‘Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act.’

The Supreme Court held that administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the Arbitration and Conciliation Act, 1996 to file an application to set aside arbitration award.

In this case, Union of India and Simplex Infrastructure Ltd., were parties to an agreement for the construction of 821 units of permanent shelters in the tsunami-hit Andaman and Nicobar Islands. Following dispute between the parties, arbitration was conducted as per agreement and award was passed in Company’s favour against Union of India directing the latter to pay a sum of ₹9,96,98,355/- with simple interest @ 10% per annum.

In January, 2015, Union of India initially filed an application to set aside the award before the District Judge, Port Blair for setting aside the arbitral award. On 12 February 2016, the District Judge dismissed the respondent’s application under Section 34 of the 1996 Act for want of jurisdiction. On 28 March 2016, the Union of India filed an application under Section 34 before the High Court of Calcutta for challenging the arbitral award, along with an application for condonation of a delay of 514 days.

The UoI justified the delay, invoking Section 14 of the Limitation Act, contending that there was a bona fide mistake in filing the application before the wrong forum and also the delay due to which necessary formalities were not complied with within the prescribed time. The Calcutta High court condoned the delay.

In the appeal filed before the Apex Court, Senior Advocate Aryama Sundaram, appearing for the company, contended that even if the benefit of Section 14 of the Limitation Act is extended to the respondent in filing the application under Section 34 of the 1996 Act, there would still be a delay of 131 days which could not be condoned in view of the specific statutory limitation prescribed under Section 34(3) of the 1996 Act.

With respect to the delay of 131 days, the Union of India submitted that there were no willful latches on its part and the delay was caused due to inevitable administrative difficulties of obtaining directions from higher officials.

Referring to relevant provisions of both the statutes, the bench comprising Justice Dhananjaya Y Chandrachud and Justice Vineet Saran said that use of the words “but not thereafter” in the proviso to Section 34(3) of the Arbitration and Conciliation Act, makes it clear that the extension cannot be beyond thirty days. “Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate.”, the bench said.

Allowing the appeal, the bench said: “One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a time-consuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act.”

“If an officer after his release or retirement could, therefore, validly contract the marriage with a foreign national and the spouse would therefore be entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc., it does not stand to reason why the appellant, at least after his release from the Indian Air Force, should be disentitled in that behalf.”

The Supreme Court on Wednesday directed the Indian Air Force authorities to include the names of the wife and daughter of an ex-IAF officer in his Service Certificate, who had married a foreign national without requisite permission.

Sqn. Ldr.  Navtej Singh was invalidated out of service on medical grounds in November 2009. While in service, he had applied to the Director, Directorate of IMINT, Air Headquarters (VB), New Delhi, seeking permission to marry a Canadian immigrant.

As per the policy, a serving officer would be required to obtain permission before any marriage with a foreign national could be contracted. He married the lady without waiting for the express permission or the expiry of 120 days (deemed permission). His application seeking ex-post facto permission for marriage was not considered at all. No departmental action was initiated against him in this regard.

In 2013, he made an application to include the names of his family members in the Certificate of Service and issuance of ECHS cards. As this application was rejected, he approached the Armed Forces Tribunal, which held that he was not entitled to take benefit of his marriage with the foreign national, since the marriage was contracted without any permission.

The issue considered by the apex court, in his appeal, was whether his marriage can be recognized for purposes of grant of post-retirement benefits, medical facilities and family pension etc.

Taking note of the factual scenario, the bench observed: “During the course of hearing we asked the learned counsel for the respondents as to what advantages and benefits a retired service person including his family would be entitled to. We have been given to understand that the wife may in certain cases be entitled to pension, in event of death of the officer and the family including the spouse would be entitled to benefits such as canteen facilities and membership of officers club and such other benefits. We further asked the learned counsel for the respondents that if an officer after his release or retirement wished to contract marriage with a foreign national was there any restriction or prohibition under any of the policy documents in force. The learned counsel could not lay his hands on any such policy or point out any such provision. The stand of the respondents thus is clear that the policy in question is aimed at regulating certain aspects while the officers are in service. If an officer after his release or retirement could, therefore, validly contract the marriage with a foreign national and the spouse would therefore be entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc., it does not stand to reason why the appellant, at least after his release from the Indian Air Force, should be disentitled in that behalf.”

It then allowed the appeal directing the authorities to include the names of the wife and daughter of the appellant in the Service Certificate at least from the date of his release or retirement and also to extend them all such benefits which a spouse and children of a retired officer would be entitled to.

The Supreme Court Thursday expressed concern over 14,926 people being killed in road accidents due to potholes in last five years and termed it "unacceptable".

A bench headed by Justice Madan B Lokur said the large number of deaths caused due to potholes across the country was "probably more than those killed on border or by the terrorists".

The bench, also comprising justices Deepak Gupta and Hemant Gupta, said the number of deaths from 2013 to 2017 in accidents due to potholes indicated that the authorities concerned were not maintaining the roads.

The bench sought a response from the Centre on a report filed by the Supreme Court Committee on Road Safety, headed by former apex court judge K S Radhakrishnan, on the number of deaths due to potholes in India.

The top court had on July 20 expressed its concern over the deaths and observed that the number fatalities due to such accidents was more than those in terror attacks.

Terming the situation as frightening, the top court had asked the Supreme Court Committee on Road Safety to look into the matter.

The bench had also said that people who have lost their lives as a result of accidents due to potholes should be entitled to compensation.

It was a matter of common knowledge that a large number of people have died in such accidents and authorities, who were supposed to maintain the roads, were not doing their duty properly, the bench had said.

Referring to media reports, the top court had said, "So many people are dying in the country due to accidents caused by potholes on roads. Reports say that more people have died due to an accident caused by potholes than the deaths in terrorist attacks".

It had asked the Supreme Court Committee on Road Safety to look into this "very serious issue" and file a report within two weeks.

The apex court had also said that the committee should give recommendations as the issue was a part of road safety.

The matter had cropped up before the bench when it was hearing an issue related to road safety across the country

The Supreme Court has held that a candidate with higher qualification cannot claim right to apply for posts with lower qualification, unless the relevant statutory recruitment rules permit the inference that higher qualification presupposes the acquisition of lower qualification.

"Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily pre-supposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review", held the Court.

The bench of Justices U U Lalit and D Y Chandrachud was dealing with a case pertaining to recruitment to the post of Technician-III in Power Department of Jammu & Kashmir. The qualification prescribed for the post was "matric with ITI". Few candidates possessing Diploma in Electrical Engineering applied, though they did not have ITI certificate. Their applications were initially accepted, and they were shortlisted for interview after written examination. At that juncture, the Service Selection Board decided to exclude these applicants on ground that they did not have the prescribed qualification.

This action of Board was challenged in the Jammu and Kashmir High Court. The Single Bench quashed the decision to exclude the applicants, holding that their higher qualification of Diploma presupposes the possession of lower qualification of ITI certificate, and directed their inclusion in the select list. This was however set aside by the Division Bench in appeal by the Board. Challenging this, the applicants approached the Supreme Court.

In Supreme Court, they placed heavy reliance on the decision in Jyoti K K v Kerala Public Service Commission,where the SC held that qualification of B.Tech will presuppose the acquisition of lower qualification of Diploma, which was the prescribed qualification for selection to the post of Sub Engineers in KSEB.

The bench however distinguished the decision in Jyoti case. It was noted that in Jypoti, the relevant Rule - Rule 10(a)(ii) of the Kerala Subordinate Service Rules -  itself  made a provision for acceptance of those higher qualifications which presuppose the acquisition of lower qualification. However, in the instant case, there was no provision in the statutory rules which enabled such acceptance of higher qualification.

"The decision in Jyoti KK turned on a specific statutory rule under which the holding of a higher qualification could pre-suppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome", the bench held.

The bench referred to State of Punjab v Anita, which had explained Jyothi decision, stating that higher qualifications can be accepted only if specific provision exists in the Rules. Reference was also made to the decision P M Latha v State of Kerala, a two judge Bench of SC rejected the contention that the B.Ed. qualification is a higher qualification than the Trained Teachers Certificate (TTC) and that a B.Ed. candidate should be held to be eligible to compete for the post of a primary school teacher.

"equivalence of a qualification is not  a matter which can be determined in exercise of  the power of judicial review. Whether a particular qualification should or should not be regarded as  equivalent is a matter for the state, as the recruiting authority,  to determine", held the judgment authored by Justice Chandrachud.

Though the appeals were dismissed, the Court directed the board to give age relaxation of four years for the posts to be notified in next two years, having regard to the fact that they have been become age barred now in view of the litigation pursued for last four years.

“The factors that prompted the CVC to take the decision ON CBI Director Alok Verma did not happen overnight. If you had tolerated them since July, then what the reason for this immediate action suddenly without which the institution would have crumbled and fallen?”, Asked CJI to SG

Giving a brief summary of How the CBI came into being, the SG submitted that initially what was the governing force was the Police Act of 1861, under Section 3 of which the superintendence of the state police vested in the state government. “It was felt that you need a specialised force under the central government and hence, the DSPE Act was introduced”

“Before Vineet narain, either under the Police Act or under the DSPE, the CBI director was not considered to be an officer who would not be subject to the IPS rules. And even in the 1997 judgment, it is nowhere said that the IPS rules would not apply to him; only a minimum tenure of two years is guaranteed”, he insisted.

He pointed out that the Apex Court direction in the 1997 Jain Hawala case that the Central government shall take all measures to ensure that the CBI functions effectively and efficiently and be viewed as a non partisan agency continues till date.

“Is the only reason for which the apex court saw it necessary for the CBI Director to have a minimum tenure of two years, regardless of the date of his superannuation was to ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment?”, Chief Justice Ranjan Gogoi wanted to know.

“As a law officer, my answer would be that this is the prime reason. Another factor could be to allow him a decent period of time to implement his plans and policies”, replied the SG.

“The idea is to give him some permanence, to ensure that he is not around for too short a period”, supplemented the Chief Justice.

The SG added that so far as section 4B of the DSPE Act envisages the previous consent of the Selection Committee even where the Director is required to be transferred to take up a more important assignment, it was to prevent him from being “transferred at whims and fancies, for intravenous reasons”.

“What is argued by (Senior Advocate Fali S. Nariman, appearing for CBI Director Alok Kumar Verma) is that ‘transfer’ means divesting the incumbent of his duties, which cannot surpass the mandate of section 4B. What Mr. Nariman did not argue is, ‘be fair! what is the problem in consulting the Selection Committee?’. If you want to adopt something contrary to the fixed tenure as contemplated in Vineet Narain, which has the effect of divesting the officer of his charge of the CBI, then be fair! it is better to consult than not to consult. The essence of every government action should be what is best in the interest of the institution. If there are two courses of action- one, which is acceptable, and another, which is more acceptable, then follow the latter. It is not about adherence to the law, it is about doing what is better...”

“The CVC came to a conclusion that extraordinary circumstances have emerged where the incumbent need not be transferred because the allegations against him and the counter allegations are yet to be examined, but he cannot continue to operate in his post, which would defeat the purpose of inquiry. In this case, what happened was not ‘discharge’, it was lesser than a ‘transfer’”, urged Mr. Mehta.

“The factors that prompted the CVC to take the decision of October 23 did not happen overnight. If you had tolerated them since July, then what the reason for this immediate action suddenly without which the institution would have crumbled and fallen?”, inquired the Chief Justice.

That the situation warranted an emergent action was the SG’s response.

Continuing, he drew the bench’s attention to Sections 4(1)(3) and 4A(3) of the DSPE, laying down that the officer placed by the Central government at the helm of the administration of the CBI shall be equivalent to the post of the Inspector-General of Police in context of the police force of a state and that such officer shall be chosen from a panel of IPS officers, to stress that the CBI Director continues to be a member of the IPS.

“There is no difficulty in that. He doesn’t cease to be a member of the IPS”, conceded the Chief Justice.

“So he continues to be subject to the IPS rules, except on two accounts as envisaged by Your Lordships in Vineet Narain and as intended by the Legislature- one, superannuation and two, transfer or deputation in the course of his fixed term of two years...Transfer’ would involve divesting him of his functions and placing him somewhere else; it is a permanent act. Such an action would need the consent of the Selection committee”, elaborated the SG.

“The long and short of it is that so far as section 4B(1) stipulates that the CBI Director has a two-year tenure notwithstanding the rules of his conditions of service, it is limited to his retirement. The rules of service continue to be intact in all other matters”, summarized the Chief Justice.

“The non-obstante clause in section 4B is only in context of superannuation and a transfer or deputation to another cadre during the fixed term of 2 years. For his pay and pension, he would be governed by the All-India service rules, as he would for his retirement after the two year tenure and for any disciplinary proceedings”, repeated the SG.

“Suppose the Director is videographed misbehaving with a lady officer or taking a bribe, he has to be suspended immediately. This would come under the CVC”

Moving on to discuss the connotation of the power of “superintendence” exercisable by the CVC under section 4(1) of the DSPE Act and section 8(1)(a) of the CVC Act, in pursuance of which the institution is entitled to issue directions to the CBI under section 8(1)(b) of the CVC Act, the SG suggested that there has to be some way of dealing with a situation not envisaged by statute.

In this behalf, he placed reliance on the authority of Mohinder Singh Gill (1977) where the Apex Court had canvassed the power under Article 324 of the Election Commission of superintendence, direction and control over elections. The court was of the opinion that where the office of the Returning Officer was attacked by a mob while the counting was underway, the Election Commission was empowered to order a re-poll under Article 324-

“Situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Article 324 to take care of surprise situations”

“Extraordinary situations do need extraordinary remedies”, insisted the SG.

“The power of superintendence of the CVC has to be understood as confined to 4(1) (of the DSPE Act). Can section 8 (of the CVC Act) go beyond 4(1)?”, asked the Chief Justice. Mr. Mehta replied in the negative.

“By the order of the CVC of October 23, what is the direction given?”, was the Chief Justice’s next question.

“The commission, after a serious and due consideration of all facts and circumstances and bearing in mind the pendency of inquiry against him, directed that Verma is divested of the charge of the CBI and shall not exercise any functions and powers or even a supervisory role in respect of cases registered or to be registered or to be investigated by the CBI under the Prevention of Corruption Act till this interim measure is modified or vacated. Due process of law in compliance with natural justice was assured to be followed in the inquiry...The Order (of divestiture) was passed for both (Verma and CBI Special Director Rakesh Asthana). For Asthana, the order fell under section 8(1)(d) (of the CVC Act), which deals with suo motu inquiries, and for Verma, the direction was passed under section 8(1)(b)...”, narrated the SG.

“Those who should be investigating offences are themselves causing raids to be made against each other! two FIRs are registered! The justification for the order is in the order itself!”, he continued.

“This jurisdiction is not only vested in the CVC but it would have been a dereliction of duty on its part if it was not done. The CVC would have been answerable to the President and the Parliament, and even to Your Lordships if someone had petitioned against the body for being a mute spectator”, he repeated.

Throwing light on the backdrop against which the impugned order of the CVC came to be passed, the SG advanced,

“The cabinet secretary had forwarded a complaint (made by Asthana against Verma) with a request for the commission to immediately take at its end the necessary action. The commission was of the view that the relevant records be procured from the CBI and accordingly, several notices were issued. It appeared to the CVC that the CBI Director was not being cooperative in sharing the record files as to the serious allegations. Despite being assured that the same will be furnished within three weeks, the needful was not done even after a lapse of forty days. In the meantime, the environment within the CBI was becoming increasingly hostile, vitiating the functioning of other officers, besides adversely affecting the reputation of the investigating agency...”

“The CVC needed to take some urgent action, lesser in gravity than suspension or transfer, so this interim order was passed. It is the Central government which will decide on suspension or transfer after perusing the findings of the inquiry...A ‘Transfer’ would encompass divesting of powers at place ‘A’ and investing them in the same person at place ‘B’. Also, it is a permanent thing...”, he submitted.

“...by the hand from which and the hand to which something is to be transferred i.e. to say transfer must carry with it ‘from’ and ‘to’. If either is wanting, there can be no transfer”, he quoted.

Further, he explained that the Superintendence of the CVC over the CBI is exercised through specified modes including, inter alia, monitoring of complaints against officers of the CBI, and monthly review meets with the CBI director.

“The complaints are received by the CVC on a regular basis. We place annual reports containing a separate section on the CBI to the President. It is not like the CVC is now looking for provisions to justify its action”, he concluded.

Thereafter, Attorney General K. K. Venugopal iterated that it is a “highly artificial argument” on the part of the petitioners to say that Verma has been “transferred”.

“The petitioners want to attract section 4B by virtue of which Your Lordship (the Chief Justice) is expected to sit with the Prime Minister and the Leader of Opposition to convey the consent for the purported transfer...if we were to place the proposal for Verma’s divestiture before the Selection Committee, it would ask, ‘why is this before us? how is this even a transfer?’...The committee would want us to read down the act from ‘suspension’ and to convert it into a ‘transfer’”, he argued.

Indicating section 16 of the General Clauses Act, which reads the power to suspend or dismiss into the power to appoint, it was submitted that so far as the DSPE and the CVC Acts are concerned, there is no power of suspension. Further, Article 367 of the Constitution speaks of the application of the General Clauses Act in the interpretation of any Act of the Legislature.

“It is only the appointing authority that can remove the Director...Please look at the order of the Central government- it divests Verma of his powers, functions and responsibilities as the CBI Director with immediate effect until further orders. As per the General Clauses Act, Verma has been suspended. The consequences of suspension are the same as here”, the AG contended.

“Section 4B(2) was inserted with an objective akin to that contemplated by Your Lordships in Prakash Singh (2006) and T. S. R. Subramanian (2013)- to protect the topmost officials from being frequently transferred by the political wing of the state, to avoid any vulnerability to their independence”, he rested his case.

Next, ASG P. S. Narasimha also made a brief submission on whether the CBI Director could be said to have been ‘transferred’.

He indicated Rule 7(c)(iii) of the IPS (Cadre) Rules of 1954, which restrains an officer with a prescribed minimum tenure from being transferred except on the recommendation of a ‘Committee on Minimum Tenure’.

“This Rule is only confined to a transfer simplicitor, not to a transfer which is disciplinary action. So the transfer in the present case is different...”, was his case.

When Senior Counsel Mukul Rohatgi sought to argue on Asthana’s behalf, the bench was initially reluctant to hear him, the issue dealt with at present being only of the jurisdiction of the Central government and the CVC to send The CBI Director and Special Director on leave.

“The Central government will retain power over the employees subject to the exceptions of appointment, the security of tenure for 2 years and transfer. The rules are only eclipsed in respect of these three, all other things, such as suspension, departmental enquiry and dismissal, being covered by the employer-employee relationship”, asserted Mr. Rohatgi.

“In the absence of specific provisions, is it possible to understand that a similar power is expressly conferred? You are saying that section 4(2) (of the DSPE Act), the Centre will still have the disciplinary power?”, confirmed the Chief Justice. When Mr. Rohatgi responded in the affirmative, Chief Justice Gogoi remarked, “we have noted your statement as an officer of the court”.

After the petitioners and the intervenors closed their rejoinder arguments, the bench, also comprising Justice S. K. Kaul and Justice KM Joseph reserved its verdict on Thursday.

The Supreme Court recently reminded the high courts of staying watchful of attempts to misuse public interest litigations for promotion of personal agenda.

A Bench comprising Justice DY Chandrachud and Justice MR Shah asserted, “The High Courts must remain vigilant to the attempts to misuse PILs to subserve extraneous and motivated purposes. Such efforts must be dealt with firmly. High pre­rogative writs cannot be utilised for such ends.”

The court was hearing a petition filed by one Alleemuddin, challenging a judgment passed by the Allahabad High Court, which had directed the State Government to take all necessary steps for the construction of a new Tehsil office for Hasanpur, District Amroha at Village Karanpur Mafi.

The SLP now filed before the Apex Court alleged that the PIL filed before the high court for getting the Tehsil building shifted to a new place, was to subserve the PIL petitioner’s personal interest.

It was submitted that the new building would’ve been in close proximity to the land owned by the PIL petitioner or his relatives, thereby leading to an increase in the value of this land.

In the light of these averments, the court opined that the PIL filed before the high court “was not a genuine petition in public interest but was intended to subserve the personal interest” of the PIL petitioner.

It observed, “Where a Tehsil building should be constructed is not a matter for the High court to determine in the exercise of its writ jurisdiction under Article 226 of the Constitution of India. These are essentially administrative matters and a decision has to be taken by the executive.

“This is hence an illustration of how a public interest litigation (PIL) has been utilised to subserve a personal interest.”

The court further noted that before the high court order, the State government had already decided to reconstruct the Tehsil building at the place of the old building, without relocating to a new place.

It therefore ruled that the high court was manifestly in error in directing the State to construct the Tehsil office in a new place. This matter, it said, should have been left to the State government.

The appeal was, therefore, allowed, leaving it open to the State government to take appropriate decision on the construction.

Read the Judgment Here

“It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record.”

The Supreme Court has observed that the High Courts, being courts of record, has inherent jurisdiction to recall their own orders.

In Municipal Corporation Of Greater Mumbai vs. Pratibha Industries Ltd,, the supreme court dealt with the question on  High Court’s power of recall of its orders.

A single bench of the Bombay High court initially ordered appointment of an arbitrator. Later the judge realised that the agreement had no arbitration clause, and recalled the said order. On appeal by the other party, the Division bench held that since there is no provision in Part I of the Arbitration and Conciliation Act, for any court to review its own order, the review petition filed before the Single judge was not maintainable.

The Corporation approached the apex court challenging the Division bench order and Senior Advocate Ranjit Kumar, who appeared for the corporation contended that it is always inherent in a High Court, being a court of record, to recall its own orders. On the other hand, Senior Advocate Shekhar Naphade, who appeared for the other party, contended that the Arbitration Act is a self contained Code, and, this being so, it is not possible to look outside the four corners of the Act to find a review power, even by invoking Article 215 of the Constitution of India.

The bench comprising Justice RF Nariman and Justice MR Shah disagreed with the division bench view and said: “It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record. This has been recognized in several of our judgments.”

The bench referred to judgments in National Sewing Thread Co. Ltd. v. James Chadwick & Bros., Shivdev Singh & Ors. v. State of Punjab and M.M. Thomas v. State of Kerala.

The court also disagreed with the Senior Advocate Naphade’s contention that the Act being a self-contained Code, it interdicts a review or recall application. It said: “Suffice it to state that having held that there is no arbitration agreement pursuant to the order dated 27.06.2017, the Act will not apply.”

The Court held that the Centre was not legally bound to consult Puducherry Government before nominating members to the Assembly

Today, the Supreme Court repelled the challenge made at the instance of  Congress against the nomination of three BJP members to the Puducherry Legislative Assembly by the Central Government. The  Bench of  Justices A K Sikri, Ashok Bhushan  and Abdul Nazeer dismissed the appeals filed against the judgment of Madras High Court judgment of March 2018, which had upheld the nominations.

The challenge pertained to nomination of three members- V Saminathan, KG Shankar and S Selvaganapathy- by the Centre, in exercise of powers under Section 3(3) of the Government of Union Territories Act, 1963. The main plank of challenge was that the nomination could not have been made without consulting the Puducherry Government. The appellants- K.Lakshminarayanan, a Congress MLA and S Dhanalakshmi- contended that there were precedents of consulting the government before nomination, and hence consultation has crystallised into a constitutional convention. Unilateral nomination without consultation violated the principles of co-operative federalism and collaborative federalism, the appellants argued.

"Central Government" Does Not Mean LG In Relation To Puduchhery

It was further contended that the Lieutenant General(LG) had not sent any nominations and the Central Government had made nominations on its own. In relation to Puducherry, 'Central Government' has to be understood as the 'LG'. Reliance was placed on latter part of Section 3(8)(b)(iii) of General Clauses Act which stated that 'Central Government' shall include 'administrator' in relation to a Union Territory(UT).

The SC rejected the contention that Central Government has to be understood has LG in relation to Puducherry. It held that Central Government shall be understood to mean 'President'. The latter part of Section 3(8)(b)(iii) will not control this ordinary understanding of the definition of Central Government. The Court also noted that no power has been delegated to the LG to nominate members.

Nomination Is Not Business Of Govt; So No Need To Consult Government

The argument of the appellants was that the Administrator is required to consult the Government in relation to decision regarding business of government as per Rule 4(2) of the Rules of Business of the Government of Puducherry, 1963  read with Rule 48, framed under Article 239 of the Constitution, read with Article 306.

The bench noted that Section 3(3) of the 1963 Act empowered the Central Government to nominate not more than three persons to the Legislative Assembly of the Union Territory. Therefore, nomination was a statutory power vested on the Central Government. Hence, nomination cannot be regarded as a business of Puducherry Government.

"we are of the clear opinion that nomination in the Legislative Assembly of Puducherry is not the Business of the Government of Puducherry. It is a business of Central Government as per Section 3(3) of Act, 1963 which is to be carried out in accordance with the Government of India (Allocation of Business) Rules, 1961 and Government of India (Transaction of Business) Rules, 1961", concluded the judgment written by Justice Ashok Bhushan.

Principles of Co-operative Federalism Not Violated.

The Bench noted that Article 239A of Constitution authorized the Parliament to enact law to constitute legislative council for Puducherry. Accordingly, the Parliament has enacted the Government of Union Territories Act 1963, and Section 3(3) of it empowers Central Government to nominate not more than three members.

The Court further noticed that Union Territories are not States and observed, "These Union Territories,ordinarily, belong to the Union (i.e. the Central Government) and therefore they are called 'Union Territories'. That is why they are governed under the administrative control of the President of India".

In this backdrop, the bench concluded :

"The Constitution of Legislative body for Union Territory being entrusted to the Parliament by Constitution and there being no indication in the Constitutional provision or provisions of the Act, 1963 that said nomination has to be made with concurrence of Government of Union Territory of Puducherry, we fail to see any substance in the argument of Shri Kapil Sibal that by nominations made by Central Government, federal principles or principle of cooperative federalism has been violated"

No Constitutional Convention Of Consultation

That the Government was consulted on previous occasions before nomination did not by itself result in a constitutional convention, held the bench. The views of the Government were taken in cases when the Government of Puducherry and the Central Government were of the same party or allies. There was no uniform precedent as such. Also, the consultations were not done by parties with the belief that they were legally bound to do so. Hence, the Court did not find any established practice or convention to the fact that names for nominations to members of the Legislative Assembly has to emanate from Chief Minister and can be made by the Central Government only after concurrence by Chief Minister.

Recommendation By Madras HC Set Aside

The Madras High Court had made a recommendations to the Parliament to frame laws to ensure, inter-alia,  that :  "If the nominated MLA belongs to a political party on the date of nomination, it should be made clear that he shall become part of the legislature party of that political party. If there is no legislature party in the house on the date of nomination, the nominated MLA/s shall constitute the legislature party of that political party"

The High Court had also made certain other recommendations to the Parliament. All those recommendations were set aside by the SC, holding that Courts cannot issue directions to the legislature. Further, there were already laws and regulations in place regarding legislative assembly. Hence, the recommendations by High Court in paragraph 5 of the judgment were set aside. In all other aspects, the appeals failed.

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Whatsapp has submitted before the Supreme Court that it will not be possible to remove the contents as they have an end-to-end encryption technology.

Senior Advocate Kapil Sibal made this submission before the Apex Court when it was discussing the suggestions given by Union of India to curb child pornography, rape and gang rape videos.

The Centre had suggested following actions to be taken by ‘intermediaries’ like Google, Whatsapp, and Facebook etc.

• Setup proactive monitoring tools for auto deletion of unlawful content b deploying Artificial intelligence based tools
• Deployment of trusted flaggers for identifying and deletion of unlawful content
• Setting up of 24X7 mechanisms for dealing with requisitions of law enforcement agencies.
• Appointment of India based contact officer and escalation officers (with name, designation, email, mobile number
• Prompt disposal of requisitions of Law Enforcement Agencies to remove unlawful contents.

The bench comprising Justice Madan B. Lokur and Justice Uday Umesh Lalit observed: “it appears that each of the different entities have a different reaction to them. Google and YouTube have one reaction. Facebook, Microsoft and Whatsapp each have different reactions… Everybody is agreed that the child pornography, rape and gang rape videos and objectionable material need to be stamped out.”

It then directed the entities to give a proposed/draft SOP for the purpose of implementation of the suggestions given by Union of India.

The bench also ordered that the amount deposited in the Registry with accrued interest be disbursed for victims of Gaja cyclone to the Chief Minister’s Relief Fund, Tamil Nadu.

The Supreme Court was hearing a suo motu PIL registered on the basis of a letter from NGO-Prajwala to the effect that videos of sexual violence were being circulated in abundance via internet and Whatsapp.

During the last hearing, the centre had informed the Apex court that it has launched a Cyber crime portal www.cybercrime.gov.in.  The central government also made submissions regarding some other developments in compliance of earlier order of the court. They are:

• Cyber crime portal www.cybercrime.gov.in has been launched. Over 1.06 lakhs visitors to the website till 28.11.2018 forenoon.
• Nodal officer and one level above officers have been nominated by all States / UTs for Grievance redressal. This is uploaded on the Portal.
• SOP has been finalized in consultation with Intermediaries and guidance of Amicus and petitioner’s advocate.
• Meeting held with intermediaries on 12-11-18 & 26-11-18 and SOP on complaint handling finalized taking their inputs into consideration.
• Concerned stakeholders including Amicus and Petitioner’s advocate will be invited to the meetings of existing inter-ministerial committee constituted under the chairmanship of JS (CIS) MHA for regular review of CP/RGR complaint handling mechanism
• Draft agreement has been sent to the National Centre for Missing and Exploited Children (NCMEC) on 19-11-18 to access cyber tipline reports regarding missing and exploited children. Their reply is awaited
• Commercial proposal from Photo DNA tool proposal has been received from Microsoft quoting Rs.4.5 crore to Rs.6 crore for various alternatives. Technical committee has been constituted to evaluate alternatives and two rounds of discussions have been held. Clarifications are awaited from Microsoft.
• All India awareness campaign on Radio for promoting use of 3 cybercrime reporting portal and other cybercrime against women and children will start from first week of December. Order placed on BOC.
• M/s Google has been approached for sharing their API developed for identifying CSAM
• Keyword compilation of English, Hindi, Bengali and Kannada shared with Intermediaries. Keywords in other languages also being compiled.

The Supreme Court has agreed to consider on December 11 in chamber a curative plea challenging its decision by which it had dismissed a PIL filed by NGO Common Cause against appointment of Gujarat cadre IPS officer Rakesh Asthana as special director of CBI.

This was made clear by the Chief Justice Ranjan Gogoi when Prashant Bhushan, lawyer for Common Cause, made an oral mentioning today morning for urgent hearing of the curative plea.

"If you're going to mention your curative, it is listed on Tuesday. This is about Asthana. Right? Why keep suspense, say the name," the bench, also comprising justices S K Kaul and K M Joseph, said.

The SC bench of Jsutices R K Agrawal and A M Sapre, on November 28, 2017, had dismissed the PIL filed by the NGO against the appointment of Asthana to the post of CBI special director, saying it cannot question a "unanimous" decision taken by the selection committee and the decision is not illegal.

Later, the court also dismissed the plea seeking review of the verdict. Now, the curative plea, which can only be heard in chamber, has been filed against the order.

The NGO in its petition had challenged Asthana's appointment, saying it was illegal as his name had surfaced in a diary recovered during a raid conducted by the Income Tax department at the offices and other premises of company Sterling Biotech Ltd and Sadesaras Group of Companies.

The Centre had said that Asthana, who was earlier an additional director in CBI, was looking after its eleven zones and had supervised the investigation and trial of several scam cases, including Augusta Westland, Ambulance Scam, Kingfisher, Hassan Ali Khan, Moin Qureshi and coal scam cases.

It had said the selection committee had given good reasons for not accepting the contents of the letter submitted by the CBI director and recommended Asthana for appointment as CBI special director.

In the curative petition it is said "various crucial documents showing that the appointment/selection of Respondent No. 2(Asthana) was completely arbitrary, unreasonable, contrary to public interest and that could lead to adverse ramifications in a number of cases being handled by the CBI that were put on record by the petitioner were not considered by this Hon’ble Court". It is further stated that the judgment is silent on the issue of employment of Asthana's son with Sterling Biotech and the pre-wedding party of his daughter held at farmhouse owned by Sandesaras.

It is stated that the judgment of November 2017 was passed on the basis of minutes of Selection Committee meeting handed over by the Attorney General. "The said document was without affidavit and the counsel for the petitioner was given no opportunity to rebut or use the said material. It is submitted that the said document contained the letter along with a confidential note produced by the CBI Director in the CVC selection committee meeting. The Ld. Attorney General produced the minutes of the meeting of the selection committee and withheld the most crucial letter and note of the CBI Director which contained information going into the root of the matter i.e. the name of Mr. Rakesh Asthana in the Sandesara’s diary. Thus, there was a deliberate concealment of important facts by the government during the hearing", the petition states.

It is also contended that Asthana's appointment was objected to by the then Director Alok Verma. "the Minutes of the CVC Meeting, which were produced by the Ld. Attorney General during the hearing of the writ petition (without affidavit) clearly mention that the CBI director had opposed the said promotion and given a note to the effect that investigation was required in the matter. However, despite CBI Director’s serious objection in writing to the appointment on the ground of integrity, the selection committee went ahead and appointed Respondent No. 2(Asthana) to the sensitive position of Special Director, CBI".

It may be noted that Alok Verma has stated in his petition filed in SC that he had reservations against the appointment of Rakesh Asthana as CBI Special Director in view of the cases pending against him.

The curative petition assumes relevance in the backdrop of Alok Verma's case in SC, in which court reserved orders today. Verma has contended in SC that he was taken off charge of CBI Director in a hasty overnight action as a consequence of his decision to probe the allegations against Asthana. Verma's petition in SC stated that Rakesh Asthana had “stymied” several decisions which were crucial to the investigation of highly sensitive cases, which were being probed on orders from SC.

The Supreme Court, on Thursday, directed the state government to take over privately owned Shridev Suman Subharti Medical College in Uttarakhand within 24 hours, after its students complained of lack of infrastructure and teaching faculty therein.

The order was passed by a bench comprising Justice RF Nariman and Justice MR Shah on a petition filed by the students who were admitted to the first year MBBS Course in the college. They had alleged that despite one year has passed, the college has not got its act together and that they should, therefore, be transferred to any other college in the State.

During the hearing, the court was informed by Deputy Advocate General for the State of Uttarakhand, Mr. JK Sethi, that the State Government would be willing to take over the college, along with its infrastructure, assets and students. He informed the court that this way, the government would ensure that the college meets the Medical Council of India’s (MCI’s) norms and gets affiliated with Hemwati Nandan Bahuguna, Uttarakhand Medical University, Dehradun.

Accepting this submission, the court ordered, “We direct the Respondent No. 5 College to hand over the land, building and all assets, as stated hereinabove, to the State Government forthwith – to be completed latest by tomorrow, i.e., December 7, 2018.”

The immediate takeover was directed on Mr. Sethi’s suggestion, as he did not want to give any time to the college to deal with its assets or infrastructure. The court further ordered, “On an application being made by the State Government to the aforesaid University, the aforesaid University will, after taking an inspection, as per its Statutes, proceed to take steps either to grant affiliation or otherwise, within a period of four weeks from the date on which the said application is made to it by the State Government. 

Likewise, once the State Government sets up the necessary infrastructure in terms of teaching staff etc., it will apply to the Medical Council of India for its permission under Section 10A of the Medical Council of India Act.”

The court clarified that if the University affiliates the college and the MCI grants it permission, the students who have taken the first year course can appear for the first year MBBS Examination to be conducted by the University.

It added that any litigation involving the college, that may arise in future, can only be made before it. The matter has been directed to be listed on December 13 for further hearing.

The Supreme Court on Friday turned down the request for an early hearing on Kerala government’s application seeking the transfer to the apex court of the petitions pending in the High Court of Kerala in relation to Sabarimala temple.

Chief Justice Ranjan Gogoi observed that the matter shall come up on the docket in the normal course, not on an urgent basis.

The Government has specified twenty three petitions which are pending consideration of the High Court. The petitions were filed in the backdrop of security measures adopted by the government like deployment of police and declaration of prohibitory order under Section 144 CrPC on the ground of violent threats from extremist outfits to prevent entry of women to temple.

The petitions in High Court challenged the police arrangements and prohibitory order as invasion on right to worship. Also, there are petitions alleging excessive interference by state government in temple administration, and lack of amenities for devotees. Apart from these, petitions seeking police protection and security arrangements for women entry were also filed in the High Court.

Last week, the High Court lifted restrictions imposed by Police in Sabarimala and passed a slew of directions to ensure smooth pilgrimage. The Court also appointed a team of observers comprising two retired High Court judges and a police official in the rank of DGP and gave them power to oversee the situation and to take spot decisions to implement directions of the High Court.

In this backdrop, the state government has approached the Supreme Court, stating that the directions issued by the High Court are contrary to the spirit of Constitution Bench decision of the Supreme Court delivered on September 28. The Government has stated stated that Sabarimala issue has been politicised by right wing outfits; the holy chants of “sharana manthras” are being used as political slogans; bigots posing as devotees are creating law and order issues there. The incidents of violence which occurred on October 17 and November 5, when few women attempted entry, are also narrated in the petition. The interferences by the High Court are affecting the measures adopted by the Government to protect genuine devotees.

The petition therefore seeks transfer of all the specified petitions and stay of proceedings in High Court in relation of Sabarimala pilgrimage.

The Supreme Court on Friday dismissed a PIL contending that Finance Minister (FM) Arun Jaitley has “plundered” the RBI in waiving off the loans of certain companies.

Further, Chief Justice Ranjan Gogoi came down heavily on Advocate and petitioner-in-person M. L. Sharma for the joinder as a respondent to his plea of the FM in person.

“Why are you attacking individuals? What are you trying to convey? That the FM is exploiting the RBI’s resources in declaring NPAs (Non-Performing Assets)? The court cannot permit such attempts to pick on people”, reprimanded the Chief Justice.

On Friday, Attorney General K. K. Venugopal, in the face of the alarming increase in the volume of PILs a large proportion of which are only a waste of the court’s precious time, emphasised the need for there to be defined limits so far as the filing of PILs is concerned.

“In the past, you have drawn this court’s attention to some significant issues. Why are you trying to ruin your reputation?”, Chief Justice Gogoi reprimanded Mr. Sharma.

The bench dismissed his PIL, imposing a cost of Rs. 50,000 on the Counsel, restraining him from filing any other petitions until the amount is paid.

The Supreme Court on Friday issued notice to the Enforcement Directorate on a plea filed by Vijay Mallya against its endeavour to have him declared a ‘Fugitive Economic Offender’ and for the confiscation of his property.  Though notice was issued, the apex court did not stay proceedings against Mallya.

The bench headed by Chief Justice Ranjan Gogoi was hearing the SLP preferred by Mallya against the November 22 order of the Bombay High Court wherein the High Court had rejected his prayer to stay proceedings under Section 4 of the Fugitive Economic Offenders Act till further orders of the Appellate Tribunal under the Prevention of Money Laundering Act(PMLA) in the Appeals filed by SBI and 11 other banks.

The Appellate Tribunal under the PMLA had on October 10 restrained Mallya from dealing with and altering the status of specified movable and immovable properties  or creating third party interest, directly or indirectly, till the next date. He was also required to maintain the status quo with regard to some properties. Malya's prayer was to stay FEO proceedings till proceedings under PMLA in the Appellate Tribunal are finalised.

The High Court rejected the application for stay and had allowed the proceedings under the FEO Act to continue before the Special Court.

Senior Advocate Fali S. Nariman appeared on Mallya’s behalf.

“We are unable to comprehend what prompted the Hon’ble Governor to exercise indulgence in his favour despite him being a hard-core criminal which is reflected from the nature of offence he has committed?” Allahabad HC Had Observed.

The Supreme Court on Monday dismissed a Special Leave Petition filed against Allahabad High Court order that set aside Governor Ram Naik’s order prematurely releasing a murder convict who had hardly completed less than 8 years’ incarceration.

The bench of Justice NV Ramana and Justice Mohan M Shantanagoudar, while dismissing the SLP filed by murder accused- Markendey @ Ashok Sahi in limine, reportedly remarked that such cases "shock the conscience of the court”.

The trial court had convicted Markendey holding him guilty of the murder of four persons due to political rivalry. He was awarded life imprisonment under Sections 302/149, 147, 142, 148 and 379 IPC.

The Uttar Pradesh Governor, in the exercise of powers under Article 161 of the Constitution of India had remitted remaining sentence of the accused even though the convict had only completed 8 years in jail.

While allowing the writ petition filed by Mahant Shankersan Ramanuj Dass, who is son of one of the deceased, the high court had observed: “We do not find the reasons mentioned by Hon'ble Governor for releasing the convict prematurely even though he had hardly completed less than 8 years’ incarceration although he was punished with life imprisonment and normally premature release in a case of convict who is undergoing life imprisonment, some compelling reasons ought to be mentioned while releasing him prematurely. The reference of the convict suffering from some ailment has been made casually but no authentic medical report also appears to have been placed for consideration before the Hon’ble Governor. The sole ailment which he has alleged to suffer from is hip fracture which does not appear to be a very serious ailment although he claims to have suffered 60% disability due to that.”

While setting aside the Governor’s order, the high court had also observed: “We are unable to comprehend what prompted the Hon’ble Governor to exercise indulgence in his favour despite him being a hard-core criminal which is reflected from the nature of offence he has committed?”

Taking note of the fact that appeal is pending against the conviction judgment, the high court had observed that the order issued by the Governor does not reflect the application of mind and that the Governor has transgressed his jurisdiction in exercising the power under Article 161 of the Constitution of India.

Read the Order Here

“The expression “with the permission of the District Forum” as appearing in Section 12(1)(c) must be read along with Section 13(6) which provides the context and effect to said expression. In our view Sections 12(1)(c) and 13(6) are not independent but are to be read together and they form part of the same machinery”

The Supreme Court on Friday observed that ‘Class Action’ consumer complaints filed by one or more consumers where there are numerous consumers having the same interest will be maintainable only where the complaint fulfils all the requisite conditions in terms of Section 12(1) (c) of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil Procedure.

In this case (Rameshwar Prasad Shrivastava vs. Dwarkadhis Projects Pvt. Ltd.), the National Consumer Disputes Redressal Commission, relying on its full bench decision in Ambrish Kumar Shukla and others v. Ferrous Infrastructure Pvt. Ltd., dismissed the complaint filed by some of the allottees, as not maintainable since there was no application under Section 12(1)(c) of the Act as held in the full bench decision.

In Ambrish Kumar Shukla, the full bench made this observation: “We would like to emphasise that considering the binding effect of a decision rendered in a complaint under Section 12(1)(c) of the Consumer Protection Act, on all the consumers, on whose behalf or for whose benefit such a complaint is filed, even if they chose not to join as a party to the complaint, it is necessary to exercise due care and caution while considering such a complaint even at the initial stage and to grant the requisite permission, only where the complaint fulfils all the requisite conditions in terms of Section 12(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil Procedure; as interpreted in this reference. It would also be necessary for the Bench to either give individual notices or an adequate public notice of the institution of the complaint to all the persons on whose behalf or for whose benefit the complaint is instituted. Such a notice should disclose inter­alia (i) the subject matter of the complaint including the particulars of the project if the complaint relates to a housing project / scheme, (ii) the class of persons on whose behalf or for whose benefit the complaint is filed, (iii) the common grievance sought to get redressed through the class action, (iv) the alleged deficiency in the services and (v) the reliefs claimed in the complaint.”

Before the apex court, Advocate Priyanjali Singh, who appeared for the complainants-allottees, contended that the definition of the complainant as found in Section 2(1)(b) permits even a voluntary consumer association to espouse the cause of  aggrieved party/parties and that the expression “one or more consumers, where there are numerous consumers having the same interest” ought to be given widest possible interpretation so as to sub-serve the underlying objectives of the Act and to make the redressal mechanism easy, cost effective and efficacious. She submitted that in cases having large number of apartment holders, if only some of them approach the consumer forum, their grievance redressal ought not to be forced to go through the mechanics of Section 13(6) of the Act read with the provisions of Order 1 Rule 8 CPC, as any such insistence would render the remedy exorbitant as cost required for newspaper publication itself would be quite prohibitive.

Rejecting the said submission, the bench comprising Justice Uday Umesh Lalit and Justice R. Subhash Reddy observed that the language used and the text in Section 13(6) is clear that wherever a complaint is filed by a complainant in the category referred to in Section 2(1)(b)(iv), the provisions of Order 1 Rule 8 CPC shall apply with the modification that reference to suit or decree shall be construed as reference to a complaint or order of the district forum.

It said: “If we accept the submission of the appellants, the category of persons referred to in Section 13(6) of the Act, with the aid of requisite permission in terms of Order I Rule 8 of the CPC could maintain a class action which may bind similarly placed consumers but those referred to in Section 12(1)(c) would be a different category who would not be bound by the provisions of Order I Rule 8 of CPC. In essence a separate category of persons as consumer/consumers would be entitled to maintain an action under Section 12(1)(c) of the Act. In our considered view that certainly is not the intent. If we accept the submission, we would be going against the express mandate of the statute. All that such interpretation would help achieve for some consumers is to maintain an action in a forum with higher pecuniary jurisdiction where, but for such collective cause of action, the action would not lie in such forum with higher pecuniary jurisdiction.”

The bench also held that the view taken by the National Commission in the case of Ambrish Kumar is consistent with the text of the provisions and is the correct view. It said: “The language used and the text in Section 13(6) is clear that wherever a complaint is filed by a complainant in the category referred to in Section 2(1)(b)(iv), the provisions of Order 1 Rule 8 CPC shall apply with the modification that reference to suit or decree shall be construed as reference to a complaint or order of the District Forum. The expression “with the permission of the District Forum” as appearing in Section 12(1)(c) must be read along with Section 13(6) which provides the context and effect to said expression. In our view Sections 12(1)(c) and 13(6) are not independent but are to be read together and they form part of the same machinery.”

Taking into consideration that matters were pending with the National Commission for more than three years during which time the pleadings were exchanged and the evidence was filed, the bench allowed the complainants to approach state forum, and in that event, it said that the district forum shall proceed with the matter on the strength of same pleadings and the evidence laid before the National Commission.

The Supreme Court, on Wednesday, asserted that it was “extremely unfortunate” that the Jharkhand government has not yet prepared an action plan for its urban homeless.

Directing the State to have a plan in place soon, a bench comprising Justice MB Lokur, Justice Deepak Gupta and Justice Hemant Gupta ordered, “It appears that the State of Jharkhand has no plan for the Winter. This is extremely unfortunate. We expect the State of Jharkhand to prepare a plan within next couple of days so that urban homeless are spared the vagaries of Winter Season.”

During the hearing, the petitioner pointed out that an action plan for urban homeless for winter season has been finalized by all States and Union Territories except the States of Jammu & Kashmir and Jharkhand.

The counsel for the State of Jammu and Kashmir then submitted that as per his knowledge, there are about 250 urban homeless people in the State of Jammu & Kashmir, and that provisions have already been made for providing them with blankets, etc. He submitted that they are kept in shelter homes and that a plan will be handed over to the petitioner in person within the next 2-3 days.

As regards the State of Jharkhand, its counsel submitted that he received instructions only the morning of the hearing. This irked the court, which then directed the State to have a plan in place within the next couple of days.

Additionally, the States and Union Territories which have formulated a plan for the urban homeless for the winters were directed to implement the plan with “all due seriousness and earnestness so that shelter is provided to the homeless”.

Further, it was submitted by Additional Solicitor General ANS Nadkarni, appearing for the Centre, that user fee is voluntary and is not insisted upon from the urban homeless for utilization of the facilities in the shelter homes. He also submitted that no identification papers are contemplated under any of the action plans.

In view of such submissions, the court opined that no further directions were required to be passed.

The petition will next be heard in the second week of February, 2019

Read the Order Here

Law firms are neither competent nor authorised to file Vakalatnama before any court, tribunal or authority, in arbitration or any other proceedings, the Bar Council of Delhi (BCD) has clarified.

The clarification dated November 11, 2018 has been issued in view of the contemporary practice following by law firms, where they file Vakalatnamas in the firm’s name. Axing the practice, the clarification now asserts that if such a Vakalatnama is signed by a law firm and not an advocate, it “should not be entertained or accepted.”

BCD further clarified that every Vakalatnama has to be “duly signed by an advocate, mentioning his/her name, along with enrolment number, and must be affixed with the welfare stamp of requisite value as being mandatory, without which the Vakalatnama cannot be accepted.”

‘Court can presume that such state of affairs might have existed in past also unless discontinuity is proved.’

The Supreme Court has observed that presumption of continuity as envisaged in Section 114 of the Indian Evidence Act can be drawn backward also.

Under Section 114 of the Evidence Act, there is a presumption of continuance of a state of affairs once shown to have prevailed. The bench comprising Justice Arun Mishra and Justice Vineet Saran has now held that the court can presume that such state of affairs might have existed in past also unless discontinuity is proved.

In Salem Municipality vs. P. Kumar, the high court had upheld the trial court order decreeing three suits filed by the plaintiff for declaration of title and permanent injunction.

The Supreme Court bench held that the finding recorded by the high court as to possession is clearly perverse and contrary to the revenue records and the Gazette notification of vesting of land in state issued in 1951.

It is in this context, the bench made the aforesaid observation: “It is no doubt true that under Section 114 of the Evidence Act, there is a presumption of continuance of a state of affairs once shown to have prevailed. It is open to the court under Section 114 to presume the continuity of any fact once shown to have prevailed. Such presumption of continuity can be drawn not only forward but backward also. Court can presume that such state of affairs might have existed in past also unless discontinuity is proved.”

The bench said that, in the instant case, there is no affirmative evidence on record in the form of revenue record that the plaintiff’s vendor was in possession on the date of abolition and thereafter plaintiff remained in possession at any point of time.

Dismissing all the three suits, the bench also imposed cost of Rs 1 lakh upon the plaintiff, observing that there was multiplication of various proceedings by filing three suits.

“Before we proceed further, we would like to find out as to how the petitioner has behaved after his arrest, in jail, during the intervening period i.e. from 2012 till date.”

The Supreme Court has called for a report from the state about behavior shown by a death convict since his arrest till date.

Santosh Maruti Mane was sentenced to death by the Trial Court for killing nine persons.  As the High Court confirmed the death penalty, the accused approached the Apex court.

During the hearing on Thursday, the main defense taken on behalf of the accused was that he was a person of unsound mind and, therefore, should have given benefit of Section 84 of the Indian Penal Code. It was contended that there is sufficient material on record in the form of medical evidence which shows that he was having hallucination and also there was mental disorder to some extent, in such a case he should not have been given death penalty.

Taking this submission into account, the bench comprising Justice AK Sikri, said: “Before we proceed further, we would like to find out as to how the petitioner has behaved after his arrest, in jail, during the intervening period i.e. from 2012 till date. Learned counsel for the respondent may obtain a Report in this behalf as well as medical record of the petitioner in jail, if he was given any treatment etc.”

Further hearing will take place on 12^th December 2018.

Background

Santosh Maruti Mane was working as a driver in Maharashtra State Road Transport Corporation. It is prosecution case that, on 25^th January 2012, he hijacked a bus from the depot and took on a ‘joy ride’ which resulted in death of nine persons and 36 persons suffered serious injury. His plea of ‘insanity’ was rejected by the Trial Court and was sentenced to death.

Confirming the Trial Court findings, the Bombay High Court had said that this was not a case of a driver of a public vehicle committing a road accident driving a bus while on public duty but a case where, after hijacking the bus, he killed innocent people and damaged public property undaunted by all attempts made to dissuade him from his killing spree of hapless victims.

While confirming the death sentence, the High Court bench observed: “It cannot be accepted that an insane act cannot be committed by a sane mind. It cannot be condoned on the fond hope that such a person may in the distant future will be reformed and claim right to live in a civilized society. Such a dastardly and inhuman act cannot be condoned on the premise that when society inflicts insults and injuries on a person, it gives right to individuals to take revenge against the society and its innocent members either on account of assumed religious sanction or individual retribution of wrongs done to him. If such acts are condoned by commutation of death penalty, it definitely would send wrong signals to the society that individuals can take law into their own hands and get away with it on some misplaced and misconceived notions of sympathy, particularly when constitutionally held valid capital punishment is approved by the legislature and the Apex Court has given its seal of approval to it. We, therefore, have to do this unpleasant task of upholding the death penalty though we concur with some of the views expressed by the people who advocate abolition of death penalty from the statute book. Yet, as long as death penalty remains on the statute book, we have to carry out this task of deliberating whether death penalty was justified in this case and we feel it was.”

Read the Order Here