With Operative Order: Supreme Court Criticizes NCDRC Practice Of Passing 'Reasons To Follow' Orders

[Case: Sudipta Chakrobarty v. Ranaghat SD Hospital; Citation: LL 2021 SC 100]

Criticizing the practice of 'reasons to follow' orders, a bench comprising Justices Indu Malhotra and Ajay Rastogi directed the National Consumer Disputes Redressal Commission to pass reasoned Judgment along with the operative order. The Bench observed that, in all matters before NCDRC where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

The court noted a recent order passed in Oriental Insurance Co. Ltd. Vs. Zaixhu Xie & Ors. in which it was observed that the delay in delivery of judgments is a violation of Article 21 of the Constitution of India and the problems gets aggravated when the operative portion is made available early, and the reasons follow much later, or are not made available for an indefinite period.

47. Banks Duty-Bound To Exercise Due Diligence In Maintaining And Operating Their Locker Facility: Supreme Court Issues Guidelines

[Case: Amitabha Dasgupta v. United Bank of India; Citation: LL 2021 SC 101]

A Bench comprising Justices Mohan M. Shanthanagoudar and Vineet Saran observed that the banks owe a duty of care to exercise due diligence in maintaining and operating their locker or safety deposit systems and that they cannot contract out of the minimum standard of care in this regard. The banks cannot wash off their hands and claim that they bear no liability towards their customers for the operation of the locker.

The Court while issuing slew of directions held that irrespective of the value of the articles placed inside the locker, the bank is under a separate obligation to ensure that proper procedures are followed while allotting and operating the lockers.

48. Selections To Public Employment Should Be On The Basis Of Merit: Supreme Court

[Case: Anmol Kumar Tiwari v. State of Jharkhand; Citation: LL 2021 SC 102]

A bench comprising Justices L. Nageswara Rao and Indira Banerjee observed that the selections to public employment should be on the basis of merit. "Appointment of persons with lesser merit ignoring those who have secured more marks would be in violation of the Articles 14 and 16 of the Constitution of India," the Court observed while agreeing with the High Court.

In this case, the appointees to the posts of Police Sub-Inspectors, Attendants (Sergeant) and Company Commanders by the Home Department of the Government of Jharkhand were terminated on the ground that the select list was prepared wrongly by ignoring merit of candidates and by giving undue importance to the preferences given by them. Allowing the writ petition filed by these appointees who were terminated, the Jharkhand High Court observed that they cannot be held responsible for the irregularities committed by the authorities in the matter of their selection and there is no allegation of fraud or misrepresentation on their part. The High Court dismissed these applications.

49. Suspicion, However Strong Cannot Take The Place Of Proof: Supreme Court Upholds Acquittal Of Murder Accused

[Case: State of Odisha v. Banabihari Mohapatra; Citation: LL 2021 SC 103]

A bench comprising Justices Indira Banerjee and Hemant Gupta reiterated that suspicion, however strong cannot take the place of proof. "It is well settled by a plethora of judicial pronouncement of this Court that suspicion[, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt," the court observed.

It added that before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused.

50. Subsequent Purchaser Can Also Challenge Readiness & Willingness Of Plaintiff In A Specific Performance Suit: Supreme Court

[Case: Kadupugotla Varalakshmi v. Vudagiri Venkata Rao; Citation: LL 2021 SC 104]

A bench comprising Justices UU Lalit, Indira Banerjee and KM Joseph observed that subsequent purchaser of the suit property can challenge the readiness and willingness on part of the plaintiff in a specific performance suit. The Bench noted that the principles laid down in the judgment in Jugraj Singh judgment were not approved in Ram Awadh (Dead) vs.Achhaibar Dubey [(2000) 2 SCC428].

"It is open to any defendant to contend and establish that he mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit," the court said.

51. Manufacturer Not Liable For Dealer's Fault Unless Manufacturer's Knowledge Is Proved In Cases Where Relationship Is 'Principal-To-Principal' Basis: Supreme Court

[Case: Tata Motors Ltd v. Anonio Paulo Vaz; Citation: LL 2021 SC 105]

A three-judge bench comprising Justices UU Lalit, Hemant Gupta and Ravindra Bhat observed that a manufacturer will not be liable for the fault of the dealer, unless it is proved that the manufacturer was aware of the deficiency of the dealer, in cases where the relationship between them is on "principal-to-principal" basis.

In this case, the dealer, Vistar Goa, had sold a 2009 model car to a customer under the pretext that it was a 2011 model car. The customer, one Antonio Paulo Vaz, filed a consumer complaint in the District Forum seeking refund of the money or replacement of the car with a 2011 model vehicle. In the complaint, Tata Motors was also made an opposite party, along with the dealer.

The Court, after examining the terms of the dealership agreement, noted that the relationship was on a "principle-to-principle" basis. The Court also noted that there were no pleadings by the complainant that Tata Motors had special knowledge of the deficiencies of the dealer. It thus absolved Tata Motors Limited of the liability.

52. Consent Decree Based On Admission Recognizing Pre-Existing Rights Under Family Settlement Does Not Require Registration: Supreme Court

[Case: Khushi Ram v. Nawal Singh; Citation: LL 2021 SC 106]

A bench comprising of Justices Ashok Bhushan and Subhash Reddy held that a consent decree based on admission recognising pre-existing rights under Family settlement does not require registration under section 17(1)(b) of the Indian Registration Act.

"We, thus, conclude that in view of the fact that the consent decree dated 19.08.1991 relate to the subject matter of the suit, hence it was not required to be registered under Section 17(2) (vi) and was covered by exclusionary clause. Thus, we, answer question No.1 that the consent decree dated 19.08.1991 was not registrable and Courts below have rightly held that the decree did not require registration," the bench held.

53. Swatantrata Sainik Samman Pension Can Be Sanctioned As Per Proof Required Under The Scheme And In No Other Manner: Supreme Court

[Case: Union of India v. A. Alagam Perumal Kone; Citation: LL 2021 SC 107]

A bench comprising Justices Ashok Bhushan and R. Subhash Reddy observed that the pension under the Swatantrata Sainik Samman Pension Scheme can be sanctioned as per the proof required under the scheme and in no other manner.

It was observed that when the claim is under a particular pension scheme, unless one fulfills the eligibility criteria for grant of pension, as mentioned in the scheme, no applicant can claim such pensions, as a matter of right. While observing so, the Court set aside the Madras High Court direction to grant Freedom Fighter's Pension to A. Alagam Perumal Kone under Swatantrata Sainik Samman Pension Scheme.

54. Supreme Court Upholds Life Imprisonment For Man Accused Of Murdering His Pregnant Wife

[Case: R. Damodaran v. State; Citation: LL 2021 SC 108]

A bench comprising Justices Ashok Bhushan and Ajay Rastogi dismissed the appeal filed by a man convicted for murdering his pregnant wife. It observed that the prosecution has established in a chain of events leave no matter of doubt that it is none other than the accused who had committed the crime of murdering his own wife who was at the advanced stage of pregnancy, and taken the dead body to the hospital and made a false statement that she had got a cardiac arrest.

55. Grant Of Essentiality Certificate By State Government To Establish Medical College Is Not Simply A Ministerial Act: Supreme Court

[Case: VN Public Health And Educational Trust v. State of Kerala; Citation: LL 2021 SC 109]

A bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari held that grant of Essentiality Certificate by the State Government and Consent of Affiliation by the University is not simply a ministerial act. The court held that essentiality Certificate is mandatorily required by a person before he receives permission for establishment of a Medical College.

"Thus, an EC is mandatorily required by a person before he receives permission for establishment of a Medical College. The Legislative scheme that imposes the requirement of the EC is prescribed in Section 10(A) of the Medical Council of India Act, which requires the previous permission of the Central Government for establishing a Medical College or opening a new course of study or training. Every person or Medical College must submit to the Central Government a scheme as prescribed," the bench held.

56. No Extra Chance For UPSC Exams; Supreme Court Dismisses Plea Of Last Attempt Civil Service Candidates

[Case: Rachna v. Union of India; Citation: LL 2021 SC 110]

dismissed the petition seeking extra chance in UPSC civil service exams for the candidates who had exhausted their last attempt in October 2020. It observed that "What is being claimed and prayed for under the guise of COVID 19 pandemic is nothing but a lame excuse in taking additional attempt to participate in the Civil Service Examination 2021 to be held in the future." It added, "if this Court shows indulgence to few who had participated in the Examination 2020, it well set down a precedent and also have a cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution."

The petitioners, who had given their last attempt in Civil Service Examination 2020, had sought for an extra chance citing difficulties created by COVID-19 pandemic and the national lockdown. The petitioners argued that the pandemic affected their preparation and sought for extra attempt.

Also Read: Giving Extra Chance For A Few In UPSC Exams Will Have A Cascading Effect On Other Examinations :SC

57. 'State Can Provide For Election Of More Than One Member From A Ward': SC Upholds Gujarat Municipal Law Amendment

[Case: Parmar Samantsinh Umedsinh v. State of Gujarat; Citation: LL 2021 SC 111]

A bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah upheld the constitutional validity of Section 5(3) (iii)(a) and Section 29A of the Gujarat Provincial Municipal Corporation Act, 1949, which provides multi-member representation from a Ward in the Municipal Corporation/Municipality.

Articles 243R and 243S of the Constitution of India does not contain any limitation to the effect that there shall be only one member from one Ward, the Court said while upholding the Gujarat High Court judgment dismissing the writ petitions challenging the provisions of the Act.

58. SC Directs A UP Medical College To Deposit Five Crores For Intentionally Violating Medical Council Regulations While Admitting Students

[Case: Saraswati Educational Charitable Trust v. Union of India; Citation: LL 2021 SC 112]

A division Bench of Justices Nageswara Rao and Ravindra Bhat directed Saraswati Medical College to deposit an amount of Rs. 5 crores with the SC Registry for intentionally violating the Medical Council Regulations by granting admission to students not allotted by the Director General Medical Education. The Court refused to condone the violation made by College in providing admission to 132 students on its own and permitting them to continue despite Medical Council of India's direction to discharge them.

The Court further directed the National Medical Commission to constitute a Trust, including the Accountant General of the State of UP, an eminent educationist and a representative of the State as Members of the Trust to manage the aforesaid amount and utilise it to extend financial assistance to needy students seeking admission to medical colleges in the State of Uttar Pradesh.

59. Salaries & Pensions Are Rightful Entitlements Of Government Employees; Appropriate Interest Must Be Paid For Delayed Payment: Supreme Court

[Case: State of Andhra Pradesh v. Dinavahi Lakshmi Kameswari; Citation: LL 2021 SC 113]

A Division bench comprising of Justices DY Chandrachud and MR Shah observed that salaries and pensions are rightful entitlements of Government employees and the Government which has delayed the payment of salaries and pensions should be directed to pay interest at an appropriate rate.

The Andhra Pradesh High Court had allowed a PIL filed by a former District and Sessions Judge and directed the (i) payment of the deferred salary for the months of March-April 2020 together with interest at the rate of 12% per annum and (ii) payment of deferred pension for the month of March 2020 with a similar rate of interest.

Disposing the appeal, the bench directed that in substitution of the interest rate of 12% per annum which has been awarded by the High Court, the Government of Andhra Pradesh shall pay simple interest computed at the rate of 6% per annum on account of deferred salaries and pensions within a period of thirty days.

60. Order VII Rue 11 CPC: Court Has Inherent Power To See That Frivolous Or Vexatious Litigations Are Not Allowed To Consume Its Time: Supreme Court

[Case: K. Akbar Ali v. K. Umar Khan; Citation: LL 2021 SC 114]

A Division Bench of Justices Indira Banerjee and Hemant Gupta observed that the provisions of Order VII Rue 11 [Rejection of Plaint] are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.

The bench observed that while considering an application under Order VII Rule 11 of the CPC, the question before the Court is whether the plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. While considering an application under Order VII Rule 11 of the CPC the Court is not to look into the strength or weakness of the case of the plaintiff or the defence raised by the defendant, it added.

61. Admission & Fee Regulatory Committee Has To Ensure That Fee Charged By Private Medical Colleges Are Neither Excessive Nor Exploitative: Supreme Court

[Case: Najiya Neermunda v. Kunhitharuvai Memorial Charitable Trust; Citation: LL 2021 SC 115]

A bench comprising Justices L. Nageswara Rao and S. Ravindra Bhat observed that the regulation of fee for MBBS students in private self-financing medical colleges is within the domain of the Admission and Fee Regulatory Committee which has to ensure that the fee is non-exploitative and reasonable.

The State had approached the Apex Court aggrieved with the Kerala High Court direction to the Committee to examine the audited balance sheets only for the purpose of considering whether the expenditure that is shown by the managements should be excluded or not. The Top Court observed that the High Court committed an error in directing the Committee to take into account only audited balance sheets, and provisional profit and loss accounts in the absence of audited balance sheets, to fix the fee.

62. Wife Levelling Allegations Affecting Career & Reputation Of Husband Amounts To Mental Cruelty Against Him For Seeking Divorce: Supreme Court

[Case: Joydeep Majumdar v. Bharti Jaiswal Majumdar; Citation: LL 2021 SC 116]

A bench comprising Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy observed that wife levelling allegations which affects career and reputation of husband is mental cruelty against him for the purpose of seeking divorce. "The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party," the bench observed.

In this case, the husband, an army officer, in his divorce petition, alleged that he was subjected to numerous malicious complaints by the wife which have affected his career and loss of reputation, resulting in mental cruelty. The Family Court granted him divorce, but the High Court reversed it. In appeal before the Apex Court, the husband submitted that the wife filed a series of complaints against him before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged his reputation and mental peace.

63. Ossification Test Conducted On An Accused Aged Around 40-55 Years Cannot Be Conclusive To Declare Him As A Juvenile On The Date Of The Incident: Supreme Court

[Case: Ram Vijay Singh v. State Of Uttar Pradesh; Citation: LL 2021 SC 117]

A bench comprising Justices RF Nariman, Hemant Gupta and BR Gavai observed that ossification test conducted on a person aged around 40 to 55 years cannot be conclusive to declare him as a juvenile on the date of the incident. "When a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age," the bench held.

In this case, the accused-appellant relied on an ossification test report to contend that he was juvenile at the date of incident (20.7.1982). It was contended that, even considering the maximum age as 55 years as per the Medical Report now submitted, the accused would still be less than 18 years on the date of incident.

DISMISSALS

1. Supreme Court Dismisses Petition Seeking President's Rule In Uttar Pradesh Dismissing Yogi Adityanath Government

[Case: CR Jaya Sukin v. Union of India & Ors.]

A bench headed by Chief Justice of India dismissed a PIL which sought the imposition of President's Rule in the State of Uttar Pradesh after dissolving the state government led by Chief Minister Yogi Adityanath.

The petition filed by a lawyer named CR Jaya Sukin sought a direction upon the Central Government to impose State Emergency under Article 356 of the Constitution in the state of Uttar Pradesh.

2. 'We Are Not The Legislature; Can't Issue General Directions' : Supreme Court Refuses To Entertain PIL Seeking Directions To Stop Sale Of Counterfeit COVID 19 Vaccine

[Case: Vishal Tiwari v. Union Of India & Anr.]

The Supreme Court refused to entertain a PIL seeking to direct the Central Government to issue directions under the Disaster Management Act to prevent the sale of counterfeit COVID-19 vaccines. "You file a case with concrete facts. We cannot issue general directions. We are not the legislature", CJI SA Bobde told the petitioner Advocate Vishal Tiwari.

3. Plea Seeking Prosecution Of BSF Director General Rakesh Asthana Under PC Act: Supreme Court Dismisses Plea, Allows Petitioner To Pursue Other Remedies

[Case: Mohit Dhawan v. Rakesh Asthana & Ors.]

A division Bench of Justice Nageswar Rao and Justice Ravindra Bhat dismissed as withdrawn a petition seeking criminal prosecution of Rakesh Asthana, the present Director General of BSF under section 7 & 7 A of the Prevention of Corruption Act.

The alleged that while serving as Special Director of CBI, Asthana hijacked the entire criminal justice system in connivance with other police officers of Chandigarh and conspired to obtain undue advantage, for himself and his close family friends, thereby performing his public duty improperly and dishonestly.

4. 'Come Before Us In A Concrete Case': Supreme Court Dismisses Advocates' PIL Challenging Sedition Law Under Sec 124A IPC

[Case: Aditya Ranjan & Ors. v. Union of India & Ors.]

A three-Judge Bench comprising CJI SA Bobde, Justice AS Bopanna and Justice Ramasubramanian dismissed a PIL filed by a group of advocates challenging the constitutionality of the offence of Sedition under Section 124A IPC, on the ground that the petitioners have no cause of action. While dismissing the PIL, the bench observed that as per the precedent in the Kusum Ingots case, a law cannot be challenged without a cause of action.

5. Supreme Court Refuses To Entertain PIL Seeking Directions To Police To Follow 'Arnesh Kumar' Guidelines For Arrest

[Case: Ameya Bokil & Anr. v. Union of India & Ors.]

A bench headed by the Chief Justice of India SA Bobde refused to entertain a PIL seeking directions to ensure that police strictly follow the guidelines laid down in the 'Arnesh Kumar judgment' while arresting persons. "If the arrests are in violation are of that order (Arnesh Kumar), you file contempt", the CJI suggested. "You file a case with concrete facts", he added.

Citing a nation-wide survey report, the PIL filed by law researchers Ameya Bokil and Srujana Bej stated that indiscriminate arrests carried out by police during the lockdown period ignoring the 'Arnesh Kumar' judgment led to high increase of undertrial population in prisons, nullifying the efforts taken by the Supreme Court and High Powered Committees of States to reduce prison density amid COVID-19 pandemic by grant of emergency parole or interim bail.

OTHER IMPORTANT UPDATES

1. Supreme Court Orders Release Of Comedian Munawar Faruqui; Stays Madhya Pradesh HC Order And Production Warrant In UP Case

[Case: Munawar v. State of Madhya Pradesh & Ors.]

A division bench of Justices RF Nariman and BR Gavai granted ad-interim bail to comedian Munawar Faruqui in a case registered by Madhya Pradesh police for alleged hurting of religious sentiments. In doing so, the bench also took note of the submission of his counsel, Senior Advocate Saurabh Kirpal, that the arrest was made in violation of Section 41A of Cr.P.C, without following the dictum laid in the Arnesh Kumar judgment. The Court also stayed the production warrant issued in a case by UP Police.

The Bench was considering the special leave petition filed against the order passed by the High Court dismissing his bail application on January 28. Apart from the SLP challenging the HC order, Munawar Faruqui has also filed a writ petition against the MP police FIR.

2. 'Approach High Court': Supreme Court Allows Withdrawal Of Petitions Challenging "Love Jihad" Ordinance Of UP

[Case: PUCL v. State of UP]

A bench headed by CJI SA Bobde allowed the withdrawal of two writ petitions challenging the controversial Uttar Pradesh Ordinance on Unlawful Religious Conversions with the liberty to approach the High Court. "The High Court is already seized of the matter. We would like to have the benefit of the High Court's view on this as well", the CJI told the counsel for the petitioners.

The court had also dismissed a petition last month filed by the UP Government seeking transfer of the petitions pending in the High Court to the Supreme Court.

3. 'We Are Sure Govt Is Enquiring': Supreme Court Refuses To Entertain Pleas Seeking Probe Into Tractor Rally Violence

[Case: Vishal Tiwari v. Union of India & Anr.]

A bench headed by CJI SA Bobde refused to entertain a batch of petitions seeking enquiry into the violence during farmers' tractor rally held in the national capital on the Republic Day. The Court allowed the petitioners to withdraw the plea with liberty to approach the appropriate Government Minstry.

"We are sure that the government is enquiring into it and taking appropriate action. We read a statement of Prime Minister Narendra Modi in press that that Law will take its own course. So the government is already investigating it." CJI observed at the outset.

The bench while hearing petitioners, dismissed similar PILs seeking protection of common men and police officers during protests, seeking judicial enquiry by a retired SC/HC judge into the events or NIA/CBI investigation.

4. Supreme Court Asks Petitioner Challenging WhatsApp Business's Privacy Policy To Move Delhi High Court

[Case: Confederation of All India Traders v. Union of India & Ors.]

A bench headed by CJI SA Bobde declined to entertain a petition by Confederation of All India Traders against the new privacy policy of social media chat platform WhatsApp, since a similar plea was challenged before the Delhi High Court.

WhatsApp updated its privacy policy on January 4, 2021 and made it compulsory for its users to accept its terms and conditions, failing which the accounts and services would be terminated after February 8, 2021 for the respective user. Later, following public outcry, WhatsApp informed that it was pushing back the new privacy policy and assured users that no accounts will be suspended on February 8

5. Supreme Court Refuses Modification Of 'Permanent Commission To Women' Judgment On Individual Pleas, Directs To Approach AFT

[Case: Lt. Col. (Retd.) Priyamvada A Mardikar & Ors. v. Union of India & Ors.]

A division Bench of Justice DY Chandrachud and Justice MR Shah denied modification of its last year's judgement granting permanent commission to women officers in the Army, and has directed the officers to approach the Armed Forces Tribunal.

The Court observed that suitable remedy for these petitioner officers does not lie before the Supreme Court as a miscellaneous application but as a suitable proceeding before Armed Forces Tribunal where they have liberty to proceed.


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