1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3288 OF 2018 NATIONAL HIGHWAYS AUTHORITY … Continue reading No Arbitration with consent with out valid agreement = whether the petitioner had preferential right to match the lowest bid without pre-qualifying or participating in the bidding process. In that case, Article 14.1(c) of the concession agreement stipulated that the respondent No.1 could invite proposals 40 from eligible persons for capacity augmentation of the project which required the petitioner to give an option to submit its proposal. The Court after noticing the precedents on the relevant aspects, went on to observe that if the concessionaire chose not to submit its proposal, it did not have the right to match the preferred offer as would be the case of the respondent herein, in view of the express stipulation in the tender documents requiring the respondent to participate in the bidding process
1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5415 OF 2011 SHYAM NARAYAN PRASAD … Continue reading Ancestral Properties means = 12. It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship. Exchange Deed must be registered – Mandatory.= 18. It is clear from this provision that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs.100/- or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above, it can be made only by a registered instrument. Sec.53 A of T. P. Act – when can be availed 23……..application of Section 53A of the T.P Act. It is well settled that the defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Oral evidence under sec.91 of Evidence Act- the contents of unregistered deed is not permissible 22. It is clear from the above judgment that the best evidence of the contents of the document is the document itself and as required under Section 91 of the Evidence Act the document itself has to be produced to prove its contentsBut having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved under Section 91 of the Evidence Act. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1479 OF 2015 MOTIRAM PADU JOSHI AND … Continue reading “8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by 15 an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court.”
1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURICTION REVIEW PETITION (CRL.) NOS.671673 OF 2017 IN CRIMINAL APPEAL NOS.608 & 609610 OF 2017 VINAY SHARMA & ANR. … PETITIONERS VERSUS STATE OF NCT OF DELHI & ORS. … RESPONDENTS J U D G M E N T ASHOK BHUSHAN, J. These review petitions … Continue reading rape and murder of a 23 years’ age lady Nirbhaya (changed name).= When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” ; Involvement of the bus No. DL 1 PC 0149 (Ext. P/1) was also held to be substantiated by matching of DNA profile of the material objects lifted from the bus No. DL 1 PC 0149 (Ext. P/1) which were found consistent with that of the victim and the complainant. – Matching of DNA profile developed from the articles seized from the bus like ‘hair’ recovered from the third left row of the bus and the bloodstained seat cover of the bus and the bunch of hair recovered from the floor of the bus with the DNA profile of the victim was held to be unimpeachable evidence establishing the involvement of the bus in the commission of the offence.; various submissions regarding reliability of the three dying declarations: (i) failure to disclose the names of any of the accused in the first dying declaration (Ext.PW49/A) and therefore, the second and third dying declarations are tutored; (ii) the three dying declarations cannot be relied upon due to variations and improvements; and (iii) sudden appearance of the name of ‘Vipin’ (in the third dying declaration) makes it doubtful and no explanation is offered.= The victim made three dying declarations: (i) statement recorded by PW49 Dr. Rashmi Ahuja immediately after the victim was admitted to the hospital; (ii) Dying declaration (Ex.PW27/A) recorded by PW27 SDM Usha Chaturvedi on 21.12.2012; and (iii) dying declaration (Ex.PW30/D) recorded by PW30 Pawan Kumar, Metropolitan Magistrate on 25.12.2012 at 1:00 p.m. by multiple choice questions and recording answers by gestures and writing. In the first dying declaration (Ex.PW49/A), the prosecutrix has stated that more than two men committed 27 rape on her, bit her on lips, cheeks and breast and also subjected her to unnatural sex. In the second dying declaration (Ex.PW27/A) recorded by PW27, the victim has narrated the entire incident in great detail, specifying the role of each accused, rape committed by number of persons, insertion of iron rod in her private parts, description of the bus, robbery committed and throwing of both the victims out of the moving bus in naked condition. On 25.12.2012 at 1:00 p.m., PW30 Pawan Kumar, Metropolitan Magistrate recorded the statement by putting multiple choice questions to the victim and by getting answers through gestures and writing. While making the third declaration, the victim also tried to reveal the names of the accused by writing in her own handwriting viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju”.= this Court held that all the three dying declarations are true, voluntary and consistent.- held that the dying declaration made through signs, gestures or by nods are admissible as evidence and that proper care was taken by PW30 Pawan Kumar, Metropolitan Magistrate and the third dying declaration recorded by in response to the multiplechoice questions by signs, gestures made by the victim are admissible as evidence. In the third dying declaration, the victim also wrote the names of the accused persons “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju”. So far as the name of accused Vipin written by the prosecutrix in the third dying declaration has been elaborately considered by this Court in paras (150) and (188) of the judgment.; Plea of alibi raised by accused Vinay Sharma =The plea of alibi put forth by accused Vinay Sharma that he was present in the musical programme organised by the SCC Unit of the Church in the DDA Park in his locality has been elaborately considered in paras (258) to (269). In para (267) of the judgment, this Court referred to the evidence of PW83 Shri Angad Singh, 31 Deputy Director (Horticulture), DDA who has deposed that no permission was granted by any authority to organise any function in the evening of 16.12.2012 in the DDA District Park, Hauz Khas, New Delhi. This Court has also referred to the evidence of PW84 Father George Manimala of St. Thomas Church and PW85 Brother R.P. Samuel, Secretary, Ebenezer Assembly Church who have deposed that their church(es) never organised any musical programme/event in the DDA District Park, Hauz Khas in the evening of Sunday i.e. on 16.12.2012.- the evidence of PW46 and the expert report (Ext. PW46/D), this Court held that the evidence clearly establishes the presence of accused Vinay Sharma in the bus. There is no merit in the contention that the plea of alibi was not considered by this Court.; Now, coming to the submission regarding juvenility of petitioner, Vinay Sharma. = petitioner is not a juvenile has rightly rejected the application for ossification test submitted by petitioner No.1.
1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3155 OF 2017 UNION OF INDIA … APPELLANT VERSUS MOOL CHAND KHAIRATI RAM TRUST … RESPONDENT WITH CIVIL APPEAL NOS.31533154 OF 2017 CIVIL APPEAL NO. 3156 OF 2017 AND CIVIL APPEAL NOS.31573158 OF 2017 J U D G M E N T ARUN MISHRA, J. 1. The … Continue reading Government of India had taken a policy decision that all the hospitals which have been provided land by L&DO have to strictly follow the policy of providing free treatment as provided in it. = novation of contract cannot be done unilaterally, and the new terms must be brought to the knowledge of the offeree and his acceptance thereto must be obtained. It was further observed that when a contract has been worked out, a fresh liability cannot be thrust upon a contracting party and it was beyond the scope of the original terms contained in the offer letter and the allotment letter, in which the imposition of extra charges was not contemplated. In factual matrix being different decision has no application to the instant case as it was stipulated right from the beginning in the policy/rules that land to such institution has been given for charitable purposes of hospitality, research etc. at concessional rates and/or with nonprofit motive. It 123 is not the case of new obligation being fastened at the time of renewal of the contract.
1 Non-Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1340 OF 2013 Manoharan & Anr. ….Appellants … Continue reading sec.498A IPC – no complaint was made by Malathi or her parents regarding any dowry related harassment – no conviction under sec.498 A IPC= Charges were framed against A-1, A-2 and A-3 for offences punishable under Sections 498A, 302 read with Section 34 IPC and also under Section 4-A(1)(2)(i) of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 (1998 Act, for short). Court of Sessions at Cuddalore by its judgment and order dated 11.09.2006 in Sessions Case No.82/2006 found A-1 guilty of offences punishable under Section 302, 498A IPC and under Section 4-A(1)(2)(i) of 1998 Act. The appellants were acquitted of the 5 charges under Section 302 IPC and Section 4-A(1)(2)(i) of 1998 Act but were convicted for the offences under Section 498A IPC = The evidence in the present case shows that after the letter was sent by Malathi to the office of Chief Minister, inquiries were conducted by the police. The evidence further indicates that at that juncture, no complaint was made by Malathi or her parents regarding any dowry related harassment. Further, she was brought to Cuddalore on 08.12.2003 where the couple used to live separately and the incident in question occurred on the intervening night between 8th and 9th December, 2003. In the circumstances, 7 the evidence on record is completely inadequate to bring home the charge against the appellants. We have gone through the entirety of the matter and in our considered view, both the appellants are entitled to acquittal.
1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 558 OF 2012 Kalpana Mehta … Continue reading justifiability of the action taken by the Drugs Controller General of India and the Indian Council of Medical 5 Research (ICMR) pertaining to the approval of a vaccine, namely, Human Papilloma Virus (HPV) = When issues, facts come before a Court of law for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it and in which adjudication Parliamentary Committee Report may only be one of the materials, what weight has to be given to one or other evidence is the adjudicatory function of the Court which may differ from case to case. The Parliamentary Committee Reports cannot be treated as conclusive or binding of what has been concluded in the Report – OUR CONCLUSIONS (i) According to subclause (2) of Article 105 of Constitution of India no Member of Parliament can be held liable for anything said by him in Parliament or in any committee. The reports submitted by Members of Parliament is also fully covered by protection extended under subclause (2) of Article 105 of the Constitution of India. (ii) The publication of the reports not being only permitted, but also are being encouraged by the Parliament. The general public are keenly interested in knowing about the parliamentary proceedings including parliamentary reports 134 which are steps towards the governance of the country. The right to know about the reports only arises when they have been published for use of the public in general. (iii) Section 57(4) of the Indian Evidence Act, 1872 makes it clear that the course of proceedings of Parliament and the Legislature, established under any law are facts of which judicial notice shall be taken by the Court. (iv) Parliament has already adopted a report of “privilege committee”, that for those documents which are public documents within the meaning of Indian Evidence Act, there is no requirement of any permission of Speaker of Lok Sabha for producing such documents as evidence in Court. (v) That mere fact that document is admissible in evidence whether a public or private document does not lead to draw any presumption that the contents of the documents are also true and correct. (vi) When a party relies on any fact stated in the 135 Parliamentary Committee Report as the matter of noticing an event or history no exception can be taken on such reliance of the report. However, no party can be allowed to ‘question’ or ‘impeach’ report of Parliamentary Committee. The Parliamentary privilege, that it shall not be impeached or questioned outside the Parliament shall equally apply both to a party who files claim in the court and other who objects to it. Any observation in the report or inference of the Committee cannot be held to be binding between the parties. The parties are at liberty to lead evidence independently to prove their stand in a court of law. (vii) Both the Parties have not disputed that Parliamentary Reports can be used for the purposes of legislative history of a Statute as well as for considering the statement made by a minister. When there is no breach of privilege in considering the Parliamentary materials and reports of the Committee by the Court for the 136 above two purposes, we fail to see any valid reason for not accepting the submission of the petitioner that Courts are not debarred from accepting the Parliamentary materials and reports, on record, before it, provided the Court does not proceed to permit the parties to question and impeach the reports. (viii) The Constitution does not envisage supremacy of any of the three organs of the State. But, functioning of all the three organs is controlled by the Constitution. Wherever, interaction and deliberations among the three organs have been envisaged, a delicate balance and mutual respect are contemplated. All the three organs have to strive to achieve the constitutional goal set out for ‘We the People’. Mutual harmony and respect have to be maintained by all the three organs to serve the Constitution under which we all live. (ix) We are of the view that fair comments on report of the Parliamentary Committee are fully 137 protected under the rights guaranteed under Article 19(1)(a). However, the comments when turns into personal attack on the individual member of Parliament or House or made in vulgar or abusive language tarnishing the image of member or House, the said comments amount to contempt of the House and breach of privilege. (x) The function of adjudicating rights of the parties has been entrusted to the constituted courts as per Constitutional Scheme, which adjudication has to be made after observing the procedural safeguards which include right to be heard and right to produce evidence. Parliament, however, is not vested with any adjudicatory jurisdiction which belong to judicature under the Constitutional scheme. (xi) Admissibility of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved. When issues of facts come before a Court of law for adjudication, the Court is to decide the issues 138 on the basis of evidence and materials brought before it. 152. The questions having been answered as above, let these writ petitions be listed before the appropriate Bench for hearing.