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
Monday, February 27, 2017
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,
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,
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,
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