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Bombay Public Trust Act, 1950 — Section 18 — Registration with retrospective effect

October 14th, 2013

Bombay Public Trust Act, 1950 — Section 18 — Registration with retrospective effect — Non-existence of — Held, the Act is silent about the registration with retrospective effect.

(Para 15)

Church of North India v. Lavajibhai Ratanjibhai & Ors., 2005 (10) SCC 760, Relied on.

(Para 22)

Vinod Kumar Mathurseva Malvia & Anr. v. Maganlal Mangaldas Gameti and Ors., 2006 (9) SCC 282 & Church of North India v. Lavajibhai Ratanjibhai & Ors., 2005 (10) SCC 760, Relied on.

(Para 23)

(Para 12)

(Para 13)

Vinod Kumar M. Malavia v. Maganlal Mangaldas Gameti [Bench Strength 2], Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) (30/09/2013), Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 156(3) — Complaint against public servant — Investigation at pre-cognizance stage, Requirement of sanction — Private complaint on allegations of offences punishable under PC Act — Special Judge/Magistrate directed investigation by Deputy Superintendent of Police, without production of valid sanction order — High Court quashed the order passed by Special Judge, as well as complaint — Appeals by complainants — Held, once it is noticed that there was no previous sanction, Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. — No error in the order passed by High Court — Appeals dismissed — Prevention of Corruption Act, 1988 — Sections 19 & 2(c) — Sanction — Pre-condition for ordering investigation.

State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, Subramanium Swamy v. Manmohan Singh and another, (2012) 3 SCC 64 & General Officer, Commanding v. CBI, Criminal Appeal No. 257 of 2011, Relied on.

(Para 13)

Maksud Saiyed v. State of Gujarat and Others, (2008) 5 SCC 668, Relied on.

(Para 8)

State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, Referred.

(Para 10)

(Para 11)

Anil Kumar v. M.K. Aiyappa [Bench Strength 2], Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) (01/10/2013), Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 — Section 59 — Direction of Chief Commissioner — For inclusion of cadre in list of identified posts, Validity of — Respondent applied for promotion under physically handicapped person`s quota after availing all facilities of restructured Cadre — Chief Commissioner entertained the complaint and directed the appellants to include the TOA cadre which is required to do clerical work and other such jobs in the list of identified jobs — Challenged — Held, promotion in the physically handicapped quota was limited to certain categories of posts — Since the respondent was a TOA, which was not identified for the purpose of reservation for physically handicapped persons and hence his claim for promotion to Grade-IV could not be allowed since the promotion to the Grade was based on seniority in the basic cadre and in fact there was no reservation even for SC/ST candidates for promotion to Grade-IV — Appeal allowed.

(Para 9, 10 & 11)

(Para 12)

Bharat Sanchar Nigam Limited v. G. Sarvothaman [Bench Strength 2], Civil Appeal No. 8947/2013 (Arising out of S.L.P. (Civil) No. 24120/2007) (04/10/2013), Civil Appeal No. 8947/2013 (Arising out of S.L.P. (Civil) No. 24120/2007) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Arbitration Act, 1940 — Sections 20 & 21 — Reference to arbitration — B-1 Agreements, Lack of clause to confer role of arbitrator, Effect of — B-1 Agreements between Government of Maharashtra and appellant — Dispute arose between parties and recovery proceedings initiated before court — Trial Court declared that Clause 30 of B-1 Agreement is an arbitration clause and appointed Chief Engineer (PWD) as an Arbitrator and referred all the disputes to him — In Revision Application filed by respondents against the order of the trial Court, Single Judge held that Clause 30 of B-1 Agreement cannot be treated as an arbitration clause — Appeal — Held, there is nothing in the language of Clause 30 from which it can be inferred that the parties had agreed to confer the role of arbitrator upon the Superintending Engineer of the Circle — High Court rightly held that Clause 30 of B-I Agreement is not an Arbitration Agreement and the trial Court was not right in appointing the Chief Engineer as an Arbitrator — Appeals dismissed

Bihar State Mineral Development Corporation and another v. Encon Builders (I)(P) Limited, (2003) 7 SCC 418, Referred.

Mallikarjun Vs. Gulbarga University, 2004 (1) SCC 372 & Punjab State v. Dina Nath, (2007) 5 SCC 28, Distinguished.

(Para 17 & 31)

State of U.P. Vs. Tipper Chand, 1980(2) SCC 341, State of Maharashtra v. M/s. Ranjeet Constructio, Civil Appeal No. 4700/1985, State of Orissa Vs. Damodar Das, 1996 (2) SCC 216, K.K. Modi v. K.N. Modi (1998) 3 SCC 573 & Bharat Bhushan Bansal v. U.P. Small Industries Corporation Limited, Kanpur, (1999) 2 SCC 166, Relied on.

(Para 17)

HELD: A conjoint reading of Clauses 29 and 30 of B-1 Agreements entered into between the parties shows that the appellant had to execute all works subject to the approval in all respects of Superintending Engineer of the Circle, who could issue directions from time to time about the manner in which work was to commence and execute. By virtue of Clause 30, decision of the Superintending Engineer of the Circle was made final, conclusive and binding on all the parties in respect of all questions relating to the meaning of the specifications, designs, drawings, quality of workmanship or materials used on the work or any other question relating to claim, right, matter or things arising out of or relating to the contract designs, drawings, specifications, estimates, instructions, orders, etc. These two clauses by which the Superintending Engineer was given over all supervisory control were incorporated for smooth execution of the works in accordance with the approved designs and specifications and also to ensure that quality of work is not compromised. The power conferred upon the Superintending Engineer of the Circle was in the nature of a departmental dispute resolution mechanism and was meant for expeditious sorting out of problems which could crop up during execution of the work. Since the Superintending Engineer was made overall in-charge of all works to be executed under the contract, he was considered by the parties to be the best person who could provide immediate resolution of any controversy relating to specifications, designs, drawings, quality of workmanship or material used, etc. It was felt that if all this was left to be decided by the regular civil Courts, the object of expeditious execution of work of the project would be frustrated. This is the primary reason why the Superintending Engineer of the Circle was entrusted with the task of taking decision on various matters. However, there is nothing in the language of Clause 30 from which it can be inferred that the parties had agreed to confer the role of arbitrator upon the Superintending Engineer of the Circle.

(Para 17)

Vishnu v. State of Maharashtra [Bench Strength 3], Civil Appeal No. 3680/2005 (04/10/2013), Civil Appeal No. 3680/2005 [G.S. Singhvi, J.: V. Gopala Gowda, J.: C. Nagappan, J.] <<LAWPACK SUPREME COURT>>
Arbitration and Conciliation Act, 1996 — Section 2(a) — Arbitration agreement — Circulars issued by State Government to interpret, Binding effect of — Held, circulars issued by the State Government may provide useful guidance to the authorities involved in the implementation of the project but the same are not conclusive of the correct interpretation of the relevant clauses of the agreement and, in any case, Government`s interpretation is not binding on the Courts.

(Para 32)

Vishnu v. State of Maharashtra [Bench Strength 3], Civil Appeal No. 3680/2005 (04/10/2013), Civil Appeal No. 3680/2005 [G.S. Singhvi, J.: V. Gopala Gowda, J.: C. Nagappan, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Dismissal from service — Misconduct of forcibly entering Principal`s office, During duty hours in inebriated condition, Proportionality of — Penalty of `removal` from the service — High Court modified the penalty and imposed lesser punishment — Appellant-school approached Supreme Court — Held, entering the school premises in working hours i.e. 11.30 a.m. in an inebriated condition and thereafter forcibly entering into the Principal`s room would constitute a serious misconduct — Penalty of removal for such a misconduct cannot be treated as disproportionate — In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result — That cannot a ground for the Court to interdict with the penalty — Reasoning of the High Court unacceptable — Appeal allowed — Punishment of removal of respondent from service is upheld — Central Civil Services (Classification, Control and Appeal) Rules, 1965 — Rule 14 — Misconduct — Central Civil Services (Conduct) Rules, 1964 — Rule 20 — Misconduct — Constitution of India — Articles 226 & 227 — Punishment — Interference by high Court, Effect of.

H.G.E. Trust & Anr. vs. State of Karnataka & Ors., (2006) 1 SCC 430 Karnataka Bank Ltd. Vs. A.L. Mohan Rao, (2006) 1 SCC 63, Ex-Constable Ramvir Singh vs. Union of India & Ors., (2009) 3 SCC 97 & Charanjit Lamba vs. Commanding Officer, (2010) 11 SCC 314, Referred.

(Para 11, 12 & 13)

(Para 10)

(Para 6)

HELD: When the charge proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the-delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. The order of the Appellate Authority while having a re-look of the case would, obviously, examine as to whether the punishment imposed by the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the Court or a Tribunal.

(Para 6)

(Para 11)

Council of Civil Service Unions vs. Minister for Civil Service & Ranjit Thakur vs. Union of India (1987) 4 SCC 611, Referred.

(Para 7)

HELD: When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with doctrine of Wednesbury Rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the Court and the Court is forced to believe that it is totally unreasonable and arbitrary.

(Para 7)

Union Territory of Dadra & Nagar Haveli vs. Gulabhia M.Lad, (2010) 5 SCC 775, Referred.

(Para 6)

Deputy Commissioner, KVS v. J. Hussain [Bench Strength 2], Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) (04/10/2013), Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) [Sudhansu Jyoti Mukhopadhaya, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 354 — Appeal against conviction — Concurrent findings of court below, Guilt proved beyond reasonable doubt, Effect of — Appellant suddenly came on the way of complainant and forcibly caught hold of her hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding — Claimed for benefit under Probation of Offenders Act, 1958 — Held, this court not inclined to re-appreciate the evidence and same is also not warranted in view of the fact that the complainant, who had no enmity against the appellant has been very consistent about the factual matrix not only in her statement under Section 161 of Cr.P.C. but also before the court and had supported the prosecution case fully — Her version was corroborated by several other witnesses and the courts below have recorded a finding that the appellant was guilty beyond reasonable doubt — As appellant behaved like a road side Romeo, not a fit case where the benefit of the Act 1958 should be given to the appellant — Probation of Offenders Act, 1958 — Section 12 — Denial of benefit under.

Musa Khan & Ors. v. State of Maharashtra, AIR 1976 DV 2566, Karamjit Singh v. State of Punjab, (2009) 7 SCC 178 & State of Himachal Pradesh v. Dharam Pal, (2004) 9 SCC 681, Referred.

(Para 7 & 12)

Abuzar Hossain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC 489, Chinnadurai v. State of Tamil Nadu, AIR 1996 SC 546, State of U.P. v. Shri Kishan, AIR 2005 SC 1250 & Sadhupati Nageswara Rao v. State of Andhra Pradesh, AIR 2012 SC 3242, Relied on.

(Para 21 & 22)

State of Punjab v. Major Singh, AIR 1967 SC 63, Aman Kumar v. State of Haryana, AIR 2004 SC 1497; Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677; Turkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560, Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr., AIR 1996 SC 309, Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997 SC 3011 & Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625, Referred.

(Para 14)

Abuzar Hossain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC 489, Relied on.

(Para 13)

Ajahar Ali v. State of West Bengal [Bench Strength 2], Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) (04/10/2013), Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Articles 21, 14 & 309 — Trial by Special Judge — Continuation on contractual basis after retirement, Allowability of — Prosecution against petitioners for having assets disproportionate to their known income — State Government passed an order whereby directed respondent no.4, Special Public Prosecutor not to appear in the pending prosecution against petitioners, impending his retirement — Petitioners challenged validity of action of State Government removing Respondent No. 4 on the ground that fundamental rights for speedy trial have been breached — Held, order of removal of respondent no.4 is a product of mala fides and the impugned order is not sustainable in the eyes of law as such the same is hereby quashed — State Government is competent to appoint Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court — Therefore, matter referred to High Court to decide on the administrative side as to whether, in order to conclude the trial expeditiously as guaranteed under Article 21 of the Constitution requires the extension of the services of Special Judge — Karnataka Civil Services (General Recruitment) Rules, 1977 — Rule 11(2) — Fair trial.

Chandramouleshwar Prasad v. The Patna High Court & Ors., AIR 1970 SC 370; Union of India v. Sankalchand Himatlal Sheth & Anr., AIR 1977 SC 2328; State of Gujarat v. Gujarat Revenue Tribunal Bar Association, AIR 2013 SC 107; and State of Gujarat & Anr. v. Justice R.A. Mehta (Retired) & Ors., (2013) 3 SCC 1, Distinguished.

(Para 30 & 31)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 21 — Fair trial — Right of every accused — Held, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case — Criminal Law — Fair trial — Right of every accused.

(Para 26)

HELD: Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the `majesty of the law’ and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also.

(Para 26)

Smt. Triveniben v. State of Gujarat, AIR 1989 SC 1335; A.R. Antulay & Ors, v. R.S. Nayak, AIR 1992 SC 1701; Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604; Dwarka Prasad Agarwal (D) by L.Rs. & Anr. v. B.D. Agarwal & Ors., AIR 2003 SC 2686; K. Anbazhagan v. Supdt. of Police, AIR 2004 SC 524; Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367; Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417; Capt. Amarinder Singh v. Parkash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; Sudevanand v. State through CBI, (2012) 3 SCC 387; Rattiram & Ors. v. State of M.P., (2012) 4 SCC 516 & Natasha Singh v. CBI, (2013) 5 SCC 741, Referred.

(Para 26)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 142 — Exercise of extraordinary power — Order violating statutory provisions, Permissibility of — Held, Supreme Court generally should not pass any order in exercise of its extraordinary power to do complete justice if such order violates any statutory provisions.

Teri Oat Estates (P) Ltd. v. UT, Chandigarh & Ors., (2004) 2 SCC 130; Manish Goel v. Rohini Goel, AIR 2010 SC 1099 & State of Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537, Referred.

(Para 29)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Administrative Law — Discretionary power — Exercise for unlawful purpose, Effect of — Held, if discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith and the order becomes vulnerable and liable to be set aside.

State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors., AIR 2011 SC 3470, M.I. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors., AIR 1999 SC 2468; Onkar Lal Bajaj etc. etc. v. Union of India & Anr. etc.etc., AIR 2003 SC 2562; State of Karnataka & Anr. v. All India Manufacturers Organization & Ors., AIR 2006 SC 1846; A.P. Dairy Development Corporation Federation v. B. Narasimha Reddy & Ors., AIR 2011 SC 3298, Smt. S.R. Venkataraman v. Union of India & Anr., AIR 1979 SC 49, Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR 2012 SC 1339 & Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745, Referred.

(Para 25)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Administrative Law — Consultation — Involvement of authorities for — Held, whenever consultation is mandated by law, it necessarily involves two authorities; one, on whom a duty is cast to consult and the other who has the corresponding right(s) to be consulted — Constitution of India — Article 235 — Consultation.

(Para 17)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Administrative Law — Consultation — Failure to consult, Effect of — Held, it is not legitimate for the party who has a duty to consult and who has failed in that duty, to make a grievance that there has been no consultation — Constitution of India — Article 235 — Consultation.

(Para 17)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Statute Law — Statute — Proving certain manner to do, Effect of — Held, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all.

State of Uttar Pradesh v. Singhara Singh & Ors., AIR 1964 SC 358 & Accountant General, State of Madhya Pradesh v. S.K. Dubey & Anr., (2012) 4 SCC 578, Referred.

(Para 29)

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Bombay Public Trust Act, 1950 — Section 18 — Registration with retrospective effect

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