2016 SCC Vol. 2 March 7, 2016 Part 5

Armed Forces — Discharge — Procedural safeguards: Administrative instructions affording additional safeguards dehors R. 13 of Army Rules, 1954 to ensure proper regulation and guidelines for exercise of discretionary power, to ensure procedural equity and fairness, are valid and not ultra vires, as otherwise competent authority would be vested with uncanalised and absolute power offending Art. 14 of the Constitution. On the other hand the said procedure saves the exercise of power concerned from offending Art. 14 of the Constitution. [Veerendra Kumar Dubey v. Chief of Army Staff, (2016) 2 SCC 627]

Constitution of India — Arts. 14, 15, 16, 17, 25 and 26 — Equality of opportunity for appointment as Archaka of any temple — Primacy of constitutional values: Exclusion of some and inclusion of a particular segment or denomination for appointment as Archakas would not violate Article 14 only so long such inclusion/exclusion is not based on criteria of caste, birth or any other constitutionally unacceptable parameter. Appointments of Archakas will have to be made in accordance with the Agamas, subject to their due identification as well as their conformity with constitutional mandates and principles. [Adi Saiva Sivachariyargal Nala Sangam v. State of T.N., (2016) 2 SCC 725]

Easements Act, 1882 — S. 52 — Licence — Privity of contract — Cancellation of licence successfully challenged by licensee and set aside: Locus standi to challenge setting aside of cancellation of licence, extends only to licensor and not to a third party (who had subsequently been allotted the licence on its cancellation). [Poonam v. State of U.P., (2016) 2 SCC 779]

Election — Eligibility/Qualification/Disqualification/Recall/Removal of Candidate — Judicial Interference/Review: As there was challenge to Zila Parishad Territorial Constituency (ZPTC) Member holding office of Chairperson, Zila Praja Parishads (ZPP), High Court by impugned interim order dt. 10-12-2014 directed Vice-Chairperson of ZPP to discharge functions of Chairperson until further orders in view of appellant’s disqualification as ZPTC Member and consequently as Chairperson, ZPP vide order dt. 11-8-2014 passed by Presiding Officer, found that until and unless order of disqualification was set aside it remained operative. Single Judge of High Court by order dt. 7-11-2014 suspended proceedings dt. 11-8-2014. Effect of order dt. 7-11-2014 was that appellant’s disqualification was kept in abeyance till disposal of election petition. Besides, Single Judge of High Court simultaneously in other pending writ petitions by separate interim orders had stayed order dt. 12-8-2014 by which Vice-Chairperson of ZPP was asked to assume charge of Chairperson. Thus, there was no legal impediment for appellant to assume post of Chairperson, ZPP which he did assume on 8-11-2014. In such circumstances Division Bench of High Court ought to have dismissed interlocutory applications as having been rendered infructuous because prayer made therein was to restrain appellant from assuming office of Chairperson and asking Vice-Chairperson to assume charge of Chairperson. Division Bench erred in doing so since it failed to see that so long as final adjudication was not done in accordance with law on merits in the election petitions, District Court (Election Court under relevant statute) was vested with power to pass appropriate interim orders in relation to impugned action under S. 22-A, A.P. Panchayat Raj Act, 1994. It also failed to appreciate that once petitions filed by appellant were allowed on 7-11-2014 by suspending proceedings dt. 11-8-2014, respondents had no option but to allow appellant to function as Chairman of ZPP. Impugned order directing removal of appellant from post of Chairperson and asking Vice-Chairperson to take over charge of Chairperson in his place not only untenable but perverse too. [Edara Haribabu v. Tulluri Venkata Narasimham, (2016) 2 SCC 640]

Government Grants Act, 1895 — Ss. 2 and 3 — Government grant of lease of nazul property, rendering Transfer of Property Act inapplicable: Mortgage of property created by lessee to Bank without prior sanction of Government in terms of lease, is void ab initio, and does not confer any right in favour of mortgagee. Mortgage decree obtained by mortgagee without impleading Government i.e. behind back of Government which was a necessary party, not enforceable against State. [State of U.P. v. United Bank of India, (2016) 2 SCC 757]

Local Government — Town Planning — Lease-cum-sale agreement with Development Authority for construction of residential building on plot allotted by Authority: Deviation, if any, from terms of agreement or sanctioned plan, cannot be determined until issuance of completion or occupancy certificate. During process of construction, when building is still an incomplete structure, deviation even if non-compoundable, can be rectified by lessee/purchaser before its completion. [D.N. Jeevaraj v. State of Karnataka, (2016) 2 SCC 653]

Protection of Women from Domestic Violence Act, 2005 — Ss. 12, 28, 32, 2(a), (f) & (g) and 3 — Recovery of stridhan under S. 12, 2005 Act: Appeal filed by wife claiming stridhan 2 yrs after decree of judicial separation, is maintainable. Judicial separation does not change the status of wife as an “aggrieved person” under S. 2(a) r/w S. 12 and does not end the “domestic relationship” under S. 2(f). Judicial separation is mere suspension of husband-wife relationship and not a complete severance of relationship as happens in divorce and as long as status of “aggrieved person” remains, and stridhan remains in custody of husband, wife can always put forth her claim to stridhan under S. 12. Further, retention of stridhan by husband or his family is a “continuing offence”. [Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705]

Trade Marks Act, 1999 — Ss. 28, 27 and 29 to 34 — Common law rights — Rights of registered user — Nature and scope of: Registration merely recognises rights which are already pre-existing in common law and does not create any new rights. Registration of trade mark, therefore, is no defence to passing off action as Act of 1999 does not bar passing off action. Registered proprietor of trade mark has: (i) exclusive right to use trade mark, and (ii) to obtain relief in case of infringement of trade mark. However, such a right is not absolute but subject to rights of prior user for passing off that are available to him under common law. [S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683]

Trade Marks Act, 1999 — Ss. 34, 27(2), 28(3) and 29 — Prior registration and prior user: Prior user’s rights will override those of a subsequent user even though subsequent user had been accorded registration of its trade mark. Proprietor of a trade mark does not have the right to prevent use by another party of an identical or similar mark where that user commenced prior to the user or prior to date of registration of proprietor. Such user gets rights when its user is prior to the user of registered proprietor or prior to the date of registration of the proprietor, whichever is earlier. [Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672]