Weekly Overview| Supreme Court Judgments: April 10 – April 14, 2023
1) Arbitration Act: Limited scrutiny of court at pre-reference stage u/s. 11 through 'eye of the needle' is necessary
The Court held that the Courts while exercising jurisdiction under Section 11(6) of the Arbitration and Conciliation Act, 1996 (Act) is not expected to act mechanically and the limited scrutiny of the courts at the pre-reference stage, through the ‘eye of the needle’ is necessary and compelling.
In this case the Apex Court observed that the High Court should have exercised the prima facie test to screen and strike down the ex-facie meritless and dishonest litigation. The Court held that these were the kinds of cases where the High Court should have exercised the restricted and limited review to check and protect parties from being forced to arbitrate.
Cause Title- NTPC Ltd. v. M/s. SPML Infra Ltd.
Date of Judgment- April 10, 2023
Coram- CJI DY Chandrachud and Justice PS Narasimha
2) Kerala VAT Act- Dettol is used as an antiseptic, would fall under entry 36(8)(h)(vi) rather than residuary entry
The Court in an appeal preferred by M/s Reckitt Benckiser (India) Ltd. against the Revenue held that the Dettol is used as an antiseptic and is used in hospitals for surgical and medical use and hence, the same would fall under Entry 36(8)(h)(vi) of Schedule III of the Kerala VAT Act, 2003 (KVAT Act) rather than the residuary entry.
The Court, however, confirmed the judgment passed by the High Court as far as the products Mosquito Mats, Coils, Vaporizers, Mortein Insect Killers, Harpic Toilet Cleaner, and Lizol Floor Cleaners were concerned.
Cause Title- M/s. Reckitt Benckiser (India) Ltd. v. Commissioner Commerical Taxes & Ors.
Date of Judgment- April 10, 2023
Coram- Justice M.R. Shah and Justice Krishna Murari
3) Penalty U/S. 271C of Income Tax Act cannot be levied for delay in remittance of TDS already deducted by assessee
The Court held that no penalty is leviable under section 271C of the Income Tax Act, 1961 (Act) on mere delay in remittance of the Tax Deducted at Source (TDS) after the same has been deducted by the assessee. The Court observed that the relevant words used in Section 271C(1)(a) were ‘fails to deduct’, and the same did not speak about belated remittance of the TDS. The words ‘fails to deduct’ could not be read as ‘failure to deposit/pay the tax deducted’.
The Court further added that the consequences of non-payment and/or belated remittance/payment of the TDS, were specifically provided by the Parliament under Section 201(1A) and Section 276B of the Act.
Cause Title- M/s US Technologies International Pvt. Ltd. v. The Commissioner of Income Tax
Date of Judgment- April 10, 2023
Coram- Justice M.R. Shah and Justice CT Ravikumar
4) Income Tax Act| Domicile or registration of company is irrelevant, seat of control & management must be shown
The Court emphasised that to evaluate whether a business will come under the Income Tax Act, 1961, the domicile or the registration of the company is not at all relevant and that where the head and seat and directing power of the affairs of the company and the control and management is must be shown.
In this case, the assessees contended that each of them was a resident of Sikkim carrying on business in Sikkim and that till 31st March, 1990, each of them was governed by the Sikkim State Income-tax Manual, 1948, as opposed to the Income Tax Act, 1961.
The stand of the assessees was that the income earned by them till that date was income earned in Sikkim from the business conducted/done in Sikkim. On the other hand, the Revenue contended that the control and management of each of the assessee companies was wholly with their auditor, who had their office in New Delhi, and therefore, were companies’ resident in India in terms of Section 6(3) of the Act.
Cause Title- Mansarovar Commercial Pvt. Ltd. vs Commissioner of Income Tax, Delhi
Date of Judgment- April 10, 2023
Coram- Justice MR Shah and Justice BV Nagarathna
5) ITA- On profit earned from DEPB & duty drawback schemes, assessee is not entitled to deductions u/s. 80-ib
The Court held that on the profit earned from DEPB (Duty Entitlement Pass Book) and Duty Drawback Schemes, the assessee is not entitled to deductions under Section 80-IB of the Income Tax Act, 1961 (ITA).
The Court also held that such an income cannot be said to be an income derived from industrial undertaking and even otherwise as per Section 28(iiid) and (iiie), such an income is chargeable to tax.
Cause Title- M/s. Saraf Exports v. Commissioner of Income Tax, Jaipur-III
Date of Judgment- April 10, 2023
Coram- Justice MR Shah and Justice BV Nagarathna
6) Same activity can be taxed as 'goods' & 'services' provided contract is indivisible: SC upholds levy of service tax on engineering design & drawings
The Court held that the import of “Engineering Design & Drawings” falls under the category of “design services” under Section 65(35b) read with Section 65(105)(zzzzd) of the Finance Act, 1994, and were subject to levy of service tax. On the sole ground that “Engineering Design & Drawings” prepared and supplied by sister company were shown as ‘goods’ under the Customs Act and in the bill of entry, such services could not be excluded from the definition of “design services” under the Finance Act, 1994.
The Court also held that the same activity could be taxed as ’goods’ and ‘services’ provided the contract was indivisible and on the aspect of services there may be levy of service tax.
Cause Title- Commissioner of Customs, Central Excise & Service Tax v. M/S Suzlon Energy Ltd.
Date of Judgment- April 10, 2023
Coram- Justice MR Shah and Justice Krishna Murari
7) Land Acquisition Act| Landowners aggrieved by compensation are not bound by negotiated price agreed by other owners
The Court observed that it is true that the landowners who are aggrieved by the amount of compensation determined by the Land Acquisition Officer are not bound by the negotiated price agreed by the other landowners but the same can be a relevant consideration for determining the compensation.
In this case, the appellant was aggrieved with the judgments passed by the Kerala High Court whereby it determined and awarded the compensation for the lands acquired at the rate of Rs.1,35,000/- percent. In all the appeals, the lands in question came to be acquired for the purpose of setting up an IT Park at Kozhikode.
Cause Title- Rajalakshmi v. The Special Tahsildar (LA) Koyilandy & Another
Date of Judgment- April 10, 2023
Coram- Justice M.R. Shah and Justice C.T. Ravikumar
8) Application challenging arbitration award must be filed within limitation to avail benefit of exclusion when court was closed
The Court, while hearing an arbitration matter, held that the benefit of exclusion of the period during which the Court is closed shall be available when the application for setting aside award is filed within the “prescribed period of limitation” and shall not be available in respect of period extendable by Court in the exercise of its discretion.
As per Section 3(4) of the Act, 90 days are prescribed for preferring an application under Section 34 of the Arbitration Act against the arbitral award. However, the said period is extendable by a further period of 30 days in terms of the proviso to Section 34(3) of the Act.
Cause Title- Bhimashankar Sahakari Sakkare Karkhane Niyamita v. Walchandnagar Industries Ltd. (WIL)
Date of Judgment- April 10, 2023
Coram- Justice M.R. Shah and Justice Krishna Murari
9) Accused is not entitled to be released on statutory bail as there was second extension in his presence: SC rejects plea
The Court dismissed the appeals of an accused holding that he is not entitled to be released on statutory or default bail as there was second extension in his presence.
The question that arose for consideration before the Apex Court was whether in the facts and circumstances of the case, the appellant shall be entitled to the statutory/default bail under Section 167(2) of the Cr.PC on the ground that at the time when the extension of time for completing the investigation was prayed by the investigating agency and granted by the Trial Court, the accused was not kept present.
Cause Title- Qamar Ghani Usmani v. The State of Gujarat
Date of Judgment- April 10, 2023
Coram- Justice M.R. Shah and Justice C.T. Ravikumar
10) High Courts cannot conduct 'mini trial' at the stage of discharge or while quashing criminal proceedings u/s. 482 CrPC
The Court held that the High Court cannot conduct the ‘mini trial’ at the stage of discharge or quashing of the criminal proceedings while exercising limited powers under Section 482 of the Criminal Procedure Code, 1973 (CrPC).
In this case, the appeal was preferred against the order of the Punjab and Haryana High Court whereby criminal proceedings were initiated against the respondents, for offences punishable under Sections 452, 323, 365, 342, 186, 225, 506 and 120-B of the Indian Penal Code, 1860 (IPC) was quashed.
Cause Title- Central Bureau of Investigation v. Aryan Singh Etc.
Date of Judgment- April 10, 2023
Coram- Justice M.R. Shah and Justice C.T. Ravikumar
11) View that there cannot be any police custody beyond 15 days from date of arrest requires re-consideration
The Court observed that in the case of Central Bureau of Investigation v. Anupam J. Kulkarni (1992) 3 SCC 141, the view taken by the Court that there cannot be any police custody beyond 15 days from the date of arrest requires re-consideration.
In this case, the CBI i.e., the appellant preferred an appeal against the judgment passed by the Calcutta High Court as its Division Bench directed to release the accused i.e., the respondent on statutory/default bail under Section 167(2) of the Cr.PC.
The accused was arrested and remanded to CBI custody for a period of seven days but during the said period, he was admitted to the hospital and thus could not be interrogated by the CBI despite the police custody remand. The High Court allowed his plea and directed him to be released as even within 90 days from the date of arrest, the chargesheet was not filed which came to be filed later.
Cause Title- Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra
Date of Judgment- April 10, 2023
Coram- Justice M.R. Shah and Justice C.T. Ravikumar
12) Pronouncing operative part without preparing judgment is unacceptable & unbecoming of a judicial officer
The Court while setting aside the order of the Division Bench of the Karnataka High Court, has upheld the penalty of dismissal from service for a Civil Judge on account of gross negligence and misconduct.
The Court remarked that the High Court had created a new jurisprudence by stating that there should not be any further inquiry against the judge, while setting aside an order of penalty.
Cause Title- The Registrar General, High Court Of Karnataka & Anr. v. Sri M. Narasimha Prasad
Date of Judgment- April 10, 2023
Coram- Justice V. Ramasubramanian and Justice Pankaj Mithal
13) Lack of jurisdiction to entertain complaint cannot be ground to order transfer: SC dismisses plea to transfer ED case involving siddique kappan to Kerala
The Court dismissed a plea filed by K A Rauf Sherif, the first accused in the complaint filed by the Enforcement Directorate wherein Siddique Kappan is also an accused, for transferring the case from Lucknow to Ernakulam. The Court held that the lack of jurisdiction of the Court to entertain a complaint cannot be ground to order its transfer.
The Bench was dealing with a transfer petition preferred by the petitioner who was arrayed as an accused in a complaint filed by the Enforcement Directorate (ED) under Section 406 of the Cr.PC. read with Section 65 of the Prevention of Money Laundering Act, 2002 (PMLA) seeking to transfer a case from the Special Judge, PMLA, Lucknow to one in Ernakulam, Kerala.
Cause Title- KA Rauf Sherif v. Directorate of Enforcement & Ors.
Date of Judgment- April 10, 2023
Coram- Justice V. Ramasubramanian and Justice Pankaj Mithal
14) Preventive detention laws confer arbitrary power to the state, every lapse in procedure must benefit the case of detenue
The Court observed that preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the state. It added that every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue.
The Court set aside preventive detention order in which the grounds for detaining a person were ineligible and in Chinese and further said that every irregularity must work in favour of the detenue in such cases.
Cause Title- Pramod Singla v. Union Of India & Ors.
Date of Judgment- April 10, 2023
Coram- Justice Krishna Murari and Justice V. Ramasubramanian
15) RSS Route March: Supreme Court dismisses Tamil Nadu's SLPs against HCs order permitting route marches
The Supreme Court dismissed the SLPs filed by the state of Tamil Nadu and upheld the order of the Division Bench of Madras High Court directing the State Police to grant permission to RSS (Rashtriya Swayamsevak Sangh) for conducting route marches in different parts of the State.
The State of Tamil Nadu had filed the Special Leave Petition in the Supreme Court on February 21, challenging the judgment of the Division Bench of the Madras High Court which had asked the RSS to give three dates to the State Police and had asked the Police to choose one date from the three.
Cause Title- K. Phanindra Reddy, I.A.S & Ors. v. G. Subramanian
Date of Judgment- April 11, 2023
Coram- Justice V. Ramasubramanian and Justice Pankaj Mithal
16) Annual increment cannot be denied to govt employees merely because they are to retire the next day of earning it
The Court held that government employees cannot be denied the annual increment merely because they were to retire on the very next day of earning the increment.
The appellant- Karnataka Power Transmission Corporation Ltd. (KTPCL) had denied annual increment to employees on the ground that they had retired the next day. The appellant relied upon Regulation 40(1) of the Karnataka Electricity Board Employees Service Regulations, 1997 which provided that an increment accrued from the day following that on which it was earned. Therefore, the day the increment actually accrued to the respondent- employees, they were not in service.
Cause Title- The Director (Admn. and HR) KPTCL & Ors. V. C.P. Mundinamani & Ors.
Date of Judgment- April 11, 2023
Coram- Justice MR Shah and Justice C T Ravikumar
17) Unlawful Assembly: Accused persons specifically named in FIR but tried separately will still attract section 149 IPC
The Court reiterated that even though all the accused persons forming part of an unlawful assembly were being tried separately but were specifically named in the FIR, Section 149 of the Indian Penal Code (IPC) would be attracted and every person of that unlawful assembly would be guilty of that offence.
In this case, the appeal was preferred against the order of the Rajasthan High Court whereby the appeal preferred by the respondent- accused was partly allowed and the conviction for the offence punishable under Section 302 /149 of Indian Penl Code, 1860 (IPC) was set aside but was convicted under Section 323 of IPC.
Cause Title- Surendra Singh v. State of Rajasthan and Anr.
Date of Judgment- April 11, 2023
Coram- Justice MR Shah and Justice C T Ravikumar
18) Plaintiffs have been admitted to be owner of the property: SC sets aside order holding that the plaintiffs failed to prove ownership
The Court set aside the order passed by the High Court dismissing the review applications and appeals filed by the appellants/plaintiffs and the decrees of the Lower Appellate Court whereby the Trial Court’s Order directing respondents to be ejected from the suit property was set aside.
The Court was dealing with a case whereby the appellant’s had alleged before the Trial Court that their land was encroached upon by the respondents/defendants. The suit was contested by the respondents/defendants raising objection that the appellants/plaintiffs are not the owners of the property in dispute and that the suit property is not part of Khasra No. 4833.
The suit was decreed by the trial court and the respondents/defendants were ordered to be ejected from the suit property. However the judgment and decree of the Trial Court was set aside primarily on the ground that they had failed to prove their title to the property.
Cause Title- Murti Shri Durga Bhawani (Hetuwali) Trust & Anr. v. Diwan Chand (Dead) through LRs & Ors.
Date of Judgment- April 11, 2023
Coram- Justice Abhay S. Oka and Justice Rajesh Bindal
19) Rioting Case: Passage is owned by gram panchayat rather than complainant- SC sets aside conviction of 5 Men
The Court in a rioting and murder case has set aside the conviction of five men on the ground that the passage was owned by Gram Panchayat rather than the complainant. The dispute arose due to the use of passage by the appellants to which the complainant party raised an objection.
In this case, the conviction of the appellants was upheld by the High Court who were convicted by the Trial Court under Sections 148, 323, 325, and 307 read with Section 149 of the Indian Penal Code (IPC). They were sentenced to undergo six months rigorous imprisonment under Section 148 read with Section 149 as well as for Section 323 read with Section 149, two years under Section 325 read with Section 149 IPC, and seven years under Section 307 read with Section 149 IPC.
Cause Title- Ajmer Singh & Ors. v. State of Haryana
Date of Judgment- April 11, 2023
Coram- Justice Abhay S. Oka and Justice Rajesh Bindal
20) No pre-planned act, no intention to cause death- Supreme Court modifies conviction u/s. 307 IPC to section 326 IPC
The Court modified the conviction of a man, accused of using his tailoring scissors to injure the respondent, from Section 307 of Indian Penal Code to Section 326 of the IPC as there was no pre-planned act and the injuries were not caused with the intention to cause death.
In this case, the appeal was preferred against the order of the Chhattisgarh High Court whereby the appellant-accused was convicted for offences under Section 307, 341 and 506B of Indian Penal Code, 1860 and was sentenced to undergo rigorous imprisonment for 5 years.
Cause Title- Panchram v. The State Of Chhattisgarh & Anr.
Date of Judgment- April 11, 2023
Coram- Justice Abhay S. Oka and Justice Rajesh Bindal
21) In absence of sanctioned post, state cannot be compelled to create post & absorb persons continuing in service
The Court observed that in case of absence of sanctioned post, the State cannot be compelled to create the post and absorb the persons who are continuing in service.
The Court was dealing with a case relating to reinstatement and regularisation of members of the Makkal Nala Paniyalargal (MNP) associations who had served as Village Level Workers in the Tamil Nadu State.
Cause Title- The Government of Tamil Nadu v. Tamil Nadu Makkal Nala Paniyalargal and Ors.
Date of Judgment- April 11, 2023
Coram- Justice Ajay Rastogi and Justice Bela M. Trivedi
22) SARFAESI Act: If someone is called to participate in bidding process, facts must be made clear to parties
The Court said that in case of a public auction under the provisions of the SARFAESI (Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest) Act, 2002, if someone has been called upon to participate in the bidding process, the facts must be made clear to the parties since there is always a high variance between market realizable value and the distress value of the mortgaged property.
The Bench observed that ordinarily if the highest bidder fails to deposit the balance amount of the purchase price within the stipulated period and commits a default, its consequence is stipulated under Rule 9(5) of the Rules, 2002 but the instant case was not a case of simple default.
Cause Title- Mohd. Shariq v. Punjab National Bank and Others
Date of Judgment- April 11, 2023
Coram- Justice Ajay Rastogi and Justice Bela M. Trivedi
23) Once acknowledgement certificate is obtained under Kerala MSME Act, then permission from gram panchayat is not required
The Court observed that once an Acknowledgment Certificate under Section 5(3) of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (MSME Act) was obtained to set up a Hot Mix Plant, permission under the Kerala Panchayat Raj Act, 1994 was not necessary.
By way of the appeals, George Elias and Associates, which was the respondent No.1 in the first set of three appeals prayed for- (i) setting aside an Order of the Committee of the Kalloorkad Gram Panchayat refusing to grant license to them for establishing a Hot Mix Plant; and (ii) for a declaration that by virtue of the certificate granted under the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 (MSME Act), all licenses and approvals including the license of the Panchayat should be deemed to have been obtained.
Cause Title- Jolly George & Anr v. George Elias And Associates & Ors.
Date of Judgment- April 12, 2023
Coram- Justice V. Ramasubramanian and Justice Pankaj Mithal
24) Undue favouritism to one company is violative of article 14- SC upholds quashing of land acquisition proceedings for vedanta university
The Court upheld a judgment passed by the Orissa High Court, which quashed the land acquisition proceedings initiated by the Orissa Government to acquire about 6000 acres of the land for the Vedanta University.
In this case, an appeal was filed by the Anil Agarwal Foundation challenging the High Court's judgment which quashed the proceedings for violating the provisions of the Land Acquisition Act, 1894. The Apex Court was in complete agreement with the view taken by the High Court. Noting that the company was a private company, the Court observed that the applicable provision would be Section 44B of the Land Acquisition Act, which bars the acquisition proceedings for a private company unless it is a government company.
Cause Title- Anil Agarwal Foundation Etc. Etc. v. State of Orissa and Ors.
Date of Judgment- April 12, 2023
Coram- Justice MR Shah and Justice Krishna Murari
25) Conviction cannot be sustained based only on recovery of weapons- SC observes in political rivalry & murder case
The Court in a matter related to political rivalry and a murder case recently held that the conviction cannot be sustained only on the basis of the recovery of the weapons and hence set aside the conviction of the accused persons.
In this case, an appeal was filed by the accused persons who were convicted for the offences punishable under Sections 148 and Section 302 read with Section 149 of the Indian Penal Code and the High Court had appellant their conviction. There was a political rivalry between the family of the deceased and some of the accused persons who belong to the Ahir community and who had formed a party known as Azad party. A group of Ahirs attacked the deceased as a result of which FIRs were lodged against the appellants.
Cause Title- Radhey Shyam & Ors. v. State of Rajasthan
Date of Judgment- April 12, 2023
Coram- Justice Abhay S. Oka and Justice Rajesh Bindal
26) When evidence has not been recorded on the issue HC cannot quash charges on the ground that sanction u/s 197 crpc was mandatory
While dealing with a criminal appeal, the Court observed that when the evidence has not been recorded over the contention that acts alleged were committed while acting in the discharge of official duty, there was no reason for the High Court to quash charges framed on the ground that sanction under Section 197 CrPC was mandatory.
The Apex Court said that on perusing the record and assertions made by the appellant in the complaint, it appeared that the respondent exceeded her authority and that alleged offences were committed by the respondent along with other personnel.
Cause Title- Dr. S.M. Mansoori (dead) thr. L.R. V. Surekha Parmar & ors.
Date of Judgment- April 12, 2023
Coram- Justice Abhay S. Oka and Justice Rajesh Bindal
27) When there are numerous eyewitnesses, prosecution’s case cannot be disbelieved on ground that few of them weren’t examined
The Court while deciding an appeal has observed that when there are a number of eyewitnesses, the prosecution’s case cannot be disbelieved on the ground that that few of the eyewitnesses were not examined especially when the version of the eyewitnesses examined before the Court, inspires confidence.
In this case, the appellant was convicted for the offence punishable under Section 302 read with Section 34 of the IPC, and was sentenced to undergo life imprisonment. The appellant along with the co-accused was alleged to have chased and attacked the deceased person on his head with the blunt edge of the spade and continued to assault the other three persons with bamboo sticks.
Cause Title- Sita Ram v. The State of Uttar Pradesh
Date of Judgment- April 12, 2023
Coram- Justice Abhay S. Oka and Justice Pankaj Mithal
28) No shred of evidence or pleadings beyond bare allegation"- SC criticises APTELs casual approach, sets aside order against Gujarat Urja
The Court has stressed that as the Appellate Tribunal for Electricity is a judicial body dealing with contracts and bargains which are entered into by parties with equal bargaining power, it is not expected to casually render findings of coercion, or fraud, without proper pleadings or proof, or without probing into evidence.
In the present case, the State Commission, by its order, determined the tariff for procurement of power by distribution licensees from wind energy generators and also ruled on other commercial issues for wind energy generators (WPDs) set up under a preferential tariff mechanism. A Power Purchase Agreement in terms of the Central Commission Renewable Energy Generation Regulations (REC Regulations) was entered into between the Gujarat Urja and the wind power developers.
Later, the Central Commission amended the REC Regulations 2010 and replaced "at a price not exceeding pooled cost of the power purchase" with "at the pooled cost of power purchase". It was clarified in the amendment that PPAs already executed prior to this amendment at a tariff lower than APCC (Average Power Purchase Cost) would not be affected.
Cause Title- Gujarat Urja Vikas Nigam & Ors. v. Renew Wind Energy (Rajkot) Private Limited & Ors.
Date of Judgment- April 13, 2023
Coram- Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat and Justice MM Sundresh
29) Murder of 3 Persons: SC modifies sentence of convict to 30 years on account of gravity of offence
The Court modified the sentence of a convict to thirty years who was involved in the murder of three persons after looking at the gravity of the offence. The Court upheld the conviction of the appellant but directed that he shall undergo rigorous imprisonment for a fixed period of 30 years.
In this case, the appellant, along with other co-accused, committed the murder of three persons and they alleged to have formed a wrongful assembly with the common object of murdering the persons. The accused were armed with deadly weapons, such as a country-made pistol, lance, javelin, battle-axe, axe , and sticks and apart from killing three persons, they caused injuries to two more persons.
Cause Title- Shiv Mangal Ahirwar v. State of Madhya Pradesh
Date of Judgment- April 13, 2023
Coram- Justice Abhay S. Oka and Justice Rajesh Bindal
30) Supreme Court asks all courts & tribunals to number paragraphs & to adopt uniform format for orders & judgments
The Court suggested all Courts and Tribunals to number paragraphs in all orders and judgments and to adopt a uniform format for judgments and orders.
The Apex Court referred to the judgment in the case of Shakuntala Shukla v State of Uttar Pradesh, 2021 SCC OnLine SC 672 wherein it has observed that “A judgement should be coherent, systematic and logically organised.”
Cause Title- B.S. Hari Commandant v. Union of India
Date of Judgment- April 13, 2023
Coram- Justice Krishna Murari and Justice Ahsanuddin Amanullah
31) Chandigarh housing board to share liability with developer for failing to hand over possession of flats to buyers
While partly allowing the appeals preferred by Parsvnath Developers Limited (developer), the Court modified the orders of NCDRC and SCDRC in lieu of the developer’s liability to pay compensation under clause 9(c) of the Flat Buyer Agreement to the extent of 70% while the remaining 30% liability would be upon the Chandigarh Housing Board (CHB).
The CHB had submitted that under the Agreement and as per clause 9(c), it was the exclusive liability of the developer to pay the compensation to the allottees. However, the appellants relied on the earlier Supreme Court’s judgment in Civil Appeal No. 10748/2016, titled Chandigarh Housing Board v. M/s Parasvanath Developers Pvt. Ltd., decided on December, 17, 2019, and stated that the orders of NCDRC and SCDRC goes against it.
Cause Title- Parsvnath Developers Ltd. v. Gagandeep Brar and Anr.
Date of Judgment- April 13, 2023
Coram- Justice M.R. Shah and Justice A.S. Bopanna
32) Waqf Act, 1995: A beneficiary of waqf cannot be described as a stranger, mutawalli acts merely as manager
The Court while dealing with the case of Shia Muslims relating to the Waqf Act, 1995 has observed that a beneficiary of a waqf cannot be described as a stranger to the waqf and that the Mutawalli acts merely as the manager.
The Court said that a beneficiary of a waqf, however, being neither a trustee nor a co-owner of waqf property, can acquire title through adverse possession even if it is the property of the waqf it is found. The Court noted that though the Mussalman Waqf Act, 1923 was enacted, waqf-alal-aulad was excluded from its operation.
Cause Title- Sabir Ali Khan v. Syed Mohd. Ahmad Ali Khan and Others
Date of Judgment- April 13, 2023
Coram- Justice K.M. Joseph and Justice Hrishikesh Roy
33) Unregistered agreement to sell is admissible as an evidence in suit for specific performance as per proviso to section 49 of Registration Act
The Court held that an unregistered agreement to sell, which was otherwise required to be compulsorily registered, shall be admissible in evidence in a suit for specific performance in terms of Proviso to Section 49 of the Registration Act. The only exception to the Proviso of Section 49 would be documents mentioned in Section 17 (1A) of the Act.
The issue dealt with was- whether an unregistered Agreement to Sell for sale of an immovable property, which otherwise required registration, could be received in evidence in a suit for specific performance? The Apex Court said that despite insertion of Section 17 (1)(g), making the Agreement to Sell affecting any immovable property compulsorily required to be registered, there was no corresponding amendment to Section 49 of the Act.
Cause Title- R. Hemalatha v. Kashthuri
Date of Judgment- April 10, 2023
Coram- Justice MR Shah and Justice Krishna Murari
34) Land Acquisition Act| When state has acquired land, it vests in it; any person retaining possession after that is trespasser
The Court has set aside the order passed by the High Court with regard to the Delhi-Saharanpur-Dehradun highway construction holding that when the State has acquired the land and award has been passed, the land vests in the State and any person retaining possession after that is a trespasser. The Court further noted that even if the land was lying vacant, is now required for the project of national importance.
In this case, the appellants had challenged the order of the Delhi High Court whereby it allowed the writ petition filed by the respondents holding that in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the acquisition in respect to the land in dispute, had lapsed.
Cause Title- Land and Building Department through Secretary & Anr. v. Attro Devi & Ors.
Date of Judgment- April 11, 2023
Coram- Justice Abhay S. Oka and Justice Rajesh Bindal
35) Consumer Protection Act| Commercial entities using insurance services for non-profit are consumers
The Court in a batch of appeals filed by a National Insurance Company has held that where an insured commercial entity seeks the claim of insurance to only indemnify the loss and has no close or direct nexus with the profit-generating activity with services insured, then such commercial entity is a “consumer” under Section 2(1) (d) of the Consumer Protection Act, 1986 and the dispute will not necessarily qualify as a commercial dispute as per the Commercial Courts Act, 2015.
The Court held that each case has to be examined on its own facts and circumstances and that there cannot be any straight-jacket formula to determine whether the activity or transaction is for commercial purposes to generate profits.
Cause Title- National Insurance Co. Ltd v. Harsolia Motors and others
Date of Judgment- April 13, 2023
Coram- Justice Ajay Rastogi and Justice C.T. Ravikumar
36) Mercy petitions must be decided at the earliest so that benefit does not accrue to convict
While partly allowing an appeal challenging the order of the Bombay High Court which had commuted the death sentence to life imprisonment, the Court modified the judgment to life imprisonment for natural life without any remission. The High Court had commuted the death sentence to life imprisonment citing an inordinate delay in deciding the mercy petition.
In this matter, the Bombay High Court through its order and judgment had commuted the death sentence to life imprisonment on the ground, that there was an inordinate unexplained delay of about 7 years and 10 months on the part of the State in not deciding the mercy petitions.
Cause Title- The State of Maharashtra and Ors. v. Renuka @ Rinku @ Ratana Kiran Shinde & Ors.
Date of Judgment- April 13, 2023
Coram- Justice M.R. Shah and Justice C.T. Ravikumar
