The
appeals arose from orders of the High Court whereby the High Court had allowed
a writ petition of the Respondents, thereby quashing a demand for payment
raised by the State Government on the Respondent. The demand was raised on the
basis of a clause in the contract between the parties which entitled the State
Government to set off any demand against the Respondent under any other
contract from the dues payable to the Respondent under the instant contract.
The Respondent’s case, as accepted by the High Court while relying on State of Karnataka v. Shree Rameshwara Rice
Mills, was that the said clause of ‘set off’ could not be resorted to by
the State unless the demand of the State was quantified and crystallized.
Notwithstanding
the arbitration clause in the contract between the State and the Respondent,
whereby the Gujarat Public Works Contracts Disputes Arbitration Tribunal (“the
Tribunal”) constituted under Section 3 of the Gujarat Public Works Contracts
Disputes Arbitration Tribunal Act, 1992 (“Gujarat Act”) was empowered to
arbitrate on the dispute, the High Court proceeded to entertain the writ
petition and quash the demand.
The
Court first considered the question as to whether the Tribunal had jurisdiction
to pass interim orders, and therefore the High Court ought not to have
entertained the writ petition.
The
Court referred to Section 2(4) of the Arbitration and Conciliation Act, 1996
(“A&C Act”) to hold that Part I of the A&C Act applied to all
arbitrations, even those under other enactments, except insofar as Part I was
inconsistent with such other enactments. The Court further examined Section
31(6) of the A&C Act and Section 8(3) of the Gujarat Act, to find that the
latter empowered the Tribunal to make interim awards, similar to the former.
In
the ultimate analysis, having found no inconsistency between the A&C Act
and the Gujarat Act, the Court held that the Tribunal was appropriately
empowered to grant interim relief under Section 17 of the A&C Act, and
therefore the appropriate remedy of the Respondent was before the Tribunal. The
Court thus granted liberty to the Respondent to approach the Tribunal in a time
bound manner.
On
the question of invocation of ‘set off’ clauses, the decision in Gangotri Enterprises Limited v. Union of
India &Ors. [(2016) 11 SCC 720] was relied upon by the Respondent. The
Supreme Court found Gangotri Enterprises
to be per incuriam, for having placed reliance on Union of India v. Raman Iron Foundry[(1974)2 SCC 231] which stood
expressly overruled in H.M. Kamaluddin Ansari
& Co. v. Union of India [(1983)4 SCC 416].
1.
Ambalal
Sarabhai Enterprise Limited v. KS Infraspace LLP Limited and Anr.
[Civil Appeal No. 9346 of 2019 and
connected matters decided on 6.1.2020]
The
case arose out of an order of injunction passed in favour of the
plaintiff-purchaser in a suit for specific performance of an alleged agreement
to sell immovable property.
In
the facts of the case, the plaintiff claimed that there existed a concluded
contract between the parties on the basis of a Memorandum of Understanding and
subsequent communications between the parties over emails and WhatsApp
messages. While leaving the averments of the parties to the suit qua the
existence of a concluded contract to be tested at the trial, the Court only
examined the correctness of the order of injunction granted by the trial court.
The
Court held, while placing reliance on Motilal
Jain v. Ramdasi Devi (Smt.) and Ors. [2000(6)SCC 420], that in matters
concerning grant of injunction, apart from the existence of a prima facie case,
balance of convenience, irreparable injury; the conduct of the party seeking
equitable relief of injunction is also very essential to be considered. The
Court placed reliance on Motilal
which held that even in cases where the suit is within limitation in case of a
contract for immovable property, it ought to be seen whether the delay in
coming to Court by the plaintiff has resulted in creation of third party rights
in the subject matter of the suit. It was observed that in some cases, delay may
give rise to a plea of waiver and make it otherwise inequitable to grant
discretionary relief.
The
Court reiterated that if the delay or negligent conduct on the part of any
party has resulted in inducing the defendant to change or alter its position, it
may be inequitable to grant interim relief to the plaintiff.
The
Court thereafter proceeded to set aside the orders of interim injunction in
favour of the plaintiff in the suit.
2.
Sk.
Md. Rafique v. Managing Committee, ContaiRahamania High Madarsah& Others
[Civil Appeal No. 5808 of 2017
decided on 6.1.2020]
In
an important decision on the right of minorities to establish and administer
educational institutions under Article 30 of the Constitution of India, the
Supreme Court examined the challenge to the validity of the West Bengal
Madrasah Service Commission Act, 2008 (“Act”).
The
argument examined was that the Act, by providing for the appointment of
teachers in aided madrasahs in the State of West Bengal through the medium of
‘Commissions’ constituted under the Act, amounted to an interference with the
right guaranteed under Article 30.
The
Supreme Court proceeded to examine the question in the light of the 11 Judge
Bench decision of the Supreme Court in TMA Pai Foundation and others v. State of Karnataka
and others. The Supreme Court relied upon and reiterated the position in TMA Pai, viz. that if the State action
was intended at maintaining excellence in, and standards of the secular,
non-religious education imparted by the minority institution, it could not be
held to amount to interference in the right of the minorities guaranteed by
Article 30.
3.
M.
Arumugam v. Ammaniammal and Ors.
[ Civil Appeal No. 8642 of 2009
decided on 8.1.2020]
In
this case, the Supreme Court examined the question as to whether the share in a
coparcenery property of a Hindu male would devolve as per Section 8 of the
Hindu Succession Act, 1956 (“HSA”) or by survivorship, upon his death.
The
Court placed reliance on the proviso to Section 6 of the HSA to observe that in
case the deceased was survived by female relative in Class I of the HSA, the
interest of the deceased in the coparcenery would devolve by testamentary or
intestate succession in terms of the HSA and not be survivorship.
Further,
on a reading of Sections 19 & 30 of the HSA, the Court arrived at a
conclusion that the intent of the Parliament was to treat the interest of the
male Hindu in a Mitaksharacoparcenery virtually as a self acquired property,
capable of disposal in terms of the HSA.
4.
Ramkhiladi&Anr.
v. The United India Insurance Company &Anr.
[Civil Appeal No. 9393 of 2019
decided on 7.1.2020]
The
decision examined the interpretation of Section 163A of the Motor Vehicles Act,
1988 (“Act”) in a situation where the claim thereunder was made against the owner
of the vehicle and the insurance company on behalf of the deceased who had
borrowed the motor vehicle from the owner thereof.
The
Court reiterated the principle that Section 163A of the Act was based on the
principle of ‘no fault liability’, meaning thereby that there is no need for
the claimant to plead or establish the negligence and/or that the death in
respect of which the claim petition is sought to be established was due to
wrongful act, neglect or default of the owner of the vehicle concerned. It was
held that notwithstanding this position, this provision cannot be used in
favour of the deceased as the claimant when the deceased himself had borrowed
the vehicle from the owner. In such a situation, the deceased has stepped into
the shoes of the owner and cannot therefore maintain a claim under this
provision.
5.
Balkrishna
Ram v. Union of India &Anr.
[Civil Appeal No. 131/2020 decided
on 9.1.2020]
The
Court examined the question as to whether an intra Court appeal (such as a
Letters Patent Appeal, wherever applicable) within a High Court was required to
be transferred to the Armed Forces Tribunal (“AFT”) constituted under the Armed
Forces Tribunal Act, 2007 (“Act”) in view of Section 34 thereof.
The
judgment examined various aspects of the question of limitation of judicial
review by statutory remedies, and placed reliance upon the landmark decision in
L. Chandra Kumar v. Union of India
&Ors.to reiterate the position that the power of judicial review by the
High Court did not stand replaced by the constitution of Tribunals. An intra
Court appeal was a proceeding which was an extension of the power of judicial
review, in the sense that the exercise of the said power by a Single Judge was
being tested by the Division Bench. Hence, it was held that the same need not
be transferred to the AFT.
6.
Vidya
Devi v. State of Himachal Pradesh &Ors.
[Civil Appeal No. 60-61 of 2020
decided on 8.1.2020]
In
this case, the Petitioner’s land had been taken over by the State Government
for construction of a road, admittedly without any proceedings for land
acquisition and any compensation being awarded to the Petitioner. The
construction of the road was completed in 1967-68, after having taken
possession of the Petitioner’s land in 1967. The Petitioner claimed to have
discovered, in 2010,an Order of the High Court allowing certain writ petitions
by adjoining landowners whereby the action of the State Government in illegally
dispossessing the said landowners was quashed, and the State Government was
directed to acquire the said lands under the Land Acquisition Act, 1894. The
Petitioner also preferred a writ petition and sought similar relief, which was
declined by the High Court.
The
decision of the High Court was reversed by the Supreme Court while holding:
(i)
The Petitioner was forcibly dispossessed
of her property in 1967, when the right to property was a fundamental right
under Article 31 of the Constitution of India;
(ii)
Even after repeal of Article 31, Article
300A continued to remain in the Constitution which provided that no person
could be deprived of their property without authority of law;
(iii)
The State, being a welfare State, could
not be permitted to take the plea of adverse possession;
(iv)
Delay and laches ought not to have been
relied upon by the High Court to reject the writ petition which was based on a
continuing cause of action. Further, it was held that delay and laches ought
not to come in the way if circumstances exist which shock the judicial
conscience.
Other
Notable Judgments
1.
In Kapico
Kerala Resorts Pvt. Ltd. v. State of Kerala &Ors. [decided on
10.1.2020], the Court rejected the Appellants’ attempt to distinguish a
judgment of the High Court (affirmed thereafter by the Supreme Court) inter partes on the same set of facts by
stating that the issues had only been ‘passingly’ decided in the previous
decision of the High Court, and therefore could be gone into in the instant
appeal. The Court rejected the said submission while reiterating the view in Kunhayammed v. State of Kerala[subsequently
tested by a larger bench and affirmed in Khoday
Distilleries Ltd. v. Sri. MahadeshwaraSahakara] and holding that “If detailed reasons given by the High Court
or a subordinate court find acceptance by this Court, the question of
scrutinizing them for finding out whether they were in the passing or in
detailed focus, does not arise. Such an exercise would tantamount to reviewing
the decision.”
2.
In K.
Lubna&Ors. v. Beevi&Ors. [decided on 13.1.2020], reiterated the
principle that a pure question of law can be examined at any stage, including
before the Supreme Court for the first time. The Court quoted the settled
proposition that if the factual foundation for a case has been laid and the
legal consequences of the same have not been examined, the examination of such
legal consequences would be a pure question of law.
3.
In GajarabaBhikhubhaVadher&Ors.
v. Sumara Umar Amad (D) Thru Legal Heirs &Ors. [decided on 14.1.2020],
the Court held that once questions of law were formulated under Section 100 of
the Civil Procedure Code, 1908 while admitting a second appeal, they were
required to be answered one way or the other by providing the High Court’s
reasoning and to arrive at a conclusion on that basis. In the event that the
High Court is of the view that any substantial question of law framed at the
stage of admission is required to be modified, altered or deleted, a hearing is
required to be provided on the same, after which appropriate substantial
questions of law could be framed and answered.
