Fortnightly Newsletter- March 04, 2018

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March 05, 2018

Indian Politics and Legal System every fortnight gives us a slice of news which spices up our newsletter. The glaring exposure of famous Jewelry designer Nirav Modi can be safely pigeon-holed as one of the blockbuster news of this fortnight. The jewelry designer is being investigated for illegal transfer of Rs. 12000 Crore from Punjab National Bank and has been absconding in apprehension of criminal proceedings. However, the economic plunder doesn’t halt here, well-known jewelry brands like Nakshatra, Gitanjali and Ginni are also being investigated for fraud.

Another news which ripped the nation apart this fortnight was sudden and sad demise of Indian Bollywood Diva, Sridevi- May her soul rest in peace.

Amongst all this development, we bring for you our Fortnightly newsletter giving a gist of important verdicts by the Indian Judiciary.

Supreme Court Decisions

SC on Refund of Excess Amount of Sales Tax on Price Variation

Case name: M/s. Universal Cylinders Limited v. The Commercial Taxes Officer

In this case, the Supreme Court has opined that an Assesse shall be entitled to refund of excess amount of sale tax paid in the event the price of the item gets reduced later.

Other key observation made by the Court in the case was a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines “sale price” clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. Thus, the definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price.

Read more here .

SC on Power to take Bond for Appearance u/Section 88 of CrPC

Case name: Pankaj Jain v. Union of India

In the case the seminal issue pertained to the content and meaning of Section 88 of the Code of Criminal Procedure, 1973.

The Supreme Court in the case at length deliberated on the import of the word ‘may’ used in Section 88 of CrPC. The Court observed that although, ordinary use of word ‘may’ imply discretion but when the word ‘may’ is coupled with duty on an authority or Court, it has been given meaning of shall that is an obligation on an authority or Court.

That discretionary power given to the Court under Section 88 of CrPC is for the purpose and object of ensuring appearance of such person in that Court or to any other Court into which the case may be transferred for trial. Discretion given under Section 88 of CrPC to the Court does not confer any right on a person, who is present in the Court rather it is the power given to the Court to facilitate his appearance, which clearly indicates that use of word ‘may’ is discretionary and it is for the Court to exercise its discretion when situation so demands.

Read more here.

SC: Retired District Judge can be appointed as Additional Judge of High Court

Case name: Sunil Samdaria v. Union of India

In an interesting development, the Supreme Court Bench comprising of Justice A.K. Sikri and Justice Ashok Bhushan made two important observations with respect to appointment as Additional High Court Judges. Firstly, that a retired District Judge can be appointed as Additional High Court Judge and secondly that the tenure of an Additional High Court Judge can be less than 2 years.

Read more here.

SC: UPSC Marks can’t be Disclosed Mechanically under RTI

Case name: Union Public Service Commission Etc. v. Angesh Kumar & ors.

An essential observation was made by the Apex Court in the case that UPSC marks could not be disclosed mechanically under the RTI Act.

The Court opined that weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically.

Other key observation made in the case was that furnishing raw marks would cause problems which would not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation.

Read more here.

SC on Readiness and Willingness to Perform Contract

Case name: Kalawati (D) Through LRs. & Ors. v. Rakesh Kumar & Ors.

In the case, the subject matter of the appeal was specific performance of an agreement to sell which mainly pertained to specific performance of the agreement to sell.

The Apex Court in the case drew a distinction between readiness and willingness to perform a contract and also observed that the readiness and willingness to perform the contract shall be subsisting.

Read more here.

SC: Section 21A of BRA not to Apply in States where there is State Debt Relief Act

Case name: Jayant Verma & Ors. v. Union of India & Ors.

One of the seminal issue taken up by the Supreme Court in the case was whether Section 21A  can be said to prevail over State Debt Reliefs Acts in the event of a clash between the two?

Supreme Court’s holding in the case is summarized as under:

  • That Section 21A of the Act to be valid as it is part of an enactment which, in pith and substance, is relatable to Entry 45, List I of the Seventh Schedule to the Constitution. However, insofar as Section 21A of the Act incidentally encroaches upon the field of relief of agricultural indebtedness, set out in Entry 30, List II, it will not operate only in States where there is a State Debt Relief Act which deals with the subject matter of relief of agricultural indebtedness, where the State Debt Relief Act covers debts due to “banks”, as defined in those Acts.
  • That in States where the State Debt Relief Act does not apply to banks at all, or applies only to certain 101 specified banks, Section 21A of the Act will, in the former situation, apply in such States, and, in the latter situation, apply only in respect of loans made to agriculturists where such loans are given by banks other than the banks specified or covered by the concerned State Debt Relief Act, as the case may be.

Read more here.

Decision by the High Courts

Rajasthan HC: Affixing Notice of Marriage at Residence of Parties not Warranted by Law

Case name: Kuldeep Singh Meena v. State of Rajasthan & ors.

The issue raised in the petition pertained to the legality of the procedure followed by the competent authority under the Special Marriages Act, 1954  to paste a notice of the intending marriage between the couple at the respective residence of the couple.

In the case, the Rajasthan High Court made reference to Delhi High Court’s judgment in the case of Pranav Kumar Mishra & Anr. Vs. Govt. of NCT of Delhi & Anr., wherein the Court held that procedure for registration of the marriage under the Special Marriages Act, 1954 does not warrant to send a notice at the residence of the parties, much less affix the same at the residence.

The Rajasthan High Court in the instant case concurred with the aforesaid holding of Delhi High Court and directed all Marriage Officers in the State of Rajasthan not to dispatch notices to the residence of the applicants who seek solemnization of their marriage under the Special Marriages Act, 1954.

Read more here.