Motor Vehicles Act, 1988 — Sections 149(2)(a) & 149(2)(a)(ii) — Absolving liability of insurer — Driving with fake licence — Required condition — Held, once the insurer is taking defence of fake licence onus lies on him — However, mere fake licence is not adequate condition for absolving liability — Every owner is not expected to verify the licence at the time of appointment, what he can take reasonable care is person is qualified and competent to drive the vehicle — But the situation shall be different when insurance company required at the time insurance or otherwise indicate verification of the licence of the driver and owner does not take stapes or commit negligence — In these circumstances insurance company shall not be liable for compensation.
United India Insurance Company Limited vs. Lehru and Others, (2003)3 SCC 338, National Insurance Company Limited vs. Swaran Singh and Others, (2004)3 SCC 297, National Insurance Company Limited vs. Laxmi Narain Dhut, (2007)3 SCC 700, Followed.
HELD: In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh’s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.
(Para 8)
Pepsu Road Transport Corporation v. National Insurance Company [Bench Strength 2], Civil Appeal No. 8276/2009 (26/08/2013), 2013(10) SCALE 663 [Gyan Sudha Misra, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Motor Vehicles Act, 1988 — Sections 166, 168 & 173 — Child victim — Pecuniary and non-pecuniary compensation — Consideration of additional heads — Child of 12 years succumbed injury by negligent driving of motorcycle — Multiple injury and deformation of lower limb, 58 days indoor treatment, current surgery and expected future surgery etc. — Tribunal awarded Rs.63,500/- in appeal High Court enhanced only towards non-pecuniary head of pain and suffering of Rs.50,000/- — SLP — Held, courts bellow did not consider medical evidence properly — A child victim cannot be granted only compensation of structural formula — Additional compensation is required to be considered what the actual medical expenses was incurred — Total amount of Rs. Rs.3,75,000/- is appropriate compensation — Insurance is directed to deposit the enhanced amount in two weeks with an interest of 6% from date of petition.
R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. and Others, (1995)1 SCC 551, Sapna vs. United Indian Insurance Company Limited and Another, (2008)7 SCC 613, Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another, JT 2013 (3) SC 311, Iranna vs. Mohammadali Khadarsab Mulla and Another, 2004 ACJ 1396, Followed.
HELD: It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. For a child, the best part of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non-earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non- earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc.
(Para 8)
Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. (Para 12)
The claimant will be entitled to a total compensation of Rs.3,75,000/- along with interest @ 6% per annum from the date of the petition. First respondent-Insurance Company is directed to deposit the enhanced compensation with interest as above within two months from today.
(Para 13)
Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [Bench Strength 2], Civil Appeal No. 7139/2013 (Arising out of S.L.P. (Civil) No. 1676/2012) (26/08/2013), 2013(10) SCALE 668 [Gyan Sudha Misra, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Motor Vehicles Act, 1988 — Sections 166, 168 & 173 — Child victim — Non-pecuniary damages — Consideration of extra structural formula damages — Held, while considering claim of a child victim strict adherence of structural formula will be unfair and improper — A child has no income but he cannot be equated with a person earning only Rs.15000/- a year — Therefore, compensation be is to be worked out under the non-pecuniary heads in addition the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc — The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs.
HELD: While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non-earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.
(Para 8)
Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [Bench Strength 2], Civil Appeal No. 7139/2013 (Arising out of S.L.P. (Civil) No. 1676/2012) (26/08/2013), 2013(10) SCALE 668 [Gyan Sudha Misra, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Motor Vehicles Act, 1988 — Sections 166, 168 & 173 — Child victim — Compensation in addition to actual treatment expenses — Appropriate amount in terms of disability — Formula made with direction for strict adherence except in exceptional circumstances.
Sapna vs. United Indian Insurance Company Limited and Another, (2008)7 SCC 613, Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another, JT 2013 (3) SC 311, Iranna vs. Mohammadali Khadarsab Mulla and Another, 2004 ACJ 1396, Relied.
HELD: Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%.
(Para 12).
Master Mallikarjun v. Divisional Manager, National Insurance Company Limited [Bench Strength 2], Civil Appeal No. 7139/2013 (Arising out of S.L.P. (Civil) No. 1676/2012) (26/08/2013), 2013(10) SCALE 668 [Gyan Sudha Misra, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Rajasthan Premises (Control of Rent and Eviction) Act, 1950 — Section 13(1)(h) — Bona fide requirement — Death of person to whom bona fide was required — Residential as well commercial — Appellant herein filed eviction for shop and papad workshop for his wife and also for her residential purpose that the appellant retires from service he may engage himself — Trial Court decreed the suit which was affirmed by lower appellate court — But when pending revision before High Court the wife of appellant expired to whom bona fide was sought — High Court taking notice of the same allowed revision in favour of tenant respondent herein — Challenged — Held, before cautious scrutiny that whether the appellant has bona fide requirement the parties entered into amicable settlement — Appeal is allowed in terms of settlement — Tenancy shall continue for more three years in enhanced rate of rent but tenant shall vacate the premises after three years — Rent law — Bona fide requirement — After death of person so required.
HELD: Returning to the pleadings before us, we are not seized of an eviction action in which the bona fide need of only the deceased wife of the Appellant had been pleaded. Therefore, it required our careful cogitation as to whether the landlord could still claim bona fide need for himself as well as his dependents.
(Para 8).
In these circumstances, mindful of the uncertainty of which manner we may decide, the parties through their counsel have arrived at a settlement before us. It has been agreed that the rent shall stand increased to Rs.1500/- per month and that the Respondent-tenant shall be permitted to continue to occupy the tenanted premises for a further period of three years. The Appeal is accordingly allowed. The judgment of the High Court is set aside. However, the Respondent-tenant shall hand over peaceful and vacant possession to the landlord or his legal heirs in the event of his demise on or before 31st August 2016 provided the Respondent pays all the arrears of rent till date (if any); and with effect from September 2013 pays a sum of Rs.1500/- per month towards damages for use and occupation. The usual undertaking to abide by these terms must be filed within four weeks from today failing which he shall be liable to be evicted/ejected forthwith.
(Par 9).
Baldev Krishan v. Satya Narain [Bench Strength 2], Civil Appeal No. 7163/2013 (Arising out of S.L.P. (C) No. 21936/2011) (27/08/2013), 2013(10) SCALE 623: 2013(12) JT 23 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
Rent Law — Bona fide requirement — Death of person to whom bona fide sought — Appropriate authority — Held, appropriate authority to cover the field is Pasupuleti Venkateswarlu’s Case — While deciding Pasupuleti Venkateswarlu’s Case, Phool Rani’s Case was not brought into notice of the Court — Subsequently Phool Rani was overruled in Shantilal Thakordas’s Case — The ratio of Pasupuleti Venkateswarlu’s Case requires the Court to “take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.” — A Second Appeal would not entail the determination of questions of fact but must conform to the discipline of only considering question of law of substantial importance — These law point is discussed facilitate lower courts to avoid confusion despite amicable settlement in this matter — Rajasthan Premises (Control of Rent and Eviction) Act, 1950 — Section 13(1)(h) — Civil Procedure Code, 1908 — Order 43 — Second Appeal — Fact finding becomes infructious — Effect.
Phool Rani v. Naubat Rai Ahluwalia (1973) 1 SCC 688; Alrady overruled.
Shakuntala Bai v. Narayan Das, (2004) 5 SCC 772, Distinguished.
Pasupuleti Venkateswarlu v. The Motor & General Traders, (1975) 1 SCC 770, Shantilal Thakordas v. Chimanlal Maganlal Telwala (1976) 4 SCC 417, Sheshambal v. Chelur Corporation, (2010) 3 SCC 470, Followed.
HELD: The discussion of the law should properly start with the three-Judge Bench decision in Pasupuleti Venkateswarlu v. The Motor & General Traders, (1975) 1 SCC 770. Our research reveals that the question in hand has not received the attention of any larger Bench and hence if the ratio decidendi of Pasupuleti is to be varied, it per force has to be done by a larger Bench. In these circumstances, Pasupuleti holds the field on the question of the consideration to be given to events which have occurred subsequent to the institution of a suit and the disposal of any statutory appeal. Pasupuleti requires the Court to “take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.” After laying down these propositions the decision was to the effect that the recovery of another accommodation by the landlord during the pendency of the case, had material bearing on the right to evict since that right would be defeated by the statutory provisions itself. Pasupuleti did not have the occasion to consider Phool Rani v. Naubat Rai Ahluwalia (1973) 1 SCC 688; counsel were clearly remiss in not bringing this decision to the Court’s notice. Close upon the heels of this decision is Shantilal Thakordas v. Chimanlal Maganlal Telwala (1976) 4 SCC 417 also rendered by a three-Judge Bench. Phool Rani was cited and overruled in Shantilal and, therefore, the former ought not to be cited or considered any further. The tenor of Shantilal is in consonance with and not contrary to Pasupuleti, as it necessarily must be. What has been held is that if the requirement of the Plaintiff as well as his heirs is in issue before the Court, the passing away of the Plaintiff will not defeat the lis. Another three-Judge Bench in Hasmat Rai v. Raghunath Prasad (1981) 3 SCC 103 has followed Pasupuleti, again as it was precendentially bound to. The plurality was of the view that a decree or order does not become final till the appeal filed against it is finally disposed of. We may add here, by way of emphasis, that a Second Appeal would not entail the determination of questions of fact but must conform to the discipline of only considering question of law of substantial importance.
(Para 5)
We have briefly considered the previous precedents since disparate decisions inexorably lead to a vexed and a split exposition of the law. Our objective is to insulate the subordinate courts from choosing between decisions of the Apex Court by presenting only one opinion of the law.
(Para 6)
Baldev Krishan v. Satya Narain [Bench Strength 2], Civil Appeal No. 7163/2013 (Arising out of S.L.P. (C) No. 21936/2011) (27/08/2013), 2013(10) SCALE 623: 2013(12) JT 23 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Pension — Optional Pension — Entitlement after opting alternate C.P.F. Scheme — Appellant university advertised its optional pension policy vide notification dated 17.8.1991 — Employees were free to give their option within three months of publication, failure of the same, it was to be deemed opted for pension scheme, however, the option exercised by employees was made irrevocable — Respondent No.2 being employee of appellant could not applied within cut of time, however, he opted a little after and his option was accepted graciously for Contributory Provident Funds Scheme (C.P.F. Scheme) — After his retirement he accepted his all retrial benefits including benefit under C.P.F. Scheme — Thereafter, after six years of retirement, he went before High Court seeking direction for pension scheme as he did not exercise his option on or before cut of date, therefore, he was entitled for deemed option for pension — High Court allowed and directed the University Accordingly — Challenged — Held, though second respondent applied a little after cut of date for C.P.F. Scheme, but once after acceptance of his option, now he cannot revoke and get undue advantage of deemed option for pension — He is a well qualified person and had exercised option in conscious mind — High Court committed error, accordingly impugned order set aside and appeal is allowed — Rajasthan Agriculture University, Notification No. Pension /RAJAU/C/91/F-75/3668-768 dated 17th August, 1991.
HELD: We are of the view that the High Court ought not to have given a direction to the appellant-University to give pension to respondent No. 2 as if he had opted for the Pension Scheme.
(Para 19)
It is an admitted fact that respondent No. 2 had exercised his option not within the period prescribed but little late. Though late, respondent No. 2 had opted for joining or continuing with the C.P.F. Scheme.
(Para 20)
The appellant-University accepted the option exercised by respondent No. 2 and therefore, it cannot be said that the deeming fiction incorporated in the Notification would help respondent No. 2.
(Para 21)
Though, respondent No. 2 did not exercise his option within the period prescribed under the aforestated Notification, when he had exercised the option on 3rd January, 1992, for continuing to be under the C.P.F. Scheme and when the appellant- University had graciously accepted the option exercised by respondent No. 2, he would not get benefit under the deeming fiction incorporated in the Notification. It would be unfair to the University if the submission of respondent No. 2 is accepted. A special favour was done to respondent No. 2 by accepting his option even after the prescribed period was over. Now, at this stage, after his retirement, respondent No. 2 wants to take undue advantage of the favour done to him by the appellant university, which cannot be permitted.
(Para 21)
We may add here that respondent No. 2 is a highly literate person and he must have known the consequences, when he had opted for the C.P.F. Scheme under his letter of option dated 3rd January, 1992. It was his conscious effort to see that he continues with the C.P.F. Scheme and the said effort was respected by the appellant-University by showing special favour, as his option was accepted even after the time prescribed in the Notification was over.
(Para 24).
Rajasthan Agriculture University, Bikaner v. State of Rajasthan [Bench Strength 2], Civil Appeal No. 7160/2013 (Arising out of SLP (C) No. 7781/2011) (27/08/2013), 2013(10) SCALE 604: 2013(11) JT 550 [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 376(2)(g) — Gang Rape — Reduction of punishment on compromise — Producing consent affidavit (consent of compromise) of prosecutrix — Appellants were convicted and punished by Trial Court which was affirmed by High Court — Appellants filed SLP with limited prayer of reduction of sentence — During pendency of appeal an affidavit of prosecutrix was filed indicating her consent for compromise for her happy and dignified matrimonial life — Held, the prosecutrix had sign the document in Hindi only on last page — This document has not been brought into notice before any lower fora — Appellants sought reduction of sentence under proviso to Section 176(2), now this proviso has been deleted by amendment — A compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded particularly in non-compoundable cases like rape — Further chance of pressurizing the victim may not be ruled out — Accordingly appeal is dismissed.
Baldev Singh and Others vs. State of Punjab (2011) 13 SCC 705, Mohd. Imran Khan vs. State Government (NCT of Delhi) (2011) 10 SCC 192, Distinguished.
Kamal Kishore vs. State of H.P., (2000) 4 SCC 502, State of A.P. vs. Polamala Raju @ Rajarao, (2000) 7 SCC 75, M.P. vs. Bala @ Balaram, (2005) 8 SCC 1, State of Karnataka vs. Krishnappa, (2000) 4 SCC 75, Bhupinder Sharma vs. State of Himachal Pradesh (2003) 8 SCC 551; State of M.P. vs. Balu (2005) 1 SCC 108; State of Madhya Pradesh vs. Bablu Natt (2009) 2 SCC 272; and State of Rajasthan vs. Vinod Kumar (2012) 6 SCC 770, Relied.
HELD: During the pendency of the above appeals, the appellants-accused placed on record an affidavit dated 24.12.2011 signed by the victim. In the said affidavit, the deponent had stated that she was the prosecutrix in the instant case which arose out of FIR No. 195 dated 30.12.1995 under Sections 363, 366, 342, 376(2)(g), 506/34 IPC registered at P.S. Nangal Chaudhary which is 16 years old where she was a consenting party to the alleged act. She also stated that due to passage of time and the fact that the deponent has settled/compromised the said matter with the accused persons on account of they belonging to neighbouring village and also of the fact that the deponent is married since January, 1999 and has four children, she did not want the said case to be pursued any further. She further stated that she is living happily with her husband for the last twelve years. Finally, she stated that in view of the compromise entered into by her with the accused persons and in order to buy peace and to maintain dignity in her matrimonial life, she has no objection if the sentence of the appellants be reduced to the period already undergone.
(Para 7)
We carefully perused the contents of the said affidavit. It contains two pages and the deponent has signed in Hindi, that too only on the last page. Nothing was brought to the notice before any forum. In these circumstances, let us consider the relevant provision, as it stood on the date of the incident, and various decisions of this Court.
(Para 8)
It is on this proviso to the Section, the accused is relying upon and praying for a reduction of sentence of imprisonment for a term of less than 10 years. Based on the following three grounds, the accused seeks for reduction of sentence than prescribed by the statute.
(Para 13)
Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC.
(Para 22)
It is imperative to mention that the legislature through the Criminal Law (Amendment) Act, 2013 has deleted this proviso in the wake of increasing crimes against women. Though, the said amendment will not come in the way of exercising discretion in this case, on perusal of the above legislative provision and catena of cases on the issue, we feel that the present case fails to fall within the ambit of exceptional case where the Court shall use its extraordinary discretion to reduce the period of sentence than the minimum prescribed.
(Para 23)
In the light of the above discussion, we reject the request of learned counsel for the appellants for reduction of sentence, consequently, the appeals fail and the same are dismissed.
(Para 24)
Shimbhu v. State of Haryana [Bench Strength 3], Criminal Appeal Nos. 1278-1279/2013 (Arising out of S.L.P. (Crl.) Nos. 1011-1012/2012) (27/08/2013), 2013(10) SCALE 595: 2013(11) JT 614 [P. Sathasivam, C.J.: Ranjana Prakash Desai, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 235(2) — Sentence — Exercising discretion — Influencing factors — Discussed — Penal Code, 1860 — Section 376(2)(g).
HELD: The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the judges to levy the appropriate sentence. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. Indisputably, the sentencing Courts shall consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the crime committed.
(Para 9)
Shimbhu v. State of Haryana [Bench Strength 3], Criminal Appeal Nos. 1278-1279/2013 (Arising out of S.L.P. (Crl.) Nos. 1011-1012/2012) (27/08/2013), 2013(10) SCALE 595: 2013(11) JT 614 [P. Sathasivam, C.J.: Ranjana Prakash Desai, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Interpretation of Statutes — Interpretation of proviso — Fundamental rule to be followed — Held, it is a fundamental rule of construction that a proviso must be considered in relation to the main provision to which it stands as a proviso, particularly, in serious penal provisions.
(Para 12)
Shimbhu v. State of Haryana [Bench Strength 3], Criminal Appeal Nos. 1278-1279/2013 (Arising out of S.L.P. (Crl.) Nos. 1011-1012/2012) (27/08/2013), 2013(10) SCALE 595: 2013(11) JT 614 [P. Sathasivam, C.J.: Ranjana Prakash Desai, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 376(2)(g) — Gang rape — Sentencing Policy — Awarding minimum sentence than prescribed — Held, the main provision mandate prescription of minimum 10 years of punishment with fine — For expression “special and adequate reason” incorporated in proviso must be construed in the line of main provision and it depend upon verity of factors — There is no universal principle it vary from case to case but sentence must be proportionate to the gravity of offence — Criminal Procedure Code, 1973 — Section 235(2).
Kamal Kishore vs. State of H.P., (2000) 4 SCC 502, State of A.P. vs. Polamala Raju @ Rajarao, (2000) 7 SCC 75, M.P. vs. Bala @ Balaram, (2005) 8 SCC 1, State of Karnataka vs. Krishnappa, (2000) 4 SCC 75, Bhupinder Sharma vs. State of Himachal Pradesh (2003) 8 SCC 551; State of M.P. vs. Balu (2005) 1 SCC 108; State of Madhya Pradesh vs. Bablu Natt (2009) 2 SCC 272; and State of Rajasthan vs. Vinod Kumar (2012) 6 SCC 770, Relied.
HELD: Before we evaluate the case at hand in the light of above established principle that all punishments must be directly proportionate to the crime committed, it is imperative to comprehend the legislative intent behind Section 376(2)(g) IPC.
(Para 10).
A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of gang rape, for a term, which shall not be less than 10 years, but it may extend to life and shall also be liable to fine. The proviso to Section 376(2) IPC, of course, lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where gang rape is committed is not less than 10 years though in exceptional cases, the Court by giving “special and adequate reasons”, can also award the sentence of less than 10 years.
(Para 11)
It is a fundamental rule of construction that a proviso must be considered in relation to the main provision to which it stands as a proviso, particularly, in such penal provisions. Whether there exist any “special and adequate reason” would depend upon a variety of factors and the peculiar facts and circumstances of each case. This Court, in various judgments, has reached the consensus that no hard and fast rule can be laid down in that behalf for universal application.
(Para 12)
Thus, the law on the issue can be summarized to the effect that punishment should always be proportionate/commensurate to the gravity of offence.
(Para 21)
Shimbhu v. State of Haryana [Bench Strength 3], Criminal Appeal Nos. 1278-1279/2013 (Arising out of S.L.P. (Crl.) Nos. 1011-1012/2012) (27/08/2013), 2013(10) SCALE 595: 2013(11) JT 614 [P. Sathasivam, C.J.: Ranjana Prakash Desai, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 376(2)(g) — Gang rape — Sentencing Policy — Non-influencing factors — Enumerated — Criminal Procedure Code, 1973 — Section 235(2).
Baldev Singh and Others vs. State of Punjab (2011) 13 SCC 705, Mohd. Imran Khan vs. State Government (NCT of Delhi) (2011) 10 SCC 192, Distinguished.
HELD: Thus, the law on the issue can be summarized to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute. The power under the proviso should not be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation.
(Para 21)
Shimbhu v. State of Haryana [Bench Strength 3], Criminal Appeal Nos. 1278-1279/2013 (Arising out of S.L.P. (Crl.) Nos. 1011-1012/2012) (27/08/2013), 2013(10) SCALE 595: 2013(11) JT 614 [P. Sathasivam, C.J.: Ranjana Prakash Desai, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 376(2) — Rape — Warning against soft view — Mitigating circumstances of compromise — Held, this is yet another opportunity to inform the subordinate Courts and the High Courts have taken soft view despite stringent provisions of rape, by taking aid of the proviso to Section 376(2) IPC — The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases — Constitution of India — Article 141.
HELD: This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape under Section 376 IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases.
(Para 23)
Shimbhu v. State of Haryana [Bench Strength 3], Criminal Appeal Nos. 1278-1279/2013 (Arising out of S.L.P. (Crl.) Nos. 1011-1012/2012) (27/08/2013), 2013(10) SCALE 595: 2013(11) JT 614 [P. Sathasivam, C.J.: Ranjana Prakash Desai, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Articles 21 & 226 — Investigation — Transfer from SIT to CBI — Non-commencement despite repeated direction — Scuffle had taken place on 02.03.2012 among advocates, media persons and police personnel in City Civil Court complex at Bangalore while production of a former minister of State Government — Scuffle followed by resort of police lathi charge, pelting of stones which caused many injuries and damage to property including burning of vehicles — While disposing a writ petition field by Bar Association, the High Court of Karnataka, directed State Government to carry out investigation by a SIT headed by a retired Director of CBI, namely Mr. Raghawan and current Director General of Police (Crime) within 3 months — Appeal of Bar Association was dismissed by Supreme Court with direction to complete on investigation within 6 months — The State Government moved application for extension of further time for completion of investigation — Bar Association moved application for transfer of investigation from SIT to CBI — Held, even after lapse of one year and five months the constitution of SIT has not been completed — In these circumstances it is fit case to apply the ratio of Committee for Protection of Democratic Rights’s Case — CBI is directed to carry on investigation and complete it within six months of receipt of the copy of order — SIT shall hand over all documents to CBI — Criminal Procedure Code, 1973 — Sections 157 & 156.
State of West Bengal and Others vs. Committee for Protection of Democratic Rights, West Bengal and Others, (2010) 3 SCC 571, Followed.
HELD: Keeping the above principles in mind, considering the series of unfortunate incidents which occurred within the City Civil Court Complex, Bangalore on 02.03.2012 involving members of the bar, police personnel, journalists and media persons and in spite of the specific direction by the High Court as early as on 16.05.2012, subsequent order of this Court dated 19.10.2012, and also of the fact that the composition of SIT itself has not been finalized, we feel that the present case falls within the principles enunciated by the Constitution Bench and we are satisfied that CBI inquiry is necessitated in the matter in issue.
(Para 11)
In the light of what is stated above, while setting aside the impugned order of the High Court dated 16.05.2012 and in modification of earlier order of this Court dated 19.10.2012, we entrust the entire investigation of the incident to the CBI. Accordingly, we direct the CBI to carry out the investigation and submit a report before the appropriate Court having jurisdiction at Bangalore within a period of six months from the date of receipt of copy of this judgment. We further direct the State/SIT to immediately hand over all the records pertaining to the said investigation to the CBI.
(Para 12)
The appeal is allowed on the above terms. In view of the above direction, no separate order is required in I.A. No. 8 of 2013, accordingly, the same is also disposed of.
(Para 13)
Advocates Association, Bangalore v. Union of India [Bench Strength 3], Civil Appeal No. 7159/2013 (Arising out of SLP (C) No. 22604/2012) with I.A. No. 8 In Civil Appeal No. 7159/2013 (Arising out of SLP (C) No. 22604/2012) (27/08/2013), 2013(10) SCALE 590: 2013(11) JT 622 [P. Sathasivam, C.J.: Ranjana Prakash Desai, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Education — Recognition — Master degree in Dental Surgery (MDS) — Decline to renew without personal hearing — Petitioner was granted NOC by State Government, affiliation by fourth respondent university and ultimately recognition for 7 specialty courses of MDS by Central Government — Subsequently 2 more specialty courses viz MDS were recognized for Session 2012-13 but despite NOC by state and affiliation by the university not accorded by Union of India for renewal of recognition on inspection and verification inspection report of Dental Council of India for session 2013-14 without affording any personal hearing — Writ Court went with Union of India — Challenged — Held, DCI recommended negatively on the ground on non-fulfillment of required surgery in a month which was confronted by petitioner, but recommendation sent without opportunity of hearing — Hearing on both stages by DCI as well as by Union of India were required — High Court committed error in interpreting Section 10A, accordingly, impugned judgment is set aside on this sole ground — However, putting clock back is not possible for session 2013-14, accordingly the matter is remitted back before Central Government to decide afresh for the next session — Government shall also consider other issues raised by petitioner — Petitioner is also free for fresh application as per rules — Dental Council of India Act, 1948 — Section 10-A(4).
Managing Director, ECIL, Hyderabad, Etc. vs. Karunakar, etc., (1993) 4 SCC 727, Priyadarshini Dental College & Hospital Vs. Union of India (2011) 4 SCC 623, Relied.
HELD: In fact, this case itself provides an excellent example of the importance of such a hearing and adhering to the principle of natural justice viz. audi alteram partem. According to the DCI, even after second inspection some deficiencies were found. On that basis and without confronting the petitioner and further, it sent its report to the Central Government recommending denial of permission. However, as per the petitioner, there were no such deficiencies. It had filed the additional affidavit dated 2.7.2013 in the High Court in its attempt to refute the stand of the DCI regarding deficiencies. To demonstrate, one of the deficiencies pointed out by the DCI was that total number of surgeries/major as well as minor, conducted by the petitioner-college were far less than the benchmark stated in the Regulations to enable the petitioner to seek renewal of permission. The DCI had stated that there is requirement of one (1) major Surgery and Eight (8) Minor Surgeries per week as per Performa. However, the surgeries performed by the petitioner-college, as per the Performa attached by the college itself was much less then the aforesaid requirements. The petitioner-college sought to clarify and explain this position in its aforesaid affidavit dated 2.7.2013 by pointing out that while calculating the figure, the DCI had taken into consideration PG surgeries only and ignored the figure pertaining to UG surgeries whereas the inspection Performa supplied by the DCI categorically mentioned “both UG and PG together”. It was sought to demonstrate that if figures of UG and PG surgeries are taken together, the petitioner-college had satisfied the stipulated requirements. At this juncture, we are not commenting as to whether the aforesaid stand of the petitioner-college is correct or not. We are highlighting the importance, necessity and justification of granting an opportunity of being heard by the Central Government as well, before taking final decision after the report of the DCI is sent to the Central Government which is against the applicant seeking permission for renewal. In that event, if the opportunity of being heard is given, the applicant would get a chance to point out mistakes if any, factual or otherwise, in the report of the DCI and the Central Government would have version of the applicant also before it at the time of taking final decision on the report. In the given case itself on such an opportunity of being heard given by the Central Government to the petitioner, the petitioner could have explained its stand before the Central Government to enable the Central Government to take a view as to whether it should accept the report of DCI or discard the same finding the explanation of the petitioner thereto, as satisfactory.
(Para 22)
We are of the considered opinion that the High Court has not correctly interpreted the provisions of Section 10A of the Act by holding that the cases of renewal of permission would not be covered by this Section and therefore it was not necessary for the Central Government to give opportunity of being heard to the petitioner before rejecting the renewal permission.
(Para 25)
As in the present case, since no such opportunity of being heard the requirement of proviso to sub-section (4) of Section 10A of the Act was not afforded to the petitioner, the decision dated 30th March 2013 of the Central Government warrants to be set aside on this ground alone.
(Para 27)
For the aforesaid reasons, we are of the view that in so far as the academic session 2013-14 is concerned, it is not possible to put the clock back. Thus, while setting aside the impugned orders and remitting the case back to the Central Government for taking fresh decision, we make it clear that it would not relate to the academic session 2013-14. However, the case can be considered for renewal of permission for the next academic session on the basis of existing material. For this, hearing should be given to the petitioner to demonstrate that they have overcome the deficiencies and they no longer exist. If the Central Government is satisfied on these aspects it may grant renewal permission for the next academic session 2014-15. In case the renewal of permission is rejected, the petitioner will have to undergo the process of seeking fresh permission for next academic session i.e. 2014-15 by submitting fresh scheme/proposal to the DCI for that year, as per the procedure prescribed in the Act & Regulations.
(Para 30).
Swamy Devi Dayal Hospital & Dental College v. Union of India [Bench Strength 2], Special Leave Pettiion (Civil) No. 25698/2013 (27/08/2013), 2013(10) SCALE 608: 2013(11) JT 600 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Dental Council of India Act, 1948 — Section 10-A(4) — Recognition — Super specialty Master of Dental Surgery (MDS) — Essential of personal hearing for declination of non-renewal — High Court interpreted that affording hearing was only essential for new courses but not for renewal of courses — Held, a holistic reading of the provisions of this section prescribing the scheme containing the procedure for establishment of new dental college and new courses of study etc. would clearly demonstrate that this provision applies even to the cases of renewal of such permission as well.
HELD: A bare reading of sub-section (4) makes it abundantly clear that even the Central Government, before taking a decision on the recommendation of the DCI is required to give a reasonable opportunity of being heard in case it proposes to disapprove the scheme submitted by an educational institution. It was, however, argued before the High Court that such a hearing is required only when the question of permission for establishment of new dental college or new course or studies comes up for consideration and Section 10A does not deal with the cases of renewal of permission. The High Court has accepted this contention of the Government.
(Para 15)
With respect to the High Court, we are unable to subscribe to the aforesaid interpretation given to the provision of Section 10A of the Act. No doubt, heading of this section suggests that it deals with “permission for establishment of new dental college, new courses of study, etc.” However, holistic reading of the provisions of this section prescribing the scheme containing the procedure for establishment of new dental college and new courses of study etc. would clearly demonstrate that this provision applies even to the cases of renewal of such permission as well.
(Para 16).
Swamy Devi Dayal Hospital & Dental College v. Union of India [Bench Strength 2], Special Leave Pettiion (Civil) No. 25698/2013 (27/08/2013), 2013(10) SCALE 608: 2013(11) JT 600 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Education — Recognition — Supper specialty Master in Dental Surgery — Procedural scheme under 1948 Act — Discussed — Dental Council of India Act, 1948 — Section 10-A.
HELD: It is a common case that the procedure contained in section 10A for seeking permission, applies to new courses of studies as well. Section 10A(1)(b) deals with opening of new or higher course of study or training as well as increasing its admission capacity in any course of study or training. In both the eventualities prior permission of Central Government is to be obtained. Explanation 2 clarifies the meaning of “admission capacity” in relation to any course of study or training to mean “the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.”
(Para 17)
We are, therefore, of the opinion that the cases of renewal cannot be excluded from the provisions of Section 10A of the Act. It was not disputed before us that when the petitioner-college applied for renewal of the permission, the application was processed in accordance with the procedure laid down in section 10A. As per this procedure, when a request is received in the form of a requisite scheme, as required in sub-section (2) of Section 10A of the Act, the same is to be processed in the manner provided under sub-section (3) thereof. Once it is found by the DCI that all the parameters for granting permission are met, it recommends the grant of approval of the scheme to the Central Government. In case Scheme it is found to be deficient, sub-section (3) (a) of Section 10A of the Act casts an obligation on the part of the DCI to give a reasonable opportunity for making a written representation and also to rectify the deficiencies, any, specified by the DCI. After the recommendation is sent by the DCI to the Central Government, Central Government is required to process the same in accordance with the procedure contained in sub-section (4) of Section 10A. It can either approve or disapprove the Scheme. However, in case the Central Government is proposing to disapprove the Scheme, a final decision in this behalf can be taken only after giving the concerned person, authority or institution, a reasonable opportunity of being heard. This is the mandate of the proviso to Section 10A (4) of the Act.
(Para 18)
Thus, the procedure prescribed in Section 10A contains the requirement of following this principle of natural justice at two stages. In the first place, by the DCI when it finds deficiencies while examining the school in the second stage at the level of the Central Government before it passes away adverse orders, as it is the final administrative authority vested with powers to pass such an order. The law, thus specifically requires that at the stage of a decision by the Central Government, again an opportunity of being heard is to be provided. This proviso, thus, acknowledges the need of and confers a very valuable right in favour of the petitioner.
(Para 19)
Swamy Devi Dayal Hospital & Dental College v. Union of India [Bench Strength 2], Special Leave Pettiion (Civil) No. 25698/2013 (27/08/2013), 2013(10) SCALE 608: 2013(11) JT 600 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Education — Recognition — Non-renewal of Master in Dental Surgery — Essential to comply natural justice — Held, non-renewal thereof in the present academic session has an adverse affect bearing civil consequences — Even in the absence of specific provision of giving hearing, the hearing is required in such cases unless specifically excluded by a statutory provision — Dental Council of India Act, 1948 — Section 10-A-Provisio — Administrative Law — Audi Alteram Partem.
Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Central-1 and Anr., (2008) 14 SCC 151, Relied.
HELD: In the present case, the petitioner had been accorded permission in these two specialties for the previous academic session. Non-renewal thereof in the present academic session has an adverse affect. It has visited the petitioner with civil and/or evil consequences barring the petitioner to enroll fresh students in this year.
(Para 20)
It is trite that even in the absence of specific provision of giving hearing, the hearing is required in such cases unless specifically excluded by a statutory provision. In such a situation the proviso to sub-section (4) of Section 10 A has to be liberally construed to encompass the cases of renewal of permission as well.
(Para 21).
Swamy Devi Dayal Hospital & Dental College v. Union of India [Bench Strength 2], Special Leave Pettiion (Civil) No. 25698/2013 (27/08/2013), 2013(10) SCALE 608: 2013(11) JT 600 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Dental Council of India Act, 1948 — Section 10-A(4) — Renewal of recognition — Supper specialty MDS course — Required procedure — Essential requirement enumerated.
HELD: We, accordingly, sum up the legal position, touching upon the issue, on the interpretation of Section 10A (4) of the Act, as below:
(a) Section 10A applies to the cases of renewal of permission as well;
(b) It contemplates grant of opportunity of being heard at two stages. First stage would be at the level of DCI after the scheme is submitted to DCI under sub-section (2) of Section 10A of the Act. Once it is found by the DCI that all the parameters for granting permission are met, it recommends the grant of approval of the scheme to the Central Government. In case Scheme it is found to be deficient, sub-section (3) (a) of Section 10A of the Act casts an obligation on the part of the DCI to give a reasonable opportunity for making a written representation and also to rectify the deficiencies, if any, specified by the DCI. Second stage of adherence to the principles of natural justice is provided at the level of Central Government at the time when it has to take final decision, after the receipt of the recommendation sent by the DCI. This requirement of hearing is stipulated in proviso to sub-section (4) of Section 10A, in the event the Central Government is proposing to disapprove the scheme.
(c) The expression “opportunity of being heard” occurring in this proviso would mean that the material that goes against the applicant and is to be taken into consideration, is to be supplied to the applicant within an opportunity to make representation. For this purpose either the report of the DCI itself can be supplied or atleast the deficiencies pointed out in the report have to be communicated by the Central Government to the applicant with an opportunity to furnish its comments thereupon. At that stage while giving its reply, if the applicant claims personal hearing, such a personal heaing should also be accorded.
(Para 26)
Swamy Devi Dayal Hospital & Dental College v. Union of India [Bench Strength 2], Special Leave Pettiion (Civil) No. 25698/2013 (27/08/2013), 2013(10) SCALE 608: 2013(11) JT 600 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Education — Non-recognition — Supper specialty MDS Course — Effect of setting aside — Held, consequence of setting aside non-recognition, it would not automatically follow that direction can be issued to the Central Government to accord such a permission — Dental Council of India Act, 1948 — Section 10-A(4).
(Para 28)
Swamy Devi Dayal Hospital & Dental College v. Union of India [Bench Strength 2], Special Leave Pettiion (Civil) No. 25698/2013 (27/08/2013), 2013(10) SCALE 608: 2013(11) JT 600 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 21 Rule 47 — Objection of execution — Modification of award of land acquisition — Differences on measurement scale — Respondent filed execution of award passed by Reference Court before ADJ — Appellant herein raised objection that one Morla is equivalent to 22 sq. yards in stead of 30 squire yards as held by the Reference Court — Reference Court as well as High Court dismissed the objection as it amounts to modification of award on merits — Held, ADJ had no jurisdiction to modify the award — If appellant had any grievance could challenge the award under Section 54 of LA Act, failure the same had no remedy — Appeal dismissed — Land Acquisition Act, 1894 — Sections 18 & 54.
HELD: We have considered the respective arguments. In our view, while deciding the objections filed under Section 47 CPC, the Additional District Judge did not have the jurisdiction to go into the legality or correctness of judgment dated 9.4.2001 by which compensation was awarded to the respondent on the premise that one marla is equivalent to 30 sq. yards. If the appellants felt aggrieved by judgment dated 9.4.2001 then they should have filed appeal under Section 54 of the Act. Having failed to do that, the appellants cannot seek modification of the judgment by relying upon alleged measurement of the land for Anandpur Sahib which according to the appellants is different than the measurement of land in other areas.
(Para 10).
Land Acquisition Collector, Mohali v. Surinder Kaur [Bench Strength 2], C.A. No. 6993/2013 (Arising out of SLP (C) No. 19985/2008) (22/08/2013), 2013(10) SCALE 406 [G.S. Singhvi, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Motor Vehicles Act, 1988 — Section 149 — Absolving liability of insurance — Dishonour of cheque issued for premium — Intimation of dishonour to insured after accident — High Court dismissed the appeal of appellant insurance company holding that since the dishonour of the cheque issued for premium was intimated to insured after occurrence of accident, therefore, insurance cannot absolve from its liability — Challenged — Held, since the insured was intimated after the accident and just after intimation he had issued a fresh cheque in place of earlier cheque, therefore, appellant cannot be exonerated from its liability.
United India Insurance Co. Ltd. Vs. Laxmamma & Ors., (2012) 5 SCC 234, Referred.
HELD: The defence of the insurance company that the policy of insurance was not valid since the cheque had been dishonoured prior to the accident would not exonerate them from making the payment of compensation. In this matter, admittedly the accident had taken place on 19.04.2000 and the cheque although had been dishonoured prior to the accident on 17.04.2000, the intimation to the policy-holder had been given by the insurance company on 26.04.2000, in view of which the insurance company cannot be allowed to contend that the policy-holder was not holding a valid policy of insurance in regard to the vehicle which met with an accident. Admittedly, the policy-holder had already issued another cheque substituting the cheque which had earlier been dishonoured.
(Para 4)
In that view of the matter and following the ratio of the judgment referred to hereinbefore, this appeal has no substance and accordingly it is dismissed. No order as to costs.
(Para 5)
National Insurance Co. Ltd. v. Balkar Ram [Bench Strength 2], C.A. Nos. 2159/2007 (09/07/2013), 2013(10) SCALE 430 [Gyan Sudha Misra, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Articles 14 & 21 — Project displaced — Denial of similar compensation — Validity of agreement — In pursuance to earlier policy of the Vidarbha Irrigation Development Corporation, Nagpur, petitioners surrendered their land allotted for rehabilitation in lieu of 50,000/- fixed compensation — Subsequently Corporation offered enhanced amount of Rs.3,70,055/- to similarly situated persons who have opted earlier — Petitioners/appellants claimed equal compensation but their claim was rejected by capable authority — Division Bench of High Court affirmed the rejection holding once agreement was entered and satisfied, now appellant could not be allowed for its reopening — Challenged — Held, other similarly persons have been paid higher compensation — Agreement of Government with appellants were against public police, hence are void — High Court was not correct by affirming the rejection, accordingly set aside — Official respondents are directed to pay compassion to appellants at par with others — Maharashtra Project Affected Persons Rehabilitation Act, 1999 — Contract Act, 1872 — Section 23 — Contract against public policy — Doctrines — Theory of unconscionable contract.
Central Inland Water Transport Corporation Ltd. and Anr. vs. Brojo Nath Ganguly and Anr., AIR 1986 SC 1571, Relied.
(Para 6, 8 to 10)
Daulat Sitaram Kodone v. State of Maharashtra [Bench Strength 2], C.A. No. 6361/2013 (Arising out of SLP (C) No. 31367/2011) (06/08/2013), 2013(10) SCALE 450 [G.S. Singhvi, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 14 — Divestment — Divestment of 10% equity share of CIL — Non-adopting assets valuation methodology — Plea of petitioner of PIL that non-adopting of assets valuation methodology caused undue loss to public exchequer and it was against fairness — Held, this was not a sale of assets but it was sale of equity shares — Fixing price band after following the ICDR and on taking into consideration of the relevant methodologies of valuation for sale of equity capital cannot be said that the price band so fixed was unreasonable or sale of 10% equity capital by CIL was unfair — Accordingly writ petition dismissed — Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 — Administrative Law — Fairness.
(Paras 8 to 10)
Ehsan Khalid v. Union of India [Bench Strength 2], W.P. (C) No. 429/2013 (05/08/2013), 2013(10) SCALE 452 [R.M. Lodha, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Sections 14 & 13(4) — Judicial assistance — Taking possession of secured assets — Without making recourse under Section 13 (4), effect — CJM had taken possession of secured assets of respondent guarantor on direct approach by appellant Bank — High Court set aside the taking of possession by CJM under writ jurisdiction holding that mandatory requirement under Section 13 (4) and Rule 8 was not fulfilled before approaching the Magistrate under Section 14 for judicial assistance causing loss of valuable legal right of respondent for appeal — Challenged — Held, none of the respondent had occasioned to raise objection as none had objected the demand — Appellant had filed an affidavit before Magistrate providing necessary information despite it was not necessary as the proviso making such provision was incorporated in the Act by amendment after proceedings before Magistrate — On perusal of the said affidavit, even the newly amended provision had also been complied — Though there was no material before the Magistrate to satisfy himself for contents of affidavit, but the same was not required under law on date of decision by the Magistrate — Though respondent had right to challenge his deprivation of possession by the Magistrate under Section 17 of the Act, but he had chosen to challenge under Section 226 of the Constitution — Accordingly the impugned order passed by High Court is set aside — However, it is open for respondent to secure possession back of property under law — Security Interest (Enforcement) Rules, 2002 — Rule 8 — Constitution of India — Article 226 — Banking Law.
HELD: Coming to the facts of this case, a notice under section 13(2) was in fact served on the respondent for which the respondent did not choose to respond. Therefore, there was no occasion for the appellant to consider the objections as there was none of the respondent against the demand made in the said notice. It is brought to our notice that even while making application under section 14 the appellant filed an affidavit substantially providing for the necessary information contemplated under the newly introduced proviso to section 14 (1). We have already noticed that there was no statutory requirement as on the date when the application under section 14 was made in the instant case either to give such an affidavit or regarding the content of the affidavit. Nonetheless the appellant chose to give such an affidavit. A copy of which is placed before us. We have perused the affidavit and it substantially complies with the conditions stipulated in the newly introduced proviso. May be the appellant did it by way of abundant caution to avoid any litigation.
(Para 39).
However, the respondent submitted before us that there is nothing in the impugned order of the Magistrate which indicates that the Magistrate applied his mind to such an affidavit and satisfied that it is necessary to deliver possession of the secured asset to the appellant. No doubt that there is no material on record to show that the Magistrate applied his mind to the facts stated in the affidavit filed by the appellant. On the date of the impugned order the law did not oblige the Magistrate to undertake any such exercise. Apart from that we are satisfied on examination of the content of the affidavit that all the basic requirements necessary for granting the request of the appellant of delivery of the possession of the secured asset are asserted to have existed on the date of application. Therefore, we do not see any illegality in the impugned order. The appeal is allowed. The order of the High Court is set aside.
(Para 40)
In view of our conclusion on the scope of section 17 recorded earlier it would normally have been open to the respondent to prefer an appeal under section 17 raising objections regarding legality of the decision of the Magistrate to deprive the respondent of the possession of the secured asset. But in view of