The apex court’s five-judge Constitution bench was unanimous in striking down Section 497 of the Indian Penal Code dealing with the offence of adultery, holding it as manifestly arbitrary, archaic and violative of the rights to equality and equal opportunity to women… Read More Joseph Shine Vs. Union of India [ALL SC 2018 SEPTEMBER]
September 11, 2018-TITLE APPEAL-Keeping in view the scope and ambit of the powers of the High Court while deciding the second appeal when we advert to the facts of the case, we find that the High Court committed an error in allowing the defendants’ second appeal and further erred in dismissing the plaintiffs’ suit by answering the substantial question of law. This we say for more than one reason.
First, mere perusal of the impugned order would go to show that the High Court had admitted the second appeal by framing only one substantial question of law, namely, whether the first Appellate Court was justified in dismissing the defendants’ first appeal by taking into consideration one earlier litigation in relation to the suit land, which was not between the same parties. The High Court held that the first Appellate Court was not justified because the earlier litigation was not between the present plaintiffs and the defendants but it was between the different parties and, therefore, any decision rendered in such litigation would not operate as res judicata in the present litigation between the parties. This resulted in allowing of the appeal and dismissing the suit.
Second, the High Court committed another error when it failed to frame any substantial question of law on the issue of the plaintiffs’ ownership over the suit land. So long as no substantial question of law was framed, the High Court had no jurisdiction to examine the said issue in its second appellate jurisdiction. In other words, the High Court having framed only one question, which did not pertain to issue of ownership of the suit land, had no jurisdiction to examine the issue of ownership. It was not permissible in the light of Section 100 (5) of the Code, which empowers the High Court to decide the appeal only on the question framed and not beyond it.
Third, the High Court could invoke its powers under proviso to subsection (5) of Section 100 and frame one or two additional questions, as the case may be, even at the time of hearing of the second appeal. It would have enabled the High Court to examine the issue of ownership of the suit land in its correct perspective. It was, however, not done by the High Court.
Fourth, the High Court, while examining the question framed, also cursorily touched the ownership issue which, in our opinion, the High Court could not have done for want of framing of any substantial question of law on the ownership issue. That apart, the High Court also failed to see that the issue of res judicata and the issue of ownership were independent issues and the decision on one would not have 14 answered the other one. In other words, both the issues had to be examined independent of each other on their respective merits. It was, however, possible only after framing of substantial questions on both the issues as provided under Section 100(4) and (5) of the Code. This was, however, not done in this case.… Read More Narayana Gramani & Ors. Vs. Mariammal & Ors [ALL SC 2018 SEPTEMBER]
September 07, 2018 – Direct Recruitment-Supreme Court discussed the following issues for decision:
I Whether the Railways is bound by the rules framed by the DoPT or it can frame its own rules and whether the IREM has statutory force?
II Whether Shri R.K. Kushwaha, the direct recruit had laid challenge to the rules, which provide for giving weightage in the seniority to the promotee officers?
III Whether the findings of the CAT in respect of N.R. Parmar’s case (supra) was limited to removing the arbitrariness only in respect of ‘DITS’?
IV Whether by issuing the memorandum dated 05.03.2018 amendment/modifying rules 327341 the Railways have violated the order issued by the CAT?
I Whether the Railways is bound by the rules framed by the DoPT or it can frame its own rules and whether the IREM has statutory force?… Read More Prabhat Ranjan Singh & ANR. Vs. R.K. Kushwaha & Ors. [ALL SC 2018 September]
SEPTEMBER 07, 2018 : Ordinarily wherever the word ‘substitute’ or ‘substitution’ is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. The process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. No doubt, in certain situations, the Court having regard to the purport and object sought to be achieved by the Legislature may construe the word “substitution” as an “amendment” having a prospective effect.… Read More Gottumukkala Venkata Krishamraju Vs. Union of India & Ors. [ALL SC 2018 SEPTEMBER]
September 07, 2018: LAND ACQUISITION-Any act done by the parties in relation to the subject matter of the appeals after the impugned order, cannot be pressed into service to support the impugned order. In other words, the legality and correctness of the impugned order has to be examined in the light of reasoning contained in the impugned order and not on the basis of the acts done by the parties subsequent to the passing of impugned order. It is for this reason the acts done by the party subsequent to passing of the impugned order are of no relevance for deciding the present appeals. APPEAL ALLOWED.… Read More Mysore Urban Development Authority Vs. K.M. Chikkathayamma & Ors.[ALL SC 2018 September]
September 6, 2018:-SECTION 377of IPC-Homosexuality-It is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent,… Read More Navtej Singh Johar & Ors. Vs. Union of India through Secretary, Ministry of Law and Justice [ALL SC 2018 September]
September 6, 2018-Writ Petitions under Article 32-Army Service Corps-The Officers belonging to the ASC, Army Ordinance Corps, and Electronic and Mechanical Engineers, i.e. the services stream, do not constitute a common cadre with those serving in the Arms, and Arms Support for the purposes of promotion.4 As a result, they were not entitled to be considered for promotion to the rank of Colonel against the vacancies created in pursuance of the implementation of the AVS Committee Report.
The Petitioners have contended that the Posting Orders passed by the Respondents posting them to operational areas/units is violative of their Fundamental Rights guaranteed by Articles 14 and 21 of the Constitution. The Petitioners have, however, failed to substantiate how their Fundamental Rights have been violated. Postings and transfers are a necessary incident of service. Hence, the grievance, if any, cannot be entertained under Article 32.… Read More Maj. Amod Kumar Vs. Union of India & ANR. [ALL SC 2018 SEPTEMBER]
September 05, 2018-ILLEGAL ARREST-Habeas corpus-whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in the case of Saurabh Kumar through his father Vs. Jailor, Koneila Jail and Anr., 1 and Manubhai Ratilal Patel Vs. State of Gujarat and Ors.2 It is no more res integra. The Respondent ought to have filed a Revision against the Order of remand than to file a Habeas Corpus to challenge the Arrest-APPEAL ALLOWED-RESPONDENT REARRESTED… Read More State of Maharashtra & Ors. Vs. Tasneem Rizwan Siddiquee [ALL SC 2018 SEPTEMBER]
September 05, 2018: Section 42 OF NDPS ACT-An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public-CONVICTION UPHELD.… Read More S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal [ALL SC 2018 SEPTEMBER]
September 05, 2018: The U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961-Validity of the notice-Whether in a given case, the Collector has transgressed the limits of his own jurisdiction is a matter which can be addressed in a challenge under Article 226 of the Constitution. We clarify that we have not provided an exhaustive enumeration or list of circumstances in which the Collector can determine the validity of the notice furnished under sub-section (2) in each case and it is for the Collector in the first instance and for the Court in the exercise of its power of judicial review, if it is moved, to determine as to whether the limits on the power of the Collector have been duly observed-APPEAL DISMISSED.… Read More Smt. Kavita Vs. State of Uttar Pradesh through Secretary & Ors.[ALL SC 2018 SEPTEMBER]