1, Not Always Obligatory To Remit Matter To Arbitration Tribunal Merely Because Case Til |-Pay Clearing Services Private Limited y. ICICI Bank Limited Citation: 2022 LiveLaw (SC) 2 ‘The Supreme Court observed that merely because an application is filed under Section34(4) of the Arbitration and Conciliation Act by a party, it is not always obligatory on the:part of the Court to remit the matter to Arbitral Tribunal, "When it prima facie appedrs thatsthere is a patent illegality in the award itself, by not recording a finding on a contentions issue, in such cases, Court may not accede to the request of a party for giving an opportunity.6 the Arbitral Tribunal to resume the arbitral proceedings.”, the bench comprising Justices R. Subhash Reddy and Hrishikesh Roy observed. The court said that the diseretionary power conferred under Section 34(4) of the Act, is to be exercised where there is inadequate reasoning or to fill up the gaps in the reasoning, in support of the findings which arg already recorded in the award. As per Section 34(4) of the Act, upon a request by a patty, the Court may adjourn the proceedings for a period determined by it in the order to. give the Arbitral Tribunal an ‘opportunity to resume the arbitral proceedings or to take such other action as in the opinion of Arbitral Tribunal, will eliminate the grounds for setting aside the arbitral award. 2. Income Deduction For State Govt Undertakings - ‘Exclusivity’ Under 8. 40(a)Gib: of Income Tax Act Not Based On Number Of Undertakings : Supreme Court Case Title: Kerala State Beverages Manufacturing and Marketing Corporation Ltd v. Assistant Commissioner of Income Tax Citation: 2022 LiveLaw (SC) 4 ‘The Supreme Court has rejected the argument raised by the Kerala State Beverages Corporation that it is entitled to deduct the levies:made by the state government on it from income. The Beverages Corporation's claini'was on the premise that the license given to by the State Government to trade in liquon.was not ‘exclusive’, Section 40(a)(ib) of the Income Tax Act, which refers to charges piaidito the government that are not deductible from income, uses the word "exclusively". (Phe Supreme Court held that this term "exclusively" is not to be understood on the basis of the number of undertakings involved. A bench comprising Justice Subhash Reddy and Justice Hrishikesh Roy observed that, "The aspect of exclusivity under Section 40(a)(iib) isnotto be considered with a narrow interpretation, which will defeat the very intention of Legislature. The aspect of ‘exclusivity’ under S. 40(a)(iib) has to be viewed from the nature of undertaking on which levy is imposed and not on the number of undertakings ‘on which the levy is imposed.” Arbitral \Pribunal Constituted Before 2015 Amendment Cannot Operate If It Violates Neutrality Mandate Under mn 1215) Case Title: Ellora Paper Mills Limited y, State of Madhya Pradesh Citation: 2022 LiveLaw (SC) 8 Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.‘The Supreme Court held that an arbitral tribunal constituted as per an arbitration clause before the 2015 amendment to the Arbitration and Con ion Act 1996 will lose its mandate if it violates the neutrality clause under Section 12(5) read with the Seventh Schedule, which were incorporated through the 2015 amendment. ‘The Court held that an arbitration clause that prescribes appointment of arbitrators contrary to the amended provision of Section 12(5)of the Arbitration and Conciliation Aet cannot be given effect. "..wwhen the arbitration clauses found to be foul with the amended provision, the appointment of the arbitrator would hetbeyond the pale of the arbitration agreement, empowering the Court to appoint such an arbitratoPas may be permissible. That would be the effect of the non-obstante clause contained int S=scetion (5) of Section 12 and the other party cannot insist upon the appointment of the arbitrator in terms of the arbitration agreement”, the Supreme Court observed in the case“Ellora Paper Mills Limited v. State of Madhya Pradesh, Court : Supreme Court Case Title: Union of India v, Alapan Bandyopadhyay Citation: 2022 LiveLaw (SC) 12 ‘The Supreme Court has held that any decision of a tribunal (inclusive of one passed under S. 25 of Administrative Tribunals Act, 1985) can only be scrutinized by a High Court which has territorial jurisdiction over the tribunal in question~AW decisions of tribunals created under Article 323A and 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned tribunal falls”, the Court referred to the dictum laid down by the Constitution Bench in L Chandrakumar decision. The Supreme Court faulted the approach of the High Court by noting that it was contrary to the dictum of the Constitution Bench iL, Chandrakumar, The judgment authored by Justice Ravikumar held : ‘When once a Constittition Bench of this court declared the law that “all decisions of Tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before g Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls”, it impermissible to make any further construction on the said issue. The law thus declared By the Constitution Bench cannot be revisited by a Bench of lesser quorum or for that mattePby.the High Courts by looking into the bundle of facts to ascertain whether they would confer territorial jurisdiction to the High Court within the ambit of Article 226(2) of the Constitution” Fire Accident Gan'eBe Termed ‘Act Of Natural Forces; Supreme Court If It Did Not Happen Due To External Case Title: State of UP v. Mcdowell and Company Limited Citation? 2022 LiveLaw (SC) 13 ‘The Supreme Court observed that a fire accident cannot be said to be an ‘act of God’ if it did not happen due to the operation of any forces of nature. "When nothing of any external natural {force had been in operation in violent or sudden manner, the event of the fire in question could be referable to anything but to an act of God in legal parlance.", the court said in a judgment delivered on Thursday (6 January 2022). In 2003, a fire incident took place in a godown of the distillery of the Medowell & Co, As many as 35,642 cases of Indian Made Foreign Liquor of Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downlcacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence,different brands got destroyed in this fire. After receiving the initial reports that the fire possibly took place due to short circuit of electricity, the Revenue department proposed to recover the amount of excise duty lost, due to such destruction of liquor, from the company. Allowing the writ petition filed by the Company, the Allahabad High Court quashed the demand notice issued by the Department. ised Or Case Title : Neil Aurelio Nunes and others v. Union of India Citation : 2022 LiveLaw (SC) 17 ‘The Supreme Court has allowed the commencement of counselling provess for NEET-PG and ‘NEET-UG for 2021-22 admissions on the basis of the existing 27% quota for Other Backward Classes (OBC) and 10% reservation for Economically Weaker Sections(EW'S) in the All India Quota. The Court upheld the constitutionality of 27% OBC feservation. As regards criteria to determine EWS(Rupees 8 lakhs gross annual income cut-off), the Court allowed the existing criteria to operate for the current admission year so asto not'delay the admission process further. However, future application of EWS criteria, which has been stipulated in the Office Memorandum of July 2019, will be subject to final outcome of the petitions. Mere Common Intention Per Se May Not Atfiiet Section 34 IPC Without An Action In Case Title: Jasdeep Singh Jassu v. State of Punjab Citation : 2022 LiveLaw (SC) 19 A mere common intention per se‘may not attract Section 34 IPC, sans an action in furtherance, the Supreme Court observed in a judgment delivered in a criminal appeal on 7 Jan 2022. In this case, the appellants were convieted under Section 304 Part [ of the Indian Penal Code (IPC) with life sentence. They filedsappéal challenging the invocation of Section 34 of the Indian Penal Code to conviet thigmavith along with other accused. The bench comprising Justices Sanjay Kishan Kaul and.MM Sundresh agreed with the submission on behalf of the appellant that the evidence available is not sufficient enough to hold that Section 34 IPC is attracted as against them. There is no,evidence at all on record to hold that A3 and Ad were aware of the fact that Al waShaving’a gun with him, the court said Section 149-1RCSEssential Condition Of An Unlawful Assembly That Its Membership Must Be Fiv@Or More: Supreme Court Case Title: Mahendra vs State Of MP Citation: 2022 LiveLaw (SC) 22 ‘The Supreme Court reiterated that it is an essential condition of an unlawful assembly that its membership must be five or more. Less than five persons can be charged under Section 149 only if the prosecution has a case that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.unvarmed, the bench comprising Justice Ajay Rastogi and Abhay S. Oka said. It may be noticed that the essential ingredients of Section 149 are that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is bom, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. To say in other words, it is an.essential condition of an unlawful assembly that its membership must be five or more. At the'same time, it may not be necessary that five or more persons necessarily be brought before the Court and convicted. Less than five persons may be charged under Section 149 if the proséeution, case is that the persons before the Court and other numbering in all more than five, cdimposed an unlawful assembly, these others being persons not identified and unarmed, Sec 4984 IPC Conviction Should Not Be Maintained When/Theré Is _A Genuine Settlement Of Matrimonial Disputes : Supreme Court Case Title: Rajendra Bhagat vs State of Jharkhand Citation: 2022 LiveLaw (SC) 34 Emphasizing the duty of the Court to encourage genuine seftlment of matrimonial disputes, the Supreme Court set aside conviction of a man under Section 498A of the Indian Penal Code, 1860 (IPC), The Apex Court bench comprising Justiges Dinesh Maheshwari and Vikram Nath ‘opined that maintaining of conviction of the appéllant of the offence under Section 498-A IPC would not be securing the ends of justice. With Such conviction being maintained and the appellant losing his job, the family would.again land itself in financial distress which may ultimately operate adverse to the harmony and fappy conjugal life of the parties, the bench said. Section 304B IPC. Demand Of Monéy/For Construction Of A House Is_A 'Dowry Demand!: Supreme Court Case Title: State of Madhya Pradesh v. Jogendra Citation: 2022 LiveLaw'(SG) 37 ‘The Supreme Court observed that demand of money for construction of a house is a dowry demand to attract offence under Section 304B of the Indian Penal Code. The word "Dowry" ‘ought to be ascribed’anexpansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature, the bench of CJ NV Ramana, Justice. AS, Bopanna and Hima Kohli said. Articl&227% Supervisory Jurisdiction Is Not To Correct ror When Final Finding Is Justified : Supreme Court Case Title: Garment Craft vs Prakash Chand Goel Citation: 2022 LiveLaw (SC) 39 Supervisory jurisdiction under Article 227 of the Constitution of India is not to correct a legal flaw when the final finding is justified or can be supported, the Supreme Court observed in a Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.judgment delivered on Tuesday (11 Jan 2022). The bench comprising Justices Sanjiv Khanna and Bela M. Trivedi observed that the power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to, !Cruelty Committed By A Woman Against Another Woman More Serious’. Court Upholds 80 Yr Old Mo’ iw's Conviction Under Section 4984 IPt Case Title: Meera v. State By the Inspector of Police Thiruvotriyur Police Station ‘Chennai Gi ion : 2022 LiveLaw (SC) 40 Observing that when cruelty is committed by one woman against ghother Woman the offence becomes more serious, the Supreme Court upheld the conviction ofa mother-in-law for the offence of cruelty under Section 498A of the Indian Penal Code. ‘The mother-in-law was found guilty of having committed cruelty against the daughter-in-law when her husband was abroad. "Being a lady, the appellant, who was the mother-in-laye, ought to have been more sensitive vis-a-vis her daughter-in-law. When an offence has been eominiitted by a woman by meting out cruelty to another woman, i.e., the daughter-in-law, it beeomes a more serious offence. If a lady, ie., the mother-in-law herein does not protect another lady, the other lady, ie., daughter inlaw would become vulnerable", observed a baiith:comprising Justice MR Shah and Justice BY Nagarathna. Foreign Court's Sentence Qn Repatriated Widian Convict Not To Be Reduced Just Because It Is Higher Than Similar Sentence In India : Supreme Court Case Title: Union of India And Anr. y, Shaikh Istiyaq Ahmed And Ors. Citation: 2022 LiveLaw (SC) 41 ‘The Supreme Court has deliver8d a notable judgment laying down the principles for repatriation of prisoners aper the Repatriation of Prisoners Act, 2003. The Court discussed the issue whether the Sentence imposed by a foreign court on an Indian convict, who has been repatriated to India, can, be higher than the sentence for a similar offence in India, ‘The Court held that the duration of the sentence will be governed by the agreement of transfer between the foreign country and India. The Indian Government can modify the sentence of the foreign court only if such sentence is "incompatible with Indian law". However, the Court added that merely because.thé foreign court's sentence is higher than that under the Indian law, it does not become "incompatible with Indian law". "Incompatibility" herein would signify being contrary to the fasidamental laws of India, Rules Taking Away Vested Rights Of Employees Retrospeetively Violate Articles 14 & 22-0f Constitution : Supreme Court In Bank Pensioners Case Case Title: The Punjab State Cooperative Agricultural Development Bank Ltd. Versus ‘The Registrar, Cooperative Societies And Others Citation : 2022 LiveLaw (SC) 42 Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.‘The Supreme Court has held that an amendment that has retrospective applicability and takes away the benefit which was already available to an employee under the existing set of rules would divest the employee of his vested/accrued rights and thus, will violate the rights guaranteed under A.14 and A.21 of the Constitution. "..if the employee who had already been promoted or fixed in a particular pay scale, if that is being taken away by the impugned scheme of rules retrospectively, that certainly will take away the vested/acerued right of the incuimbent which may not be permissible and may be violative of Article 14 and 16 of the Constitution", the Court observed. PM Security Lapse : Supreme Court Appoints Former SC Judge Justieé IndisMathotra As Em ry Committee Head Case Title: Lawyers Voice v. State of Punjab Citation : 2022 LiveLaw (SC) 43 ‘The Supreme Court has appointed former Supreme Court judge Justige Indu Malhotra to head the Committee to enquire into the security lapse which happened during the visit of Prime Minister Narendra Modi to Punjab on January 5. The Court opined that the "questions cannot be left to one-sided enquiry” and a judicially trained mind né€ds to oversee the probe. The Director-General of the National Investigation Agency or his nominee not below the rank of IG, Director General of Police of Union Territory of Chandigarh, ADGP (Security) of Punjab and the Registrar General of the Punjab and Haryana High Court (who has seized the records relating to PM's visit) are the other members of,the\Committee. Rights Of Parents Irrelevant When Court Déeides Custody Of Their Child: Supreme Court Case Title: Vasudha Sethi vs Kiran V. Bhaskar Citation: 2022 LiveLaw (SC) 48 ‘The Supreme Court has observed that the rights of the parents are irrelevant when a Court, decides the issue of custyof their minor child. ‘The issue of custody of a minor, whether in a petition seeking habeas-eorpus or in a custody petition, has to be decided on the touchstone of the principle that the welfare of a minor is of paramount consideration, the bench of Justices Ajay Rastogi and Abhay,S. Oka observed. In this case, the Punjab and Haryana High Court issued several directions while allowing a petition for habeas corpus filed by the husband seeking custodyof the minor child. The mother was directed to return to USA along with minor child on orbefore 30.09.2021. Challenging this order, the mother approached the Apex Court. Article\226-— High Court Should Apply Its Mind To Grounds Of Challenge While Disposing/Writ Petition : Supreme Court Case Title: State of Orissa & Ors v. Prasanta Kumar Swain Citation : 2022 Livel.aw (SC) 51 While considering a SLP assailing Orissa High Court's order, the Supreme Court recently deprecated the High Court's action of disposing a writ petition without applying its mind to the Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.grounds or challenge of submission, While setting aside the High Court's judgement and remitting the proceedings back for a fresh decision, the bench in State of Orissa & Ors v. Prasanta Kumar Swain, the bench of Justices DY Chandrachud and AS Bopanna observed, "Ex facie, there has been no application of mind by the High Court to the grounds of challenge or to the submissions. In fact, the concluding line of the order of the High Court indicates that the decision will not be treated as a precedent. This was an inappropriate manner of disposing of a substantive petition under Article 226 of the Constitution since the High Court isiduty botind to apply its mind to whether the judgment of the Tribunal is sustainable on facts andl. Ja," If Fraudulent Affairs Of Company Are Continuing, Right To Seek Winding Up Becomes Recurring : Sup: ‘ourt In. Devas Case Case Title: Devas Multimedia Private Ltd vs Antrix Corporation Ltd and another Citation : 2022 LiveLaw (SC) 57 ‘The Supreme Court has dismissed an appeal filed by Devas Multimedia challenging the orders. passed by the NCLY and NCLAT allowing the winding up on a petition filed by ISRO's commercial arm Antrix Corporation Ltd. A bench comprisiig’Justice Hemant Gupta and Justice V Ramasubramanian dismissed the appeals filed by Devas Multimedia and its shareholder Devas Employees Mauritius Pvt Ltd. The Court undertook a detailed analysis of Rule 5 of the Companies (Winding up) Rules, 2020 and notes that the purpose of advertisement is to provide an opportunity to all the stakeholders toxcither support or oppose the proceedings and to serve as a warning to all those dealing with the company so that they would know there there is an element of risk involved. The Court also notes that advertisement has been said to cause more harm to the company than the benefitsit brings. Supreme Court Case Title: G1. Girish v. Y, Subba Raju (D) Citation: 2022 LiveLaw (SQ) 61 ‘The Supreme Court held that Subordinate Legislation in the form of Statutory Rules is a ‘law’ under Section 23 of the Indian Contract Act. Section 23 of the Contract Act states that the consideration or object of an agreement is lawful, unless it is forbidden by law. The court was considering an“appeal'that arose from a specific performance suit in which the defendant pointed out that, Bangalore Rules of Allotment, 1972 Rule 18(2) had an embargo against alienation for-apatiod of ten years and therefore the contract is not lawful. The issue raised ‘was whether the enforcement of an agreement to sell expressly or impliedly, lead to palpably defeat thi®Rule. Case Title : Bank of Baroda and another v. MBL Infrastructures Ltd and others Citation : 2022 LiveLaw (SC) 62 Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.‘The Supreme Court has delivered an important judgment interpreting the scope of Section 29,A(h) of the Insolvency and Bankruptcy Code. Section 29 IBC specifies the categories of persons who are not eligible to be resolution applicants. Sub-section (h) of Section 29 refers to persons whose guarantees stand invoked by the ereditors of the corporate debtor. The exact wordings of the provision are as follows : "has executed a guarantee in favour of a creditor in respect of a corporate debtor against which an application for insolvency resolution.made by such creditor has been admitted under this Code and such guarantee has been invoked by'the creditor and remains unpaid in full or part". icial Review Proceedings, Courts Are Concerned With DecisionéMaking Process And Not The Decision Itself: Supreme Court Case Title: Sushil Kumar vs State of Haryana, Citation: 2022 LiveLaw (SC) 64 In judicial review proceedings, the Courts are concemed with’the decision-making process and not the decision itself, the Supreme Court observed in a judgment this week. In this case, the appellant, a head constable, had approached the High Court seeking retrospective promotion with effect from 21.01.2004. His grievance was that he should fave been promoted in the year 2004 itself and that the delay in appointing him in, 2008 i illegal and arbitrary. The Single Judge dismissed the petition on the ground that selettion is not a matter of right. Writ appeal was also dismissed by the Division Bench. In‘appeal, it was contended that the Inspector General of Police (IG) has no power tominterfere with the recommendation of the Superintendent of Police (SP). That when the SP has forwarded the decision of the Departmental Promotion Committee (DPC), the 1G does not act as the appellate authority and cannot substitute his decision to that of the DP, When Defendant's Trademark Is Identical To Plaintiff's Registered Trademark & Their Goods Or Services Ave Identiéal, Confusion In Public Shall Be Presumed : Supreme Court Case Title: Renaissance Hotel Holding Inc v. B. Vijaya Sai Citation: 2022 Liveliaw (SC) 65 ‘The Supreme Cout observed that, in an action for infringement, when the trade mark of the defendant is identigalwith the registered trade mark of the plaintiff and that the goods or services of thé'defendant are identical with the goods or serviees covered by registered trade mark, the Gourt-shall presume that it is likely to cause confusion on the part of the public. In an infringemeat action, an injunction would be issued as soon as it is proved that the defendant is improperlysusing the trademark of the plaintiff, the bench comprising Justices L. Nageswara RaopBR Gavai and BV Nagarathna observed. Reach\Out To Children Orphaned Due To COVID To Pay Compensation : Supreme Court Directs States Case Title: Gaurav Bansal v. Union of India Citation : 2022 LiveLaw (SC) 70 Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.‘The Supreme Court has directed the States to reach out to children who were orphaned due to COVID-19 for paying them ex-gratia compensation of Rs 50,000. The Court noted that the orphans may not be in a position to submit applications to claim compensation and hence the State authorities should reach out to them. ‘The National Commission for Protection of Child Rights(NCPCR) has told the Court that about 10,000 children have become orphans in the pandemic, as per the data uploaded by the States in the Bal Swaraj portal. Case Title: Arunachala Gounder (Dead) Vs Ponnusamy Gi jon: 2022 LiveLaw (SC) 71 The Supreme Court observed that inherited property of a femalé*Hindu dying issueless and intestate, goes back fo the source. "Ifa female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would goto the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the ‘husband’, the bench comprising Justices S. Abdul Nazeer and’Kfishna Murari observed in a judgment arising out of a partition suit. OBC Quota In PG Courses Ne With Graduation: Si Prohibited; Can't Say Backwardness Will Disay Case Title: Neil Aurelio Nunes and Ors y..Union of India & Ors Citaiton : 2022 LiveLaw (SC) 73 ‘The Supreme Court has held that there is Ho:prohibition for introducing reservation for socially and educationally backward classes (or the OBCs) in Post-Graduate courses. "/n our opinion, it cannot be said that the impact of backwardness simply disappears because a candidate has @ graduate qualification”, the Court said. The bench of Justices DY Chandrachud and AS Bopanna was considering the writ petitions filed by NEET aspirants challenging the Central Government's decision to introduce 27% reservation for Other Backward Classes ("OBC") and 10% reservation for Reonomically Weaker Section ("EWS") in NEET All India Quota. Tax Exemption Notification Must Be Construed Strictly; Promissory Estoppel Not plicable In Taxing’ Matters: Supreme Court Case Title State of Gujarat v. Arcelor Mittal Nippon Steel India Limited Citation? 2022, LiveLaw (SC) 79 ‘The Stipreme Court reinstated the order of the Revenue levying demand of purchase tax and ‘imposing penalty on Arcelor Mittal Nippon Steel India Limited (erstwhile Essar Steel Ltd.) for availing tax benefits without fulfilling all the eligibility criteria/condition of the Scheme For Special Incentives to Prestigious Units floated by the Gujarat Government in 1991. The Court held that tax exemption notifications must be construed strictly( State of Gujarat v. Arcelor Mittal Nippon Steel India Limited). "An exception and/or an exempting provision in a taxing Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.statute should be construed strictly and it is not open to the court to ignore the conditions prescribed in industrial policy and the exemption notifications". Mandamus Cannot Be Issued To Provide For Reserv: Supreme Court Case Title: State of Punjab v. Anshika Goyal Citation: 2022 LiveLaw (SC) 84 ‘The Supreme Court observed that no mandamus can be issued to the Stafé Government to provide for reservation, The bench comprising Justices MR Shah and BV Nagafathna observed thus while quashing a direction issued by Punjab and Haryana High Court toprovide for a sports quota of 3% in Government Medical/Dental Colleges in the Stafe of Punjab. In this case, the High Court of Punjab & Haryana allowed writ petitions and directed the State to issue a notification providing for 1% reservation/quota for children/grand ¢hildren of terrorist affected persons/Sikh riots affected persons in all private unaided_nom-minority Medical/Dental institutions in the State of Punjab. ‘The court further directed that.the said reservation/quota shall apply to management quota seats as well. It further directed that the fresh notification shall also provide for a sports quota of 3% in Government. Medical! Dental Colleges. The State of Punjab challenged this judgment before the Apex Coutt. Family Court's Finding Regarding Previous Marriage Can Be Relied On To Quash Complaint About Bigamy Under Section 494/4954PC : Supreme Court Case Title: Musst Rehana Begum vs State of Assam & Anr Citation : 2022 LiveLaw (SC) 86 ‘The Supreme Court recently observed that a High Court's decision to allow the criminal proceeding to proceed for offentes under Sections 494 and 495 of the Indian Penal Code - which deal with bigamy - despite the Family Court's finding that the wife did not have a subsisting prior marriage, would constitute an abuse of the process. The Cout observed reference to the Family Courts coitclusive findings will not amount to relying on evidentiary materials which are subjéeematter of trial. The observation was made considering that in the present case, the appellant wife and her husband (second respondent) were parties to the decision of the Family Court and no contentious material or disputed issues of evidence arise, ‘Suspension For ‘One Year Worse Than Expulsion‘: Supreme Court_Quashes Maharashtra Assembly's Resolution To Suspend 12 BJP MLAs Case Title: Ashish Shelar And Ors. Versus The Maharashtra Legislative Assembly & Anr, Citation; 2022 LiveLaw (SC) 91 ‘The Supreme Court has quashed the Maharashtra Legislative Assembly's resolution of July 5, 2021, which suspended 12 BJP MLAs for a period of one year for alleged disorderly behaviour in the house. The Court held that the resolution to suspend the MLAs beyond the session is “unconstitutional”, “illegal” and "beyond the powers of the assembly". It held that such suspension could be limited only to the ongoing session, which was the Monsoon Session of Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.2021(case :Ashish Shelar And Ors. Versus The Maharashtra Legislative Assembly & Anr). "awe have no hesitation in allowing these writ petitions and to declare that the impugned resolution directing suspension of the petitioners beyond the period of the remainder of the concerned Monsoon Session held in July 2021 is non-est in the eyes of law, mullity, unconstitutional, substantively illegal and irrational. The impugned resolution is\\ thus, declared to be ineffective in law, insofar as the period beyond the remainder of the.stated Session in which the resolution came to be passed." Supreme _C H ‘ad. FOR-Collect ia_On Adequacy Of Representation; Collection Of Data “On Entire Service Meaningless Case Title: Jarnail Singh v. Lachhmi Narain Gupta and Other Connected Matters, SLP(c) No.30621/2011 Citation : 2022 LiveLaw (SC) 94 ‘The Supreme Court has delivered the judgment in the issue Felating to reservation in promotions for Scheduled Castes and Scheduled ‘Tribes. Centre and States had urged the Supreme Court to settle the confusion regarding the norms for reservation in promotions saying, that several appointments have been stalled due,to ambiguities. A Bench of Justices 1, ‘Nageswara Rao, Sanjiv Khanna and B.R.Gavai hadireserved judgment on October 26, after hearing the matter following the reference answefed.in, 2018 by a S-judge bench in the case Jamail Singh v. Lachhmi Narain Gupta. Theebenth made the following pronouncements: i Court cannot lay down any yardstick to determing inadequacy of representation, ii, State is obligated to collect quantifiable data regarding adequacy of representation. iii. Cadre should be unit for collection for quantifiable data for reservation. The collection cannot be with respect to the entire class/class/group, but it should be relatable to Grade/Category of post to which promotion is sought. Cadre should be thevtinit for collecting quantifiable data, it would be meaning less if collection of datais w.r.t the entire service. iv. Nagaraj judgment of 2006 would have a prospective effect. v. The contelusion in BK Pavitra (II) approving the collection of data on the basis of groups and not éadres is contrary to the dictum in Jarnail Singh, Also Read: Before Providing Reservation In Promotions To A Cadre, State Obligated To Collect_QuantifiablesData Regarding Tnadequacy Of Representation Of SC/STs_: Supreme Court Also Read: Supremey Court Refuses To Express Views Qn Discontinuation Of Reservation; “Moots Periodical Review Of Data On Inadequate Representation Also Read: Reservation In Promotion- Supreme Court Declares That Its Judgment In M. Nagaraj Shall, Have Only Prospective Effect Schemie Providing Backdoor Entry Into Service Violates Article 16 : Supreme Court On Raibyays LARGESS Scheme Case Title: The Chief Personnel Officer & Ors. v. A Nishanth George Citation : 2022 Livelaw (SC) 103 Al copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinouton of he same for any purpose whatsoever wil be punishable. Its an offence.‘The Supreme Court has reiterated that the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff notified by the Railways ("LARSGESS Scheme") provides an avenue for backdoor entry into service and is contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment. ‘The bench of Justices DY Chandrachud and AS Bopanna was considering civil appeals assailing Madras High Court's judgements dated March 21, 2018 and September 3, 2019. While allowing the appeal(s) and setting aside the impugned judgment(s) the bench observed, "We have addressed in detail the history of the LARSGESS scheme and the dowbkexpressed on its validity by the Division Bench of the Punjab and Haryana High Court in Kala Singh (supra) which eventually led to the decision of the Union government to terminate thé scheme. While noticing the above backdrop, the three judge Bench of this Court in Manjitstipra) clearly noted that the Scheme provided an avenue for backdoor entry into service an was contrary to the mandate of Article 16 which guarantees equal opportunity in matterSaf public employment. Inthis backdrop, the impugned judgment of the High Court of MadiFasissuing a mandamus for the appointment of the respondent cannot be sustained.” All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.FEBRUARY 2022 1. Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar An error in interpretation of a contract in a case where there is valid and lawful submission of arbitral disputes to an Arbitral Tribunal is an error within the jurisdiction. (Para 45) An Arbitral Tribunal being a creature of contract, is bound to act in terms of the comitract under which it is constituted. An award can be said to be patently illegal where the Arbitral Tribunal has failed to act in terms of the contract or has ignored the specific terms of a contract) The Court does not sit in appeal over the award made by an Arbitral ‘Tribuftal she Court does not ordinarily interfere with interpretation made by the Arbitral Tribunal of contractual provision, unless such interpretation is patently unreasonable or perverse. Where a contractual provision is ambiguous or is capable of being interpreted in more wa¥s,than one, the Court cannot interfere with the arbitral award, only because the Court iS 6Ptheopinion that another possible interpretation would have been a better one. (Para 46). 2. Pradeep Kumar v. Post Master General Acts of bank’post office employees, when done during theiFeourse of employment, are binding on the bank/post office at the instance of the person who is dmnified by the fraud and wrongful acts of the officers of the bank/post office. Post office / bank, can and is entitled to proceed against the officers for the loss caused due to the-raiid etc., but this would not absolve them from their liability if the employee involved was eting in the course of his employment and duties. What is relevant is whether the crime, in the form of fraud ete., was perpetrated by the servant/employee during the course of his emplo¥iment. Once this is established, the employer would be liable for the employee's wrongful aet, even if they amount to a crime. Whether the fraud is committed during the course of'employment would be a question of fact that needs to be determined in the facts and cirgumstanees of the case. 3. Kishor Madhukar Pinglikar y. Automotive Research Association of India The determination of a body\as @/State' is not a rigid set of principles. What is to be seen is whether in the light of the,cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government, albeit if the control is mere regulatory, whetheF under statute or otherwise, it will not serve to make the body a State, Also, the présence of some element of public duty or function would not by itself suffice for bringing a body within the net of Article 12. State - Whether Aut6motive Research Association of India Is A State -The majority of the members of the Association are associated with the manufacturers of the automobiles or their comporents,and’are not in service of the government. They are private players and from the motor vehicle industry - The main objective and function of the association relate to motor vehielés which is not directly or indirectly a field connected with fumetions of the government One function assigned to the Association, which is not the primary and forms a small fraction of their activities and functions performed by the Association, would not matter. An overall and holistic view of the functions and activities, including the primary function(s), should be taken into consideration - Association is not an ageney or instrumentality of the Government. Further, the Government does not have deep and pervasive control over it. All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.4. Hotel Priya A Proprietorship v. State of Maharashtra Practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism - Such attitudes have no place in our society; recent developments have highlighted areas hitherto considered exclusive male "bastions" such as employmentiin the armed forces, are no longer so. Gender cap as to the number of women or men, who can perform in orchestras and bands, in licenced bars is void - ‘This restriction dircétly transgresses Article 15 (1) and Article 19 (1) (g) - the latter provision both in its 8ffget to the performers as well as the license owners. While the overall limit of petfofmers in any given performance cannot exceed eight, the composition (icc, all female, majority female or male, or vice versa) can be of any combination Article 15 (1) and Article 19 (1) (g) - Gender -cap (Le. four fexfiales and four males, in any performance) appears to be the product of a stereotypical View that women who perform in bars and establishments, belong to a certain class Of Soeiety Such measures ~ which claim protection, in reality are destructive of Article,15 () as they masquerade as special provisions and operate to limit or exclude altogether, women’s choice of their avocation. 5, Serious Fraud Investigation Office y. Rahul Mod? Default Bail - Filing of a charge -sheet is sufficient Compliance with the provisions of Section 167 CrPC - An accused cannot demand releaSe-on default bail under Section 167(2) on the ground that cognizance has not been taken before the expiry of 60 days. There is no additional requirement of cognizance having to be takenwithin the period prescribed under proviso (a) to Section 167(2), CrPC, failing which the accused would be entitled to default bail, even after filing of the charge -sheet within the statufory period. The accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes custody of the decti8ed for the purpose of remand after cognizance is taken. 6. K. Kumara Gupta ¥; Sr®Markendaya and Sri Omkareswara Swamy Temple Public Interest Litigatio# "High Courts to be more discerning / vigilant and/or cautious while entertaining writ petitions.apparently filed in public interest - (1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations; (2) The Courts should prima facie verify the credentials of the petitioner before entertaining aPIh; (3) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL: (4) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition; (5) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motiv@or oblique motive behind filing the public interest litigation; and (6) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be diseouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. 7. Esteem Properties Pvt. Ltd. v. Chetan Kamble All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.One of the measures to ensure that frivolous or private interests are not masqueraded as genuine claims, is to be cautious when examining locus standi, Generally, PIL, being a summary jurisdiction, has limited powers to examine the bonafides of parties. It is usually on the pleadings that the Court should take a prima facie view on the bonafides of the party. If the Court concludes that the litigation was initiated under the shadow of reasonable suspicion, then the Court may decline fo entertain the claims on merits. In these cases, Courts havé"multiple options ~ such as dismissing the PIL or appointing an amicus curiae, if the cause espoused in the case requires the immediate attention of the Court, PIL litigation has had a beneficialeffect on the Indian jurisprudence and has alleviated the conditions of the citizens ‘in general - Thousands of frivolous petitions are filed, burdening the docket of both thi Couft and the High Courts - Many claims filed in the Courts are sometimes immature. Noble intentions behind expanding the Court's jurisdiction to accommodate socially relevant issues, in recent decades, have been critically analyzed 8. Ms. X v. Registrar General Mere reasonable or legitimate expectation of a citizen may nof by itself be a distinct enforceable right - The failure to consider and give due weight to it may render the decision arbitrary - ‘The requirement of due consideration of a legitimate expectation:forms part of the principle of non- arbitrariness, which is a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case, Whenever the question arises, itis to be determined not according to the claimant's perception but in larger public interest whereiiother more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant - A bona fide decision of the public authority reached in this manner would satisfy the requirement of nonarbitrariness and withstand judicial'scrutiny 9. Debananda Tamuli v. Smti Kakumoni Kataky Merely because on account of the d&ath of the appellant's mother, the respondent visited her matrimonial home in Deceniber 2009 and stayed there only for one day, it cannot be said that there was a resumption of coliabitation. The reasons for a dispute between husband and wife are always very complex. Evéty matrimonial dispute is different from another. Whether a case of desertion is established/ornot will depend on the peculiar facts of each case. It is a matter of drawing an infrence|based on the facts brought on record by way of evidence. Desertion means the intentionalabandonment of one spouse by the other without the consent of the other and without @reasonable cause. The deserted spouse must prove that there is a factum of separation.and.thete is an intention on the part of deserting spouse to bring the cohabitation to a permanent &nd - There should be animus deserendi on the part of the deserting spouse, There ‘must be aifabserice of consent on the part of the deserted spouse and the conduct of the deserted, spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. 10. Consolidated Construction Consortium Ltd. v. Hitro Energy Solutions Pvt. Ltd. Difference between financial and operational creditors in the nature of their role in the Committee of Creditors - It is assumed the operational creditors will be unwilling to take the risk of restructuring their debts in order to make the corporate debtor a going concer. Thus, All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.their debt is not seen as a long -term investment in the going concer status of the corporate debtor, which would incentivize them to restructure it, but merely as a one -ofF transaction with the corporate debtor for certain goods or services. IBC proceedings should not become recovery proceedings - IBC not akin to a recovery legislation for creditors, but is a legislation beneficial for the corporate debtor. Operational Debt - Operational Creditor - A debt which arises out of advance payment made to a corporate debtor for supply of goods or seryiGes would be considered as an operational debt - The phrase "in respect of" in Section 5(21} has to be interproted in a broad and purposive manner in order to include all those who provide or receive operational services from the corporate debtor, which ultimately lead to an operational debt. 11. Mukesh Kumar v. Union of India Compassionate Appointment Policy - Descent cannot be a ground fér denying employment under the scheme of compassionate appointments - A policy for compassionate appointment, which has the force of law, must not discriminate on any of the grinds mentioned in Article 16(2), including that of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant, Descent - ‘Descent! must be understood to encompass the familial origins of a person. Familial origins include the validity of the marriage of the parents of a claimant of Compassionate appointment and the claimant's legitimacy as their child. The condition imposed by the Railway Board circular that compassionate appointment cannot be granted to ehildrem born from the second wife of a deceased employee - Rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16,oF the Hindu Marriage Act regards a child bom from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 iff the policy or rule exeludesesuch a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has rno nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it ‘would be impermissible to exclude them fom being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. Legal Maxims - Concept of dies non juridieus - A day which is regarded by the law as one on which no judicial act ean be performed, or legal diligence used. All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.