Supreme Court Weekly Round-Up

• SC Asks NGO To Show Its Locus In Land Grab Complaint Against Yeddyurappa & D K Shivakumar

The Chief Justice S.A.Bobde granted two weeks time to petitioner-NGO Samaj Parivartan Samudaya to show that it has earlier brought the matter to the attention of the concerned Lokayukta. The case was regarding a plea to rekindle a 2008 land-grabbing case against Karnataka CM B.S.Yeddyurappa and former Congress minister D.K.Shivakumar.

• SC dismissed centre's appeal against TDSAT order to refund Rs.104 crores to Reliance Communications. [Union of India v. Reliance COmmunication Ltd. & Anr.]

In a relief to Reliance Communications Ltd., the apex court dismissed the appeal filed by Central Government against the order of Telecom Disputes Settlement & Appellate Authority directing refund of around Rs.104 crore to telecom company. A bench of justices R F Nariman and S Ravindra Bhat said, "We don't find any merits in the appeal". The TDSAT had on December 21, 2018 directed the Centre to return around Rs 104 crore after encashing bank guarantee of Rs 908 crore against deferred spectrum charges of Rs 774 crore. The Department of Telecom has already adjusted Rs 30.33 crore.

• Plaintiff seeking temporary injunction in specific performance suit has to show string prima facie case on undisputed facts. [Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP & Anr. & Haryana Containers Ltd. v. KS Infraspace LLP & Anr.]

The Supreme Court has observed that strong prima facie case on undisputed facts is necessary for getting the relief of temporary injunction in a suit for specific performance of contract. This is because of the fact that specific performance by itself is a discretionary remedy, explained a bench comprising Justices Ashok Bhushan and Navin Sinha. The bench also said that the conduct of parties is also a relevant consideration for interim injunction, in addition to the factors of prima facie case, balance of convenience and irreparable injury.

• SC clarifies that Vijay Mallya cannot cite cases pending in India to stall insolvency proceedings abroad.

Calling out the evasive tactics of fugitive liquor baron Vijay Mallya, the Supreme Court declared that the pendency of his plea before it shall not serve as a tool for halting proceedings in other jurisdictions. Solicitor General Tushar Mehta brought to the attention of the bench headed by Chief Justice S. A. Bobde that Mallya has been hanging the dream of a pay-back before the consortium of banks for years and not a rupee has been forthcoming, and that he is using the pendency of this proposal for settlement in the apex court to stall insolvency proceedings moved by the SBI in a UK court.

• SC urges Nusli Wadia & Ratan Tata to resolve differences.

The Supreme Court adjourned the criminal defamation case filed by Nusli Wadia against Ratan Tata by urging both the billionaire businessmen to resolve their differences. The bench comprising CJI S A Bobde, Justices B R Gavai and Surya Kant was hearing a special leave petition filed by Wadia challenging the Bombay High Court's judgment which quashed the criminal defamation case filed by him against Ratan Tata and ten others.

• SC asks new Assam NRC coordinator to explain his 'communal' facebook post.

The Supreme Court bench headed by Chief Justice S. A. Bobde required recently-appointed Assam NRC coordinator Hitesh Dev Sarma to explain the comments posted by him on his Facebook page prior to his appointment. Sarma's views regarding "East Pakistani Muslims" residing in the state have been widely criticised as being indicative of his approach towards the already-controversial NRC exercise.

• SC asks Govt. to look into the matter in a PIL alleging exchange of currency defaced by Kasmiri separatists.

A PIL seeking CBI enquiry into the Jammu Regional Branch of the Reserve Bank of India's decision exchanging defaced Indian currencies worth 30 crore, done by alleged separatist group in 2013, came up for hearing before the apex court bench headed by Chief Justice SA Bobde. The plea says, the RBI's act accepting the imperfect bank notes is against its refund rules 2009. The bench, also comprising justices BR Gavai and Surya Kant, said " the issue is of national interest" and asked Solicitor General Tushar Mehta to seek instructions from the government and inform the court in two weeks.

• Gujarat public works contract disputes Arbitration Tribunal can pass interim orders u/s 17 Arbitration & Conciliation Act. [State of Gujarat v. Amber Builders]

The bench comprising Justices Deepak Gupta and Aniruddha Bose has held that Gujarat Public Works Contract Disputes Arbitration Tribunal has jurisdiction to make interim orders in terms of Section 17 of the Arbitration and Conciliation Act, 1996. The Tribunal is constituted under Section 3 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992. In this case, the Tribunal held that it can only exercise jurisdiction, powers and authority conferred on it by or under the Gujarat Act of which it is a creation. It was further held that if the Gujarat Act does not empower the Tribunal to grant injunction, and it cannot take recourse to the Code of Civil Procedure, 1908 for grant of interim relief.

• No blanket ban on exercise of writ jurisdiction by High Court even when an alternative remedies are available. [Balkrishna Ram v. Union of India]

The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction, the Supreme Court said while reiterating that there cannot be a blanket ban on the exercise of writ jurisdiction by High Courts even when alternative remedies are available. The bench comprising Justice Deepak Gupta and Justice Aniruddha Bose was dealing with a civil appeal against Allahabad High Court judgment in which the issue raised was whether whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court, in view of Section 34 of the Armed Forces Tribunal Act, 2007.

• Offences prescribing max. sentence of more than 7 years but not providing minimum sentences are not 'heinous offences', but 'serious offences', under JJ Act. [Shilpa Mittal v. State of NCT of Delhi & Anr.]

The Supreme Court has observed that an offence prescribing a maximum sentence of more than 7 years imprisonment but not providing any minimum sentence, or providing a minimum sentence of less than 7 years, cannot be considered to be a 'heinous offence' within the meaning of Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Invoking Article 142 of the Constitution, the bench of Justice Deepak Gupta and Justice Aniruddha Bose held that category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided, shall be treated as 'serious offences' within the meaning of the Act.

• Courts at a place where wife resides after leaving matrimonial home can entertain complaints u/s 498A IPC. [Ruhi v. Anees Ahmed]

The apex court reiterated that even the courts at the place where the wife resides after leaving the matrimonial home will have jurisdiction to entertain her complaint under Section 498 A of the Indian Penal Code. The bench comprising Justice L.Nageswara Rao and Justice Hemant Gupta, noted that in Rupali Devi v. State of UP, judgement which was delivered last year it was held it is not necessary that a complaint should be filed only at the place of the matrimonial home.

• SC constitutes expert panel to suggest alternatives to felling of trees for widening of National Highway.

The bench comprising Chief Justice Bobde and Justices Surya Kant and BR Gavai, constituted a committee of environment experts to suggest an alternative to felling of over 350 trees for construction of railway over bridges (ROB) and widening of National Highway-112 from Barasat to Petrapole on the Indo-Bangladesh border in West Bengal. The Court was considering a petition filed by an NGO 'Association for Protection of Democratic Rights' against the decision of the Calcutta High Court which had upheld the West Bengal Government's decision to cut trees for the road project.

• 'Indefinite internet suspension not permissible': SC asks J&K administration to review all restrictive orders within a week regarding Kashmir lockdown. [Anuradha Bhasin v. Union of India & Ors.]

Three judges bench comprising Justices NV Ramana, R Subhash Reddy and BR Gavai in a significant judgement, directed the Jammu and Kashmir administration to review all orders of restrictions imposed in Jammu and Kashmir post the abrogation of the state's special status within a week. The Court observed that indefinite suspension of internet is not permissible and that repeated orders under Section 144 CrPC will amount to abuse of power. The Court also added that the Government should publish all orders of restrictions, and should follow the principles of proportionality to adopt less restrictive measures.

• SC directs centre to impose mandatory conditions for re-grassing mining are after operations. [Common Cause v. Union of India & Ors.]

The Supreme Court has directed the Central Government to impose a mandatory condition in the mining lease, mining plan and environmental clearance that re-grassing of the mining area should be undertaken by mining lease holders after mining operations. A bench comprising CJI SA Bobde, Justices Surya Kant and B R Gavai ordered so after noting that mining operations in an area results in complete elimination of grass.

• SC asks centre to explore the possibility of deploying CISF in courts to check unruly incidents.

The Supreme Court asked the Centre to look into the possibility of deploying a separate cadre of CISF in certain courts to check unruly incidents of violence. A bench headed by Chief Justice S A Bobde, perhaps referring to the recent Tis Hazari court complex violence, said "had there been deployment of CISF, the Delhi incident would not have taken place". The bench, also comprising justice B R Gavai and Surya Kant, told Solicitor General Tushar Mehta that there should be a separate cadre of the Central Industrial Security Force (CISF) which will provide security in certain courts after a decision by the Chief Justice.

• SC seeks reports from States, UTs on the development of infrastructure for forensic labs.

The Supreme Court directed all states and Union territories to submit reports on steps taken by them to develop the infrastructure for forensic science laboratories to ensure speedy investigation in sexual harassment cases involving children. A bench of Justices Deepak Gupta and Aniruddha Bose also said that every district should have special public prosecutors who possess the knowledge to deal with child victims.

• State cannot be permitted to perfect title by adverse possession to grab property of its own citizens. [Vidya Devi v. The State of Himachal Pradesh & Ors.]

The Supreme Court granted relief to an 80 year old illiterate widow, whose land was forcibly acquired by the Himachal Pradesh government in 1967-68 without following due process of law for construction of road. A bench of Justices Indu Malhotra and Justices Ajay Rastogi held that state cannot invoke the doctrine of adverse possession to perfect title over land grabbed from private citizens. The Court held that that forcible dispossession of a person from his private property is violative of human rights and constitutional right under Article 300A.

• Section 148 has retrospective application but 143A is prospective, reiterates SC. [Col. S.S.Deswal & Ors. v, Virender Gandhi & Anr.]

The bench comprising Justices Ashok Bhushan and Justice MR Shah reiterated that Section 148 of the Negotiable Instruments Act is retrospective, while Section 143A is not. In this case, the accused was convicted for an offence under Section 138 of the N.I. Act. The Appellate Court required them to deposit 25% of the amount of compensation/fine imposed by the trial Court, pending appeals challenging the order of conviction and sentence. The case reached the Supreme Court in which the question arose whether Section 148 is retrospective or not.

• SC issues notice on plea for extending Scheduled Caste status to Dalit Christians.

The Supreme Court issued notice on a petition filed by National Council of Dalit Christians(NCDC) seeking a direction to grant Scheduled Castes (SC) status to Dalit Christians. Issuing notice to Centre, a bench comprising Chief Justice of India (CJI) SA Bobde, Justices BR Gavai and Surya Kant tagged the plea with other similar petitions pending before this court.

● Freedoms of speech & expression, trade & commerce through medium of internet are constitutionally protected: SC on Kashmir lockdown. [Anuradha Bhasin v. Union of India & Ghulam Nabi Azad v. Union of India]

A significant takeaway from the Supreme Court's judgement on Kashmir lockdown is its declaration that freedom of speech and expression and also freedom of trade and commerce through the medium of internet are constitutionally protected rights under Articles 19(1)(a) and Articles 19(1)(g), respectively. A bench comprising Justices N V Ramana, Surya Kant and B R Gavai declared : "We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g).

● Section 144 CrPC cannot be used as a tool to prevent legitimate expression of opinion. [ Anuradha Bhasin v. Union of India]

The bench comprising Justices NV Ramana, R Subhash Reddy and BR Gavai in its judgement in Kashmir Lock Down observed that the power under Section 144 of the Criminal Procedure cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. The Court said that provisions of Section 144, Cr.P.C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

● SC dismisses mahout's Habeas Corpus plea for release of elephant 'Lakshmi' as withdrawn.

The Supreme Court refused to hand over the custody of elephant Laxmi to her former Mahaut, dismissing his plea for habeas corpus as withdrawn. The bench headed by Chief Justice S. A. Bobde noted that the Mahaut's claim was presently not backed by any legal documents to prove his ownership or possessory rights over the elephant for the animal to be conveyed to the petitioner. However, the court granted permission to withdraw this petition with liberty to approach the High Court for appropriate relief.

● SC reluctantly sets aside a HC order on compassionate appointment plea saying that sympathy alone cannot give remedy. [Indian Bank v. Promila]

The bench comprising of Justice Sanjay Kishan Kaul and Justice KM Joseph remarked that 'sympathy alone cannot give remedy' while reluctantly setting aside a High Court order which directed the bank to consider an application seeking compassionate appointment filed by the son of the deceased employee.

● SC seeks centre's reply to intervention plea by the UN Special Rapporteur in the case of Rohignya deportation. [Mohammed Salimullah & Anr. v. Union of India & Ors.]

The bench headed by Chief Justice SA Bobde sought for the Centre to reply to the intervention by the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance while hearing the case of the proposed Rohingya deportation.

● Responsible Governments should respect freedom of press at all times. [Anuradha Bhasin v. Union of India & Ors.]

Responsible Governments are required to respect the freedom of the press at all times, remarked the bench though it refused to entertain the 'argument of 'Chilling effect' by Anuradha Bhasin, Executive Editor of the newspaper "Kashmir Times". The bench headed by Justice NV Ramana observed that Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles hanging over the press indefinitely. The freedom of the press is a requirement in any democratic society for its effective functioning, the bench, also comprising of Justices R. Subhash Reddy and BR Gavai said.

● SC criticizes centre for not producing orders imposing curbs & internet shutdown. [Anuradha Bhasin v. Union of India]

In the judgment on Kashmir lockdown, the Supreme Court has criticized the Central Government for not producing before it the orders which imposed curbs in Jammu & Kashmir region in the wake of abrogation of the special status of the state on August 5. The Court observed that the prohibitory orders passed under Section 144 of the Code of Criminal Procedure, and the internet shut down orders passed under the Temporary Suspension of Telecom Services Rules were not produced before it.

● SC issues notice on plea to introduce population control measures such as 'two child norm'

The Supreme Court issued a notice on a petition filed for seeking directions to the Central Government to take apposite steps, including the introduction of "Two Children Norm" as a criterion for government jobs, aids and subsidies, to control the growing population of India. A bench headed by CJI SA Bobde issued notice on the petition filed by Advocate Ashwini Upadhyay. Advocate Ashwini Upadhyay submitted that the government had failed to implement the 24th recommendation of the National Commission to Review the Working of the Constitution (NCRWC) on population control.

● Hindu Succession-property of Hindu male undergoes notional partition on his death to devolve on heirs; no longer joint family property. [M Arumugam v. Ammaniammal & Ors.]

A bench comprising of Justices Deepak Gupta and S Abdul Nazeer discussed the principles of succession as per Hindu Succession Act 1956 in a recent judgment. Referring to Sections 6 and 8 of the Act, the Court said that on death of a Hindu male, notional partition of his property will take place, and it will devolve on the legal heirs based on their respective shares. Therefore, such property will no longer retain the character of a 'Joint Family Property' after such partition. The heirs will take after the property as tenants-in-common and will enjoy joint possession till the property is demarcated on their respective shares as per a settlement deed.

● SC upholds Kerala HC judgment directing removal of buildings which violated CRZ norms in Nediyanthuruthu island. [Kapico Kerala Resorts Pvt. Ltd. v. State of Kerala & Ors.]

The bench comprising Justices Rohinton Fali Nariman, Aniruddha Bose and V. Ramasubramanian upheld a Kerala High Court order which had directed removal of constructions violating 1991 CRZ norms in Nediyanthuruthu , an island in Vembanad region of Alappuzha District in Kerala. Kapico Kerala Resorts Pvt. Ltd. had approached the Apex Court challenging the Kerala High Court judgment which held that the constructions made by it in the Island violates the terms of the 1991 CRZ Notification.

● SC dismisses BBMP's plea against HC order directing it to compensate victims in road pothole accidents. [Bruhat Bangalore Mahanagara Palike v. Vijayan Menon & Ors.]

In a major blow to the Bruhat Bengaluru Mahanagara Palike, a division bench of the Supreme Court refused to interfere with the Karnataka High Court's verdict, asking the corporation to compensate all the victims of road accidents that were caused due to poor condition of the roads. The division bench of Justices RF Nariman and S. Ravindra Bhat dismissed the SLP filed by BBMP against the high court order.

● 100% burn injuries by itself does not mean victim was incapable of making dying declaration. [Purshottam Chopra & Anr. v. State (Govt. of NCT Delhi)]

The bench of Justices AM Khanwilkar v. Justice Dinesh Maheswari observed that merely because the deceased had suffered 100% burn injuries, it cannot be said that he/she was incapable to make a statement which could be acted upon as dying declaration. The contention taken in this case was that the victim had suffered 100% burns and he was already in critical condition and further to that, his condition was regularly deteriorating. It was contended that in such a critical and deteriorating condition, he could not have made proper, coherent and intelligible statement.

● SC directs states to appoint exclusive public prosecutors in POCSO Courts.

The Supreme Court has directed all the states to take steps to appoint exclusive Public Prosecutors in Special Courts for trying POCSO cases. The bench comprising Justice Deepak Gupta and Justice Aniruddha Bose, while considering a suo motu writ petition said that the statutory mandate under Section 32 of the POCSO Act is clear and provides that Special Public Prosecutor under the Act should not deal with other cases.

● SC issues notice on centre's application to transfer to anti-CAA pleas from the High Courts.

The Supreme Court issued notice on Centre's plea for transfer of all petitions filed in the different High Courts challenging the controversial Citizenship Amendment Act to the apex court. The application will be next considered on January 22, when the other petitions filed in SC challenging the Act are listed. The Centre submitted that the various High Courts may take contrasting views of the matter. It was also said that the apex court has already been moved in over 60 PILs against the CAA.