In this part read a very interesting case, DLF Home Developers Ltd. v. Capital Greens Flat Buyers Assn., (2021) 5 SCC 53. In this case, 339 flat buyers had complained against delayed handing over of possession, the Bench of Dr. DY Chndrachud and KM Joseph, JJ held that the flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities.
“A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
Short Notes: 3
Advocates who appeared in this case:
Pinaki Misra, Senior Advocate (Ms Ruby Singh Ahuja, Ms Seema Sundd, Pravin Bahadur, Sanjeet Ranjan, Ms Kritika Sachdeva, Aditya Singh, Ritu Raj, Alabhya Dhamija and M/s Karanjawala & Co. Advocates )– for the Appellants
Shyam Divan, Senior Advocate [Ajay Kohli, S.S. Sobti, Ms Aastha Garg, Ms Priyanka Ghorawat, Ms Monisha Handa, Mohit D. Ram (Advocate-on-record), Tapan Bijoy DebChoudhury (Advocate-on-Record), Siddharth (Advocate on Record), Arjun Syal, Apoorve Karol, Mithu Jain (Advocate-on-Record) and Arnav Vidyarthi, Advocates], for the Respondents.
Consumer Protection — Services — Housing and Real Estate — Delay in delivery of possession: Compensation for such delay over and above stipulated contractual rate is grantable, even when seller gives the buyer option to exit by offering refund with interest but the same is not accepted. [DLF Home Developers Ltd. v. Capital Greens Flat Buyers Assn., (2021) 5 SCC 537]
Courts, Tribunals and Judiciary — Courts, Tribunals and Special Courts — Virtual Court/Videoconferencing: Due to outbreak of Coronavirus (Covid-19), there was necessity of balance in reducing physical presence in court premises and maintenance of social distancing as per guidelines and continued dispensation of justice, hence there was holding of courts through videoconferencing from Supreme Court level to District Court level. In many States, situation has eased and it has been possible to even commence hearings in congregation. System of videoconferencing has been extremely successful in providing access to justice. Hence, directions issued earlier in this regard need not be altered except as directed herein. [Guidelines for Court Functioning Through Videoconferencing during Covid-19 Pandemic, In re, (2021) 5 SCC 454]
Courts, Tribunals and Judiciary — High Courts — Jurisdiction and Powers — Subordinate Judiciary and High Courts: Adverse remarks against subordinate judicial officer cannot be passed without hearing the officer concerned. Further, in case the High Court finds the impugned judgment of the officer suffering with grave errors and casting some doubt on the performance of the officer, the matter should be taken up on the administrative side. [K.G. Shanti v. United India Insurance Co. Ltd., (2021) 5 SCC 511]
Criminal Procedure Code, 1973 — S. 154 — Registration of FIR — Preliminary enquiry — Permissibility: When the information received at the police station does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. [Charansingh v. State of Maharashtra, (2021) 5 SCC 469]
Criminal Procedure Code, 1973 — Ss. 154, 156(3), 210 and 482 — FIR with same allegations lodged during pendency of application under S. 156(3) — Maintainability: Such FIR, held, maintainable, because of S. 210, which permits such an eventuality of a complaint case and enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR. However, when the subsequent FIR appears to be an abuse of process of law and lodged only to harass the accused, the same can be quashed in exercise of powers under Art. 226 of the Constitution or in exercise of powers under S. 482 CrPC. In that case, the complaint case will proceed further in accordance with the provisions of the CrPC. [Kapil Agarwal v. Sanjay Sharma, (2021) 5 SCC 524]
Criminal Procedure Code, 1973 — Ss. 31(1), 220(1), 433 and 433-A — Sentences in case of conviction for multiple offences at one trial: Omission to state whether sentences awarded to accused would run concurrently or would run consecutively, held, essentially operates against accused because, unless stated so by court, multiple sentences run consecutively, as per plain language of S. 31(1) CrPC read with expositions in Muthuramalingam, (2016) 8 SCC 313 and O.M. Cherian, (2015) 2 SCC 501. Furthermore, omission to state order of consecutive running i.e. sequence in which the consecutive sentences will run, also cannot ipso facto lead to concurrent running of sentences. Moreover, principle related with “single transaction” cannot be imported for dealing with such omissions. [Sunil Kumar v. State of U.P., (2021) 5 SCC 560]
Education Law — Fees — Fee structure/Capitation Fee/Fee Regulatory Committee — Professional courses: Directions and clarifications, issued regarding scope and extent of judicial review of delay in fee determination by Statutory Committee vis-à-vis fee proposed by management of private institutions. [Najiya Neermunda v. Kunhitharuvai Memorial Charitable Trust, (2021) 5 SCC 515]
Environment Law — Afforestation/Reforestation/Diversion/Encroachment/Illegal activity/Intrusion into Forest land/Wildlife sanctuaries/parks — Felling of trees, in order to construct road over bridges and widen roads: There must be a realistic assessment of economic value of a tree, which may be permitted to be felled, with reference to its value to environment and its longevity. It is essential to strike right balance between environmental conservation and protection on one hand, and right to development on the other, while articulating doctrine of sustainable development. Conservation and development need not be viewed as binaries, but as complementary strategies that weave into one another. In other words, conservation of nature must be viewed as part of development and not as a factor stultifying development. Expert Committee constituted and direction issued to committee to submit its recommendations. [Assn. for Protection of Democratic Rights v. State of W.B., (2021) 5 SCC 466]
Excise — Classification of Goods — Tests therefor: There is no single universal test in matters relating to classification. It is for this reason common parlance test or commercial usage test, as it is called, is treated as the more appropriate test, though not the only one. There may be cases, particularly in the case of new products, where this test may not be appropriate. In such situations other tests like test of predominance, either by weight of value or on some other basis may have to be applied. It is indeed not possible, nor desirable, to lay down any hard-and-fast rules of universal application. [Westinghouse Saxby Farmer Ltd. v. CCE, (2021) 5 SCC 586]
Family Courts Act, 1984 — Ss. 7 and 10 — Exercise of power by Family Court: Family Court is obliged to inquire into matter as per procedure prescribed by law. It does not have plenary powers to do away with mandatory procedural requirements, in particular which guarantee fairness and transparency in process to be followed and for adjudication of claims of both sides. Nature of inquiry before Family Court is, indeed, adjudicatory. It is obliged to resolve rival claims of parties and while doing so, it must adhere to norms prescribed by statute in that regard and also foundational principles of fairness of procedure and natural justice. [Aman Lohia v. Kiran Lohia, (2021) 5 SCC 489]
Insolvency and Bankruptcy Code, 2016 — S. 233: In this case, it was held that arrest of interim resolution professional appointed by the Court was not justified. [Jaypee Kensington Boulevard Apartments Welfare Assn. v. NBCC (India) Ltd., (2021) 5 SCC 624]
Kerala Building Tax Act, 1975 (7 of 1975) — Ss. 3(1)(b), 5-A and 2(l) — Luxury tax on residential buildings having a plinth area of 278.7 sq m and which have been completed on or after 1-4-1999 — Beneficial exemption under S. 3(1)(b) for buildings that are used principally for religious, charitable or educational purposes or as factories or workshops: Buildings which are used for stay of nuns who are receiving religious instructions or students who are receiving education, held, are entitled to exemption under S. 3(1)(b). In view of the expression “principally” in S. 3(1)(b), dominant object test must be applied to find out to see whether such building is exempt or not. If buildings are principally connected with purposes mentioned therein, it would be entitled for exemption. Religious, charitable or educational purposes are earmarked by legislature as qualifying for the exemption as they do not pertain to business or commercial activity. [State of Kerala v. Mother Superior Adoration Convent, (2021) 5 SCC 602]
Penal Code, 1860 — S. 124-A — Sedition — Ingredients: Expression of a view which is a dissent from decision taken by Central Government, by itself, held, cannot be said to be seditious. [Rajat Sharma v. Union of India, (2021) 5 SCC 585]
Penal Code, 1860 — S. 302 — Death due to burn injuries: In this case, deceased victim’s husband poured kerosene on her and set her ablaze and deceased suffered 90% burn injuries. Dying declaration recorded by Magistrate, found natural with no reason to disbelieve it. Also, Magistrate deposed clearly that the relatives of deceased were not there at the time of recording dying declaration of deceased. No tutoring of deceased was made out. Again, statements of mother and maternal uncle of deceased corroborate case of prosecution. Their statement clearly showed that deceased was tortured at the hands of accused husband and his family members. Hence, guilt of accused established beyond reasonable doubt and conviction of accused under S. 302, was confirmed. [Satpal v. State of Haryana, (2021) 5 SCC 598]
Penal Code, 1860 — S. 302 — Murder trial — Appreciation of evidence: In this case, appellant-accused allegedly murdered his brother by assaulting victim on head with wooden club at night. Evidence produced by prosecution, held, was too thin to convict appellant-accused under S. 302 IPC. There was no major lacuna in trial court’s reasoning which warranted interference by High Court. Hence, judgment of acquittal of appellant-accused by trial court, restored. [Mallappa v. State of Karnataka, (2021) 5 SCC 572]
Penal Code, 1860 — S. 302: In this case, there was death of woman caused by asphyxia due to hanging. Accused husband was convicted under S. 302 and sentenced to life imprisonment therefor by courts below. Admittedly, there were no marks on body of deceased which would suggest violence or struggle. In any case, medical expert himself had not ruled out possibility of suicidal death. Postmortem report showed that cause of death was “asphyxia due to hanging”. Prosecution even failed to prove beyond reasonable doubt, that death was homicidal. In light of evidence, it was held that the courts below erred in holding that prosecution proved that death of deceased was homicidal. Conviction reversed as homicidal death by hanging could not be established. In this case of circumstantial evidence, prosecution failed even to prove a single incriminating circumstance beyond reasonable doubt. Therefore, conviction of appellant was set aside and he stood acquitted. [Shivaji Chintappa Patil v. State of Maharashtra, (2021) 5 SCC 626]
Penal Code, 1860 — Ss. 302, 326, 323 and 452 — Contradictions, inconsistencies, exaggerations or embellishments — Case of exaggerations — Duty of court in such case — When can entire evidence not be discarded: Court of law is duty-bound to disseminate “truth” from “falsehood” and sift grain from chaff in case of exaggerations. It is only in case where grain and chaff are so inextricably intertwined that in their separation no real evidence survives, that entire evidence can be discarded; but not otherwise. Even in cases where major portion of evidence is found deficient, if residue is sufficient to prove guilt of accused, conviction can be based on it. [Achhar Singh v. State of H.P., (2021) 5 SCC 543]
Practice and Procedure — Delay/Laches/Limitation — Filing of petitions/applications/suits/ appeals/all other proceedings: To obviate physical presence of lawyers or litigants during Covid-19 Pandemic, limitation period for filing all proceedings before courts and tribunals from 15-3-2020 had been extended till further orders. The Supreme Court held that in view of changing scenario relating to Pandemic, extension of limitation, held, should come to an end. In this regard consequential directions issued. [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452]
Preventive Detention — Advisory Board — Proceedings before the Board — Hearing — No effective hearing: In this case, detention order was quashed due to lack of effective hearing by State Advisory Board. Hearing was vitiated because of the following reasons: (i) Right of detenu to get a written intimation of the date of hearing with option to keep an advocate for effective representation of case was not complied with as said communication was made on the same day when hearing took place (ii) Detenu’s specific request for furnishing translated copies and other materials and information was denied and no reasons were given for such denial (iii) Even the fate of various requests made to the detaining authority vide representation dt. 7-1-2021 was not communicated before 3-2-2021. Statement of detenu himself recorded in Hindi after his detention, was not supplied to the detenu before the date of hearing. [Sanjay Kanubhai Tanti v. State, (2021) 5 SCC 486]
Service Law — Pay — Incentive Schemes/Allowances other than Pay — MACP and ACP Schemes — Nature of: MACP and ACP Schemes are incentive schemes intended to relieve stagnation and are not part of the pay structure. Hence held, respondents in this case and other similarly situated employees are entitled to financial upgradation under MACP Scheme only to next grade pay and not to grade pay of next promotional post. [Union of India v. R.K. Sharma, (2021) 5 SCC 579]
Service Law — Recruitment Process — Examination — Civil Services (Preliminary) Examination, 2020: In this case, prayer to grant one additional attempt due to COVID-19 Pandemic to petitioners-interveners who were otherwise barred from attempting examination in future on account of exhausting available attempts or age bar subsequent to Examination 2020, not granted. [Rachna v. Union of India, (2021) 5 SCC 638]
Specific Relief Act, 1963 — Ss. 38 and 39: In this case, prayer was made for permanent and mandatory injunction restraining defendant from using premises in question and directing defendant to restore possession thereof to plaintiff. The Court held that as Respondent-defendant not in possession of premises in his own right either as a tenant or a licensee, his possession is only as an employee of plaintiff, hence appellant-plaintiff was held entitled to decree of mandatory injunction. [Madan Mohan Singh v. Ved Prakash Arya, (2021) 5 SCC 456]