Ancient Monuments and Archaeological Sites and Remains Act 1958; Items 20A, 20C, 20D -Repairs and renovations to existing buildings and constructions necessary to provide basic facilities such as drainage, toilets, water supply and electricity distribution are kept out of the rigor of legal permit requirements. (Paragraph 51) Ardhendu Kumar Das c. Odisha State, 2022 LiveLaw (SC) 539

Ancient Monuments and Archaeological Sites and Remains Act 1958; Items 20A, 20C, 20D – When subsection (4) of Section 20A of said Act is read in conjunction with clause (dc) of Section 2 and the provisions of Sections 20C and 20D of said Act, we conclude that the argument that no construction can be made in the prohibited area or in the restricted area, would be unsustainable. (Paragraph 41) Ardhendu Kumar Das c. Odisha State, 2022 LiveLaw (SC) 539

Ancient Monuments and Archaeological Sites and Remains Act 1958; Section 2(dc) – Definition of “Construction” – The legislative intent is clear that reconstruction, repair, renovation of existing buildings have been excluded from the definition. Similarly, construction, maintenance etc. sewers, sanitation works, public latrines and urinals; the construction and maintenance of works intended for the public water supply; and construction, etc. for the distribution of electricity, which could be interpreted as essential services to meet the needs of the general public, have been consciously excluded from the definition of “construction”. (Paragraphs 41, 42) Ardhendu Kumar Das c. Odisha State, 2022 LiveLaw (SC) 539

Constitution of India – Judicial Interference in Political Matters – APM Terminals BV c. Indian Union and Anr. – consistent view of the Court – a change in government policy may have an overriding effect on private treaties between the government and a private party, if it were in the general public interest – provided that such change in policy has been motivated by reason – in the event of a conflict between the public interest and the personal interest, the public interest must prevail – when a policy is changed by the State, which is in the general public interest, this policy overrides individual rights/interests – in this case, the policy change was not only in the public interest, but also in the interests of the original sponsors/grantees of the plots of land [Para 61 – 63 & 65] Yamuna Expressway Industrial Development Authority c. Shakuntla Education and Welfare Society, 2022 LiveLaw (SC) 536

Constitution of India, 1950; Article 226 – Invitation to tender – The High Court dismissed WPs challenging acceptance of the offer following submissions made in M/s NG Projects Ltd. Vs. M/s Vinod Kumar Jain and others, 2022 LiveLaw (SC) 302 – Appeal allowed – The High Court grossly misinterpreted the judgment – The defendant was declared eligible in flagrant violation of the principles of natural justice and all fairness in the process for determining the eligibility of bidders. Jai Bholenath Construction c. CEO, Zilla Parishad Nanded, 2022 LiveLaw (SC) 542

Anti-Terrorism and Organized Crime (Gujarat) Act 2015 – To invoke this Act in respect of such activity, more than one indictment must have been filed in a court of competent jurisdiction within the preceding ten years – Bail given to accused as only one indictment charge was filed against him. Mohamad Iliyas Mohamad Bilal Kapadiya c. Gujarat State, 2022 LiveLaw (SC) 538

Education – NIOS will endeavor to fix the examination centers, at a distance of 10 kilometers from the accredited institutions with which they are linked – It has the duty to fix the examination centers in such a way as to enable the students to present themselves at the examination with certainty and ease. Pragya Higher Secondary School v. National Institute of Open Schooling, 2022 LiveLaw (SC) 535

Environment (Protection) Act 1986; Division 3 – Guidelines issued by the Union Ministry on February 9, 2011 for environmentally sensitive areas near protected forests are deemed reasonable – Other instructions issued regarding the ESZ – No new permanent structures will be permitted to appear at any purpose in the ESZ – Mining inside National Parks and Wildlife Sanctuaries is not permitted. (Paragraph 44) In Re: TN Godavarman Thirumalpad c. Indian Union, 2022 LiveLaw (SC) 540

Environmental Law – Public Trust Doctrine – The doctrine of public trust is part of land law – The role of the State cannot be limited to that of facilitator or generator of economic activities for the immediate improvement of the fate of the State. The state must also act as a trustee for the benefit of the general public with regard to natural resources so that sustainable development can be achieved in the long term. Such a role for the state is more relevant today than, perhaps, at any time in history with the threat of climate catastrophe resulting from global warming looming on the horizon. (Paragraph 28) In Re: TN Godavarman Thirumalpad c. Indian Union, 2022 LiveLaw (SC) 540

Insolvency and Bankruptcy Code 2016; Sections 5(8), 5(7) – A liability in respect of a claim arising from a Recovery Certificate would be a “financial debt” – The holder of the Recovery Certificate would be a financial creditor and would have the right to initiate the CIRP, if initiated within three years from the date of issuance of the recovery certificate – Upheld the view taken in Dena Bank (now Bank of Baroda) v C. Shivakumar Reddy (2021) 10 SCC 330. (Paragraphs 84-85) Kotak Mahindra Bank Ltd. against A. Balakrishna, 2022 LiveLaw (SC) 534

Insolvency and Bankruptcy Code, 2016; Section 12A – Where 90% or more of the creditors, in their wisdom after deliberation, believe that it will be in the interest of all parties to permit settlement and withdraw the CIRP, in our opinion, the adjudicating authority or l appeal authority cannot sit an appeal on the commercial wisdom of the CoC. Interference would only be justified when the decision-making authority or the appeals authority finds that the CoC’s decision is totally capricious, arbitrary, irrational and contrary to the provisions of the statute or the rules. (Paragraph 24) Vallal Rck c. M/s. Siva Industries and Holdings Ltd; 2022 LiveLaw (SC) 541

Interpretation of laws – All provisions of the Statute must be interpreted in their context with each other and no provision can be read in isolation – Provisions of an Act must be interpreted so as to advance the object and purpose of the enactment . (Paragraphs 39-41) Kotak Mahindra Bank Ltd. against A. Balakrishna, 2022 LiveLaw (SC) 534

Interpretation of laws – It is a well-established principle of law that all provisions of the law must be read harmoniously. It is presumed that each of the provisions was introduced by the legislator into the compendium of statutes for a specific purpose. A particular provision cannot be read in isolation and must be read in context. Efforts should be made to reconcile all the provisions of the law, unless it is impossible. (Paragraph 40) Ardhendu Kumar Das c. Odisha State, 2022 LiveLaw (SC) 539

Interpretation of laws – When the language of a legislative provision is clear and unambiguous, it is not permissible for the Court to add or subtract words to a law or to read into it something which does not appear there. It cannot rewrite or recast legislation. (Paragraph 75) Kotak Mahindra Bank Ltd. against A. Balakrishna, 2022 LiveLaw (SC) 534

Previous – By IncuriamCarelessness” literally means “negligence”. A decision or judgment may be per incuriam any provision of a law, rule or regulation which has not been brought to the knowledge of the Court. It may also be per incuriam if it is not possible to reconcile its report with that of a judgment previously pronounced from an equal or larger bench. (Paragraph 67) Kotak Mahindra Bank Ltd. against A. Balakrishna, 2022 LiveLaw (SC) 534

Public interest litigation – Frivolous PILs should be nipped in the bud – In the recent past, it has been noticed that there is a meteoric rise in public interest litigation. However, in many of these petitions, there is no public interest involved. Petitions are either public interest litigation or personal interest litigation. We strongly discourage the practice of filing such frivolous petitions. These are just abuses of legal process. They encroach on valuable court time that could otherwise be used to consider real issues. It is high time that these so-called public interest litigations are nipped in the bud so that development activities in the public interest are not blocked. (Paragraph 59) Ardhendu Kumar Das c. Odisha State, 2022 LiveLaw (SC) 539

Children’s Right to Free and Compulsory Education Act 2009 – Chapter III of the law integrates the “Duties of the appropriate government, of the local authority and of the parents”. Chapter IV, adopting the same rigor, imposes “Responsibilities of Schools and Teachers”. This important characteristic, imposing duties, goes beyond the right to free and compulsory education of every child provided for in Chapter II of the law. It is also for the Constitutional Courts to recognize and interpret these articles in the same spirit and to give effect to the provisions of the law. (Paragraph 4.2) Pragya Higher Secondary School v. National Institute of Open Schooling, 2022 LiveLaw (SC) 535

Service Law – Pension – Pension is a continuing cause of action – There is no reason to disallow pension arrears for delay. ML Patil c. state of Goa, 2022 LiveLaw (SC) 537

Words and Phrases – “Include” – When the word “include” is used in interpretive clauses, it would have the effect of expanding the meaning of words or phrases appearing in the body of the statute. This interpretation clause shall be used in such a way that these words or expressions shall be construed to include not only the things which they mean according to their natural meaning, but also the things which the interpretation clause states that they must include . In such a situation, there would be no guarantee or justification for giving the restricted meaning to the provision. (Paragraph 47) Kotak Mahindra Bank Ltd. against A. Balakrishna, 2022 LiveLaw (SC) 534

2022 LiveLaw (SC) June Weekly Nominal Index Part 1 (534 to 542)

  1. Ardhendu Kumar Das c. Odisha State, 2022 LiveLaw (SC) 539
  2. In Re: TN Godavarman Thirumalpad c. Indian Union, 2022 LiveLaw (SC) 540
  3. Jai Bholenath Construction c. CEO, Zilla Parishad Nanded, 2022 LiveLaw (SC) 542
  4. Kotak Mahindra Bank Ltd. vs. A. Balakrishna, 2022 LiveLaw (SC) 534
  5. ML Patil v. State of Goa, 2022 LiveLaw (SC) 537
  6. Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat, 2022 LiveLaw (SC) 538
  7. Pragya Higher Secondary School v. National Institute of Open Learning, 2022 LiveLaw (SC) 535
  8. Vallal Rck c. M/s. Siva Industries and Holdings Ltd; 2022 LiveLaw (SC) 541
  9. Yamuna Expressway Industrial Development Authority c. Shakuntla Education and Welfare Society, 2022 LiveLaw (SC) 536
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