12 Important Supreme Court Judgments April 16, 2019

firstlaw.in/2019/04/16-important-supreme-court-judgments.html

1. Ashatai v. Shriram City Union Finance Ltd.

The Consumer Protection Act, 1986 - Section 21 (b) - The Insurance Act, 1938 - Section 64 VB (2) - the deceased husband of the Appellant had paid the insurance premium by a Demand Draft in favour of the Insurance Company. This has been acknowledged in paragraph 4(c) of the Revision Petition filed by the Respondent – Finance Company, as referred to above. As a consequence, the risk would be covered from the date of payment of the insurance premium. The loan was secured from the date on which the insurance premium was paid. The premium having been paid by the Appellant’s husband during his life​time, the loan was to be adjusted from the insurance policy. The National Commission has erroneously set aside the Order passed by the State Commission on factually incorrect grounds. The Appellant has made out a clear case of deficiency of service on the part of the Respondent – Finance Company.

Case Number : C.A. No. 3962 of 2019 16-04-2019 Petitioner's Advocate : Amol Nirmalkumar Suryawanshi Bench : Hon'ble Mr. Justice Uday Umesh Lalit, Hon'ble Ms. Justice Indu Malhotra Judgment By : Hon'ble Ms. Justice Indu Malhotra

2. Dr. R.S. Grewal v. Chander Parkash Soni

The Hindu Succession Act, 1956 - Section 14 (1) - The East Punjab Urban Rent Restriction Act, 1949 - Section 2 (c) - ‘Landlord' - Property of a female Hindu to be her absolute property - A landlord within the meaning of Section 2(c) is not necessarily the owner of the property. The definition of the expression ‘landlord’ is relatable to an entitlement to receive rent in respect of any building or rented land.

The East Punjab Urban Rent Restriction Act, 1949 - Section 2 (i) - ‘Tenant’ - The tenant has a protected status. That status cannot be disrupted or brought to an end except on grounds specified in the enactment.

The provisions of the East Punjab Urban Rent Restriction Act 1949 are available to the tenant. The tenant has a protected status. That status cannot be disrupted or brought to an end except on grounds specified in the enactment. The first respondent in whose favour the tenancy was created would be covered under the definition of the expression ‘tenant’ in Section 2(i) of the East Punjab Urban Rent Restriction Act 1949. The status of a statutory tenant enures as a consequence of rent control legislation. The East Punjab Urban Rent Restriction Act 1949 aims at regulating conditions of tenancy, controlling rents and preventing unreasonable eviction of tenants. For the advancement of these objects, tenants are invested with rights and landlords are subjected to obligations. The first respondent in whose favour a tenancy was created acquired a status of a statutory tenant and that status 1/8 does not stand obviated by the death of Shiv Dev Kaur. The remedy available to the appellants to remove the first respondent from the property is by pursuing eviction proceedings on one or more of the grounds available in the enactment. Section 13 lays down the procedure for eviction of tenants. Only upon the satisfaction of the Controller that sufficient grounds exist for eviction of the tenant can an order be passed directing the tenant to vacate the premises. The protection offered to a statutory tenant can only be overcome by following the procedure laid out in the enactment. [Para 14]

Case Number : C.A. No. 11086 of 2018 16-04-2019 Petitioner's Advocate : M.A. Chinnasamy Bench : Hon'ble Dr. Justice D.Y. Chandrachud, Hon'ble Mr. Justice Hemant Gupta Judgment By : Hon'ble Dr. Justice D.Y. Chandrachud

3. Nisha Singla v. Adarsh Colony Cooperative House Building Society Ltd.

The Punjab Cooperative Societies Act, 1961 - Section 26 (1-D) - The appellants cannot be deprived of a plot allotted to her merely on the basis that she has not made any grievance in respect of possession of the plot allotted on the basis of technicities.

Case Number : C.A. No. 3963 - 3965 of 2019 16-04-2019 Petitioner's Advocate : Varinder Kumar Sharma Respondent's Advocate : Vishnu Sharma Bench : Hon'ble Dr. Justice D. Y. Chandrachud, Hon'ble Mr. Justice Hemant Gupta Judgment By : Hon'ble Mr. Justice Hemant Gupta

4. Regional Manager, U.P.S.R.T.C. v. Maslahuddin (dead)

The U.P. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981 - Whether the respective Drivers would fall in Group “D” or Group “C” ?

Both the Labour Court as well as the High Court have committed a grave error in holding that the respective respondents​-Drivers were in Group “D” category and that their age of superannuation would be 60 years. As the pay scale of the respective respondents​Drivers was revised to Rs.335-​8​415​-10​-495 with retrospective effect and in fact they were paid the arrears also, thereafter it was not open for the respondents​-Drivers to contend that as per their original pay scale, their salary was less than Rs.200/​ on the pay scale of 185​-DRO-​3​-215​- 4-​235-​6-​265, they would be in Group “D” category. Once having taken the advantage of the revised pay scale retrospectively and that their pay scale was revised to Rs. 335-​8-​415-​10-​495 with retrospective effect and they were paid the arrears which the respective respondents accepted, in that case, they would fall in Group “C” category and, therefore, considering the Rules, their age of superannuation would be 58 years and not 60 years, as contended on 2/8 behalf of the respective respondents​-Drivers. Therefore, the appellant-Corporation rightly retired/superannuated the respective respondents-​Drivers on completion of 58 years of age.

Case Number : C.A. No. 3959 of 2019 16-04-2019 Petitioner's Advocate : Garima Prashad Respondent's Advocate : M.A. Krishna Moorthy Bench : Hon'ble Mr. Justice L. Nageswara Rao, Hon'ble Mr. Justice M.R. Shah Judgment By : Hon'ble Mr. Justice M.R. Shah

5. Bikash Ranjan Rout v. The State Home Department Secretary

The Code of Criminal Procedure, 1973 - Sections 167(2), 173, 227 and 228 - Whether once the Magistrate passes an order of discharge of the accused, whether thereafter is it permissible for the Magistrate to order further investigation and direct the investigating officer to submit the report?

After the investigation is concluded and the report is forwarded by the police to the Magistrate under Section 173(2)(i) of the CrPC, the learned Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. If the Magistrate disagrees with the report and drops the proceedings, the informant is required to be given an opportunity to submit the protest application and thereafter, after giving an opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the accused or not. If the learned Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the accused. As observed hereinabove, having not satisfied with the investigation on considering the report forwarded by the police under Section 173(2)(i) of the CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make a further report. However, it is required to be noted that all the aforesaid is required to be done at the pre​cognizance stage. Once the learned Magistrate takes the cognizance and, considering the materials on record submitted along with the report forwarded by the police under Section 173(2)(i) of the CrPC, learned Magistrate in exercise of the powers under Section 227 of the CrPC discharges the accused, thereafter, it will not be open for the Magistrate to suo moto order for further investigation and direct the investigating officer to submit the report. Such an order after discharging the accused can be said to be made at the post​cognizance stage. There is a distinction and/or difference between the pre​cognizance stage and post​cognizance stage and the powers to be exercised by the Magistrate for further investigation at the pre​cognizance stage and post​cognizance stage. The power to order further investigation which may be available to the Magistrate at the pre​cognizance stage may not be available to the Magistrate at the post​cognizance stage, more particularly, when the accused is discharged by him. As observed hereinabove, if the Magistrate was not satisfied with the investigation carried out by the investigating officer and the report submitted by the investigating officer under Section 173(2) (i) of the CrPC, as observed by this Court in catena of decisions and as observed hereinabove, it was always 3/8 open/permissible for the Magistrate to direct the investigating agency for further investigation and may postpone even the framing of the charge and/or taking any final decision on the report at that stage. However, once the learned Magistrate, on the basis of the report and the materials placed along with the report, discharges the accused, we are afraid that thereafter the Magistrate can suo moto order the further investigation by the investigating agency. Once the order of discharge is passed, thereafter the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation and submit the report. In such a situation, only two remedies are available: (i) a revision application can be filed against the discharge or (ii) the Court has to wait till the stage of Section 319 of the CrPC. However, at the same time, considering the provisions of Section 173(8) of the CrPC, it is always open for the investigating agency to file an application for further investigation and thereafter to submit the fresh report and the Court may, on the application submitted by the investigating agency, permit further investigation and permit the investigating officer to file a fresh report and the same may be considered by the learned Magistrate thereafter in accordance with law. The Magistrate cannot suo moto direct for further investigation under Section 173(8) of the CrPC or direct the reinvestigation into a case at the post​cognizance stage, more particularly when, in exercise of powers under Section 227 of the CrPC, the Magistrate discharges the accused. However, Section 173(8) of the CrPC confers power upon the officer​in​charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report under sub​section (2) of Section 173 of the CrPC. Therefore, it is always open for the investigating officer to apply for further investigation, even after forwarding the report under sub​section (2) of Section 173 and even after the discharge of the accused. However, the aforesaid shall be at the instance of the investigating officer/police officerin​charge and the Magistrate has no jurisdiction to suo moto pass an order for further investigation/reinvestigation after he discharges the accused.

Facts of the Case

In the instant case, the investigating authority did not apply for further investigation and that the learned Magistrate suo moto passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is impermissible under the law. Such a course of action is beyond the jurisdictional competence of the Magistrate. Therefore, that part of the order passed by the learned Magistrate ordering further investigation after he discharges the accused, cannot be sustained and the same deserves to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court confirming such an order passed by the learned Magistrate also deserves to be quashed and set aside. At the same time, it will always be open for the investigating officer to file an appropriate application for further investigation and undertake further investigation and submit a further report in exercise of powers under Section 173(8) of the CrPC.

Case Number : Crl.A. No. 687 of 2019 16-04-2019 Petitioner's Advocate : Debasis Misra Respondent's Advocate : B.V. Balaram Das Bench : Hon'ble Mr. Justice L. Nageswara Rao, Hon'ble Mr. Justice M.R. Shah

4/8 Judgment By : Hon'ble Mr. Justice M.R. Shah

6. Bharat Broadband Network Limited v. United Telecoms Limited

The Arbitration and Conciliation Act, 1996 - Section 12 (5) - Interpretation of.

Section 12(5) is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non- obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be “ineligible” to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an “express agreement in writing”. Obviously, the “express agreement in writing” has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule.

Case Number : C.A. No. 3972 of 2019 16-04-2019 Petitioner's Advocate : Aniruddha P. Mayee Bench : Hon'ble Mr. Justice Rohinton Fali Nariman, Hon'ble Mr. Justice Vineet Saran Judgment By : Hon'ble Mr. Justice Rohinton Fali Nariman

7. Lunawat Construction Company Rep. By Maniklal Peerchand Lunawat v. Union of India Ministry of Culture Secretary

The Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 - Constitutional Validity of.

Case Number : W.P. (C) No. 96 of 2011 16-04-2019 Petitioner's Advocate : V.D. Khanna Respondent's Advocate : Shreekant N. Terdal Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari Judgment By : Hon'ble Mr. Justice Abhay Manohar Sapre

8. Ranjit Kumar Karmakar @ Dulal Karmakar v. Hari Sankar Das

5/8 The Code of Civil Procedure, 1908 - Section 100 (5) - Second Appeal - Substantial Question(s) of Law - though the High Court admitted the second appeal on six questions but did not answer any of them on merits and instead went into discussion on all other issues, which were not the subject matter of the six questions framed and allowed the second appeal as if it was deciding the first appeal. Since the High Court failed to answer the six questions (set out in Para 2 of impugned order) either way on their respective merits and yet proceeded to allow the second appeal, such order is not legally sustainable and has to be set aside.

Case Number : C.A. No. 3967 of 2019 16-04-2019 Petitioner's Advocate : Pravir Choudhary Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari Judgment By : Hon'ble Mr. Justice Abhay Manohar Sapre

9. Pr. Commissioner Of Income Tax Central 2 v. M/s A. A. Estate Pvt. Ltd.

The Income Tax Act, 1961 - Section 143(3) read with Section 153A - Whether High Court was justified in dismissing the appeal filed by the Commissioner of Income Tax ?

The High Court did not formulate any substantial question of law as was required to be framed under Section 260​A of the Act. The two questions set out in Para 2 were not the questions framed by the High Court as was required to be framed under Section 260​A(3) of the Act for hearing the appeal but were the questions urged by the appellant. The questions, which are proposed by the appellant, fall under Section 260​A (2) (c) of the Act whereas the questions framed by the High Court fall under Section 260​A (3) of the Act. The appeal is heard on merits only on the questions framed by the High Court under sub​section (3) of Section 260​A of the Act as provided under Section 260​A (4) of the Act. In other words, the appeal is heard only on the questions framed by the Court. If the High Court was of the view that the appeal did not involve any substantial question of law, it should have recorded a categorical finding to that effect saying that the questions proposed by the appellant either do not arise in the case or/and are not substantial questions of law so as to attract the rigor of Section 260​A of the Act for its admission and accordingly should have dismissed the appeal in limine. The High Court did not decide the appeal in conformity with the mandatory procedure prescribed in Section 260​ A of the Act.

Case Number : C.A. No. 3968 of 2019 16-04-2019 Petitioner's Advocate : Anil Katiyar Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari Judgment By : Hon'ble Mr. Justice Abhay Manohar Sapre

10. G. Shashikala (died) Through Lrs. v. G. Kalawati Bai(died) Through Lr 6/8 The Code of Civil Procedure, 1908 - Order 41 Rule 27 - How the application filed under Order 41 Rule 27 of the Code in the appeal should be decided by the Appellate Court.

Referred Cases

1. North Eastern Railway Administration, Gorakhpur v. Bhagwan Das, (2008) 8 SCC 511 2. Shalimar Chemical Works Limited v. Surendra Oil & Dal Mills (Refineries), (2010) 8 SCC 423 3. Corporation of Madras v. M. Parthasarathy, (2018) 9 SCC 445

Case Number : C.A. No. 3969 - 3970 of 2019 16-04-2019 Petitioner's Advocate : D.N. Goburdhan Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari Judgment By : Hon'ble Mr. Justice Abhay Manohar Sapre

11. Manju Devi v. The State of Rajasthan

The Code of Criminal Procedure, 1973 - Sections 284 and 285 - When attendance of witness may be dispensed with and commission issued - Commission to whom to be issued - Video Conferencing.

In the present case, where the witness Dr. I.Yusuf is residing in Nigeria, in order to avoid inconvenience to the witness as also to the parties, issuing of commission and recording his evidence through video-conferencing appears to be a viable alternative; and the Trial Court need to take all the requisite steps so as to ensure that his evidence comes on record with least inconvenience and/or burden to the parties and the witness.

The Indian Penal Code, 1860 - Sections 302, 304B and 498A - The Code of Criminal Procedure, 1973 - Section 311 - Power to summon material witness, or examine person present - Principles and amplitude of the powers of the Court - the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned as also to ensure that no prejudice is caused to anyone.

Referred Case

1. Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271 2. Zahira Habibulla H. Sheikh v. State of Gujarat: (2004) 4 SCC 158 3. Mina Lalita Baruwa v. State of Orissa, (2013) 16 SCC 173 4. Rajaram Prasad Yadav v. State of Bihar, 2013 (14) SCC 461 5. Natasha Singh v. CBI (State), 2013 (5) SCC 741

Case Number : Crl.A. No. 688 of 2019 16-04-2019

7/8 Petitioner's Advocate : Karunakar Mahalik Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari Judgment By : Hon'ble Mr. Justice Dinesh Maheshwari

12. Bal Mukund Sharma @ Balmkund Chaudhry v. The State of Bihar

The Indian Penal Code, 1860 - Sections 302 and 302/149 - Unlawful Assembly - to determine whether an accused, being a member of an unlawful assembly, is liable for a given offence, it needs to be seen whether such act was committed in prosecution of the common object of the assembly, and alternatively whether the members of the assembly knew that the offence was likely to be committed in prosecution of such common object. This, in turn, has to be determined from the facts and circumstances of each case.

Case Number : Crl.A. No. 1382 - 1384 of 2014 16-04-2019 Petitioner's Advocate : Saurabh Ajay Gupta Bench : Hon'ble Mr. Justice N.V. Ramana, Hon'ble Mr. Justice Mohan M. Shantanagoudar, Hon'ble Mr. Justice S. Abdul Nazeer Judgment By : Hon'ble Mr. Justice Mohan M. Shantanagoudar

8/8