Search By Topic: Constitution of India

557. (SC) 16-11-2020

A. Constitution of India, Article 14 -- Black listing of Contractor – Principle of natural justice – A prior show cause notice granting a reasonable opportunity of being heard is an essential element of all administrative decision-making and particularly so in decisions pertaining to blacklisting which entail grave consequences for the entity being blacklisted -- In these cases, furnishing of a valid show cause notice is critical and a failure to do so would be fatal to any order of blacklisting pursuant thereto -- Such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the noticee -- Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting.

(Para 19-21)

B. Constitution of India, Article 14 -- Black listing of Contractor – Principle of natural justice

-- Action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice.

-- After listing 12 clauses of the “Instruction to Bidders”, which were part of the Corporation’s Bid Document, the notice merely contains a vague statement that in light of the alleged leakage of question papers by the appellant, an appropriate decision will be taken by the Corporation.

-- Clause 10 of the Instruction to Bidders section of the Bid Document, which the Corporation has argued to be the source of its power to blacklist the appellant, is not even mentioned in the show cause notice.

-- Mere existence of a clause in the Bid Document, which mentions blacklisting as a bar against eligibility, cannot satisfy the mandatory requirement of a clear mention of the proposed action in the show cause notice.

-- Corporation’s notice is completely silent about blacklisting and as such, it could not have led the appellant to infer that such an action could be taken by the Corporation in pursuance of this notice.

-- Had the Corporation expressed its mind in the show cause notice to black list, the appellant could have filed a suitable reply for the same.

Show cause notice does not fulfil the requirements of a valid show cause notice for blacklisting – Order of blacklisting the appellant clearly traversed beyond the bounds of the show cause notice which is impermissible in law – Order is contrary to the principles of natural justice, matter remitted back to the Corporation for fresh consideration.

(Para 24-27)

558. (SC) 05-11-2020

Constitution of India, Article 32 -- Disaster Management Act, 2005 (53 of 2005), Section 10, 36 – Novel coronavirus disease, 2019 / Covid-19 situation -- Use of disinfectant on human body – Public Interest Litigation/ PIL to ban usage – Held,

-- Provisions of the Act, 2005, confer certain more responsibilities and duties on the respondent No.1/ Union of India apart from issuance of guidelines and providing financial support -- The Act, 2005, is special legislation containing self-contained provisions to deal with a disaster. The Pandemic being a disaster within the meaning of Act, 2005, has to be dealt with sternly and effectively.

-- When public authorities/ organizations were using disinfectants both chemical/organic on the human body and there are various studies to the effect that it may be harmful to the health and the body. Some more actions were required to remove the cloud of uncertainty and to regulate the use even if it was to either prevent such use or regulate the use so that health of citizens is amply protected.

-- For spraying disinfectant on human body, fumigation or use of UV rays against the human body, there has to be regulatory regime when respondent No.1 itself is of the view that such use is not recommended. The respondent No.1 has wide powers and responsibilities under Act, 2005, which could have been utilized to remedy the situation. In event, use of disinfectant on human body is to cause adverse effect on the health of the people, there has to be immediate remedial action and respondent No.1 cannot stop only by saying that such use is not recommended.

Directions issued:

i) The respondent No.1/Union of India may consider and issue necessary directions in exercise of powers vested in it under the Disaster Management Act, 2005, regarding ban/Regulation on the usage of disinfection tunnels involving spraying or fumigation of chemical/organic disinfectants for the human beings.

Or

ii) There shall be similar consideration and directions by the respondents as indicated above with regard to exposure of human being to artificial ultraviolet rays.

iii) Looking to the health concern of the people in general, the aforesaid exercise be completed by respondent No.1/Union of India  within a period of one month.

(Para 1, 2, 34-42)

559. (SC) 29-10-2020

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42, 53, 67 – Code of Criminal Procedure, 1973 (2 of 1974), Section  161, 164, 173 – Indian Evidence Act, 1872 (1 of 1872), Section 25 – Constitution of India, Article 14, 20(3) and 21 – NDPS case -- Statement/ Confession made before officers under NDPS Act –

-- Whether the officer investigating the matter under the NDPS Act would qualify as police officer or not ?

-- Whether the statement recorded by the investigating officer u/s 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer?

-- Whether such a statement is to be treated as statement u/s 161 of the Code or it partakes the character of statement u/s 164 of the Code? –

To arrive at the conclusion that a confessional statement made before an officer designated u/s 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India – Judgment in Kanhaiyalal (2008 (4) SCC 668) then goes on to follow Raj Kumar Karwal (1990 (2) SCC 409) do not state the law correctly, and are thus overruled -- Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled – Judgments of Noor Aga (2008 (16) SCC 417) and Nirmal Singh Pehlwan’s case (2011) 12 SCC 298 are correct in law. Held,

(i) That the officers who are invested with powers u/s 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded u/s 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

(Para 2, 152-155)

(Majority judgment)

Reference answered.

Provisions of the Cr.P.C do not apply to an inquiry/investigation under the NDPS Act except to the limited extent provided in Section 50(5) and 51 -- Section 173 of the Cr.P.C has not been made applicable to the NDPS Act -- Judgment in Raj Kumar Karwal (1990 (2) SCC 409), which has reaffirmed the verdict of three Constitution Benches does not require reconsideration -- Nor does Kanhaiyalal (2008 (4) SCC 668) require reconsideration.

(Para 270-271)

(Minority judgment)

564. (P&H HC) 13-10-2020

A. Constitution of India, Article 21, 226, 227 -- Indian Penal Code, 1860 (45 of 1860), Section 452, 324, 323, 34 -- Right to go abroad – Pendency of FIR – Effect of -- Accused is presumed to be innocent until convicted -- Rights of an accused does not automatically get suspended merely because he is being prosecuted in a criminal case -- One of the facet of right to liberty is to travel abroad – Held, while deciding such applications, the Courts must have regard to the nature of allegations, the conduct of the accused and above all, the need to ensure that the accused does not pose the risk of evading the prosecution – Concern of the Court ought to be only to ensure speedy trial of the criminal case and avoid the possibility of accused fleeing the reach of law -- Liberty of a citizen or a non-citizen cannot be unreasonably curtailed except in the circumstances as discussed above.

(Para 10,11)

B. Constitution of India, Article 21, 226, 227 -- Indian Penal Code, 1860 (45 of 1860), Section 452, 324, 323, 34 -- Passports Act, 1967 (15 of 1967), Section 9 -- Right to go abroad – Renewal of Passport -- Pendency of FIR – Effect of -- Petitioner is struck in the country because he is an accused in a minor offence and conclusion of the trial of the case is taking a lot of time – It has been more than three years since the FIR was registered -- Petitioner has already, with the prior permission of the Court, visited the USA twice during the pendency of the case and did came back -- No doubt, the petitioner overstayed for a few days in the year 2019, however, he did return before the date fixed in the case -- Still further, the petitioner has only applied for renewal/re-issue of the passport – Direction issued to the passport authorities to immediately renew/re-issue the passport of the petitioner, on completion of all the formalities -- Writ petition allowed.

(Para 11-13)

566. (P&H HC) 09-10-2020

Code of Civil Procedure, 1908 (V of 1908), Order 9 Rule 3, 4, Order 7 Rule 10, 11, Order 39 Rule 1 & 2, Section 24 – Constitution of India, Article 227 – Dismiss in default – Restoration of -- Maintainability of suit – Continuation of stay -- Non-application of judicial mind – Explanation called form District Judge – Detailed reasons:

-- Application for withdrawal of the Civil suit allowed by the trial Court on 30.09.2019 as well as before the Appellate Court, which was allowed on 07.12.2019, therefore, on face of record, no cause of action survives in favour of plaintiff No.1 in the suit – By showing total non-application of judicial mind, the Appellate Court is continuing with the appeal as well as the interim injunction.

-- A perusal of the first order dated 09.08.2019 passed by the District Judge also reflect non-application of judicial mind as the operation of the order dated 06.08.2019 dismissing an application under Order 39 Rules 1 and 2 CPC filed by the plaintiffs, was stayed and simultaneously, further injunction was granted against the Bank from proceeding against the plaintiffs, in accordance with law -- It is well settled principle of law that if an injunction application filed by the plaintiffs is dismissed by the Civil Court, the Appellate Court unless by recording detailed reason of urgency may grant interim injunction for a short period or in ordinary course, after giving a short notice to the contesting defendants may pass an interim order. Both these principles of law have been ignored by the District Judge.

-- The Civil Court has passed the order dated 06.08.2019 in the presence of the contesting party i.e. the plaintiff No.1, defendant No.1 – Bank and the counsel representing interim resolution professional of plaintiff No.2, therefore, the Appellate Court who is adjourning the appeal to serve the remaining unserved defendants, who are not contesting before the Civil Court is nothing but a futile exercise, just to extend the stay in favour of the plaintiffs whereas the service of the remaining defendants could be dispensed with in terms of provisions of Order 41 Rule 3 Proviso added by amendment as applicable to Punjab, Haryana and Chandigarh.

-- The another reason which show the slackness and disrespect on the part of the Appellate Court is that defendant No.1 – Bank has brought all the previous orders passed by the Writ Court, the Hon'ble Supreme Court, the NCLT and the NCALT and on 07.12.2019, it was also brought to the notice of the Appellate Court that the Civil Court stands dismissed for non-prosecution, however, still the interim stay was extended and no effort was made to dispose of the main appeal.

-- Even surprisingly, despite the instructions passed by the High Court that the photocopy of the Lower Appellate Court should be summoned so that the proceedings before the Lower Court is not automatically stayed, the Appellate Court summoned the record of the trial Court vide order dated 07.12.2019 and despite the fact that the seat of the District Judge and of the trial Court is at the same place, till 01.02.2020, the record was not received and in the intervening period, the interim order was ordered to be extended by the Appellate Court.

-- Even further on 29.02.2020, after noticing that the suit is dismissed for non-prosecution and the petitioner – Bank is stressing that the appeal is not maintainable, the Appellate Court, while returning the record of the trial Court, directed that the application for restoration be decided in a time bound manner i.e. 1½ months, therefore, the intention of the plaintiffs is apparent on record to delay the proceedings either before the District Judge or before the trial Court by not arguing the application for restoration of civil suit.

-- Thus the District Judge has failed to perform even the administrative duty by not keeping a check on trial Court which has not decided the application for restoration of suit till date i.e. even after lapse of 08 months, in violation of his own order dated 29.02.2020.

-- The District Judge being the administrative head of the District, is required to keep a check on the subordinate judiciary and the manner in which the order in the civil suit are passed, show that an effort is made to delay the proceedings to enable the plaintiffs to gain time.

-- Even the trial Court is adjourning the case for effecting the service on non-contesting respondents and is not deciding the application for restoration of civil suit despite the fact that when suit was dismissed for non-prosecution, the presence of the counsel for defendants was marked and service on defendants can be effected through counsel, to avoid the delay.

-- The basic principles of law as set down in various judgments to decide the application for restoration of a suit/appeal or likewise setting-aside ex parte order are that if the application is filed within a reasonable time as in the instant case, it was filed within a period of 06 days; a bona fide ground is given, as in this case, the counsel representing the plaintiffs has filed his own affidavit; the general principle that no one should be condemn unheard is not violated and if required, the other party can be compensated by way of costs, thus, majority of such applications are allowed, however, this is not followed by the trial Court.

-- Based upon such principle, the trial Court could have decided the application immediately without wasting the time to serve the non-contesting respondents. Needless to say that 03 months time was taken by the Appellate Court, in summoning the record of the trial Court, which further delayed the disposal of the application under Order 9 Rule 4 CPC.

-- It is not understandable as to why the District Judge/Appellate Court is adjourning the appeal despite the fact that the suit stands dismissed for non-prosecution on 29.11.2019 and the plaintiffs on both counts are seeking adjournments and both the Courts, on face of record are showing undue favour to the plaintiffs.

-- Once the petitioner – Bank on 07.12.2019 has brought to the notice of the Appellate Court, about all the orders passed by High Court & the Hon'ble Supreme Court as well as the dismissal of the suit in default, there was no justification for the Appellate Court to continue with the stay order, which was obtained by concealing the aforesaid litigation and orders and therefore, continuing with the stay order by ignoring the orders of the High Court and the Hon'ble Supreme Court inter se parties, the District Judge has shown disrespect to orders and, on face of record has shown favour to the plaintiffs to delay the proceedings.

-- Even otherwise, the grant of ex parte stay and thereafter, continuation of the interim stay for a period of 01 year despite all odds is in violation of the well settled principle of law held by the Hon'ble Supreme Court that injunctions against financial institutions should not be granted casually. The default in payment of public money involved in the case is more than 1100 crores of rupees and therefore, the continuation of the interim order by the Appellate Court is not at all in public interest.

30 days’ time given to District Judge to submit explanation -- Civil Appeal ordered to be transferred from the Court of District Judge to the Court of Additional District Judge -- Transferee Court will decide the appeal within a period of 03 weeks, from the date of receipt of the case file -- Application under Order 9 Rule 4 CPC be decided within a period of 03 weeks from the date of receipt of the certified copy of this order – In case, the suit is restored, the trial Court will further pass an order within a period of 03 weeks thereafter, regarding maintainability of suit by assessing the averments “only in the plaint” (in terms of Order 7 Rules 10 and 11 CPC), if any cause of action survive in favour of plaintiff No.1, after the suit stands dismissed as withdrawn qua plaintiff No.2 -- In view of the settled principle of law, the trial Court will only look into the contents of the plaint and no other documents will be considered for the same.

(Para 31-39)

571. (P&H HC) 06-10-2020

Specific Relief Act, 1963 (47 of 1963), Section 41(j) – Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 8, Order 39 Rule 1 & 2, Section 151 – Constitution of India, Article 227 -- Suit for mandatory injunction – Temporary injunction – Maintainability of -- Construction of Community Hall on the instructions of State Government, which has accorded permission on the basis of resolution passed by the Gram Panchayat and the amount is being spent by the State Government – Challenge to stay declined by Courts below – Held,

-- It is well settled principle of law that in a suit for mandatory injunction, no relief of temporary injunction can be granted, which will amount to passing a decree of mandatory injunction itself.

-- A careful perusal of the plaint would show that nothing is stated that any personal right of any of the petitioners is infringed, therefore, in view of Section 41(j) of the Specific Relief Act, the suit is not maintainable.

-- The suit has not been filed in representative capacity under Order 1 Rule 8 CPC and no application has been moved seeking permission from the Court that the suit is being filed on behalf of the entire village community, therefore, it is a suit which has been filed only by nine inhabitants of the village, whereas the Community Hall is being constructed for the entire village.

-- Both the Courts below have discussed the judgments of this Court, wherein it is held that the Gram Panchayat is competent to change the user of the land in a manner it likes as well as when sufficient area of Shamlat land is available, it can be used for any other development work and injunction cannot be granted regarding change of nature of land.

-- Even a perusal of the plaint further shows that it is nowhere mentioned that the passage of the temple will be blocked, rather it is a case of Gram Panchayat that there is difference of about 400 ft. between the temple and the Community Hall.

Court found no ground to interfere with the well-reasoned orders passed by the Courts below dismissing the application for stay -- Finding no merit in the revision petition, the same is dismissed.

(Para 9-11)

574. (SC) 01-10-2020

Factories Act, 1948 (63 of 1948), Section 5, 59 – Constitution of India, Article 142 -- Public emergency – Covid-19 situation /lockdown – Notifications to exempt factories from observing some of the obligations towards employers – Over-time to employees – Respondent-State aimed to ameliorate the financial exigencies that were caused due to the pandemic and the subsequent lockdown – Held, financial losses cannot be offset on the weary shoulders of the laboring worker, who provides the backbone of the economy -- Section 5 of the Factories Act could not have been invoked to issue a blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an ‘internal disturbance’ of a nature that posed a ‘grave emergency’ whereby the security of India is threatened -- In any event, no factory/ classes of factories could have been exempted from compliance with provisions of the Factories Act, unless an ‘internal disturbance’ causes a grave emergency that threatens the security of the state, so as to constitute a ‘public emergency’ within the meaning of Section 5 of the Factories Act -- Writ petition allowed and Notification No. GHR/ 2020/56/FAC/142020/346/M3 dated 17 April 2020 and Notification No. GHR/2020/92/FAC/142020/346/M3 dated 20 July 2020 issued by the Labour and Employment Department of the Respondent State, quashed – Invoking Article 142 of the Constitution, Court directed that overtime wages shall be paid, in accordance with the provisions of Section 59 of the Factories Act to all eligible workers who have been working since the issuance of the notifications.

(Para 45, 46)

575. (SC) 01-10-2020

Aircraft Act, 1934 (22 of 1934), Section 5-A, 6 -- Aircraft Rules, 1937, 133-A – Constitution of India, Article 32 -- Covid-19 pandemic situation -- Refund of Air Fare – Batch of cases disposed of with the following directions:

1. If a passenger has booked a ticket during the lockdown period (from 25th March, 2020 to 24th May, 2020) for travel during lockdown period and the airline has received payment for booking of air ticket for travel during the same period, for both domestic and international air travel and the refund is sought by the passenger against that booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of three weeks from the date of cancellation.

2. If the tickets have been booked during the lockdown period through a travel agent for a travel within the lockdown period, in all such cases full refund shall be given by the airlines immediately. On such refund, the amount shall be passed on immediately by the agent to the passengers.

3. Passengers who booked tickets at any period of time but for travel after 24th May, 2020 – refund of fares to the passengers covered under this category shall be governed by the provisions of Civil Aviation Requirements (CAR).

4. Even for international travel, when the tickets have been booked on an Indian carrier and the booking is ex-India, if the tickets have been booked during the lockdown period for travel within the lockdown period, immediate refund shall be made.

5. If the tickets are booked for international travel on a foreign carrier and the booking is ex-India during the lockdown period for travel within the lockdown period, full refund shall be given by the airlines and said amount shall be passed on immediately by the agent to the passengers, wherever such tickets are booked through agents. In all other cases airline shall refund the collected amount to the passenger within a period of three weeks.

6. In all other cases, the airlines shall make all endeavours to refund the collected amount to the passenger within 15 days from today. If on account of financial distress, any airline / airlines are not able to do so, they shall provide credit shell, equal to the amount of fare collected, in the name of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31st March, 2021. It is open to the passenger either to utilize such credit shell upto 31st March, 2021 on any route of his choice or the passenger can transfer the credit shell to any person including the travel agent through whom he / she has booked the ticket and the airlines shall honour such a transfer.

6.1. The credit shell issued in the name of the passenger shall be transferable which can be utilized upto 31st March, 2021 and the concerned airline shall honour such a transfer by devising a mechanism to facilitate such a transfer. It is also made clear that such credit shell can be utilized by the concerned agent through whom the ticket is booked, for third party use. It is also made clear that even in cases where credit shell is transferred to third party, same is to be utilized only through the agent who has booked the ticket at the first instance.

7. In cases where passengers have purchased the ticket through an agent, and credit shell is issued in the name of passenger, such credit shell is to be utilized only through the agent who has booked the ticket. In cases where tickets are booked through agent, credit shell as issued in the name of the passenger which is not utilized by 31st March, 2021, refund of the fare collected shall be made to the same account from which account amount was received by the airline.

8. In all cases where credit shell is issued there shall be an incentive to compensate the passenger from the date of cancellation upto 30th June, 2020 in which event the credit shell shall be enhanced by 0.5% of the face value (the amount of fare collected) for every month or part thereof between the date of cancellation and 30th June, 2020. Thereafter the value of the credit shell shall be enhanced by 0.75% of the face value per month upto 31st March, 2021.

Further, the Directorate, shall ensure strict compliance of the directions referred above, by issuing necessary instructions to the all concerned.

(Para 19)

580. (P&H HC) 22-09-2020

A. Constitution of India, Article 226 – Banking default case -- One Time Settlement/ OTS – Extension of time – Writ jurisdiction --  One Time Settlement is not cloaked with such rigorous principles which may not permit extension of period to pay the remaining/balance settlement amount -- Extensions can be considered to be granted to deserving cases -- Held, Court in exercise of its jurisdiction under Article 226 of the Constitution of India would have the jurisdiction to extend the period of settlement as originally provided for, in the OTS letter.

(Para 22-24)

B. Constitution of India, Article 226 – Banking default case -- One Time Settlement/ OTS – Extension of time – Illustrative guidelines framed to be considered cumulatively or individually, on case to cases basis, some of them would be :-

i. The Original Time provided in the Settlement – the first and foremost aspect to be noticed would be the time period originally granted by the bank to pay off the settlement amount. If the time period originally stipulated in the settlement letter to pay off the settlement amount is short or is not excessive, the case for extension then could be considered. It is to be noticed that the borrower is to arrange funds to complete the OTS. If reasonable time period is not given, the very purpose of settlement would be defeated. In that eventuality application for extension can be considered so that the borrower gets a reasonable time to clear off the settlement amount and the ultimate purpose of settlement is achieved.

ii. Extent of payments already deposited under the settlement or before filing of the petition – While considering an application for extension of time under OTS, the prime objective to be noticed is the intention of the borrower to culminate the settlement. If the borrower has already paid substantial amounts, to the creditor under the OTS, and for some remaining amounts, is seeking a reasonable extension, such requests can be considered favourably. This shows, that the applicant had an intention to clear the settlement and the deposit of substantial amounts, is an indication in this regard.

iii. Reasons which led to delay in payment – It is important to notice, the reasons, which led to the delay on the part of the borrower. If the borrower was prevented by certain reasons or circumstances beyond his control it could be a reason to consider an application for extension favourably. It would be imperative for the borrower to show, that he made his best efforts to ensure that the requisite amounts, are arranged within the specified time, but inspite of all his best efforts, he could not arrange for the same.

iv. Payments having been accepted by the Bank / Financial Institution , after the stipulated date – If the bank or the Financial Institution has been accepting the payments from the borrower towards the settlement even after the stipulated period of time, it shows that the time was not the essence of contract. It would be apparent from such conduct of the parties, that certain amount of relaxation or flexibility in making the payment of OTS amount is reserved between the parties.

v. Bona fide Intent of the borrower to pay the remaining amounts under the settlement – In order to test the bonafide intention of such an applicant, it could be reasonably be tested while asking such an applicant to deposit some further amount, towards the balance amount before calling upon the bank to consider the issue of extension. If such amounts are deposited under the orders of Court and the bonafides are established, such an applicant would be entitled for a favourable consideration of an application for extension.

Caveat added, that if for any reason, the effort does not lead to extension of time, as prayed for by the petitioner, then the amounts deposited by the borrower/depositors under the interim orders of the Court, would have to be returned back by the creditor to the petitioner.

vi. Time period being demanded by the applicant to clear the remaining / balance settlement amount. – An applicant whose intention would be to clear the balance settlement amounts, would not claim for an unreasonable period of an extension, as otherwise, the intention would be to gain more time, without any actual intent to clear the settlement. In the facts and circumstances of each case, the Courts would therefore determine a reasonable period, to enable the borrower to clear the remaining settlement amount, subject ofcourse, to payment of reasonable interest for the delayed period, to balance the equities.

vii. Attending factors and circumstances– Attending factors and circumstances involved, while making an application for extension play an important role to identify eligible and deserving cases as also to determine the extent of extension to be granted. For example, the current situation where the entire country has been adversely effected on account of COVID-19 pandemic, the difficulties in arranging the amounts could be taken note of while determining the period of extension to be granted to an applicant. Further, accounts which have suffered losses and became NPA on account of having suffered natural calamities, unfortunate accidents, fire incidents, thefts, damage by floods , storms etc. and have come forward for an eventual settlement, can also be considered for extension of time.

viii. Irreparable loss and injury to the applicant – While examining an application for extension of settlement, it could also be seen to be noticed, the extent of an injury to be suffered by an applicant.

Guidelines/factors are not exhaustive but only illustrative for guidance of the parties and the courts while considering the prayer for extension of the time under by OTS by the borrower on case to case basis -- Courts would be free to consider the credentials of the borrower as well, being an equitable and discretionary relief.

(Para 25)

C. Constitution of India, Article 226 – Banking default case -- One Time Settlement/ OTS – Extension of time – Petitioner paid substantial portion of the same and is willing to pay the remaining with interest -- Current attending circumstances, of widespread of COVID-19 pandemic – Petitioners held entitled to extension of time for 6 months to repay the remaining settlement amount – Petitioners shall also pay interest @ 9% p.a. simple on the delayed payments on reducing balance payable w.e.f. 01.06.2019 i.e. the closing date of the settlement/OTS.

(Para 26-30)

D. Insolvency and Bankruptcy Code, 2016 (31 of 2016), Section 14(1)(a) -- Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Provider and Application to Adjudicating Authority) Rules, 2019, Rule 5 – Constitution of India, Article 226 -- One Time Settlement/ OTS – Extension of time – Maintainability of writ petition – Whether the present petition is maintainable in view of the proceedings pending before National Company Law Tribunal – Intent to restrict initiation or continuation of proceedings against a Corporate Debtor is to preserve its assets so that during Corporate Insolvency Resolution Process (CIRP), the Corporate Debtor is subjected to remedial acts to improve its financial condition – Answered in AFFIRMATIVE and held that in the peculiar facts and circumstances of the present petition, the petition would be maintainable.

(Paras 13, 33-37)

582. (SC) 10-09-2020

A. Constitution of India, Article 226, 311 – Departmental enquiry – Judicial review – Nature of – Power of judicial review discharged by Constitutional Courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority – Judicial review is an evaluation of the decision-making process, and not the merits of the decision itself – Judicial Review seeks to ensure fairness in treatment and not fairness of conclusion – It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.

(Para 25)

B. Constitution of India, Article 226, 311 – Disciplinary proceedings -- Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority – Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice -- Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.

(Para 28)

C. Constitution of India, Article 226, 311 – Indian Evidence Act, 1872 (1 of 1872), Section 165 -- Disciplinary proceedings -- Objection on role of Enquiry officer – It must be recognized that, under Section 165, Evidence Act, judges have the power to ask any question to any witness or party about any fact, in order to discover or to obtain proper proof of relevant facts -- While strict rules of evidence are inapplicable to disciplinary proceedings, enquiry officers often put questions to witnesses in such proceedings in order to discover the truth -- Indeed, it may be necessary to do such direct questioning in certain circumstances -- No specific malice or bias has been alleged against the enquiry officer, and even during the enquiry no request had been made to seek a replacement; thus, evidencing how these objections are nothing but an afterthought.

(Para 31)

D. Constitution of India, Article 226, 311 – Departmental enquiry – Allegation of corruption – Non-action in criminal case -- Dismissal from service -- After investigation, the CBI though did not find adequate material to launch criminal prosecution but recommended major disciplinary action – In a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances -- Appellant’s contention that he should be exonerated in the present proceedings as no criminal chargesheet was filed by the CBI after enquiry, is liable to be discarded – Employer always retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding.

(Para 33-35)

E. Constitution of India, Article 226, 311 – Allegation of corruption -- Departmental enquiry – Dismissal from service – Interference in -- Unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked -- Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society -- Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly – Dismissal order, upheld.

(Para 1, 36)

583. (SC) 09-09-2020

Constitution of India, Article 16 -- Maharashtra State Reservation (of Seats for admission in Educational Institutions in the State and for appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 (62 of 2018) – 16% reservations to Marathas to be a “Socially and Educationally Backward Class” – Validity of – Matter referred to Larger Bench : 

-- As per Indra Sawhney’s case 1992 Supp. (3) SCC 217, Article 16 (4) should be balanced against the guarantee of equality enshrined in Article 16 (1), which is a guarantee held out to every citizen, reservations contemplated in Clause (4) of Article 16 should not exceed 50 per cent -- Relaxation of the strict rule of 50 per cent can be made in certain extraordinary situations -- People living in far flung and remote areas not being in the mainstream of national life should be treated in a different way -- Extreme caution has to be exercised and a special case made out for relaxation of the rule of 50 per cent.

-- Court prima facie opined that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent. Maratha community which comprises of 30 per cent of the population in the State of Maharashtra cannot be compared to marginalized sections of the society living in far flung and remote areas. The State has failed to make out a special case for providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in doing so.

-- The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.

Court referred the matter to Larger Bench by passing following orders: -

(A) As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench. These matters shall be placed before Hon’ble The Chief Justice of India for suitable orders.

(B) Admissions to educational institutions for the academic year 2020-21 shall be made without reference to the reservations provided in the Act. We make it clear that the Admissions made to Post-Graduate Medical Courses shall not be altered.

(C) Appointments to public services and posts under the Government shall be made without implementing the reservation as provided in the Act. Liberty to mention for early hearing.

(Para 1, 15-17)

585. (SC) 31-08-2020

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 2(h)(o), 35, 41, 42, 43, 50, 44, 49, 51, 52(3), 53, 54, 55, 57, 57A, 58, 67, 68 -- Code of Criminal Procedure, 1973 (2 of 1974), 100,154,156, 157, 173 -- Indian Evidence Act, 1872 (1 of 1872), Section 114(e) – Constitution of India -- Article 21 – NDPS matter – Fair Investigaiton -- Informant and Investigator are same – Effect of -- Observations of Supreme Court in the cases of Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15; Megha Singh v. State of Haryana (1996) 11 SCC 709; and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal of the accused by Supreme Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts -- It cannot be said that in the aforesaid decisions, Supreme Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal.

(Para 12(I))

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Sections 2(h)(o), 35, 41, 42, 43, 50, 44, 49, 51, 52(3), 53, 54, 55, 57, 57A, 58, 67, 68 -- Code of Criminal Procedure, 1973 (2 of 1974), 100,154,156, 157, 173 -- Indian Evidence Act, 1872 (1 of 1872), Section 114(e) – Constitution of India -- Article 21 – NDPS matter -- Informant and Investigator are same – Effect of -- In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor -- Question of bias or prejudice would depend upon the facts and circumstances of each case -- Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of Supreme Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled.

(Para 12(II))

588. (SC) 19-08-2020

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 406 -- Transfer power u/s 406 Cr.P.C. – Scope of -- Section 406 Cr.P.C. empowers the Supreme Court to transfer cases and appeals – Held, only cases and appeals (not investigation) can be transferred.

(Para 17)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 157, 174 -- Scope of section 174 Cr.P.C. proceeding – Nature of -- Proceedings u/s 174 Cr.P.C. is limited to the inquiry carried out by the police to find out the apparent cause of unnatural death -- These are not in the nature of investigation, undertaken after filing of FIR u/s 154 CrPC --  Held, inquiry conducted u/s 174 CrPC is limited for a definite purpose but is not an investigation of a crime u/s 157 of the CrPC.

(Para 18-21)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 157, 177, 178, 181(4) -- Delhi Special Police Establishment Act, 1946 (25 of 1946), Section 5, 6 -- Indian Penal Code, 1860 (45 of 1860), Sections 341, 342, 380, 406, 420, 306, 506, 120B -- Criminal breach of trust -- Death at Mumbai – Jurisdiction of Patna Police to register complaint – Consent for CBI Investigation by Bihar police -- Legality of -- At the stage of investigation, it cannot be said that the concerned police station does not have territorial jurisdiction to investigate the case -- Allegation relating to criminal breach of trust and misappropriation of money which were to be eventually accounted for in Patna (where the Complainant resides), could prima facie indicate the lawful jurisdiction of the Patna police -- Exercise of jurisdiction by the Bihar Police appears to be in order -- At the stage of investigation not required to transfer the FIR to Mumbai police -- Bihar government was competent to give consent for entrustment of investigation to the CBI and as such the ongoing investigation by the CBI is held to be lawful.

(Para 22-30)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 154, 157, 177, 178, 181(4), 406 – Delhi Special Police Establishment Act, 1946 (25 of 1946), Section 5, 6 -- Indian Penal Code, 1860 (45 of 1860), Sections 341, 342, 380, 406, 420, 306, 506, 120B – Constitution of India, Article 142 -- Criminal breach of trust -- Death at Mumbai – Proceedings u/s 174 Cr.P.C. at Mumbai -- Patna Police registered FIR, subsequently transferred it to the CBI – In future, if commission of cognizable offence u/s 175(2) CrPC is determined, the possibility of parallel investigation by the Mumbai Police cannot be ruled out – Both states are making acrimonious allegations of political interference against each other, the legitimacy of the investigation has come under a cloud -- To ensure public confidence in the investigation and to do complete justice in the matter, Court exercised powers conferred by Article 142 of the Constitution, while according approval for the ongoing CBI investigation, holding that if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well.

(Para 35-41)

590. (SC) 05-08-2020

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 10, 10A, 24(2), 25(3) -- Return of plaint – Transfer of petition – De novo trial or not – Power of -- In cases dealing with transfer of proceedings from a Court having jurisdiction to another Court, the discretion vested in the Court by Sections 24(2) and 25(3) either to retry the proceedings or proceed from the point at which such proceeding was transferred or withdrawn, is in marked contrast to the scheme under Order VII Rule 10 read with Rule 10-A where no such discretion is given and the proceeding has to commence de novo.

(Para 21)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 10, 10A – Constitution of India, Article 136, 142 -- Return of plaint -- De novo trial or not – Power of -- High Court by the impugned order held that the suit at Delhi shall proceed from the stage at which it was pending at Gurgaon before return of the plaint and not de novo – Held, presentation of the plaint at Gurgaon was certainly not before a court having jurisdiction in the matter -- Suit has to proceed afresh before the proper court – Because the appellant did not raise the objection under clause 16B of the agreement at the very first opportunity -- Pleadings of the parties have been completed, evidence led, and that the matter was fixed for final argument – In exercise of discretionary jurisdiction under Article 136 and in order to do complete and substantial justice between the parties under Article 142 of the Constitution Court decline to set aside the order of the High Court.

(Para 3, 27)

591. (SC) 05-08-2020

A. Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 8C, 20(b)(ii)(c) – Recovery of cannabis -- Prima facie case should be beyond reasonable doubt – Burden of proof on accused shift thereafter -- Stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused -- Gravity of the sentence and the stringency of the provisions will therefore call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution.

(Para 2, 10)

B. Narcotic Drugs and Psychotropic Substances, Act, 1985 (61 of 1985), Section 8C, 20(b)(ii)(c), 37 – Constitution of India, Article 21 -- Recovery of cannabis from house -- Conscious possession of contraband – Proof of -- Fair trial – Right of -- Appellant produced the sale agreement of house in question, Exhibit P.28 with promptness the very next day -- It was never investigated for its genuineness by the police and neither were the panchayat records verified -- Voters list entry of 2008 being prior to the sale is of no consequence -- Conscious possession not established so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband -- Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt -- Appellant has been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution -- Conviction of the appellant held to be unsustainable and is set aside -- Appellant is acquitted.

(Para 2, 12-17)

594. (P&H HC) 24-07-2020

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 167(2) -- Default bail – Delay in furnishing bail bonds – Effect of -- Petitioner did “avail of” his right u/s 167(2) of the Code and furnished personal bail bond with surety, which was accepted and attested by the Court, he would be deemed to have been released from custody -- Petitioner was not released because two other cases were pending against him – Surety withdrew the surety furnished by him -- Court permitted the petitioner to furnish fresh bail bond with surety -- Since he was in custody in other cases, therefore, he did not furnish the fresh bail bond with surety – After granted bail in other cases, petitioner requested the Court to accept the personal bail bond with surety as directed vide earlier order, which was declined – Held, mere delay in furnishing personal bail bonds/surety cannot visit the petitioner with adverse consequences and the order granting bail u/s 167(2) of the Code does not cease to exist or comes to an end or stand eclipsed -- Petitioner is directed to furnish personal bail bonds with surety and thereafter ordered to be released on bail.

(Para 11)

B. Constitution of India, Article 141 – Judgment passed by Supreme Court of India -- Courts below ignoring the judgment by saying not applicable, without discussion – Permissibility of -- Ld. Court below, in the order has taken notice of the judgment, but refuses to follow the same by observing that “these judgments are not applicable to the facts and circumstances of the present case” – Held, a judgment passed by the Hon’ble Supreme Court is binding on all Courts in the country under Article 141 of the Constitution of India -- No doubt, the ratio decidendi laid down in a judgment is binding and not obiter dicta -- However, before distinguishing judgment, the Court is required to analyse that what is the ratio laid down in the judgment and thereafter, proceed to explain the same -- Manner in which the ld. Court below has ignored the judgment of the Hon’ble Supreme Court is not appreciable.

(Para 11)

595. (SC) 23-07-2020

A. Constitution of India, Article 139A – Withdrawal/Transfer of case from High Court – Pre-requisite -- Provision of Article 139A of the Constitution relating to withdrawal of a case from a High Court to this Court on the ground of pendency before this Court of a case involving same or similar questions of law contemplates fulfilment of two conditions.

-- First, in the case pending before Supreme Court, the questions of law involved ought to be the same or substantially the same as those involved in the case in the High Court, the withdrawal of which can be asked for.

-- Secondly, while exercising the jurisdiction vested in it under Article 139A of the Constitution must be satisfied that such questions are substantial questions of general importance.

Such satisfaction can be on Supreme Court’s own motion, on an application made by the Attorney General or on the basis of an application made by a party to any such case.

(Para 6)

B. Constitution of India, Article 139A – Transfer of High Court petition to Supreme Court -- 10% reservation for economic backward class – Challenge to -- Writ petition in High court – Civil Appeal pending in Supreme Court on same issue – Points involved in the Civil Appeal and the Writ Petition pending in the High Court of Punjab and Haryana require adjudication of substantially the same questions of law -- Writ petition withdrawn from High Court to Supreme Court for disposal of the said Writ Petition – Transfer petition allowed.

(Para 1, 9,10)

597. (P&H HC) 16-07-2020

A. Constitution of India, Article 226 -- Writ jurisdiction (Punjab and Haryana) Rules 1976, Rule 20, 32 – Code of Civil Procedure, 1908 (V of 1908), Section 11 Explanation IV, 141, Order 2 Rule 2 -- Two writ petition for same cause of action – Maintainability of -- Writ petitioner failed to explain why the prayer made in the second writ petition could not be incorporated or added in the previous petition and also failed to disclose what is the difference in the cause of action of both the writ petitions -- Order 2 Rule 2 of the CPC, is applicable particularly when in the 1976 Rules, there is no provision inconsistent with the provisions of Order 2 Rule 2 of the CPC -- Explanation IV of Section 11 of the CPC, also provides that any matter which might and ought to have been made a ground of defence or attack in such former suit or petition under Article 226, shall be deemed to have been a matter directly or substantially in issue in such suit or proceedings -- Second writ petition not entertained and disposed of with a liberty to the petitioner to file application for amendment of the pleadings in the previously instituted writ petition.

(Para 14-18)

B. Constitution of India, Article 226 -- Writ jurisdiction (Punjab and Haryana) Rules 1976, Rule 20, 32 – Writ petition – Such or similar writ petition – Pendency of – Procedure of -- Petitioner is required to make a disclosure in the Index and the relevant para, if such or similar petition is pending or decided -- Also required to disclose the difference in the cause of action, if any, in both the writ petitions, if any -- Writ petitioner shall disclose the reasons why the relief claimed in the subsequent petition could not be claimed or included in the previously instituted petition -- Filing of the multiple petitions is neither in the interest of justice nor in the interest of Judicial Institution -- Institution has been setup to make a sincere endeavour to give justice to all the litigants -- For achieving that goal, it is necessary that unnecessary filing of any kind of petitions should be discouraged – Second writ petition is disposed of with a liberty to the petitioner to file application for amendment of the pleadings in the previously instituted writ petition.

(Para 17,18)

600. (P&H HC) 19-06-2020

A. Constitution of India, Article 226 -- Writ of habeas corpus for custody of minor – Maintainability of -- It is well settled that writ of habeas corpus can be issued for restoration of custody of a minor to the guardian wrongfully deprived of it -- However, exercise of extra ordinary writ jurisdiction to issue writ of habeas corpus in such cases is not solely dependent on and does not necessarily follow merely determination of illegality of detention and is based on the paramount consideration of welfare of the minor child irrespective of legal rights of the parents.

(Para 18)

B. Constitution of India, Article 226 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 – Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Writ of Habeas Corpus by mother (resident of Australia) for custody of minor son -- Child born as well as resident of Australia – Now residing with grandmother and studying in School in India -- Contention that the Family Court/Guardian Court in India has no jurisdiction is not legally sustainable -- Facts and circumstances of the case do not warrant issuance of a writ in the nature of habeas corpus by handing over its custody to the petitioner -- It is in the welfare of the minor child that respondent no.3 / grand-mother be allowed to continue to have its custody subject to order of the Family Court/Guardian Court at Ambala, where the minor child is now ordinarily residing and that the petitioner be accordingly directed to approch the Family Court/Guardian Court at Ambala for adjudication of the question of entrustment of custody of the child to the petitioner for its repatriation to Australia.

(Para 6, 43-46)