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DATE: June 9, 2017 (Date of pronouncement)
DATE: June 10, 2017 (Date of publication)
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CITATION:
S. 139AA (inserted by the Finance Act 2017) which mandates quoting of Aadhaar number with the PAN is constitutionally valid under Articles 14 and 19(1)(g). The proviso to s. 139AA(2) (which deems the PAN void ab initio if the Aadhaar number is not quoted) is also valid. However, as the challenge under Article 21 is pending before the Constitution Bench, a partial stay is granted. Those who are already enrolled under the Aadhaar scheme should comply with s. 139AA (2). Those who are not enrolled need not do so for the time being and their PAN will not be treated as invalid. The said proviso to s. 139AA(2) cannot be read retrospectively as it takes away vested rights. It will only have prospective effect

Having said so, it becomes clear from the aforesaid discussion that those who are not PAN holders, while applying for PAN, they are required to give Aadhaar number. This is the stipulation of sub-section (1) of Section 139AA, which we have already upheld. At the same time, as far as existing PAN holders are concerned, since the impugned provisions are yet to be considered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of the opinion that till the aforesaid aspect of Article 21 is decided by the Constitution Bench a partial stay of the aforesaid proviso is necessary. Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules. We are adopting this course of action for more than one reason. We are saying so because of very severe consequences that entail in not adhering to the requirement of sub-section (2) of Section 139AA of the Act. A person who is holder of PAN and if his PAN is invalidated, he is bound to suffer immensely in his day to day dealings, which situation should be avoided till the Constitution Bench authoritatively determines the argument of Article 21 of the Constitution. Since we are adopting this course of action, in the interregnum, it would be permissible for the Parliament to consider as to whether there is a need to tone down the effect of the said proviso by limiting the consequences

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DATE: March 21, 2017 (Date of pronouncement)
DATE: May 12, 2017 (Date of publication)
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CITATION:
Valid service of notice: Law explained on whether sending a notice by RPAD and its return by the postal authorities with the remark "addressee refused to accept" amounts to a valid service or not

When it was sent by R.P.A.D. to the address, it was returned by the postal authorities with the remark, that the addressee refused to accept the packet. That is why it is returned. Thus, the presumption that when the addressee whose address is set out on the envelope had an occasion to notice and peruse the packet, meant for him, but he refuses to accept it, then, that is deemed to be served. The addressee in this case is correctly described. There is no dispute about his identity. Even his address is correct. It is at that address the packet is carried and by the concerned postal authority. The duly authorised person carrying the packet reached the address. On noticing the addressee, he serves it, but the addressee after having perused the packet refused to accept it. It is in these circumstances, the postal remark that the concerned person has refused to accept; hence, returned to the sender denotes good and valid service.

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DATE: May 8, 2017 (Date of pronouncement)
DATE: May 11, 2017 (Date of publication)
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CITATION:
Severe strictures passed against the High Court for "inconsistent decision-making" and passing orders which are "palpably illegal, faulty and contrary to the basic principles of law" and by ignoring "large number of binding decisions of the Supreme Court" and giving "impermissible benefit to accused". Law on condonation of delay explained. CBI directed to implement mechanism to ensure that all appeals are filed in time

Judicial discipline requires that such a blatant contradiction in such an important matter should have been avoided. The order passed in the case of Dr. R.K. Rana was on sound basis and though the court had noted that there was some overlapping of facts but the offences were different, it, however, has taken a different view in the impugned order for the reasons which are not understandable. The court ought to have been careful while dealing with such matters and consistency is the hallmark of the court due to which people have faith in the system and it is not open to the court to take a different view in the same matter with reference to different accused persons in the same facts and same case. Such inconsistent decision-making ought to have been avoided at all costs so as to ensure credibility of the system. The impugned orders are palpably illegal, faulty and contrary to the basic principles of law and Judge has ignored large number of binding decisions of this Court while giving impermissible benefit to the accused persons and delayed the case for several years. Interference had been made at the advanced stage of the case which was wholly unwarranted and uncalled for

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DATE: December 2, 2016 (Date of pronouncement)
DATE: May 4, 2017 (Date of publication)
AY: -
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CITATION:
NOC from Advocate to appoint new advocate: A litigant has the absolute right to appoint an advocate of his choice and to terminate his services any time and for whatever reason. There is no concept of an "irrevocable vakalatnama". A party has the absolute freedom to change his advocate. Fairness demands that the party should inform his advocate already on record though this is not a condition precedent to appoint a new advocate. The Registry cannot insist on a NOC from the old advocate and refuse to take the new vakalatnama on record

There is nothing known as irrevocable vakalatnama. The right of a party to withdraw vakalatnama or authorization given to an advocate is absolute. Hence, a party may discharge his advocate any time, with or without cause by withdrawing his vakalatnama or authorization. On discharging the advocate, the party has the right to have the case file returned to him from the advocate, and any refusal by the advocate to return the file amounts to misconduct under Section 35 of the Advocates Act, 1961. In any proceeding, including civil and criminal, a party has an absolute right to appoint a new Advocate. Under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. Therefore, it follows that any rule or law imposing restriction on the said right can’t be construed as mandatory. Accordingly, Courts, Tribunals or other authorities shall not ask for ‘no objection’ of the advocate already on record, to accept the vakalatnama filed by a new advocate

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DATE: March 23, 2017 (Date of pronouncement)
DATE: May 1, 2017 (Date of publication)
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Service of notice by Whatsapp: The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is irrelevant. The rules and procedure are not so ancient or rigid that only antiquated methods of service through a bailiff or by beat of drum is acceptable. E-Mail & Whatsapp are not formally approved but if service is shown to be effected and is acknowledged it cannot be said that the Defendants had ‘no notice’. Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion

It cannot be that our rules and procedure are either so ancient or so rigid (or both) that without some antiquated formal service mode through a bailiff or even by beat of drum or pattaki, a party cannot be said to have been ‘properly’ served. The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is surely irrelevant. We have not formally approved of email and other modes as acceptable simply because there are inherent limitation to proving service. Where an alternative mode is used, however, and service is shown to be effected, and is acknowledged, then surely it cannot be suggested that the Defendants had ‘no notice’. To say that is untrue; they may not have had service by registered post or through the bailiff, but they most certainly had notice. They had copies of the papers. They were told of the next date. A copy of the previous order was sent to them. Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion

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DATE: March 30, 2017 (Date of pronouncement)
DATE: March 31, 2017 (Date of publication)
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Strike by Advocates: Giving a call to protest when the Bill is still at a draft stage is premature. Wisdom has to prevail on the Advocates in the light of the law laid down in Harish Uppal AIR 2003 SC 739. The law laid down by the Supreme Court is binding on the Advocates as well under Article 141 of the Constitution. The lawyers' community has to appreciate their responsibility in discharging the duties of their profession

If one has to understand the implication or consequences of abstaining from work in general terms, the strike would mean abstaining from work apart form other meanings. It is nothing but demonstration of protest against the suggestions or resolution denying in line with the demand. It can also mean temporary stoppage of activities in protest against any act or a condition imposed. Petitioners’ counsel also rely upon the order dated 5th December 2016 passed in Contempt Petition (C) No.19/2016 in Writ Petition (C) No.132/1988 (Prem Prakash Panigrahi v. Md.Shabbir Ahmed and others) on the file of the Apex Court so also the judgment of the Division Bench of this Court dated 27th October 2014 passed in PIL No.75/2014 (Adv.Manoj Laxman Shirsat v. Bar Council of Maharashtra and Goa). The observations in the case of Capt. Harish Uppal v. Union of India (supra) indicate that the proceedings inside the Court are always expected to be held which commands confidence of the public in the efficacy of the institution of the Courts. In the said decision, the Apex Court has also referred to the duties, obligations, responsibilities and the divine work of the community of the lawyers while discharging their professional duties

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DATE: August 22, 2016 (Date of pronouncement)
DATE: August 26, 2016 (Date of publication)
AY: -
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CITATION:
A Public Interest Litigation (PIL) filed by a lawyer to gain popularity and publicity and attract more clients amounts to an unethical practice of soliciting work and is in violation of the Code of Conduct. The Media should not publish the names of the advocates who appeared in any case as it is an indirect method of soliciting work or indulging in advertisement of the professional abilities or skills of the advocates. The Media should also not publish the names of the Judges unless it is so essentially required

Often times, we have been noticing that the Print and Electronic Media is carrying on publication of the names of legal practitioners as well as the names of the Judges of the High Court concerned, who dealt with particular cases, publication of names of practitioners who may have appeared for one party or the other in a particular case can lead to an indirect method of soliciting or indulging in advertisement of the professional abilities or skills of the advocates. We, therefore, direct the Registrar (Administration) of this Bench to immediately circulate instructions to all Print, Electronic and Media Houses not to publish the names of the practitioners as part of news item

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DATE: June 28, 2016 (Date of pronouncement)
DATE: July 6, 2016 (Date of publication)
AY: -
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Severe strictures passed at the attitude of the Government in creating “hurdles and obstacles in the smooth working and functioning of all the tribunals and courts” and the fact that the “State has yet to adopt a culture of respect and regard for the judiciary”. Directions given that issue of allotment of residential quarters to Tribunal Members should not be kept a “closely guarded secret” but made public

It is these dismal state of affairs which compel us to observe as above. We are still apprehensive for this State has yet to adopt a culture of respect and regard for the judiciary. The judiciary is an important organ of the State. The State has a wider connotation and included in it are the legislature, executive and the judiciary. The executive wing of the State Government continues to show disrespect and disregard to the judiciary in matters which are of above routine nature. We have seen precious time being wasted on the judicial side on such trivial issues. There are ways and means by which the General Administration Department and the Finance Department of the State create hurdles and obstacles in the smooth working and functioning of all the tribunals and courts set up by the State.

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DATE: March 2, 2016 (Date of pronouncement)
DATE: April 18, 2016 (Date of publication)
AY: -
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Important law on concept of "ancestral property" under the Hindu Succession Act, 1956 and the formation of a HUF by the surviving members of the deceased explained

On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants

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DATE: October 16, 2015 (Date of pronouncement)
DATE: February 16, 2016 (Date of publication)
AY: -
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CITATION:
Law on prospective vs. retrospective operation of legislation explained. The Hindu Succession (Amendment Act), 2005 which came into effect on 09.09.2015 and by which daughters in a joint Hindu family, governed by Mitakshara law, were granted statutory right in the coparcenary property (being property not partitioned or alienated) of their fathers applies only if both the father and the daughter are alive on the date of commencement of the Amendment Act

An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective3. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained. Interpretation of a provision depends on the text and the context (RBI vs. Peerless (1987) 1 SCC 424, para 33). Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given (Kehar Singh vs. State (1988) 3 SCC 609). In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given (District Mining Officer vs. Tata Iron and Steel Co. (2001) 7 SCC 358)

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