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Supreme Court Weekly Round Up

Ashok Kini
4 March 2019 3:08 AM GMT
Supreme Court Weekly Round Up
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EPF Contribution Payable On 'Basic Wages' Camouflaged As Allowances [The Regional Provident Fund Commissioner (II) WB V. Vivekananda Vidyamandir] The Supreme Court held that, in order that the amount goes beyond the 'basic wages' for the purposes of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, it has to be shown by the employer that the workman concerned...

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EPF Contribution Payable On 'Basic Wages' Camouflaged As Allowances [The Regional Provident Fund Commissioner (II) WB V. Vivekananda Vidyamandir]

The Supreme Court held that, in order that the amount goes beyond the 'basic wages' for the purposes of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, it has to be shown by the employer that the workman concerned had become eligible to get this extra amount beyond the normal work which he was otherwise required to put in.

Deduction Under Section 80HH Income Tax Act Should Be From 'Gross Profits & Gains' Instead Of 'Net Income' [M/S Vijay Industries V. Commissioner of IT]

A three judges' bench of the Supreme Court held that deduction under Section 80HH of the Income Tax Act 1961 should be based on gross profits and income instead of the net income from profits and gains computed as per Sections 28 to 44B of the Act.

Claim Under Section 70 Contract Act Cannot Be Raised When Parties Are Governed By Contract [MTNL V. Tata Telecommunications Ltd.]

The Supreme Court bench of Justices R F Nariman and Vineet Saran explained that claim of quantum meruit under Section 70 of the Indian Contract Act cannot be raised when parties are otherwise governed by contract. This is because Section 70 occurs in Chapter V of the Contract Act which deals with "certain relations resembling those created by contract". Section 70 deals with obligation of a person enjoying benefit of a non-gratuitous act to compensate the person giving the benefit.

Sale Of Minor's Property By Guardian Can Be Avoided Only By Filing Suit To Set Aside Deed Within Period Under Art.60 Limitation Act [Murugan V. KesavaGounder]

The Supreme Court held that a sale of minor's property by guardian can be avoided only by filing a suit to set aside the deed within the period of limitation prescribed under Article 60 of the Limitation Act, which is three years from the date of attaining majority by the minor.

The Difference Between In Country Adoption And Inter-Country Adoption Cannot Be Lost Sight Of [Union of India V. Ankur Gupta]

The Supreme Court observed that even if the common seniority list has to be utilised for the purpose of in country adoption and inter-country adoption, the difference between in country adoption and inter-country adoption cannot be lost sight of or given a go by.

Confession Recorded Under TADA Not Admissible In The Trial For Offence Under Other Enactments [State of Gujarat V. Anwar Osman Sumbhaniya]

The Supreme Court held that the confessional statement of the accused recorded under the provisions of TADA would not be admissible against the accused in the trial for offences under other enactments, especially when the Designated Court could not have taken cognizance of the offence under TADA for lack of a valid sanction.

A Person Added As Accused U/s 319 CrPC Can Be Tried Only For An Offence In Respect Of Which All The Accused Could Be Tried Together [Sunil Kumar Gupta V. State of UP]

The Supreme Court observed that, though under Section 319 of the Code of Criminal Procedure, a person can be added as an accused not only for the same offence for which the accused is tried but for "any offence"; but that offence shall be such that in respect of which all the accused could be tried together.

The Poems Written By A Death Convict Helped Him To Save From The Gallows [Dhyaneshwar Suresh Borkar V. State of Maharshtra]

The Supreme Court commuted death penalty of a kidnap cum murder convict, who was just 22 years of age at the time of occurrence. The bench comprising of Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah, particularly took note of the poems written by Dnyaneshwar while he was in jail and observed that these poems show that he has realised his mistake and has reformed.

State Cannot Prohibit Transportation Of Legally Excavated Sand Beyond Its Borders [State of Gujarat V. JayeshbhaiKanjibhaiKalathiya]

The Supreme Court held that it is constitutionally impermissible for a state to restrict the movement of the sand legally excavated within the territory of India. The bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah upheld the Gujarat High Court judgment that had struck down the Rules brought in by the State of Gujarat prohibiting the movement of sand beyond the border of the State.

Subsequent Acquittal Won't Help: SC Dismisses Plea Of 'Lawyer' Whose Enrollment Was Cancelled For Suppressing Facts About Criminal Case [Anand Kumar Sharma V. BCI]

The Supreme Court dismissed the appeal of a man who was not allowed to enroll as a lawyer on the ground that his earlier enrolment was cancelled for suppression of facts and relevant material. Anand Kumar Sharma, who got enrolled as an advocate in the Bar Council of Himachal Pradesh in July, 1988, was removed from the rolls, on the ground that he suppressed the fact that he was in Government service in the State of Himachal Pradesh and also about his involvement in a criminal case.

HC Can Consider Review petition Though SC Dismissed SLP In Limine [Khoday Distilleries Ltd vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd.]

The Supreme Court held that a review petition is maintainable before the High Court seeking review of its judgment against which the special leave petition was dismissed in limine. The bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah observed that it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition.

Inadvertent Mistakes In The Plaint Cannot Be Refused To Be Corrected [Varun Pahwa vs. Renu Chaudhary]

The Supreme Court observed that inadvertent mistake made in the plaint cannot be refused to be corrected when the mistake is apparent from the reading of the plaint Amendment that was sought in this case was simple. In the plaint, the Plaintiff was described as Varun Pahwa through Director of Siddharth Garments Pvt. Ltd. though it should have been Siddharth Garments Pvt. Ltd. through its Director Varun Pahwa.

Civil Suit In Relation To Land Which Is Subject To Ceiling Proceedings Under Urban Land Ceiling Act Not Maintainable [The Competent Authority, Calcutta V. David Mantosh]

The Supreme Courtheld that a Civil Court has no jurisdiction to try the civil suit in relation to the land which is subject to ceiling proceedings under Urban Land Ceiling Act. The bench comprising Justice Abhay Manohar Sapre and Justice Indu Malhotra also observed that Civil Court have the jurisdiction to declare the proceedings held under the Act, as void or illegal or non est, since it was impliedly excluded and barred under the Act.

Concession Made By Lawyer On Mixed Question Of Fact And Law Cannot Preclude Client From Reagitating The Point In Appeal [Bharat Heavy Electricals Ltd. vs. Mahendra Prasad Jakhmola]

The Supreme Court observed that, a concession made by a lawyer or his authorised representative on a question is a mixed question of fact and law at the stage of arguments cannot preclude the party for whom such person appears from re-agitating the point in appeal.

Prosecution Under Customs Act Not Barred In Regard To Antiquities Or Art Treasures [Dept. Of Customs V. Sharad Gandhi]

The Supreme Courtheld that the prosecution under Sections 132 and 135(1)(a) of the Customs Act, 1962, is not barred in regard to the antiquities or art treasures.The bench comprising Justice Ashok Bhushan and Justice KM Joseph, referring to provisions of both the enactments and explained the inter play between Customs Act, 1962 and Antiquities and Art Treasures Act, 1972 as follows:

Patna HC Upheld A Conviction That Wasn't: SC Remands Case For Re-Hearing [Deep Narayan Chourasia V. State of Bihar]

The Supreme Courtset aside a Patna High Court judgment that upheld a conviction that wasn't.While setting aside the High Court order qua all the accused, the bench observed: "It is a fundamental principle of law that an illegality committed by a Court cannot be allowed to be perpetuated against a person to a Lis merely because he did not bring such illegality to the notice of the Court and instead other person similarly placed in the Lis brought such illegality to the Court's notice and succeed in his challenge"

Seniority Should Not Be Ignored In Appointment Of Army Commanders [Lt. Gen Ravi Dastane V. Union of India]

The Supreme Court observed that though the appointment of an Army Commander is made by selection, the criterion of seniority should not be ignored. The bench comprising Justice DY Chandrachud and Justice Hemant Gupta observed thus while dismissing an appeal filed by Lieutenant General Ravi Dastane against the order of Armed Forces Tribunal which rejected his challenge to the selection of Lieutenant General Dalbir Singh, GOC-in-C, Eastern Command and Lieutenant General Sanjiv Chachra, GOC-in-C, Northern Command as Army Commanders.

Teachers Appointed In Self Financing Colleges Under MG University Are Permanent Teachers Of University [Abdul Hakeem V. MG University]

The Supreme Court held that teachers appointed in self-financing engineering colleges under Mahatma Gandhi University are entitled to same payscale and benefits as permanent teachers of the University.

'Wrong Diagnosis' Does Not Amount To Medical Negligence [Vinod Jain V. Santokba Durlabhji Memorial Hospital]

The Supreme Court dismissed the appeal filed by a man against order of National Consumer Disputes Redressal Commission which dismissed his complaint alleging medical negligence on the part of a hospital in the death of his wife. We have sympathy for the appellant, but sympathy cannot translate into a legal remedy, said the bench comprising of Justice L. Nageswara Rao and Justice Sanjay KishanKaul while upholding the NCDRC order which had held that the case 'would at best be a case of wrong diagnosis, if that; it certainly cannot be called medical negligence'.

SC Answers Reference On Scope Of Discretion To Impose Penalty Under SEBI Act [Adjudicating Officer, SEBI V. Bhavesh Pabari]

A three judges' bench of the Supreme Court headed by Chief Justice of India Ranjan Gogoi answered a reference on the scope of discretion of adjudicating authority under Section 15J of the Securities and Exchange Board of India Act 1992 in relation to imposition of penalties.

Participation Of Public In Daily Temple Rituals Is An Important Factor To Determine Private/Public Character Of The Temple [Shri Ram Mandir Indore V. State of Madhya Pradesh]

The Supreme Court observed that the participation of the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations is one of the important factors to consider in determining the public/private character of the temple.

Other important orders and proceedings

  • Dismissing the review petitions filed by University Grants Commission and Central Government, the Supreme Court confirmed its decision that reservations in teaching posts in Universities are to be applied by taking subject/discipline as the unit, instead of the university.
  • Reduced punishment awarded to a rape convict to period already undergone taking into account the 'special reasons'.
  • Granted parole to Terror Convict Fazlur Rehman Sufi for 21 days. The bench comprising Justice AK Sikri and Justice S. Abdul Nazeer were considering his appeal against the Rajasthan High Court order that had dismissed his plea.
  • Not convinced to act on CBI's contempt plea against the West Bengal Chief Secretary, the DGP and erstwhile Kolkata Police Commissioner Rajeev Kumar, the Supreme Court required the probe agency to file an affidavit furnishing substantive material to back its claims of tampering of evidence by the state police in the Saradha Chit Fund scam.
  • A bench of Justice Rohinton Fali Nariman and Justice Vineet Saran exempted the formulation of Saridon from the list of banned drugs in keeping with its decision in Union of India & Anr v Pfizer Limited & Ors.
  • Directed former Ranbaxy promoters, Malvinder and Shivinder Singh, to appear before it on March 14 in connection with the pleas relating to sale of controlling stakes of Fortis Healthcare by them to Malaysian IHH Healthcare Berhad.
  • Stayed its February 13 order in the wake of which over 11 lakh tribals and other forest dwellers in 17 states stood to be evicted. The bench headed by Justice Arun Mishra also required the Chief Secretaries of the states to disclose the modalities of the procedure of adjudication of these claims on forestland.
  • Allowed the Delhi Police to arrest Amrapali Group Chairman and Managing Director Anil Sharma and two directors, Shiv Priya and Ajay Kumar. The bench comprising Justice Arun Mishra and Justice UU Lalit passed the order on an application filed by the Deputy Commissioner of Police, Economic Offences Wing, Delhi Police
  • Allowed open hearing of Rafale review petitions. The bench of CJI Gogoi, Justice S K Kaul and K M Joseph decided in the chambers to hear the review petitions in open court.
  • Bench of Justices R F Nariman and Vineet Saran observed that there were similarities between the murders of Kannada scholar M MKalburgi and Bangalore based journalist GauriLankesh. The bench therefore ordered that the Special Investigation Team already constituted by the Karnataka Government to probe Lankesh murder should investigate Kalburgi case as well. The probe will be monitored by Dharwad bench of Karnataka High Court.
  • Referred to a larger bench for reconsidering the judgment in Delhi Metro Rail Corporation v. Tarun Pal Singh, which held that the proviso to Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 governs Section 24(2) and not Section 24(1)(b).
  • The bench comprising Justice SA Bobde, Justice Deepak Gupta and Justice Vineet Saran observed that it is necessary to find out a secured and foolproof method of distribution of this compensation that may be paid to the victims of hit and run motor accident cases.
  • Asked the Haryana Government not to act under the Amendment made to Punjab Land Preservation Act, 1900. The bench comprising Justice Arun Mishra and Justice Deepak Gupta were apprised of some amendments in the Punjab Land Preservation Act, 1900 permitting the construction in the forest area and PLPA region.
  • Dismissed a PIL seeking a direction to the Election Commission of India to require all political parties to not field candidates who have more than two children and to also declare the two-child norm a mandatory criterion for government jobs, subsidies, besides other measures to control the population explosion.
  • A Bench comprising Chief Justice of India (CJI) Ranjan Gogoi and Justice Sanjiv Khanna issued notice to Centre, Jammu and Kashmir government and the National Human Rights Commission (NHRC) on the plea filed by the daughters of two Army officers.
  • Bench headed by CJI Ranjan Gogoi issued notice to the Registrar of Meghalaya High Court in a petition seeking to expunge the comments made in a judgment that India should have been declared a Hindu Rashtra.
  • Issued notices to the Delimitation Commission of India (DCI), the Election Commission of India (ECI), the Centre and others on a petition seeking proportional representation in the Legislative Assembly for Limboo and Tamang Scheduled Tribes of Sikkim before a notification is published for the General Elections 2019, while also asking the Election Commission to "keep in mind" the pendency of the petition and "take action accordingly".
  • The bench headed by Chief Justice of India Ranjan Gogoi issued notice in a PIL which challenges the rules and notifications issued by Central Government to regularise the entry of non-Muslim migrants from Pakistan, Bangladesh and Afghanistan to India and their stay here.
  • Dismissed a PIL by Advocate Vineet Dhanda seeking a direction to the Government to constitute a committee headed by a retired apex court Judge to conduct an inquiry into the Uri and Pulwama terrorist attacks.
  • Chief Justice Ranjan Gogoi recused himself from hearing a plea for all advocates with a practice spanning over a tenure of 30 years or more to be designated as "senior".
  • After a tearful appeal and with the passing of almost two and a half months since 15 labourers were trapped in a flooded illegal rat-hole mine in Meghalaya's East Jaintia Hills District, the Supreme Court asked the Centre to honour its undertaking given in court to the effect that it will airlift 100-horsepower (hp) capacity pumps to the nearest point of the site and install them "at the earliest" with the help of the Army authorities.
  • Directed the Central Government to release within two months funds to the extent Utilisation Certificates have been sent by the respective State Governments and submit a compliance report to the Court.
  • The bench comprising Justice R. Banumathi and Justice R. Subhash Reddy referred to larger bench the question whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?
  • Lady Lawyer's Plea Alleging Police Harassment: SC Directs Police To Look Into The Matter

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