Fortnightly Newsletter, April 01

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April 01, 2018

Important Decisions by the Supreme Court and High Courts

SC: Stay against Pending Civil and Criminal Cases to End in Six Months

Case name: Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. Central Bureau of Investigation

In a landmark case taken up by Three-Judge Bench of the Supreme Court the seminal issues that were taken up by the Court were:

Whether the High Courts are bound to follow Section 19(3)(c) of Prevention of Corruption Act in petitions filed under Articles 226 and 227 of the Constitution of India?

Whether the inherent powers of High Courts are available to stay proceedings under the Act under Section 482 of the Code of Criminal Procedure?

Section 19(3)(c) of Prevention of Corruption Act states that no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in inquiry, trial, appeal or other proceedings.

The Supreme Court Bench in the case made a significant verdict by directing that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended.

Read more here.

SC Issues Slew of Directions to Prevent Honor Killings in India

Case name: Shakti Vahini v. Union of India & ors.

A noteworthy judgement has been passed by Three-Judge Bench of the Supreme Court headed by Chief Justice Dipak Misra on the prevalent practice of honor killing in India. While condemning the inhuman practice, the Bench made some striking remarks as under:

“When the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large. The question that poignantly emanates for consideration is whether the elders of the family or clan can ever be allowed to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of the clan. The answer has to be an emphatic “No”.

Taking a serious note of the situation and killing in the name of honor, the Supreme Court in the case has issued preventive steps to combat honor crimes in India.

Read more here.

SC Says Memorandum of Family Settlement is Compulsorily Registrable

Case name: Sita Ram Bhama v. Ramvatar Bhama

To arrive at its decision, the Court also relied on the precedent Kale and Ors. v. Deputy Director of Consolidation and Others[1]The Supreme Court in the case has enumerated the essentials of a family settlement and states that registration would be   necessary   only   if   the   terms   of   the family arrangement are reduced to writing.

Secondly, whether   the   impugned document   of family settlement which though was inadmissible in evidence could be used for any collateral purpose– With reference to this issue, the Supreme Court held that in a   suit   for   partition,   an unregistered   document   can   be   relied   upon   for   collateral purpose   i.e.   severancy   of   title,   nature   of   possession   of various shares but not for the primary purpose i.e. division of joint properties by metes and boundsof joint properties by metes and bounds.

That an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded.

Read more here.

SC on What is “Continuous Service” for Claim of Gratuity?

Case name: Netram Sahu v. State of Chhatissgarh

The Supreme Court in the case has observed that the question as to from which date such services were regularized was of no significance for calculating the total length of service for claiming gratuity amount once the services were regularized by the State.

Thus, the Apex Court in the case settles the legal proposition that while determining “continuous service” under Section 2A of Payment of Gratuity Act , the question whether the services were regularized or not is of no significance.

Read more here.

SC: Punishment for Murder is Either “Death Penalty” or “Life Imprisonment”

Case name: BharatKumar Rameshchandra Barot v. The State of Gujarat

In this instant case, the Supreme Court made a scathing attack on quantum of punishment awarded by the Sessions Judge to appellant for the offence of murder committed by him. The Apex Court in the case has categorically stated that the punishment for offence of murder is either “death penalty” or “life imprisonment”.

Read more here.

SC : Try and Make Life after Retirement Easier by Enacting Appropriate Pension Rules

Case name: Union of India vs. R. Sethumadhavan & Anr.

In the case, Two-Judge Bench of the Supreme Court took a serious note of delay caused in disposal of pension related cases.

The Supreme Court in the case issued the following direction:

We recommend to the Department of Personnel and Training of the Government of India to try and make life after retirement easier for a government servant by having appropriate legislation enacted by Parliament or applicable Pension Rules rather than a khichdi of Instructions, Office Memoranda, Clarifications, Corrigenda and so on and so forth.

SC: Section 13(3A) of SARFAESI Act is a Mandatory Provision

Case name: ITC Limited v. Blue Coast Hotels Ltd. & Ors.

In this recent case, the Two-Judge Bench of the Supreme Court extensively dealt with the purported scheme of Section 13(3A) of SARFAESI Act (Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest).

The Supreme Court Bench in the case has held that the language of sub-section (3A) is clearly impulsive. It states that the secured creditor “shall consider such representation or objection and further, if such representation or objection is not acceptable or tenable, he shall communicate the reasons for non-acceptance” thereof.

In the aforesaid view, the Apex Court held that the provision shall be treated mandatory.

Read more here.

Supreme Court’s Directions on Prevention of Misuse of SC/ST Act

Case name: Dr. Subhash Kashinath Mahajan v. The State of Maharashtra

In this recent case taken up by Two-Judge Bench of the Supreme Court, the Court was mainly concerned with the issue of offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act).

Read more here.

SC: No Prohibition in Law to File Second FIR

Case name: P. Sreekumar v. State of Kerala & Ors.

In the case, the seminal issue that arose for consideration was that if two FIRs are filed in relation to the same offence and against the same accused, whether the subsequent FIR was liable to be quashed or not?

The Court held that the FIR in the instant case was not liable to be quashed as- firstly, the second FIR was not filed by the same person, who had filed the first FIR. Had it been so, then the situation would have been somewhat different. Secondly, it was filed by the appellant as a counter-complaint against respondent No.3. Thirdly, the first FIR was against five persons based on one set of allegations whereas the second FIR was based on the allegations different from the allegations made in the first FIR.

Read more here.

Judgments by High Courts

Delhi HC: To ask Contractor to Wait for his Payment Endlessly is Arbitrary

In the case, a batch of petitions was taken up by the Delhi High Court in which the common cause of action pertained to disputes between Contractors/Plaintiffs on the one hand and the North Delhi Municipal Corporation and East Delhi Municipal Corporation (collectively referred to as `Corporations’). In these cases various work orders were placed on Contractors by both the Corporations. The works were executed by the Contractors and thereafter, the Engineer-in-Charge has passed the final bills. However, payments in respect thereof were not made and subsequently suits for recovery were filed by the Contractors.

In the case, Delhi High Court took a strong note of non-payment to contractors on account of unavailability of funds and inter alia opined that a Corporation cannot postpone the payment to the Contractor, indefinitely. The issuance of the tender and the work order in favour of the Contractor has to be on the pre-condition that funds are available with the Corporation. The Court further remarked that to ask the Contractor to wait endlessly for his payment is wholly arbitrary.

Kerala HC: Contract Employees also Entitled to Maternity Leave of 180 Days

Case name: Rakhi P.V. & Ors. v. State of Kerala & Anr.

The Kerala High Court in the case while making an order in favour of contract employees observed that the petitioners are also admittedly women employees working on a contract basis under state funded projects. The benefits of enhanced maternity leave to woman employees is undoubtedly a piece of welfare legislation which is intended to give women equal opportunities in public employment. Thus, the State’s contention that the contract employees under the projects are entitled only to 90 days of maternity leave cannot be tolerated as it would amount to discrimination against woman employees only for the reason that they are engaged in projects in contractual capacities.

Read more here.