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Friday, March 10, 2017

Friday, March 3, 2017

ആധാരം സ്വയം എഴുതി റജിസ്റ്റർ ചെയ്യാൻ സർക്കാർ അനുമതി നൽകി

ആധാരം സ്വയം എഴുതി റജിസ്റ്റർ ചെയ്യാൻ സർക്കാർ അനുമതി നൽകി എട്ട് മാസം ആയിട്ടും ഇത് വരെയായി കേരളത്തിൽ ആകെ 200 പേർ മാത്രമേ ഈ സൗകര്യം ഉപയോഗിച്ചിട്ടുള്ളൂ എന്ന വസ്തുത പുതിയതിനെ സ്വീകരിക്കാൻ ആളുകൾക്കുള്ള മടിയും യാഥാസ്ഥികമനോഭാവവും ആണു കാണിക്കുന്നത്. ആധാരം സ്വയം എഴുതുക എന്ന് വെച്ചാൽ പരമ്പാരഗത ആധാരമെഴുത്തുകാരെ പോലെ   പരത്തി എഴുതുകയൊന്നും വേണ്ട. കേരള റജിസ്ട്രേഷൻ വകുപ്പിന്റെ സൈറ്റിൽ 19 തരം ആധാരങ്ങളുടെ കോപ്പിയുണ്ട്. അത് പി.ഡി.എഫ്.ആയി  ഡൗൺലോഡ് ചെയ്ത് പ്രിന്റ് എടുത്ത് പ്രസക്തഭാഗങ്ങൾ പൂരിപ്പിക്കുക മാത്രമേ വേണ്ടൂ. അതുമായി റജിസ്ട്രാഫീസിൽ പോയി ആധാരം റജിസ്റ്റർ ചെയ്യാം. 

പുരിപ്പിക്കാൻ അറിയില്ലെങ്കിൽ നാട്ടിൽ അറിയുന്ന ആരെക്കൊണ്ടെങ്കിലും പൂരിപ്പിച്ചാൽ മതി. ആധാരമെഴുത്തുകാർ തന്നെ വേണമെന്നില്ല.  ആധാരമെഴുത്തുകാരെ കൊണ്ട് പൂരിപ്പിക്കുകയാണെങ്കിൽ തന്നെ പൂരിപ്പിക്കുന്നതിനുള്ള ഒരു ചെറിയ പ്രതിഫലം കൊടുത്താൽ മതി. പഴയത് പോലെ ആധാരത്തിൽ കാണിക്കുന്ന വിലയുടെ ശതമാനക്കണക്കിൽ പതിനായിരങ്ങൾ കൊടുക്കേണ്ടതില്ല. ഒരു ഫോം പൂരിപ്പിക്കാൻ എത്ര കൊടുക്കാമോ അത്രയേ വേണ്ടൂ. ആധാരമെഴുത്ത് എന്നത് ഒരു ഫോം പൂരിപ്പിക്കലായി ലഘൂകരിക്കപ്പെട്ടിരിക്കുന്നു എന്ന വസ്തുത കേരള സമൂഹം ഇനിയും മനസ്സിലാക്കിയിട്ടില്ല എന്നത് ലജ്ജാകരമാണ്. ആളുകൾ കാലത്തിനൊപ്പം അപ്‌ഡേറ്റ് ആകാത്തത് നിരാശാജനകമാണ്.

ആധാരമെഴുത്തുകാരൻ ആർക്കും മനസ്സിലാകാത്ത തരത്തിൽ നീട്ടി വളച്ചു എഴുതുന്നതിനേക്കാളും ആധികാരികമായ എഴുത്ത് സർക്കാരിന്റെ റജിസ്ട്രേഷൻ വകുപ്പിന്റെ സൈറ്റിൽ ഉള്ള ഫോം പൂരിപ്പിക്കുന്നതാണ്.  എന്തിനാണു വെറുതെ ആധാരക്കൊള്ളയ്ക്ക് അരു നിൽക്കുന്നത്. ആധാരത്തിന്റെ ഫോം പൂരിപ്പിച്ചു കൊടുക്കുന്നതിനുള്ള ഒരു ന്യായമായ പ്രതിഫലം കൈപ്പറ്റിക്കൊണ്ട് പൂരിപ്പിച്ചുകൊടുക്കാനും ആധാരമെഴുത്തുകാരൻ എന്ന രാജകീയപ്രതാപം അട്ടത്ത് വയ്ക്കാനും ബന്ധപ്പെട്ട എഴുത്തുകാർ തയ്യാറാകണം. എല്ലാ രംഗത്തും കമ്പ്യൂട്ടറൈസെഷൻ എന്നത് കാലത്തിന്റെ അനിവാര്യതയാണു. ആർക്കും തൊഴിലോ പ്രതിഫലമോ ഇത് മൂലം നഷ്ടമാകുന്നില്ല. കൊള്ളയും അഴിമതിയും  ക്രമേണ ഇല്ലാതാകും എന്നേയുള്ളൂ.

ശരിക്ക് പറഞ്ഞാൽ ആധാരം എഴുതാൻ എഴുത്തുകൂലി മാത്രം വാങ്ങിയാൽ മതിയായിരുന്നു. എഴുത്ത് എന്ന ഒരു അധ്വാനം മാത്രമല്ലേ അവർ ചെയ്യുന്നുള്ളൂ. അതിനാണു പതിനായിരങ്ങളും ലക്ഷവും എഴുത്ത് കൂലി വാങ്ങിക്കൊണ്ടിരുന്നത്. ഇത് ജനങ്ങളുടെ അജ്ഞത മുതലെടുത്ത് നടത്തുന്ന ആധാരക്കൊള്ളയാണ്.  ആധാരങ്ങളുടെ മാതൃകാകോപ്പികൾ ഡൗൺലോഡ് ചെയ്ത് പ്രിന്റ് എടുക്കാനുള്ള ലിങ്ക് താഴെ കൊടുക്കുന്നു. ഈ പോസ്റ്റ് ഷെയർ ചെയ്ത് ജനങ്ങളെ ബോധവൽക്കരിക്കാൻ സുഹൃത്തുക്കളോട് അഭ്യർത്ഥിക്കുന്നു. ലിങ്കിൽ ക്ലിക്ക് ചെയ്താൽ തുറക്കുന്ന വെബ്‌പേജിൽ Download Model Documents എന്ന ലിങ്ക് ക്ലിക്ക് ചെയ്താൽ 19 ഫോമുകളുടെ ലിങ്ക് കാണാം. ആവശ്യമായതിന്റെ പ്രിന്റ് എടുത്താൽ മതി.

http://keralaregistration.gov.in/pearlpublic/index.php

Monday, February 27, 2017

Citations- ERROR APPARENT ON THE FACE OF RECORD

ERROR APPARENT ON THE FACE OF RECORD

Syed Yakub v. K.S.

Radhakrishnan

1964 SC 477

(Para 8)

What is an error apparent on record,

namely, whether there is an error

law, refusal to admit evidence,

findings on facts based on no

evidence; where a Tribunal

exercises jurisdiction in excess or

fails to exercise jurisdiction vested in

it and where jurisdiction is exercised

arbitrarily and illegally, like in

violation of principles of natural

justice.

ALTERNATIVE REMEDY

Party’s name Citation Strength

of

Bench

Ratio laid down

Ramesh Thapar v.

State of Madras

AIR 1950 SC 124 Existence of alternative remedy is

no bar for invoking Article 32 or

Article 226 of the Constitution.

K.K. Kochunni v.

State of Madras

AIR 1959 SC 725

Para 8

XVI. WHERE THE STATUTE IS SILENT AS TO THE OBLIGATION TO AFFORD A HEARING TO THE PARTY AFFECTED, SUCH RIGHT HAS TO BE READ INTO THE STATUTE.

XVI. WHERE THE STATUTE IS SILENT AS TO THE OBLIGATION TO AFFORD A

HEARING TO THE PARTY AFFECTED, SUCH RIGHT HAS TO BE READ INTO THE

STATUTE.

Party’s name Citation Strength

of Bench

Ratio laid down

Yoginath Bagde v. State

of Maharashtra.

(1999) 7 SCC

739

(Para 23)

Where the statute is silent as to

the obligation to afford a hearing

to the party affected, such right

has to be read into the statute.

Siemens Engineering v.

Union of India

AIR 1976 SC

1785,

Para 6

Fair hearing a must.

Institute of Chartered

Accountants of India

AIR 1987 SC 7

A.R. Antulay v. R.S.

Nayak

(1988) 2 SCC

602

Olga Tellis v. BMC AIR 1986 SC

180

Union of India v. Tulsiram

Patel

AIR 1985 SC

1416

Punjab National Bank v.

Kunjbehari Misra

AIR 1990 SC

2713

Para 19.

3 Judges Right of hearing has to be read

into the Regulations.

Managing Director, ECIL,

Hyderabad v. B.

Karunakar

(1993) 4 SCC

727

5 Judges

Mohinder Singh Gill v.

Chief Election

Commissioner

(1978) 1 SCC

405

5 Judges Right of hearing – distinction

between administrative and

quasi-judicial functions no longer

relevant.

A.K. Kraipak & Ors v.

Union of India & Ors

AIR 1970 SC

150

Bias – Right of Hearing

Swadeshi Cotton Mills v.

Union of India.

(1981) 1 SCC

664

3 Judges Right of hearing.

Liberty Mills v. Union of

India

AIR 1984 SC

1271

Post-decisional/pre- decisional

hearing.

Maneka Gandhi v. Union of India, AIR 1978

SC 597

7 Judges Mere opportunity to make

submissions on the objections is

not enough.

Mardia Chemical’s case (2004) 4 SCC

311

Doctrine of audi alteram partem.

Kishan Chand Arora v. Commissioner of

Police, Calcutta, AIR 1961 SC 705,

32

RIGHT TO BE HEARD

AIR 1959 SC 308

AIR 1966 SC 269

AIR 1971 SC 862

AIR 1974 SC 1868

S.L. Kapoor v. Jagmohan, AIR 1981 SC 136

Swadeshi Cotton Mills v. Union of India, AIR

1981 SC 818

Liberty Oil Mills v. Union of India, AIR 1984

SC 1271

Olga Tellis v. Municipal Corporation of

Bombay, AIR 1986 SC 180

33

XVII REVIEW (SECTION 114, ORDER 47, RULE 1 CPC)

Party’s name Citation Strength

of Bench

Ratio laid down

Grindlays Bank v. Central Government

Industrial Tribunal, 1980 Supp. SCC 420

Tribunals have power of

procedural review even when no

express power of review is

conferred – Doctrine of functus

officio explained – Procedural

review vis-à- vis review on merits

distinguished.

Kapurchand v. Ganesh

Dutt

AIR 1993 SC

1145

A Petition for review before the

High Court cannot be dismissed

merely because an SLP is

pending.

Tungabhadra Industries

Ltd. v. Government of

Andhra Pradesh

1964 Supreme

Court Reports,

176, Para ____

at page 184.

Filing of a SLP is no bar to hear

a review, if the review was filed

before filing of the SLP.

Meera Bhanja v. Nirmala

Kumari

(1993) 1 SCC

170

Two

Judges

Error must be apparent on mere

looking of the record without

requiring any long drawn process

of reasoning.

Parsion Devi v. Sumitra Devi.

(1997) 8 SCC 715

Two

Judges

Mistake or error apparent on the

face of record is one which is

self-evident and does not require

a process of reasoning.

Distinction between erroneous

decision and error apparent on

the face of the record discussed.

(Paragraphs 9 and 10)

Trustees of Port of

Madras v. Engineering

Construction Corpn.

(1995) 5 SCC

531

(Paras 20, 14

and 17)

Two

Judges

Error apparent on the face of

award – must be one of law

which must be discernible from

the award itself or from the

documents incorporated therein

and such error must have vitiated

the decision.

Aribam T. Sharma v.

Aribam Ishaq Sharma

(1979) 4 SCC

389

Separate and several Writ

Petitions ought to have been

filed, instead of one, cannot be a

ground for review.

Shivdeo Singh v. State of Punjab, AIR 1963

SC 1909

(Para 8)

Five

Judges

High Court enjoys power of

review of decisions rendered

under Article 226 of the

Constitution.

AIR 2002 SC

1771

Five

Judges

Scope of review/curative

Petitions.

34

Green View Tea

Industries v. Collector,

Golaghat, Assam

AIR 2004 SC

1738

SLP dismissed as withdrawn.

Review was dismissed during the

pendency of SLP. Another SLP

in challenge of the order of the

High Court passed in review not

barred by doctrine of res

judicata.

Habu v. State of Rajasthan, AIR 1987

Raj.83 (Full Bench)

Mira Banja v. Nirmala Kumari, AIR 1995 SC

455;

Aribam T. Sharma v. Aribam P. Sharma,

AIR 1979 SC 1047

REVIEW (NEGATIVE JUDGMENTS)

Patel Narshi Thakershi & Ors. v. Shri

Pradyumansinghji, AIR 1970 SC 1273;

Lili Thomas v. Union of India, AIR 2000 SC

1650;

Gram Panchayat, Kanonda v. Director of

Consolidation on Holdings, AIR 1990 SC

763;

R.R. Verma v. Union of India, AIR 1980 SC

1461;

Maj Chandrabhan Singh v. Latafat Ullah

Khan,

AIR 1979 SC 1814;

State of Assam v. G.N. Roy, AIR 1975 SC

2277;

Meher Singh v. Naunihal, AIR 1972 SC

2533;

B.N. Roy v. State of Bihar, AIR 1971 SC

1045;

Harbhajan Singh v. Karamsingh, AIR 1966

SC 641.

35

XVIII. REVIEW (ORDER 47, RULE 1 CPC/ARTICLE 137 OF CONSTITUTION)

Party’s name & Citation Strength

of

Bench

Ratio laid down

State of Orissa v. Commissioner of Land

Records, AIR 1998 SC 3067.

Review should be by the same

Judge.

Sheonandan Paswan v. State of Bihar,

(1983) 4 SCC 104.

Legal infirmity, namely, a

decision against the settled

principle is an error apparent on

the face of record and a review

can be sought on the ground that

the Court applied the wrong law.

Tungabhadra Industries Ltd. v. State of AP,

AIR 1964 SC 1372

3 Judges Rejection of SLP is no bar for a

High Court to review, provided

the review was instituted prior to

filing of the SLP.

Kapra Mazdoor Ekta Union v. Birla Cotton

Spinning & Weaving Mills, (2005) 13 SCC

777

Labour Court has no inherent

power to review its order, but

enjoys power of procedural

review when order is passed in

violation of principles of natural

justice.

Suraj Devi v. Pyarelal, (1981) 1 SCC 350 High Court cannot invoke

inherent power and review an

order when power of review is

barred by Section 362 Cr.P.C.

Budhia Swain v. Gopinath Deb, (1999) 4

SCC 396

2 Judges A Tribunal can recall an order if it

lacks jurisdiction or if the order

was vitiated by fraud or collusion

or if there has been a mistake by

it prejudicing a party or was in

violation of the principles of

natural justice, namely, without

arraigning a necessary party or

without serving notice on him.

Hamsa Ali v. State of Kerala, (2006) 7 SCC

416

Where a decision is vitiated by

fraud, review is the appropriate

remedy.

Green View Tea & Industries v. Collector,

(2002) 1 SCC 109.

(Some discussion in paragraph 7

on the scope of review).

M.M. Thomas v. State of Kerala, (2000) 1

SCC 666

Tribunal has no inherent power

of review. High Court as a Court

of record has inherent power of

review.

Amarjit Kaur v. Harbhajan Singh, (2003) 10

SCC 228

Summary dismissal of review

Petition even where relevant

judgment of the Supreme Court

was cited, held not proper.

36

Aribam T. Sharma v. Aribam Ishaq Sharma,

(1979) 4 SCC 389

3 Judges A Judicial Commissioner could

not have reviewed orders of his

predecessor as it amounted to

sitting in appeal over it.

Distinction between appeal and

review jurisdiction explained.

(paragraph 3)

Surjit Singh v. Union of India, (1997) 10 SCC

592 (para 7)

Mistake of law or patent error

ought to be corrected by review

and not by appeal.

Promoters & Builders’ Association v. Pune

Municipal Corporation, (2007) 6 SCC 143

Where there is glaring omission

or patent error, review is the

remedy.

Commissioner of Sales Tax v. Pane

Chemicals, (1995) 1 SCC 58 (Paras 11 and

13)

3 Judges Interpretation of a statute

contrary to the plain language

used therein is an error apparent

on the face of record (legal error)

and review will lie.

Ramdeo Chauhan v. State of Assam, (2001)

5 SCC 714

Review by a death convict on the

ground that at the time of the

crime he was a juvenile

dismissed with comments in very

bad taste. However, this

judgment contains a detailed

reference on the power of review

and a number of judgments have

been cited. In that sense, it is

useful.

A.R. Antulay v. R.S. Nayak, (1988) 2 SCC

602

Patel Narshi Thakershi & Ors. v. Shri

Pradyumansinghji, AIR 1970 SC 1273

Power of review is not inherent.

Lily Thomas v. Union of India, (2000) 6 SCC Review can be sought under

Article 226/32.

XIX. WRIT OF PROHIBITION

Party’s name & Citation Strength

of

Bench

Ratio laid down

Isha Beevi v. Tax Reco.off. AIR 1975 SC

2135

Whirl Pool Corpn. v. Regut of Trade Marks.

(1998)8 SCC I

Bangal immunity Co.AIR 1955 SC 661

Hari Vishnu Kamath v. Ahmed, AIR 1955 SC

233

ALTERNATIVE REMEDY IS NO BAR

37

Party’s name & Citation Strength

of

Bench

Ratio laid down

Bangal Immunity Co.AIR 1955 SC 661

ISha Beevi v. Tax Recovery .officer. AIR

1975 SC 2135

Whirl Pool Corpn. v. Registrar of Trade

Marks. (1998)8 SCC I

Venketeswaran v. Wadhwani AIR 1961 SC

1506

State of U.P. v. Mohammad Nooh AIR 1958

SC 86

Hirday Narain v. ITO AIR 1971 SC 33

XX. REVIEW (ERROR APPARENT ON THE FACE OF RECORD

Party’s name & Citation Strength

of

Bench

Ratio laid down

REVIEW VIS-À- VIS APPEAL

Rekha Mukherji v. Ashish Kumar Das, (2005)

3 SCC 427.

Relative scope. Review

application pending or allowed

against a decree – Appeal from

such original decree either during

pendency of review or after grant

of review against it – Effect of

withdrawal of review application.

In case review is granted against

a part of the original decree, an

appeal would be maintainable

against that part of the review

granted.

38

CORPORATE CRIMINAL LIABILITY/ FERA/FEMA

Party’s name Citation Strength

of

Bench

Ratio laid down

Standard Chartered Bank

& Ors v. Directorate of

Enforcement & Ors

(2005) 4 SCC 530 Corporate Criminal Liability

Standard Chartered Bank

& Ors V. Directorate of

Enforcement & Ors

(2006) 4 SCC 278 Whether Prosecution could

continue when adjudication

proceedings was result in

discharge

Seema Silk & Sarees v. Union of India, (2008)

5 SCC 580

39

XXI ) FERA & FEMA

Party’s name Citation Strength

of

Bench

Ratio laid down

Standard Chartered Bank

& Ors V. Directorate of

Enforcement & Ors

2006 4 SCC 278 Whether Prosecution could

continue when adjudication

proceedings was result in

discharge

40

XXII) WRIT OF CERTIORARI

Party’s name Citation Strength

of

Bench

Ratio laid down

What is the appropriate writ to be sought when constitutional validity of a statutory

provision is challenged?

K.K. Kochunni v. State of Madras, AIR 1959 SC 725,

Charanjitlal Choudhary v. Union of India, AIR (38) 1951 SC 41

Shyam Kishore & Ors. v.

Municipal Corporation of

Delhi & Ors

(1993) 1 SCC 22

(Para 37)

Certiorari will lie even where an

appeal is dismissed

Election Commission v.

Saka Venkatrao

AIR 1953 SC 210 Procedural technicalities of the

English law need not be

followed.

T.C. Basappa v. T. Nagappa, AIR 1954 SC

440

[An excellent judgment on the scope of

certiorari)

(Paras 5 to 11)

5 Judges A writ of Certiorari will lie

(i) to remove or adjudicate on

the validity of a judicial act;

(ii) no appeal to supervisor;

(iii) where the Tribunal has acted

without or in excess of its

jurisdiction or, in other words,

acted in ignorance or disregard

of law;

A writ of certiorari will also lie if a

Tribunal:

i) is not legally constituted;

ii) violates principles of natural

justice.

Courts in India need not be

oppressed by the limitations

under which English Courts

have exercised jurisdiction, but

need only to keep in mind the

broad and fundamental

principles.

State of U.P v.

Mohammad Nooh

AIR 1958 SC 86

Smt. Ujjambai v. State of U.P, AIR 1962 SC

621

7 Judges Certiorari will lie where an

impugned action at the hands of

an administrative or quasi-

judicial authority or judicial

authority is in violation of law

and thus without jurisdiction.

If the Tribunal is improperly

constituted or fails to observe

41

certain essential fundamentals

of inquiry, certiorari will lie.

Syed Yakub v. K.S. Radhakrishnan, AIR 1964

SC 477

(Para 8)

- do -

S. Nagaraj v. State of Karnataka, 1993

Supp.(4) SCC 595.

Hari Vishnu Kamath v. Ahmed Ishaq, AIR

1955 SC 233

7 Judges - do -

When violation of fundamental

right is anticipated, writ of

prohibition can be sought.

Conditions on which certiorari

can be sought – distinction

between certiorari and

prohibition.

M/s.Travancore Rayons Ltd v. The Union of

India and Ors. AIR 1971 SC 862

The state of Bombay(now Maharashtra), v.

Nurul Latif Khan, AIR 1966 SC 269

Smt.Meneka Gandhi v. Union of India & Ors.

AIR 1978 SC 597

Swadeshi Cotton Mills v. Union of India AIR

1981 SC 818

S.L Kapoor v. Jagmohan and Ors. AIR 1981

SC 136

Liberty Oil Mills and Ors. v. Union of India

and Ors. AIR 1984 SC 1271

Gullapalli Nageswara Rao and Ors, v.

Andhra Pradesh State Road Transport

Corporation and Ors, AIR1959 SC 308

Gullapalli Nageswara Rao and Ors, v. State

of Andhra Pradesh and Ors. AIR1959 SC

1376

J.Y. Kondala Rao and Ors. v. Andhra

Pradesh State Road Transport Corporation

and Ors. AIR 1961 SC 82

Joseph Kuruvilla Vellukunnel v. Bank of India

and Ors. AIR 1962 SC 1371

M/s.Krishna Bus Service Pvt. Ltd., v. State of

Haryana and Ors. AIR 1985 SC 1651

Hindustan Petroleum Corpn. Ltd., v.

Yashwant Gajanan Joshi and Ors. AIR 1991

SC 933

State of Karnataka v. Shree Rameshwara

42

Rice Mills,Thirthahalli AIR 1987 SC 1359

Institute of Chartered Accountants of India v.

L.K.Ratna and Ors. AIR 1987 SC 71

City Corner, v. Personal Asstt. to Collector

and Addl. District Magistrate, Nellore, AIR

1976 SC 143

State of U.P., v. Mohammad Nooh. AIR 1958

SC 86

Farid Ahmed Abdul Samad and another v.

The Municipal Corporation of the City of

Ahmedabad and Ors. AIR 1976 SC 2095

P.N.Eswara Iyer v. The Registrar, Supreme

court of India AIR 1980 SC 808

Bombay Municipal Corporation v. Dhondu

Narayan Chowdhary AIR 1965 SC 1486

Shri.Mandir Sita Ramji v. Governor of Delhi

and Ors. AIR 1974 SC 1868

K.I Shephard and Ors. v. Union of India and

Ors. AIR 1988 SC 686

COULD AN ORDER WHICH IS VITIATED FOR VIOLATION OF PRINCIPLES OF

NATURAL JUSTICE AT THE FACT-FINDING STAGE BE CURED BY A FULL-FLEDGED

APPEAL BOTH ON FACTS AND LAW IN FULL COMPLIANCE OF NATURAL JUSTICE?

WHETHER EXISTENCE OF ALTERNATIVE REMEDY OF A STATUTORY APPEAL

COULD BE A BAR WHERE WRIT OF CERTIORARI IS SOUGHT ON THE GROUND OF

VIOLATION OF NATURAL JUSTICE?

State of U.P. v. Mohmed Nooh, AIR 1958 SC

86

City Corner v. Personal Assistant to the

Collector,

AIR 1976 SC 143;

3 Judges

Farid Ahmed v. Municipal Corporation of

Ahmedabad,

AIR 1976 SC 2095;

AIR 1977 SC 747;

S.L. Kapoor v. Jagmohan, AIR 1981 SC 136;

Swadeshi Cotton Mills v. Union of India, AIR

1981 SC 818;

L.K. Ratna v. Institute of Chartered

Accountants in India,

AIR 1987 SC 71;

43

XXIII) SPEAKING ORDER

Party’s name Citation Strength

of

Bench

Ratio laid down

Travancore Rayons Ltd v.

The Union of India & Ors

1978 E.L.T (J

378)

Speaking Order

Swadeshi Cotton Mills v. Union of India, AIR

1981 SC 818

Siemens Engineering v.

Union of India

AIR 1976 SC

1785,

Para 6

Speaking order a must. (Based

on the observations in paragraph

6 of the judgment only SEGAT

was constituted, bringing an end

to Government hearing appeals

of Customs and Excise matters.

44

Balance Citations to be arranged

Party’s name Citation Strength

of

Bench

Ratio laid down

I.R.Coelho (Dead) by LR v. State of Tamil

Nadu & Ors., 2007 (1) KHC 299 = (2007) 2

SCC 1 (Decided on 11 th January, 2007)

9 Judges

CFFP Employees

Association & Ors v..

Chairman & Managing

Director & Ors

1995 Supp (3)

SCC 685

State of U.P & Ors V.

Ram Bachan Tripathi

2005 6 SCC 496

Dr. Pratap Singh & Ors v.

Director of Enforcement,

Foreign Exchange

Regulations Act & Ors

AIR 1985 SCC

989

Ram Gopal Chaturvedi v.

State of Madhya Pradesh

AIR 1970 SC 158

Narsingh Das Tapadia v.

Goverdhan Das Partani &

Ors.

2000 – AIR (SC)-

0-2496

Kailash Nath & Ors v.

State of U.P & Ors

AIR 1957 S.C

790

5 Judge

Ghanshyamdas v.

Regional Assistant

Commissioner of Sales

Tax, Nagpur

AIR 1964 SC 766

Purshotam Singh v.

Narain Singh and State of

Rajasthan

AIR 1955 Raj.

203

Maneka Gandhi v. Union

of India & Ors

AIR 1978 SC 597 Right to Hearing

Premchand Gupta v.

Director, Enforcement

Directorate

2004 (96) ECC

385 (ATFFE)

Smt Charanjit Kaur v.

Union of India & Ors

AIR 1994 SC

1491

Mohammad Yasin v.

Town Area Committee,

Jalalabad & Ors

AIR 1952 SC 115 5 Judges

S.P. Yarns v. Assistant

Director, Enforcement

Directorate

2000 – 113 –

Taxman – 0015

FERA

Sanjana M.WIG (MS) v. (2005) 8 SCC

45

Hindustan Petroleum

Corp Ltd

AIR 2004 SC 1442

PUCL RTI, AIR 1982 SC

149 SP GUPTA, AIR

1975 SC 865

242

PUCL v. Union of India

AIR 2004 SC

1442

(Para 45)

Right to information fundamental

right.

S.P. Gupta v. Union of India, AIR 1982 SC

149

State of UP v. Raj Narain (1975) 4 SCC

428

5 Judges

- do -

Satya Narain Singh v.

The High Court of

Judicature at Allahabad &

Ors.

AIR 1985 SC 308

Chhatradharilal Gangaram Subedar v.

Shyamabai Ramsewaklal Agrawal, AIR 1966

M.P. 67

Gullappalli Nageshwarao & Ors., State of

Andhra Pradesh & Ors., AIR 1959 SC 1376

The State of West Bengal v. Anwar Ali Sarkar

& another, AIR (39) 1952 SC 75

7 Judges A statute which is constitutional

on its face may be liable to be

declared unconstitutional if it in

its actual operation is otherwise.

Para 38

Himmatlal Harilal Mehta

v. State of M.P and Two

Ors, State of Madras

Intervener

AIR 1954 SC 403

46

XXIV RES JUDICATA

Dadu Dayalu Mahasabha v. Mahant Ram Niwas & Anr., (2008) 11 SCC 753

Party’s name Citation Strength

of

Bench

Ratio laid down

Green View Tea

Industries v. Collector,

Golaghat, Assam

AIR 2004 SC

1738

SLP dismissed as withdrawn.

Review was dismissed during

the pendency of SLP. Another

SLP in challenge of the order of

the High Court passed in review

not barred by doctrine of res

judicata.

Shanmuga Vel Nadar v.

State of Tamil Nadu

(2002) 8 SCC

361

2 Judges Dismissal of SLP does not

amount to merger of the order of

the Supreme Court with that of

the High Court and it is open,

therefore, for a larger Bench to

reconsider the judgment of the

Division Bench.

Precedent

Only the declarations of law by

the Supreme Court and the

reasoning alone could be

precedent.

Hosang Singh v. Union of

India (Paras 7 & 8)

AIR 1979 SC

1328

Dismissal of a Writ Petition in

limine without speaking order

does not constitute res judicata.

Where Writ Petition is dismissed

on the ground of existence of

alternative remedy, dismissal in

limine could mean only

relegating the party to the

alternative remedy.

Avtar Singh v. Jagjit

Singh

AIR 1979 SC

1911

Where a plaint is returned on the

ground of lack of jurisdiction and

no appeal is filed against that

order, no res judicata is

constituted in so far as no notice

had gone to the opposite side

and they were not heard.

Mathura Prasad v.

Dossibai

AIR 1971 SC

2355

Erroneous decision on a

question of jurisdiction cannot

operate as res judicata.

Joseph Pothen v. State of

Kerala.

AIR 1965 SC

1514 (Para 5)

(by Subba Rao,

J.)

5 Judges Writ Petition under Article 226

dismissed not on merits – Party

aggrieved can approach the

Supreme Court under Article 32

of the Constitution on the same

cause of action – There is no bar

of res judicata.

47

Daryao & Ors. v.

State of U.P.

AIR 1961 SC

1457

(Para 26)

(by

Gajendragadkar,

J.)

5 Judges If a Writ Petition is dismissed by

the High Court not on merits but

on the ground of lapses,

dismissal thereof will not cause

a bar for a Petition under Article

32 to the Supreme Court. If a

Writ Petition is dismissed in

limine, but not on merits, it will

not constitute res judicata.

When violation of fundamental

rights is alleged, rule of res

judicata will not strictly apply.

Gulabchand v. State of

Gujarat AIR 1965 SC

1153

Decision in an earlier Writ

Petition on merits - Subsequent

Writ involving the same question

and same relief is barred by res

judicata.

G.N. Nayak v. Goa

University

AIR 2002 SC 790

(by Ruma Pal, J.)

2 Judges First Writ Petition filed on the

ground of apprehended bias

dismissed as withdrawn.

Whether second Writ Petition on

allegation of actual bias

suffered, there is no bar of res

judicata – cause of action being

different.

Ashok Kumar Srivastav v.

National Insurance

Company.

AIR 1998 SC

2046 (Para 11)

(by K.T. Thomas,

J.)

2 Judges Mere dismissal of an earlier Writ

Petition will not amount to res

judicata. However, decision in

an earlier Writ Petition on an

issue raised and decided by the

Court will amount to res judicata.

However, violation of

fundamental rights is an

exception to the rule of bar by

res judicata.

Supreme Court

Employees Welfare

Association v. Union of

India.

AIR 1990 SC 334 2 Judges A final decision cannot be

sought to be re-opened on the

ground of being in violation of

fundamental rights.

(This judgment by two Judges is

in conflict with judgment of larger

Bench which says that where

fundamental rights are alleged to

be violated, there is no bar of res

judicata.

P.D. Sharma v. State

Bank of India.

AIR 1968 SC 985 Dismissal of Writ Petition in

limine by a non-speaking order

does not constitute res judicata.

Therefore, such an order of the

High Court having become final,

as no SLP against the order of

the High Court having been filed,

the original order, challenge

against which was lost in the

High Court, could still be

48

challenged in the Supreme

Court under Article 136.

MSEB v. Kalyan

Municipality

AIR 1968 SC 991 5 Judges

AIR 1968 SC

1370

2 Judges Constructive res judicata

discussed.

Gangabai v. Vijay Kumar, (1974) 2 SCC 393 2 Judges Res judicata discussed.

There is a basic distinction

between the right of suit and the

right of appeal. There is an

inherent right in every person to

bring suit of a civil nature and

unless the suit is barred by

statute one may, at one's peril,

bring a suit of one's choice. It is

no answer to a suit howsoever

frivolous the claim, that the law

confers no such right to sue. A

suit for its maintainability

requires no authority of law and

it is enough that no statute bars

the suit. But the position in

regard to appeals is quite the

opposite. The right of appeal

inheres in no one and therefore

an appeal for its maintainability

must have the clear authority of

law. That explains why the right

of appeal is described as a

creature of statute.

Workmen of Cochin Port Trust v. Cochin Port

Trust, AIR 1978 SC 1283

3 Judges Constructive res judicata

discussed.

Anemuthu Thevar v.

Alagamma

(2005) 6 SCC

2001

Constructive res judicata

discussed.

Devilal Modi v. Sales Tax

Officer, Ratlam.

AIR 1965 SC

1150

Even where violation of

fundamental rights is alleged,

res judicata cannot be

completely ignored though as a

general rule, res judicata cannot

be a bar when violation of

fundamental rights is alleged.

Amalgamated Coal Fields

Ltd. v. Janapada Sabha

AIR 1961 SC 964 Constructive res judicata, which

is a special or artificial form of

res judicata enacted by Section

11, CPC, should not generally

be applied to Writ Petition under

Article 32 or Article 226 of the

Constitution.

Sahiram v. Avtar Singh. AIR 1999 Delhi DB Dismissal of SLP by a non-

speaking order will not operate

as a bar for filing a fresh Writ

Petition in the High Court.

Brij Behari Pande v. State AIR 1997 Patna

49

of Bihar 74

Naga Bhooshan v.

Angamangayya

AIR 1968 AP 74

(Para 10)

Petition on identical facts on

merits will constitute res judicata.

AIR 1960 SC 941 Res judicata could be applicable

between two stages in the same

litigation.

Ahmedabad Manufacturing & Calico Printing

Co. Ltd. Vs. The Workmen & Anr. AIR 1981

SC 960.

Indian Oil Corporation Ltd v. State of Bihar

A.I.R. 1986 S.C. 1780

Sheoparsan Singh v. Ramnandan Singh, AIR

1916 PC 78

Lal Chand (Dead) by L.Rs. v. Radha Krishan,

AIR 1977 SC 789

50

XXV) CONSTITUTIONAL VALIDITY – WHEN POWER CAN BE EXERCISED

Party’s name Citation Strength

of

Bench

Ratio laid down

Government of A.P. v.

Laxmi Devi

(2008) 4 SCC

720

(Para 37

onwards)

When can a Court declare a

statute unconstitutional –

discussed.

Bidhan Nagar Salt

Welfare Association v.

Central Valuation Board

(2007) 6 SCC

668

Speaking order a must, if not it is

a nullity.

If a statute does not provide an

opportunity of hearing, it is

unconstitutional.

XXVI) CRIMINAL CONTEMPT BY PERJURY/FORGERY

Chandra Shashi v. Anil Kumar Varma, (1995)

1 SCC 421;

Dhananjay Sharma v. State of Haryana,

(1995) 3 SCC 757.

Making such false and reckless

submission before a Court,

based on which an application

or Writ Petition was dismissed,

amounts to interference with

administration of justice within

the meaning of Section 2(c)(iii)

of the Contempt of Courts Act,

1971.

In Re: Presidential Reference, AIR 1965 SC 745

51

DRT/DRAT

Mardia Chemicals Ltd. v. Union of India,

(2004) 4 SCC 311

Para 44

Internal mechanism.

Para 45 Adjudication by the banker.

Para 62 Appeal under Section 17 of

Securitisation Act is not an appeal

but a suit at the first instance.

Para 68 Contention of the borrower

Para 69 Contention of the Respondent

Paras 75, 76 &

77

Right of the borrower to be heard.

The secured creditor must bear in

mind the say of the borrower

before the process of recovery is

initiated.

Para 78 Borrower cannot be condemned

unheard.

“If the borrower raises any

objection or places facts for

consideration of the secured

creditor, such objection to the

notice must be considered with

application of mind and reasons for

not accepting the objection,

howsoever brief they may be, must

be communicated.

Para 83(3) The Tribunal in exercise of its

ancillary power shall have

jurisdiction to pass any stay/interim

order subject to such condition as it

may deem fit and proper to

impose.

Kalyani Sales v. Union of India, 1 (2006)

Banking Cases, 1. (DB) Punjab & Haryana

HC (D.K. Jain, C.J.)

Doctrine of election is applicable

and once an OA has been

instituted, to invoke the provisions

of the Securitisation Act, the OA

has to be withdrawn.

Allahabad Bank v. Radhakrishna Maiti, AIR

1999 SC 3426

Paras 9,10 & 11

Tribunal has wider powers than

Civil Court under CPC and the

same is not limited to granting of

stay or injunction. All that is

required is observation of

principles of natural justice.

Income-tax Officer v. Mohamed Kunjhi, AIR

1969 SC 430

The maxim Cui jurisdiction data est

ea quoqe concessa esse vindentur

sine guibus jurisdiction explicari

non potent, namely where an act

confers a jurisdiction, it impliedly

also grants the powers of doing

such acts or employing such

52

means as are essentially

necessary to its execution..

Nandini Satpati v. P.L. Dani, (1978) 2 SCC

424

(Krishna Iyer, J.)

5

Judges

The protection extends not alone

from the commencement of the

trial but right from the stage of

investigation. The compelling

testimony includes any mode of

pressure, subtle or crude, mental

or physical, direct or indirect,

employed for obtaining information.

Life Insurance Corporation of India v.

Escorts, AIR 1986 SC 1370

5

Judges

Law as to jurisdiction and power of

the RBI in the management of

foreign exchange.

Management of Nallibharat Engg. Co. Ltd. v.

State of Bihar

(1990) 2 SCC 48

Failure to give opportunity of

hearing itself will cause prejudice;

no independent evidence is

required. Pre-decisional hearing is

a must.

Authorized Officer, Indian Overseas Bank v.

Ashok Saw Mill, AIR 2009 SC 2420 (Paras

23 and 24)

The Tribunal in exercise of powers

under Sections 17(3) and 17(4) of

the Securitisation Act is entitled to

restore possession even where

sale has taken effect and the

secured asset has reached the

hands of third party.

Appeal will lie under Section 17

against any proceeding at any

stage. That means, sale notice

can be independently challenged

even where other measures under

Section 13(4) were not challenged.

Lakshmi Sankar Mills Pvt. Ltd. v. Authorized

Officer, Indian Bank, reported in AIR 2008

Madras, 181 = 2008 Ind. Law (Madras) 547

Sundaram Home Finance Ltd. v. Tahsildar,

Hosur, (2007) 2 CTC 1

Stan Commodities Pvt. Ltd. v. Punjab &

Sind Bank, AIR 2009 Jharkhand, 14

Under RBI guidelines, classification

of an account as NPA can only be

done with notice to and knowledge

of the borrower and any doubt or

dispute by the borrower ought to

be settled within one month and it

is only after such opportunity is

afforded that you could classify his

account as NPA. Failure to do so

would render such classification,

which is the sheet anchor on which

securitization measures are

founded, null and void.

Condonation of Delay

53

Naseeruddin & Ors. v.

Sitaram Agarwal

(2003) 2 SCC

577

Para 20

Statute to be construed by the

plain words used.

Doctrine of Necessity

Joseph Vellikunnel v. RBI, AIR 1962 SC 1371

Kihoto Hollohan v. Zachillhu, (1992) Supp. 2

SCC 651 = AIR 1993 SC 412

5

Judges

Speaker acting as a Tribunal

under the Anti-Defection Law is

acting as a Judicial Tribunal.

Speaker is amenable to judicial

review. Finality clause in a

statute cannot affect the power

of judicial review. Under the

Anti-Defection law, jurisdiction of

the Supreme Court under Article

136 and of High Courts under

Article 226 is excluded.

Distinction between Court and persona designate.

Municipal Corporation of Delhi v. Gurnam

Kaur, AIR 1989 SC 38

(Paras 11 and 12)

3

Judges

Judgments without reference to

the relevant provisions of the Act

are per in curium and are not

binding precedents.

Distinction between Court & Tribunal/administrative and judicial function

Harinagar Sugar Mills Ltd v. Shyam

Sunder Jhunjhunwala, AIR 1961 SC 1669

(Paras 10, 11 and 16

Constitut

ion

Bench

Distinction between Courts and

Tribunals defined.

Province of Bombay v. Khushaldas S.

Advani, AIR 1950 SC 222.

Bidhan Nagar Salt Welfare Association v.

Central Valuation Board, (2007) 6 SCC

668

Gullapalli Nageswara Rao and Ors, v.

Andhra Pradesh State Road Transport

Corporation and Ors, AIR1959 SC 308.

Thakur Sinha v. Sitamarhi Central Co-

operative Bank Ltd., AIR 1967 SC 1494.

A Co-operative Court was held to

be a Court (a decision rendered

with respect to Contempt of Court

Act), seemingly one rendered per

in curium.

Brajnandan Sinha v. Jyoti Narain, AIR

1956 SC 66

Court and Tribunal discussed.

Commissioner under Section 37 of

Public Servants Inquiry Act not a

54

Court.

Associated Cement Companies Ltd. v. P.

N. Sharma, AIR 1965 SC 1595

Even a Government could be a

Tribunal; test discussed at

paragraphs 25, 33, 38 and 42.

Trappings of a Court (Para 33).

Kihoto Hollohan v. Zachillhu, (1992)

Supp. 2 SCC 651 = AIR 1993 SC 412

Distinction of Court and Tribunal

discussed (Paras 98, 99 and 101)

Smt. Ujjambai v. State of U.P, AIR 1962

SC 1621 (Para 15)

7 Judges -do-

Province of Bombay v. Khushaldas S.

Advani, AIR 1950 SC 222 (Para 8)

-do-

Return of Plaint

Avtar Singh v. Jagjit Singh AIR 1979 SC

1911

Where a plaint is returned on the

ground of lack of jurisdiction and

no appeal is filed against that

order, no res judicata is

constituted in so far as no notice

had gone to the opposite side

and they were not heard.

Article 32

Ramesh Thapar v.

State of Madras

AIR 1950 SC 124 Existence of alternative remedy is no

bar for invoking Article 32 or Article

226 of the Constitution.

K.K. Kochunni v. State of Madras, AIR

1959 SC 725

Para 8

5 Judges - do -

Question of fact can be gone into

under Article 226 as also for the

proposition that alternative remedy is

no bar.

Writ of prohibition can be sought

when violation of fundamental right

is in dispute.

55

ARTICLES 20(2) AND 20(3) OF THE CONSTITUTION

(PROTECTION AGAINST DOUBLE JEOPARDY AND PROTECTION AGAINST SELF-

INCRIMINATION)

Party’s name Citation Strength

of

Bench

Ratio laid down

Maqbool Hussain v. State of Bombay,

AIR 1953 SC 235

(Paras 10 to 13)

5 Judges Adjudication by the Collector of

Customs under the Sea Customs

Act does not amount to prosecution

as the Collector under the said Act

is not a judicial Tribunal. Judicial

Tribunal explained.

M.B. Sharma v. Satishchandra, AIR 1954

SC 300

8 Judges Not to be compelled to be a witness

is not confined to Court Rooms, but

outside as well.

Held: Protection is available to a

person who is formally accused.

Whether such protection is available

to others, namely, persons who are

yet to be accused, kept left open.

Thomas Dana v. State of Punjab, AIR

1959 SC 375

5 Judges Ratio in Maqbool Hussain re-

affirmed. The expressions

“prosecute”, “punishment”,

“offence”, etc., explained.

Mohd. Dastagir v. Union of India, AIR

1960 SC 756

(Para 9)

To attract Article 20(3), two

conditions be met viz.

(a) must be accused of an

offence;

(b) compelled to be a witness

against himself.

Rajanarayanlal Bansilal v. Manek Firoze

Mistry

AIR 1961 SC 29

5 Judges Article 20(3) applies only to

someone who is formally accused,

unlike in the USA where such

protection extends even to civil

proceedings.

Unless you are an accused, you

cannot be asked to give evidence

and produce documents.

Effect of repeal also discussed.

State of Bombay v. Karthi Kalu Oghard,

AIR 1961 SC 1808

Full

Court

Re-affirms the ratio laid down by the

8 Judge Bench judgment in M.B.

Sharma’s case that protection under

Article 20(3) includes not merely

oral testimony in and out of Court,

but statements in writing and

documents as well.

Protection is limited to a person who

must have stood in the character of

an accused at the time when he

was compelled to make the

56

statement. If he has become an

accused later, the protection is not

available.

Protection is confined only to

evidence obtained under

compulsion.

Such protection does not include

thumb impression, sample

handwriting, signature, etc., as it

does not amount to be a witness.

Constitutional validity of Section 27

of Evidence Act upheld.

Kalavati v. State of Himachal Pradesh,

AIR 1963 SC 131

5 Judges (a) Appeal against acquittal is

continuation of prosecution.

(b) If acquitted, Article 20(2) is

not attracted.

(c) Protection under Article 20(3)

can be claimed by a co-accused, in

the sense that, confession of a co-

accused is no evidence against

another accused.

State of Gujarat v. Shyamlal Mohanlal

Chokshi, AIR 1965 SC 1251

(Paras 37 and 38)

5 Judges An accused cannot be compelled to

produce documents and no search

of documents in his possession can

be made.

Tukaram G. Gaonkar v. R. N. Shukla &

Ors, AIR 1968 SC 1050

(Para 6)

5 Judges Whether an accused summoned

can claim protection under Article

29(3) and whether in the event of

his being compelled to give

incriminating answers, can he

invoke the protection of the proviso

to Section 132 of the Indian

Evidence Act against use of those

answers in the criminal proceedings

– left unanswered as the authorities

gave an undertaking in the High

Court that they would not use such

evidence against the accused.

(MJN to research on the question

whether if evidence is taken in

violation of Article 20(3), could that

evidence be used against?)

Rameshchandra Mehta

v. State of West Bengal

AIR 1970 SC

940

(Paras 11 and

14)

Evidence collected by the Sea

Customs Officer by examining an

accused before a FIR is lodged is

admissible – Article 20(3) is not

attracted.

Collector of Customs v.

L.R. Melwani

AIR 1970 SC

962

Article 20 – Doctrine of estoppel

explained.

57

Res judicata pro veritate accipitur

applicable to both civil and criminal

proceedings. Yet, imposition of

penalty by Collector of Customs

was found to be not amounting to a

prosecution, as Collector of

Customs is not a Judicial Tribunal.

Notes (for MJN):

(1) Research content and scope

of the concept of autrifois acquit;

(2) Get copies of Pritam Singh v.

State of Punjab (AIR 1956 SC 415)

and N.R. Ghosh v. State of West

Bengal (AIR 1960 SC 329).

Ramanlal Bhogilal Shah v. D.K. Guha,

AIR 1973 SC 1196

5 Judges Article 20(3) is not merely confined

to Court Room re-stated.

Also re-affirmed that once you are

an accused, you cannot be

compelled to give evidence to any

investigating agency, in the present

case, to the Enforcement

Directorate.

The judgment, however, states that

the question whether one could be

compelled to give evidence if no FIR

is filed is left open, although that

was decided in the negative in AIR

1961 SC 29 & AIR 1970 SC 940.

Nandini Satpati v. P.L. Dani, AIR 1978

SC 1025

(Para 55)

Right of silence: Yes or No.

Non-incriminatory facts can be

asked. (Paras 42 and 43).

Benefit must go in favour of the right

of silence. What is compulsion –

discussed. (Paras 53 & 55).

Legal consequence following upon

refusal to answer cannot constitute

a compulsion. There must be a

compulsion of physical, physic,

atmospheric, etc.

S.V. Venkatram v. Union of India, AIR

1954 SC 375

(Paras 5 and 6)

5 Judges Prosecution and punishment

discussed.

1. Vedaprakash Sikri v. Union of India, 42 (1990) BLT 295

2. Superintendent of Customs v. S.V. Tandel, 1991 (35) ECR 209

3. Sadiq Fateh Ali v. Union of India, 1992 (41) ECR 591

4. Bhanabhai Khalpabhai v. Collector of Customs, 1996 (62) ECR 500 (SC)

5. Union of India v. N.S.R. Krishnaprasad, 1997 (93) ELT 324 (SC)

58

WHAT IS THE LEGAL CONSEQUENCE AND EFFECT OF PENDENCY OF AN

APPLICATION FOR RENEWAL OF LICENCE/EXTENSION OF TIME ETC., WHERE NO

ACTION IS TAKEN BY THE AUTHORITY? COULD IT BE DEEMED IN LAW THAT THE

APPLICATION IS ALLOWED OR IS NOT REJECTED?

Cheran Transport Co.

Ltd. v. Kanan Lorry

Service

AIR 1977 SC

1564

(Ratio to be dictated)

D. Nataraja Mudaliar v.

State

Transport Authority

AIR 1979 SC

114

- do -

NULLITY OF AN ORDER OR DECREE

Ridge v. Baldwin, 64 Appeal Cases 40 An order passed in violation of

natural justice is a nullity.

Nawabkhan v. State of

Gujarat

AIR 1974 SC

1471

(Paras 10, 12,

19 & 20)

An order passed in violation of

natural justice is a nullity, stillborn

and is of no consequence.

The question whether a null and void

order could be disobeyed on the

self-determined nullity – not

answered.

State of Haryana v. Haryana Co-

operative Transport Ltd., AIR 1977 SC

237

The nullity of an order or decree

passed by an incompetently

constituted Tribunal cannot be

protected even by express statutory

provision, holding that defect in the

constitution of the Tribunal cannot be

sought to be challenged on that

ground. On this point, the

Constitution Bench judgment of the

Supreme Court in Kihoto Hollohan v.

Zachillhu (1992) Supp. 2 SCC 651:

AIR 1993 SC 412) is absolutely

relevant.

S.L. Kapoor v. Jagmohan, AIR 1981 SC

136

(Paras 19 & 24)

3

Judges

Merely because facts are admitted, it

does not follow that interest of justice

need not be observed. Non-

observance of interest of justice is

itself prejudice and proof of prejudice

independently of proof of denial of

interest of justice is unnecessary.

John v. Reef 1971 Ch. 345

(at 402)

Even when something is obvious,

interests of justice cannot be denied.

Farid Ahmed v.

Municipal Corporation

of Ahmedabad

AIR 1976 SC

2095

(Para 25)

An order which is null and void for

violation of interests of justice cannot

be got rid of its invalidity by approval

by an appellate body.

59

Rungta Sons Pvt. Ltd. v. Collector of

Customs, Visakapatinam, 1986 (23) ELT

14 (Cal)

- do -

Institute of Chartered

Accountants of India

AIR 1987 SC 7

(Para 17)

- do -

Leary v. National Union of Vehicle

Builders, (1971) 1 Ch.34

- do -

60

ERROR APPARENT ON THE FACE OF RECORD

Syed Yakub v. K.S.

Radhakrishnan

1964 SC 477

(Para 8)

What is an error apparent on record,

namely,

CITATIONS ON CROSS-EXAMINATION

CITATIONS ON CROSS-EXAMINATION

Party’s name Citation Strength

of Bench

Ratio laid down

Khemchand v. Union

of India

1958 SCR

1080

5 Judges Right of cross-examination essential

ingredient of natural justice.

Show Cause Notice must contain

(a) the charges leveled and

(b) the allegations based on which the

charges are levelled with material

which constitutes such allegations

Union of India v. T.R. Varma, AIR

1957 SC 882

Denial of opportunity of cross exam

fatal

State of Madhya

Pradesh v.

Chintaman Sadashiva

AIR 1961 SC

1623

Chinna Basappa v.

State of Mysore.

AIR 1961 SC

1070

- DO -

State of Bombay v.

Narul Latif Khan.

(1965) 3 SCR

135

Right of cross-examination and right to

adduce oral evidence.

Phulbari Tea Estate

v. Its Workmen.

AIR 1959 SC

1111

(Paras 5 and

7)

Right of cross-examination

Kanugo & Co. v.

Collector of Customs.

(1973) 2 SCC

438

3 Judges Right of cross-examination need not

be in the presence of the person from

whom seizure was made.

K.C. Tripathi v. State

Bank of India.

(1984) 1 SCC

43

3 Judges Non-compliance of natural justice must

cause some real prejudice – absence

of formal opportunity of cross-

examination did not vitiate the order.

Managing Director,

ECIL v. B. Karunakar

(1993) 4 SCC

77

Para 6

5 Judges Right of cross-examination – right to

be heard has to be read into the

statute.

Gajadhar Prasad v. Babu Bhakta

Rattan, AIR 1973 SC 2593.

The duty to observe natural justice is a

universal law applicable to all

situations.

Bidhan Nagar Salt Welfare

Association v. Central Valuation

Board, (2007) 6 SCC 668 (Paras 42,

43)

Exclusion of principles of natural

justice would render a statute

unconstitutional.

Meenglass Tea Estate v. Workmen, AIR 1963 SC

1719

Para 4

Natural justice requires that not only

the material based on which the

accusation or allegation is made has

to be furnished, but a fair opportunity

to contradict the same by leading

evidence by cross-examination has to

be given.

2

I) FUNDAMENTAL RIGHTS

WRIT PETITION WHERE EXISTENCE OF ALTERNATIVE REMEDY CANNOT BE A

BAR AND WHAT IS THE MEANING AND SCOPE OF JUDICIAL DISCRETION; IS THE

COURT BOUND TO INVESTIGATE WHETHER THERE IS VIOLATION OF

FUNDAMENTAL RIGHTS AND WHERE FUNDAMENTAL RIGHTS ARE VIOLATED

WHETHER RELIEF COULD BE DENIED.

Party’s name & Citation Strength

of Bench

Ratio laid down

Rashid Ahmed v. Municipal Board,

Khairana, AIR 1950 SC 163 (Para 6)

6 Judges Court is bound to entertain a Writ

when fundamental rights are infringed.

Daryao & Ors. v. State of U.P., AIR 1961

SC 1457

(by Gajendragadkar, J.)

5 Judges Granting of an appropriate relief under

Article 32 is not discretionary.

Citizens are entitled to appropriate

relief once it is shown that their

fundamental rights have been

infringed.

Further held: Right under Article 226

is also liable to be treated as one

under Article 32 when violation of

fundamental rights is complained.

Dismissal of a Writ Petition under

Article 226 not on merit but on the

ground that alternative remedy is

available will not bar a Writ under

Article 32.

A.V. Venkiteshwaran,

Collector of Customs v.

Ramachand Sobharaj

Wadhwani.

AIR 1961 SC

1506

(Paras 8 & 9)

5 Judges Alternative remedy is no bar.

Certiorari will lie. Para

Meenglass Tea Estate

v. Workmen

AIR 1963 SC

1719

Para 4

Natural justice requires that not only

the material based on which the

accusation or allegation is made has

to be furnished, but a fair opportunity

to contradict the same by leading

evidence by cross-examination has to

be given.

Kharak Singh v. State of Uttar Pradesh,

AIR 1963 SC 1295

(Para 12, last)

6 Judges Where fundamental rights are

infringed, it is not only the right but the

duty of the Court to afford relief.

Joseph Pothen v. State of Kerala, AIR

1965 SC 1514

5 Judges Right under Article 226 is also liable to

be treated as one under Article 32

when violation of fundamental rights is

complained. Dismissal of a Writ

Petition under Article 226 not on merit

but on the ground that alternative

remedy is available will not bar a Writ

under Article 32.

State of Orissa v. Dr. (Miss) Binapani Dei,

AIR 1967 SC 1269

Even administrative orders involving

civil consequence have to be passed

by observing principles of natural

justice.

3

Baburam Prakashchandra Maheshwari v.

Antarin Zilla Parishad, AIR 1969 SC 556

(Paras 3 & 4)

3 Judges Distinction between Writ of certiorari

and Writ of mandamus made; where a

Writ of certiorari is sought, plea of

alternative remedy cannot be raised at

all.

Nawabkhan v. State of Gujarat, AIR 1974

SC 1471

(Krishna Iyer, J.)

DB An order passed in violation of the

doctrine of audi alteram partem is a

nullity and such violation can

constitute no offence as the order

being void from its inception was non-

existent in the eye of law. The

question whether a citizen affected by

an illegal act can ignore and disregard

it with impunity on the self-determined

voidance of the order, not answered

and is left open.

Indira Gandhi v. Raj Narain, AIR 1975 SC

2299

Natural justice ought to be observed

even if the statute is silent.

Ridge v. Baldwin, 64 Appeal Cases 40 Violation of natural justice even in an

administrative action of dismissal of a

public servant will render the order

void ab initio.

Tulsiram Patel v. Union of India, AIR 1985

SC 1416

5 Judges Even where the constitutional

provision Article 311(2) expressly

excludes application of natural justice,

the principles of natural justice need to

be observed, unless such application

is not practically possible.

Rungta Sons Pvt. Ltd.

v. Collector of

Customs,

Visakapatinam, 1986

(23) ELT 14 (Cal)

Non-compliance of direction to pre-

deposit penalty will not be a bar in

challenging the entire order on the

ground of nullity.

An order which is null and void for

violation of interests of justice cannot

be got rid of its invalidity by approval

by an appellate body.

Shyam Kishore & Ors. v. Municipal

Corporation of Delhi, (1993) 1 SCC 22 3 Judges - do -

Whirlpool Corporation

v.

Registrar of Trade

Marks.

(1998) 8 SCC 1

(Para 7)

2 Judges - do -

Carl Steel & Anr. v.

State of Bihar

AIR 1951 SC

1615

(Paras 11 & 12)

5 Judges (Not exactly ideal for citing during

hearing, for the judgment is too

lengthy and not very precise on the

point)

Thansingh Nathmal v.

Superintendent of

Taxes.

AIR 1964 SC

1419

(Para 7)

5 Judges Existence of alternative remedy is a

ground on which writ could be denied

and the Petitioner could be relegated

to alternative remedy.

4

Dwarkaprasad Agarwal

v. B.D. Agarwal

(2003) 6 SCC

230

Right for a fair trial by impartial and

independent Tribunal is a fundamental

right.

Special Director v.

Mohd. Gulam.

AIR 2004 SC

1467

Scope of Article 226 where Show

Cause Notice issued.

Rungta Sons Pvt. Ltd.

v. Collector of

Customs,

Visakapatinam, 1986

(23) ELT 14 (Cal)

Violation of natural justice at initial

stage not cured till final stage – order

liable to be set aside under Article

226. Therefore, even after filing a

statutory appeal, remedy under Article

226 could be sought.

R v. Cheltenham Commissioners, (1841) 1

Q.B. 467.

An appeal does not lie unless it be

expressly given by statute, but

certiorari always lies unless it be

expressly taken away by statute.

Province of Bombay v. Khushaldas S.

Advani, AIR 1950 SC 222.

Same ratio.

Lt. Col. Khajoor Singh Vs. UOI & Anr., AIR

1961 SC 532

The word ‘Authority’ includes the

Government. Neither the location of

affected person nor the place of cause

of action determines the jurisdiction.

Location or seat of Central

Government determines the

jurisdiction. Concept of functioning of

Government cannot be introduced.

Power of the High Courts discussed

Election Commission of India Vs.

S.Venkata Rao, AIR 1953 SC 210

Popcorn Entertainment & Anr. Vs. City

Industrial Development Corporation & Anr.,

(2007) 9 SCC 593

Fundamental rights

Maintainability of Writ Petition

Reliance Petrochemicals Ltd. Vs.

Proprietors of Indian Express Newspapers,

Bombay Pvt. Ltd., (1988) 4 SCC 592.

Fundamental rights

Foreign decisions are not binding, but

only have persuasive value –

discussed.

State of U.P. v. Raj Narain & Ors., AIR

1975 SC 865.

Right to information is a fundamental

right.

Indian Express Newspapers (Bombay) Pvt.

Ltd. & Ors. Vs. UOI & Ors., (1985) 1 SCC

641.

MJN’s Note:

Many statutes in England contain

specific clauses whereunder the

remedy of certiorari is expressly taken

away, e.g. Section 262 of Public

Health Act of 1875, Section 156 of

Railways Clauses Consolidation Act,

1845 etc. But there is a qualification:

Even such statutory exclusion of

certiorari will not bar the remedy of

certiorari where there is substantial

5

want of jurisdiction.

6

II) COULD AN INNOCENT MAN BE PUNISHED FOR A TECHNICAL OFFENCE

WHERE MENS REA IS PRESUMED?

Party’s name Citation Strength

of

Bench

Ratio laid down

Dwarkanath v.

Municipal Corporation

of Delhi.

(1971) 2 SCC

314 3 Judges

Union of India v.

Mohibali Nasar.

1992(59) ELT

403 (Bombay)

Though the law could presume guilty

mental state, once the accused is

able to prove that he had acted

innocently, even if there is technical

violation, no punishment could be

imposed.

(A contrary Supreme Court judgment

by Shri Justice Laxmanan in a matter

relating to SEBI violation has been

delivered in 2003). Find out

Kishan Gopal

Sharma v.

Government of Delhi

(1996) 4 SCC

513

Technical violation of Prevention of

Food Adulteration Act – criminal

complaint quashed.

Canara Bank v.

Dubashis Das.

(2003) 4 SCC

557

Technical and innocent offence

AIR 1973 SC

2309

AIR 1966 SC 43

AIR 1965 SC

722

7

III) UNDUE HARDSHIP/PRE-DEPOSIT.

Party’s name Citation Strength

of

Bench

Ratio laid down

Wire Netting Store v.

Regional Provident

Fund Commissioner.

1981 Lab IC

1015

Provident Fund Act struck down as it

did not provide for an appeal against

an order imposing damages. (check

whether any appeal was filed in

the Supreme Court)

Asstt. Collector of

Central Excise v.

Dunlop India Ltd.

1985 (19) ELT

22 (SC)

3 Judges Government cannot be run on Bank

Guarantees, but needs liquid cash.

The judgment deals with only

taxation and revenue and not

penalties. Therefore, could be

distinguished as Government cannot

be expected to run on revenue from

penalties.

Vijay Prakash Mehta

v. Collector of

Customs.

(1988) 4 SCC

402

Shyam Kishore & Ors. v. Municipal

Corporation of Delhi

(1993) 1 SCC 22

(Para 39)

3 Judges Question whether imposition of the

condition which makes right of

appeal illusory can be valid and

needs careful consideration in an

appropriate case. The question,

therefore, remains res integra.

Shrikrishna v. Union

of India

(1998) 104 ELT

325 (Delhi)

Even where there is a strong prima

facie case and is likely to be

exonerated, still pre-deposit ought to

be made.

Alpha Detergents Pvt. Ltd. v.

Commissioner of Excise.

JT (2000) 8 SC 151

(A classic example where

requirement of pre-deposit waived

without spelling out any reason)

2000 (118) ELT

553 (SC)

- do -

Bhavya Apparel v. Union of India

(2007) 10 SCC 129

Non-compliance with the order of the

Tribunal to pre-deposit will not lead to

automatic dismissal of the appeal.

(In my opinion, the issue has not

been answered either way).

AIR 1961 SC

1480

(Para 12)

“Shall” does not always mean

imperative; it may mean “may” also.

Benaravals Ltd. v.

Commissioner of

Central Excise

(2006) 13 SCC

347

Where denial of interim relief may

lead to public mischief, grave and

irreparable private injury or shake a

citizen’s faith in the impartiality of the

public administration, interim relief be

8

given.

Sangfroid Remedies v.

Union of India

1998 (103) ELT 5 (SC)

Ruby Rubber Industries v.

Commissioner of Central Excise.

1998 (104) ELT 330 (Calcutta).

Ex-parte order; pre-deposit would lead

to hardship; impugned order set aside

and matter remanded.

On the question of waiver of pre-

deposit, prima facie case does not

mean, one must have a guilt-edge case

which is bound to succeed.

Benaravals Ltd. v.

Commissioner of

Central Excise

(2006) 13

SCC 347

Where denial of interim relief may lead

to public mischief, grave and irreparable

private injury or shake a citizen’s faith in

the impartiality of the public

administration, interim relief be given.

Union of India v.

Jesus Sales

Corporation.

AIR 1996 SC

1509

2

Judges

(This judgment runs contrary to Kraipak

and Maneka Gandhi cases, where right

to hearing was held to be mandatory).

AIR 1984 SC

653

AIR 1985 SC

61

AIR 1985 SC

330

9

IV) PRE-DEPOSIT OF PENALTY

Party’s name Citation Strength

of

Bench

Ratio laid down

Union of India v.

Jesus Sales

Corporation.

AIR 1996 SC

1509

2 Judges (This judgment runs contrary to Kraipak

and Maneka Gandhi cases, where right

to hearing was held to be mandatory).

Sangfroid Remedies

v.

Union of India

1998 (103)

ELT 5 (SC)

Ex-parte order; pre-deposit would lead

to hardship; impugned order set aside

and matter remanded.

Ruby Rubber

Industries v.

Commissioner of

Central Excise.

1998 (104)

ELT 330

(Calcutta).

On the question of waiver of pre-

deposit, prima facie case does not

mean, one must have a guilt-edge case

which is bound to succeed.

Shrikrishna v. Union

of India

(1998) 104

ELT 325

(Delhi)

Even where there is a strong prima

facie case and is likely to be

exonerated, still pre-deposit ought to

be made.

Benaravals Ltd. v.

Commissioner of

Central Excise

(2006) 13

SCC 347

Where denial of interim relief may lead

to public mischief, grave and

irreparable private injury or shake a

citizen’s faith in the impartiality of the

public administration, interim relief be

given.

Aluminium

Corporation of India

v. C. Balakrishnan.

1959 Income

Tax Reports,

Vol. 37, page

267.

Requirement of pre-deposit even when

there is a prima facie case amounts to

undue hardship and not merely

financial hardship.

Tata Iron v.

Commissioner of

Appeal.

1998 (98) ELT

350 (Calcutta)

Requirement of pre-deposit even when

there is a prima facie case amounts to

undue hardship and not merely

financial hardship.

Sangfroid Remedies

v.

Union of India

1998 (103)

ELT 5 (SC)

Ex-parte order; pre-deposit would lead

to hardship; impugned order set aside

and matter remanded.

10

V. NATURAL JUSTICE, - SHOW CAUSE NOTICE MUST CONTAIN (A) THE

CHARGES LEVELED AND (B) THE ALLEGATIONS BASED ON WHICH THE

CHARGES ARE LEVELLED WITH MATERIAL WHICH CONSTITUTES SUCH

ALLEGATIONS

CROSS-EXAMINATION

Party’s name Citation Strength

of

Bench

Ratio laid down

Khemchand v. Union

of India

1958 SCR

1080

5 Judges Right of cross-examination essential

ingredient of natural justice.

Show Cause Notice must contain

(a) the charges leveled and

(b) the allegations based on which the

charges are levelled with material

which constitutes such allegations

Union of India v. T.R. Varma, AIR 1957

SC 882

Denial of opportunity of cross exam

fatal

State of Madhya

Pradesh v. Chintaman

Sadashiva

AIR 1961 SC

1623

Chinna Basappa v.

State of Mysore.

AIR 1961 SC

1070

- DO -

State of Bombay v.

Narul Latif Khan.

(1965) 3 SCR

135

Right of cross-examination and right to

adduce oral evidence.

Phulbari Tea Estate v.

Its Workmen.

AIR 1959 SC

1111

(Paras 5 and

7)

Right of cross-examination

Kanugo & Co. v.

Collector of Customs.

(1973) 2 SCC

438

3 Judges Right of cross-examination need not be

in the presence of the person from

whom seizure was made.

K.C. Tripathi v. State

Bank of India.

(1984) 1 SCC

43

3 Judges Non-compliance of natural justice must

cause some real prejudice – absence

of formal opportunity of cross-

examination did not vitiate the order.

Managing Director,

ECIL v. B. Karunakar

(1993) 4 SCC

77

Para 6

5 Judges Right of cross-examination – right to be

heard has to be read into the statute.

Gajadhar Prasad v. Babu Bhakta

Rattan, AIR 1973 SC 2593.

The duty to observe natural justice is a

universal law applicable to all

situations.

Bidhan Nagar Salt Welfare Association

v. Central Valuation Board, (2007) 6

SCC 668 (Paras 42, 43)

Exclusion of principles of natural justice

would render a statute unconstitutional.

11

VI. SPEAKING ORDER/COMMUNICATION OF DECISION

Harinagar Sugar Mills Ltd v. Shyam

Sunder Jhunjhunwala, AIR 1961 SC

1669

Bhagat Raja v. Union of India, AIR

1967 SC 1606

Siemens Engineering v. Union of India,

AIR 1976 SC 1785

Travancore Rayon Ltd. v. Union of

India, 1978 ELT (J) 738

Liberty Oil Mills v. Union of India, AIR

1984 SC 1271

Raipur Development Authority v.

Chokhamal Contractors, AIR 1990 SC

1426

S.N. Mukherjee v. Union of India, AIR

1990 SC 1984

Bidhan Nagar Salt Welfare Association

v. Central Valuation Board, (2007) 6

SCC 668

Non speaking order, a nullity.

Speaking order a must. (Based on the

observations in paragraph 6 of the

judgment only SEGAT was constituted,

bringing an end to Government hearing

appeals of Customs and Excise

matters.

Speaking order a must, if not it is a

nullity.

If a statute does not provide an

opportunity of hearing, it is

unconstitutional.

Reasons must be recorded except in

cases where the requirement is

dispensed with expressly or by

necessary implication.

12

VII. SHOW CAUSE NOTICE MUST CONTAIN (A) THE CHARGES LEVELED AND (B)

THE ALLEGATIONS BASED ON WHICH THE CHARGES ARE LEVELLED WITH

MATERIAL WHICH CONSTITUTES SUCH ALLEGATIONS

Surath Chandra

Chakravarty V. The State

of West Bengal

AIR 1971 SC

752

Charge should not be vague

(party’s

name)

AIR 1980 SC

1157

(Para 5)

Show Cause Notice ought to be

issued only on material and judicial

application thereof. See also Pepsi

case by Sujata Manohar, J.

R.B. Sriram Durgaprasad

v. Settlement

Commission.

(1989) 1 SCC

628

(Para 7)

Show Cause Notice ought to be

issued only on material and judicial

application thereof.

Board of Technical

Education, U.P. v.

Dhanwantari Kumar.

AIR 1991 SC

271

3

Judges

Vague notice;

no opportunity to defend.

Rajendra Singh v. State

of Madhya Pradesh.

(1996) 5 SCC

460

It is important to establish that

violation of natural justice has

resulted in loss or prejudice.

Sangfroid Remedies v.

Union of India

1998 (103)

ELT 5 (SC)

Ex-parte order; pre-deposit would

lead to hardship; impugned order set

aside and matter remanded.

Food Corporation of India

v.

State of Punjab.

(2001) 1 SCC

291

Notice vague, vitiates the

proceedings.

Canara Bank v. Dubashis

Das.

(2003) 4 SCC

557 Also see

2001(1)SCC

182

Notice should be clear and precise

so as to apprise the party

determinatively the case he has to

meet. (by Shri Justice Arijit Pasayat.

A lengthy judgment with lot of

academic discussion)

Indian Railway

Construction Co. v. Ajay

Kumar.

(2003) 4 SCC

579

Natural justice and mala fides

discussed.

State of U.P. v. C.F.

Sharma

1967(3) SCR

848

13

VIII. RIGHT OF HEARING TO BE READ INTO THE STATUTE – RIGHT FOR FAIR

TRIAL

Punjab National Bank v. Kunjbehari Misra,

AIR 1990 SC 2713 (Para 19)

3

Judges

Right of hearing has to be read into

the Regulations.

Managing Director, ECIL, Hyderabad v. B.

Karunakar, (1993) 4 SCC 727

5

Judges

Mohinder Singh Gill v. Chief Election

Commissioner, (1978) 1 SCC 405

5

Judges

Right of hearing – distinction

between administrative and quasi-

judicial functions no longer relevant.

Rex v. Sussex Justices; Ex-parte Mc Carthy,

1924-1 KB 256

Distinction between judicial and

administrative functions.

Jamaluddin Ahmed v. Abu Sale Najmuddin,

2003(4) SCC 257.

-do-

All India Judges’ Association v. Union of

India, (1992) 1 SCC 119.

State of U.P. v. Batuk Deopati Tripathi,

(1978) 2 SCC 102

A.K. Kraipak & Ors v. Union of India & Ors.,

AIR 1970 SC 150

Bias – Right of Hearing

Cooper v. The Board of Works for the

Wandsworth District, Reported at (1893) 14

CBNS 180

A statute which excludes

observance of natural justice is

unfair. The ratio of this case is

analogous to the one laid down by

the supreme Court in Olga Tellis’s

case wherein the Court did not strike

down the statute which permitted

eviction of pavement dwellers

without notice as one requiring

notice and hearing.

Radheshyam v. State of U.P., AIR 1959 SC

107

State of Orissa v. Dr. (Miss) Binapani Dei,

AIR 1967 SC 1269

Indira Gandhi v. Raj Narain, AIR 1975 SC

2299

Natural justice ought to be observed

even if the statute is silent.

R v. University of Cambridge, (1723) 1 St.

757

(In this case, Lord ___, by reference

to the book of Genesis in Bible, held

that notice and hearing are

inviolable).

Nally Bharat Engineering Co. Ltd. v. State of

Bihar, 1990 (2) SCC 48

Where natural justice is violated,

proof of prejudice caused is not

required.

O.P. Gupta v. Union of India, AIR 1987 SC

2257

-Do-

14

Shridhar v. Nagarpalika, Jaipur, AIR 1990

SC 307

Rustom Cavasjee Cooper v. Union of India,

AIR 1970 SC 564

Audi alteram partem

Swadeshi Cotton Mills v. Union of India,

(1981) 1 SCC 664

3

Judges

Right of hearing.

Yoginath Bagde v. State of Maharashtra,

(1999) 7 SCC 739 (Para 23)

Where the statute is silent as to the

obligation to afford a hearing to the

party affected, such right has to be

read into the statute.

Liberty Oil Mills v. Union of India, AIR 1984

SC 1271

Post-decisional/pre- decisional

hearing.

Maneka Gandhi v. Union of India, AIR 1978

SC 597

7

Judges

Mere opportunity to make

submissions on the objections is not

enough.

Mardia Chemical’s case (2004) 4 SCC

311

Doctrine of audi alteram partem.

Surath Chandra

Chakravarty V. The State

of West Bengal

AIR 1971 SC

752

Charge should not be vague

Olga Tellis v. Municipal Corporation of

Bombay, AIR 1986 SC 180 (Para 47)

There is no question of estoppel or

res judicata where fundamental

rights are involved.

S.314 which permitted removal of

pavements without notice was read

into as requiring notice.

Union of India v. Tulsiram

Patel

AIR 1985 SC

1416 (Para

101)

5

Judges

Even where article 311(2) has

expressly excluded natural justice,

such exclusion is permissible only if

compliance of natural justice is not

practical

Dwarkaprasad Agarwal v.

B.D. Agarwal

(2003) 6 SCC

230

Right for a fair trial by impartial and

independent Tribunal is a

fundamental right.

Bidhan Nagar Salt Welfare

Association v. Central

Valuation Board

(2007) 6 SCC

668

Speaking order a must, if not it is a

nullity.

If a statute does not provide an

opportunity of hearing, it is

unconstitutional.

Delhi Transport

Corporation v.

DTC Mazdoor Union

AIR 1991 SC

101

Regulation which permitted

termination without enquiry

unconstitutional.

Central Onland Water

Corporation v. Brojnath

AIR 1986 SC

1571

Do

15

16

Judgments contrary to the settled

proposition (of smaller Benches)

Kishanchand Arora v. Commissioner of

Police, Calcutta, AIR 1961 SC 705

If the function is administrative in

nature, there is no need to observe

principles of natural justice. (Since

then overruled Maneka Gandhi, etc.)

Union of India v. Jesus Sales Corporation,

AIR 1996 SC 1509

2

Judges

(This judgment runs contrary to

Kraipak and Maneka Gandhi cases,

where right to hearing was held to be

mandatory).

Subhash Chandra, AIR 1970 SC 1269

Hiranath Misra’s case, AIR 1973 SC 1260

Commissioner of Customs v. Virgo Steels,

AIR 2002 SC 1745

Ajit Kumar v. IOC, (2005) 7 SCC 746

17

IX. CONFESSIONAL STATEMENT/RETRACTED CONFESSIONAL STATEMENT

Party’s name Citation Strength

of

Bench

Ratio laid down

Rameshwar v. State of

Rajasthan

AIR 1952 SC

54

Puran v. State of Punjab AIR 1953 SC

459

Re: Corroboration.

(party’s name) AIR 1957 SC

637

Retracted confession needs to

be corroborated.

K.T.M.S. Mohammad v.

Union of India.

(1992) 3 SCC

178

- do -

Kanhaiyalal v.. Union of

India

(citation) Statement recorded under FERA

cannot be used for any other

purpose.

Even where the plea that the

retracted statement was

obtained involuntarily could not

be established, Court is not

bound to accept it mechanically.

18

X. JUDICIAL POST

Party’s name Citation Strength

of

Bench

Ratio laid down

Shri Kumar Padmaprasad v. Union of India, AIR 1972

SC 1213

3 Judges

Judicial service means a service

in a judicial post, not under the

control of the Executive. A

judicial post under the control of

the Executive is not a judicial

service. (judgment by Shri

Justice Kuldip Singh, popularly

known as Mizoram Law

Secretary’s case).

All India Judges'

Association and Ors. v.

Union of India and Ors.

AIR 1994 SC

2771

= (1993) 4 JT

618

(copy to be obtained)

State of Maharashtra v.

Labour Law Practitioners

Association.

AIR 1998 SC

1233 Same ratio as above.

Chandra Mohan v. State of U.P., AIR 1966

SC 1987

Judicial service and separation

of powers discussed.

19

XI. PRECEDENT/LAW DECLARED UNDER ARTICLE 141/RATIO DECIDENDI.

Party’s name

Citation Strength

of Bench

Ratio laid down

(1) Oriental Insurance Company Limited v.

Smt. Raj Kumari & Ors. AIR 2008 SC

403;

(2) ______________ AIR 1971 All. 521;

(3) AIR 1951 Bom. 57;

(4) AIR 1954 Bom. 386;

(5) AIR 1923 PC 264 (Please cross-

check these citations)

Maganlal Chhaganlal v. Municipal

Corporation of Bombay, AIR 1974 SC

2009, 7 Judge.

Beautiful discussion on what

constitutes ratio decidendi para

43, 44. the Doctrine of stare

decisis has hardly any

application to an isolated and

stray decisions….. very recently

made and not followed by a

series of decisions.

Dalbir Singh v. State of

Punjab.

AIR 1979 SC

1384

3 Judges “It is not everything said by a

Judge when giving the judgment

that constitutes a precedent.

The only thing in a Judge’s

decision binding a party is the

principle upon which the case is

decided and for this reason it is

important to analyze the

decision and isolate from it the

ratio decidendi.

Alpana V. Mehta v.

Maharashtra State Board

of Secondary Education.

AIR 1984 SC

1827

Grant of stay in SLP in

challenge of a judgment does

not impair the ratio of the High

Court judgment.

K.A. Thomas v. Union of

India.

(1993) 25 ATC

789

Commissioner of Income

Tax Vs Sun Engg. Works

(1992) 4 SCC

363

(Para 39)

Precedent, explained

Madhav Rao Scindia v. Union of India,

(1971)1 SCC 85

If the legal issue did not fall to

be considered, the observations

constitute no precedent.

Olga Tellis v. Municipal

Corporation of Bombay

AIR 1986 SC

180

Para 47

There is no question of estoppel

or res judicata where

fundamental rights are involved.

S.314 which permitted removal

of pavements without notice

was read into as requiring

notice.

Shanmuga Vel Nadar v.

State of Tamil Nadu

(2002) 8 SCC

361

SLP dismissed no question of

merger arises. There is also no

question of the SC having

upheld the reasoning of the HC

20

Naseeruddin & Ors. v. Sitaram Agarwal,

(2003) 2 SCC 577

Para 20

Statute to be construed by the

plain words used.

Naresh Shridhar Mirajkar v. State of

Maharashtra, AIR 1967 SC 1

(Para 16)

9 Judges Obiter or discussion does not

constitute a precedent.

Zee Telefilms Ltd. v. Union of India, AIR

2005 SC 2677

(Paras 275 to 280)

Judgments of the Supreme

Court should not be read as a

statute and the observations

made therein are not an

authority for propositions which

did not fall for its consideration.

Qualcast Ltd. v. Haynes 1959 AC 743 A ratio decidendi is a statement

of law applied to the legal

problems raised by the facts as

found upon which a decision is

based.

Municipal Corporation of

Delhi v. Gurnam Kaur

AIR 1989 SC

38

(Paras 11 and

12)

3 Judges Judgments without reference to

the relevant provisions of the

Act are per in curium and are

not binding precedents.

Lancaster Motor

Company, London v.

Bremith Limited

(1941) 1 KB

675

Not every passing expression of

a Judge, however eminent, can

be treated as ex cathedra

statement, having the weight of

validity.

State of U.P. v. Synthetics and Chemicals,

(1991) 4 SCC 139

(Para 36)

2 Judges Decision not express nor

founded on reasons nor

proceeding on consideration of

the issue cannot be a

precedent.

Collector of Central

Excise, Calcutta v. Alnoori

Tobacco Products & Anr.

2004(6) Scale

232

(Para 11)

2004

SCC(6)186

The Court should not place

reliance on decisions without

discussing as to how the factual

situation sits in with the fact

situation of the decision on

which reliance is placed.

Observations of Courts are

neither to be read as Euclid’s

theorems nor as provision of a

statute and that too taken out of

their context. These

observations must be read in

the context in which they appear

to have been stated.

Judgments of courts are not to

be construed as statutes to

interpret words, phrases and

provisions of a statute; it may

become necessary for Judges

to embark on lengthy decision,

but the decision is meant to

21

explain and not to define …

Their words are not to be

treated as statutes.

Mukund Swarup Misra v.

Union of India & Ors.

(2007) 2 SCC

536

(Para 22)

A.R. Antulay v. R.S. Nayak, (1988) 2 SCC

602

Judgments rendered ignoring

statutory provisions and in

violation of natural justice are

per in curium and are not

binding.

State of Punjab v.

Surinder Kumar & Ors.

(1992) 1 SCC

489

A decision is available as a

precedent only if it decides a

question of law.

State of Bihar v. Kalika

Kaur

AIR 2003 SC

2443

(Para 7)

Ram Gopal Chaturvedi v.

State of M.P.

AIR 1970 SC

158

Para 6

Mere obiter has no binding

force.

Hind Rubber Industries v.

Tahyabhai Mohamedbhai

AIR 1996

Bom. 389

(Para 25)

Keshav Mills Ltd. v. CIT, Bombay, AIR

1965 SC 1636 (Paras 23 & 25)

7 Judges

Krishna Kumar & Ors. v. Union of India &

Ors., (1990) 4 SCC 207 (Paras `20 & 33).

Director of Settlement v. M.R. Apparao,

(2002) 4 SCC 638 (Paras 8 to 14)

3 Judges

ADM Jabalpur v. Sivakant Shukla, AIR

1976 SC 1207

Madhav Rao Scindia v. Union of India, AIR

1971 SC 530

Queen v. Leatham, 1901 AC 495

22

XII. SERVICE OF NOTICE UNDER RULE 10(C) OF FERA ADJUDICATION

PROCEEDINGS.

Party’s name Citation Strength

of

Bench

Ratio laid down

K. Narasimhiah v. H.C. Singri Gowda, AIR

1966 SC 330

“Giving” means actual tender of

notice.

A.M. Soni v. Union of India, AIR 1972 Guj.

126

To give a notice means, actual

communication of the notice to

the person concerned.

P.S. Barkatali v. Director of Enforcement,

AIR 1981 Kerala 81

Along with the Show Cause

Notice, instead of merely saying

that inspection of documents can

be had, the list of documents

relied on and copies thereof

must be furnished.

AIR 1982 Orissa 258 Giving a notice is not complete

unless and until the notice

reaches the person concerned or

is actually tendered to him.

Mere despatch of the notice to

the address of the person is not

enough.

Premnath Khanna v. Collector of Central

Excise, 1987 All. L.J. 723

Service of Show Cause Notice

means not by mere despatch

thereof but actual service.

Anil Jain v. Directorate of Enforcement,

1988 Taxman, Vol.41 (Page 48)

Service of Notice is in order to

provide the charged person an

opportunity to defend his case

and it is not a mere formality but

is a substantive obligation.

Deputy Director of Enforcement v. Nina

Maricare, AIR 1990 Madras 22 (Para 11)

Adjudication proceedings have

two stages – one beginning with

the issuance of the Show Cause

Notice and the second when,

after hearing the cause shown,

the Adjudication Officer decides

to conduct an enquiry.

Mulchand v. Union of India, AIR 1990 Raj.

24

“Giving” means serving of the

notice and not its despatch.

Shivkumar v. State of Haryana, (1994) 4

SCC 445

Postal acknowledgment as proof

of service of notice not sufficient,

because it is not difficult to get

postal seal at any point of time.

Collector of Customs v. Trivandrum Rubber

Works, 1999 Excise & Customs Cases, 179

Notice ought to be served on the

person charged de facto.

23

XIII. CAN THE HC/SC BAR A LAWYER FROM PRACTICING

BCI v Kerala case

Supreme Court Bar Association of

India v. Union of India, AIR 1998 SC

1895: (1998) 4 SCC 409

5-Judges

24

XIV. EFFECT OF REPEAL.

Party’s name & Citation Strength

of Bench

Ratio laid down

Darikapati v. Subbiah Choudhari, AIR 1957

SC 540

Right of appeal is a vested right

and is not lost by repeal unless

the repealing Act expressly

provides so. Such appeal is

liable to be proceeded with

under the repealing Act, for

procedural law will always take

retrospective effect.

Kasibai v. Mahadu, AIR 1965 SC 703 -do-

Rajanarayanlal Bansilal v.

Manek Firoze Mistry

AIR 1961 SC

29

5 Judges Article 20(3) applies only to

someone who is formally

accused, unlike in the USA

where such protection extends

even to civil proceedings.

Unless you are an accused, you

cannot be asked to give

evidence and produce

documents.

Effect of repeal also discussed.

Kudratullah v. Municipal

Board, Bareli.

AIR 1974 SC

396

(Paras 18, 19,

20 & 23)

3 Judges Repeal will destroy the

effectiveness of the repealed Act

in futuro and operate destroy

inchoate right dependent on it.

On repeal, a statute is

obliterated except for

transactions past and closed.

Repeal must not affect the

previous operation of law which

has been repealed during the

period it was operative prior to

the date of such repeal.

Vinod Kumar v. Union of

India.

AIR 1991 SC

2156

(Paras 6 & 11)

Procedural law will always take

retrospective effect unless

expressly provided otherwise.

State of Rajasthan v. Mangilal, AIR 1996

SC 2181

(Paras 8, 9 and 12)

Repeal will destroy the

effectiveness of the repealed Act

in futuro and operate destroy

inchoate right dependent on it.

On repeal, a statute is

obliterated except for

transactions past and closed.

Repeal must not affect the

previous operation of law which

has been repealed during the

period it was operative prior to

the date of such repeal.

Shiv Shakti CHS v. Swaraj AIR 2003 SC No person has a vested right in

25

Developers. 2434 the course of procedure. He has

only a right to a proceeding in a

manner prescribed. If by a

statutory change the mode of

procedure is altered, the parties

have to proceed in accordance

with the altered mode without

exception unless there is a

different stipulation.

Gurcharan Singh Baldev

Singh v. Yashwant Singh

& Ors.

(1992) 1 SCC

428

(Para 25)

Substantive rights under the

repealed Act will continue

despite repeal, unless the

repealing Act carries a different

intention. Application for

renewal of a permit preferred

under the repealed Act which

was pending while the Act was

repealed has to be dealt with

under the repealing Act.

Shyam Sunder & Ors v.

Ram Kumar & another

(2001) 8 SCC

24

(Para 28)

Procedural law will remain

unaffected by amendment. … An

Amending Act which affects

procedure is presumed to be

retrospective unless it provides

otherwise. (Paras 26 and 27 are

also relevant).

K.S. Paripoornan v. State

of Kerala

(1994) 5 SCC

593

In relation to pending

proceedings, the approach of the

Courts in England that the same

are unaffected by the changes in

law so far as they relate to

determination of the substantive

rights and in the absence of

clear indication to a contrary

intention in the amending

enactment, the substantive rights

of the parties, an action falls to

be determined by the law as it

existed when the action was

commenced and this is so

whether the law is changed

before the hearing of the case at

the first instance or while an

appeal is pending.

Hirendra Vishnu Thakur v.

State of Maharashtra.

(1994) 4 SCC

602

(para 26)

(a) Every litigant has a vested

right in substantive law; no such

right exists in procedural law.

(b) Law relating to forum and

limitation is procedural in nature

whereas law relating to right of

action and right of appeal is

substantive in law.

(c) A procedural statute

should not, generally speaking,

be applied retrospectively where

the result would be to create new

26

disabilities or obligations.

(d) A statute which affects

substantive rights is presumed to

be prospective in operation

whereas a statute which merely

affects procedure is presumed to

be retrospective in application.

Dagiram Pindilal v.

Trilokchand Jain

AIR 1992 SC

990

(by Dr. A.S.

Anand, CJI)

(Paras 14 &

15)

2 Judges

New India Insurance Co.

v. C. Padma

(2003) 7 SCC

713

By virtue of an amendment to

the Motor Vehicles Act, the

period of limitation for instituting

claims are done away with, but

the benefit of the amended

provision will be extended to

cause of action which arose

even prior to the amendment.

Being a beneficial legislation, a

beneficial construction ought to

be given.

A different intention is deducible.

Section 6(a) of the General

Clauses Act does not apply as

Parliament realized the grave

injustice caused to heirs of

victims of accidents on the

ground of limitation and sought

to remove the handicap and

therefore a different intention is

deducible.

Garikapati Veeraiah v.

Subbayya Choudhary

AIR 1957 SC

540

5 Judges (Ratio to be dictated)

Gajaraj Singh & Ors. v.

State Transport Appellate

Tribunal

(1997) 1 SCC

650

3 Judges Grant of renewal is a mere

privilege and not an accrued or

vested right. It has to be dealt

with under the repealing Act.

Nar Bahadur Bhandari &

another V. State of Sikkim

& Ors

(1998) 5 SCC

39

Gammon India Ltd v. Special Chief

Secretary & Ors., (2006) 3 SCC 354

(by Dalveer Bhandari, J.)

3 Judges Entire case law on the subject is

discussed and re-affirms the

settled position that rights

accrued and liabilities incurred,

even after repeal of the statute,

will continue to be protected

unless a different intention is

expressed in the repealing Act.

There is no discussion as to

27

procedural law to be applied.

Universal Imports Agency

and another v. Chief

Controller of Imports &

Exports & Ors

1961 SCR 305

Northern India Caterers & Anr. v. State of

Punjab & Anr., AIR 1967 SC 1581

Mohd Iqbal M. Shaikh &

ors. v. State of

Maharashtra

(1998) 4 SCC

594

Mohamed Iqbal Madar

Shaikh & Ors v. State of

Maharashtra

(1996) 1 SCC

722

State of Kerala v. N. Sami Iyer, AIR 1966 SC 1415

Lachmandass v. State of

Bombay

AIR 1952 SC

235

(Para 25)

If no person has a vested right in

procedure, it must follow as a

corollary that nobody has a

vested liability in the absence of

any special provision to the

contrary.

Keshavan Madhavan Menon v. State of

Bombay, AIR (38) 1951 SC 128

7 Judges Every statute is prospective in

application as far as the rights

accrued and liabilities incurred.

A pre-constitutional statute, even

when it becomes null and void

with the coming into force of the

Constitution, being in conflict

with Article 13, still the rights and

liabilities incurred under the said

statute will be operative.

George Da Costa v.

Controller of Estate Duty,

Mysore

AIR 1967 SC

849

T.S. Baliah v. T.S.

Rangachari, Income Tax

Officer, Central Circle VI,

Madras

AIR 1969 SC

701

Ravi Paul & Ors. v. Union

of India & Ors.

(1995) 3 SCC

300

Universal Imports Agency,

Victory Traders v. The

Chief Controller of Imports

and Export & Ors

AIR 1961 SC

41

Kolhapur Cane sugar

Works Ltd v. Union of

India & Ors.

(1998) 8 SCC

692

Smt Sefali Roy

Chowdhary & ors V. A.K.

Dutta

(1976) 3 SCC

602

28

P.V. Mohammad Barmay

Sons v. Director of

Enforcement

AIR 1993 SC

1188

This case is one under FERA.

Nothing new is laid down, except

the settled position that vested

rights accrued and liabilities

incurred will continue.

T. Barai v. Henry Ah Hoe

& another

AIR 1983 SC

150

(Para 17)

3 Judges Just as a person accused of

commission of an offence has no

right for trial by a particular Court

or a particular procedure, the

Prosecutor equally has no right

to insist that the accused be

subjected to an enhanced

punishment under the repealed

Act.

This judgment repels the

contention that where rights and

procedure are dealt with together

by the repealing Act, then the

intention of the Legislature is that

all rights are still be determined

by the old procedure.

Amadalavalasa Coop

Agricultural and Ind.

Society Ltd & another v.

Union of India & another

(1976) 2 SCC

934

Sri Vijayalakshmi Rice

Mills New Contractors Co

& others v. State of

Andhra Pradesh

(1976) 3 SCC

37

M.S. Shivananda v.

Karnataka State Road

Transport Corp & Ors

(1980) 1 SCC

149

Velji Lakshmi & Co & Ors.

v. Bennett Coleman and

Co & Ors

(1977) 3 SCC

160

Amarnath Ajit Kumar of

Bhind v. Commissioner of

Sales Tax, Madhya

Pradesh

AIR 1969

Madhya

Pradesh 207

Allied Exports & Imports

Gudur Nellore District V.

State of Andhra Pradesh

AIR 1971

Andhra

Pradesh 218

(Full Bench)

National Agricultural Co-

op. Marketing Federation

of India Ltd & another V.

Union of India & Ors.

AIR 2003 SC

1329

Maria Cristina De Souza

Sodder & Ors. v. Amria

Zurana Pereira Pinto &

Ors.

(1979) 1 SCC

92

Provision as to forum of appeal

is a procedural matter and the

forum under the repealing Act is

the one that is applicable.

29

R. Rajagopal Reddy

(Dead) by LRS. V.

Padmini Chandrasekharan

(Dead) by LRS.

(1995) 2 SCC

630

M/s. Premier Limited v.

Union of India

2006(5) All

M.R. 24

By Daga &

Devadhar, JJ.

Though offence is under FERA,

an appeal would lie to the

appellate authority under FEMA

and not FERA.

T. Berai v. Henry Hoe, AIR

1983 SC 150 (para 17)

3 Judges

30

XV. QUASHING OF FIR/COMPLAINTS UNDER 482/226.

Party’s name Citation Strength

of

Bench

Ratio laid down

Manaklal v. Dr.

Premchand.

AIR 1957 SC

425

Bias

State of West Bangal v.

Sabankumar Guha.

(1982) 1 SCC

561

3 Judges If a FIR does not disclose an

offence, it can be quashed under

Article 226 of the Constitution.

J.K. Bank v. Jagdish

Gupta

(2004) 10 SCC

568

3 Judges Except where there is an error

apparent on the face of the

record, the execution Court

cannot go behind the decree.

J. Mohapatra v. State of

Orissa

AIR 1984 SC

1572

Bias

State of Haryana v.

Bhajanlal

AIR 1992 SC

604

(Para 114)

Raichand Jain v. Surendra

Prasad.

2006 TLS

Judgment

dated 21/2/06

Examination in adjudication

proceedings will justify quashing

criminal complaint on the very

charge. (Asstt. Collector of

Customs v. L.R. Melwani, AIR

1970 SC 962 – Contrary decision

by the Supreme Court)

R.K. Kapur v. State of

Punjab

AIR 1990 SCC

866

Pepsi Foods Ltd & Ors v.

Special Judicial

Magistrate & Ors

1998 SCC 128

from Allahabad

Quashing of Complaint

Jagdeesh Narayan Hedge

v.

S. Bangarappa

In exceptional cases 482 will lie

against an order of SC in revision

Krishnan v. Krishnaveni 1997 AIR SC

987

In exceptional cases 482 will lie

against an order of SC in revision.

31

XVI. WHERE THE STATUTE IS SILENT AS TO THE OBLIGATION TO AFFORD A

HEARING TO THE PARTY AFFECTED,