Supreme Court Weekly Digest April 15 - 19, 2019


Allotment of Plot - Cooperative Societies Act, 1961 (Punjab) - Section 26 (1-D) - 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. D.Y. Chandrachud & Hemant Gupta, JJ. Nisha Singla v. Adarsh Colony Cooperative House Building Society Ltd., C.A. No. 3963 of 2019 16-04-2019

Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Act, 2010 - Constitutional Validity of. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Lunawat Construction Company, A Partnership Firm represented By its Partner Maniklal Peerchand Lunawat v. Union of India, W.P. (C) No. 96 of 2011 16-04-2019

Arbitration and Conciliation Act, 1996 - Section 12 (5) - Interpretation of - de jure inability of an arbitrator to act as such. Rohinton Fali Nariman & Vineet Saran, JJ. Bharat Broadband Network Limited v. United Telecoms Limited, C.A. No. 3972 of 2019 16-04-2019



Civil Law - Suit for Declaration of Title, Restoration of Possession and for Eviction. N.V. Ramana & Mohan M. Shantanagoudar, JJ. Om Prakash Ram v. State of Bihar, C.A. No. 3937 of 2019 15-04-2019

Civil Procedure Code, 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. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Ranjit Kumar Karmakar @ Dulal Karmakar v. Hari Shankar Das, C.A. No. 3967 of 2019 16-04-2019

Civil Procedure Code, 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. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. G. Shashikala (Died) Through L.Rs. v. G. Kalawati Bai (Died) Through L.R., C.A. No. 3969 of 2019 16-04-2019

Consumer Protection Act, 1986 - Section 21 (b) - The Insurance Act, 1938 - Section 64 VB (2) - Insurance Premium - Acknowledgment - Deficiency of Service. Uday Umesh Lalit & Indu Malhotra, JJ. Ashatai v. Shriram City Union Finance Ltd., C.A. No. 3962 of 2019 16-04-2019

Criminal Law - In order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Md. Allauddin Khan v. State of Bihar, Crl.A. No. 675 of 2019 15-04-2019

Criminal Procedure Code, 1973 - Sections 167(2), 173, 227 and 228 - 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 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. L. Nageswara Rao & M.R. Shah, JJ. Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi, New Delhi, Crl.A. No. 687 of 2019 16-04-2019

Criminal Procedure Code, 1973 - Sections 167(2), 173, 227 and 228 - 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. L. Nageswara Rao & M.R. Shah, JJ. Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi, New Delhi, Crl.A. No. 687 of 2019 16-04-2019

Criminal Procedure Code, 1973 - Sections 167(2), 173, 227 and 228 - It is always open for the investigating officer to apply for further investigation, even after forwarding the report under sub­section (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 officer-in-­charge and the Magistrate has no jurisdiction to suo moto pass an order for further investigation / re-investigation after he discharges the accused. L. Nageswara Rao & M.R. Shah, JJ. Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi, New Delhi, Crl.A. No. 687 of 2019 16-04-2019

Criminal Procedure Code, 1973 - Sections 167(2), 173, 227 and 228 - Magistrate cannot suo moto direct for further investigation under Section 173(8) of the CrPC or direct the re-investigation 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. L. Nageswara Rao & M.R. Shah, JJ. Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi, New Delhi, Crl.A. No. 687 of 2019 16-04-2019

Criminal Procedure Code, 1973 - Sections 167(2), 173, 227 and 228 - 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. L. Nageswara Rao & M.R. Shah, JJ. Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi, New Delhi, Crl.A. No. 687 of 2019 16-04-2019

Criminal Procedure Code, 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 ? L. Nageswara Rao & M.R. Shah, JJ. Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi, New Delhi, Crl.A. No. 687 of 2019 16-04-2019

Criminal Procedure Code, 1973 - Sections 284 and 285 - When attendance of witness may be dispensed with and commission issued - Commission to whom to be issued - Video Conferencing - Witness 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 - 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. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Manju Devi v. State of Rajasthan, Crl.A. No. 688 of 2019 16-04-2019

Criminal Procedure Code, 1973 - Section 311 - Power to summon material witness, or examine person present - Principles and amplitude of the powers of the Court - 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. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Manju Devi v. State of Rajasthan, Crl.A. No. 688 of 2019 16-04-2019

Criminal Procedure Code, 1973 - Section 482 - Contradictions in the statements of the witnesses on the point of occurrence - the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Cr.P.C. because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Md. Allauddin Khan v. State of Bihar, Crl.A. No. 675 of 2019 15-04-2019

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. D.Y. Chandrachud & Hemant Gupta, JJ. Dr. R.S. Grewal v. Chander Parkash Soni, C.A. No. 11086 of 2018 16-04-2019

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. D.Y. Chandrachud & Hemant Gupta, JJ. Dr. R.S. Grewal v. Chander Parkash Soni, C.A. No. 11086 of 2018 16-04-2019

Evidence Law - Medical Evidence - Inconsistencies in the Medical Reports - The stage to appreciate the evidence with a view to find fault or/and inconsistencies in the two medical reports would arise only when the prosecution leads evidence by examining the doctors in support of the medical reports. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Bihari Lal v. State of Rajasthan, 15-04-2019

Hindu Succession Act, 1956 - Section 14 (1) - 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. D.Y. Chandrachud & Hemant Gupta, JJ. Dr. R.S. Grewal v. Chander Parkash Soni, C.A. No. 11086 of 2018 16-04-2019

Income Tax Act, 1961 - Section 260­A - Substantial Question of Law - 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 260­A of the Act for its admission and accordingly should have dismissed the appeal in limine. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Pr. Commissioner of Income Tax Central 2 Vs. A.A. Estate Pvt. Ltd., C.A. No. 3968 of 2019 16-04-2019

Income Tax Act, 1961 - Section 260­A - Substantial Question of Law - The questions, which are proposed by the appellant, fall under Section 260­A (2) (c) of the Act whereas the questions framed by the High Court fall under Section 260­A (3) of the Act - The appeal is heard on merits only on the questions framed by the High Court under sub­section (3) of Section 260­A of the Act as provided under Section 260­A (4) of the Act. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Pr. Commissioner of Income Tax Central 2 Vs. A.A. Estate Pvt. Ltd., C.A. No. 3968 of 2019 16-04-2019

Income Tax Act, 1961 - Section 260­A(3) - Substantial Question of Law framed by the High Court - the appeal is heard only on the questions framed by the Court. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Pr. Commissioner of Income Tax Central 2 Vs. A.A. Estate Pvt. Ltd., C.A. No. 3968 of 2019 16-04-2019

Juvenile - Issue relating to the genuineness of the date of birth - Prosecution did not object to the correctness of the birth certificate - Juvenile at the time of commission of the offence and was below 18 years, which was not disputed by the State - Even at the time of hearing of appeal, the State did not dispute the date of birth certificate - It is not necessary to hold any further inquiry on this question. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Ashok Kumar Mehra v. State of Punjab, Crl.A. No. 1466 of 2008 15-04-2019

Land Law - U.P. Consolidation of Holdings Act, 1953 - Section 9­A (2) - finding is based on factual inquiry - it is based on proper appreciation of evidence, i.e., revenue entries - it is not found to be against any provision of law or against the record of the case - it is supported with reasons - No ground to interfere in these findings. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Chandrika (Dead) by LRs. v. Sudama (Dead) Thr. LRs., C.A. No. 1299 of 2009 15-04-2019

Rent Control and Eviction - 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. D.Y. Chandrachud & Hemant Gupta, JJ. Dr. R.S. Grewal v. Chander Parkash Soni, C.A. No. 11086 of 2018 16-04-2019

Service Law - 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” ? L. Nageswara Rao & M.R. Shah, JJ. Regional Manager, U.P.S.R.T.C. v. Maslahuddin (Dead), C.A. No. 3959 of 2019 16-04-2019

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. N.V. Ramana, Mohan M. Shantanagoudar & S. Abdul Nazeer, JJJ. Bal Mukund Sharma @ Balmukund Chaudhry v. State of Bihar, Crl.A. No. 1382 of 2014 16-04-2019

Penal Code, 1860 - Sections 323, 379 read with Section 34 - Mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323, 379 read with Section 34 IPC is made out or not. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Md. Allauddin Khan v. State of Bihar, Crl.A. No. 675 of 2019 15-04-2019

Service Law - Regularization of Services - The Punjab Urban Planning & Development Authority Employees (Punishment and Appeal) Regulations, 1997 - An order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained in the eyes of law. Uday Umesh Lalit & Indu Malhotra, JJ. Punjab Urban Planning and Development Authority v. Karamjit Singh, C.A. No. 3925 of 2019 15-04-2019

Specific Performance - Agreement of Sale - the entire story of payment of Rs. 6,75,000/- at the time of handing over the title documents is wholly unbelievable - Plaintiff has not asserted such fact in the plaint or in the notice - High Court erred in law in passing a decree for recovery of the said amount only on the basis of presumptions - Plaintiff is not entitled to decree for relief of specific performance, in view of the finding recorded by the High Court itself that he was not ready and willing to perform his part of the contract. D.Y. Chandrachud & Hemant Gupta, JJ. Manohar Ganapathi Ravankar v. H. Gurunanda Raikar, C.A. No. 3415 of 2019 15-04-2019
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