1

NOTE
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[26 May, 2024]

1. I.R. Coelho v. State of T.N. (2007) 2 SCC 1:

1.1 Article 31B of the Constitution inserted by the Constitution (First
Amendment) Act, 1951 provides that if any Act/Regulations are
specified in the 9th Schedule then it would not become void or
deemed to have become void on the ground that it takes away or
abridges any of the fundamental rights and the said provision will
continue to have force notwithstanding any judgment or decree or any
other order of any court.

1.2 In the present case, the Tamil Nadu Act, namely Janmam Act which
vested private forest land in the Janmam Estate was struck down by
the Hon'ble Supreme Court. However, by the Constitution (34th
Amendment) Act, the Gudalur Janmam Estates (Abolition and
Conversion into Ryotwari) Act, 1969 was inserted in the 9th Schedule
of the Constitution.

1.3 The contention was raised before the Hon'ble Supreme Court that
statutes which have been struck down could not have been validly
inserted in the 9th Schedule.

1.4 The question which was framed for adjudication by the 9 Hon'ble
Judges was whether after 24.04.1973 [i.e. the date of the judgment of
Kesvananda Bharti v State of Kerala, (1973) 4 SCC 225 when the
basic structure doctrine was propounded] is it permissible for
Parliament under Article 31B of immunize legislations from
Fundamental Rights by inserting them the 9th Schedule and what is
its effect on the power of judicial review.

1.5 The 9 Judge Bench delivered a unanimous opinion. The conclusions

are contained in paragraph 151 of the SCC report. The important
conclusion is that all amendments of the Constitution made on or after
24.04.1973 by which the 9th Schedule is amended can be tested of the
touchstone of the basic and essential features of the Constitution as
reflected in Article 21 read with Article 14 and 19 of the Constitution
i.e. even if the Act is inserted in the 9th Schedule, the provisions of the
Act would be open to challenge on the ground that they destroy or
damage the basic structure of the Constitution.
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1.6 It was also held that if a law is held to have violated any rights in Part
III of the Constitution is subsequently inserted in the 9 th Schedule.
Such a violation/ infraction shall be open to challenge on the ground
that it destroys/damages the basic features of the Constitution.

2. Excel Crop Care ltd v. Competition Commission of India, (2017) 8

SCC 47:

2.1 In the present case, Food Corporation of India [FCI] floated a tender
for purchasing aluminium phosphide tablets. FCI made a complaint to
the Competition Commission of India [CCI] stating that there is an
anticompetitive agreement which has allegedly been arrived at
between M/s. Excel Crop Care Ltd and others.

2.2 CCI entrusted the matter to the Director General of Investigation

which found prima facie force in the allegation and accordingly
issued notice to the parties and the CCI passed an order holding that
the appellants had entered into an anti-competitive agreement under
Section 3 of the Act and penalty of 9% average total turnover for the
last 3 years was imposed..

2.3 The first question who arise for consideration before the Supreme
Court:-

a) Section 3 of the Act came into force on 20.05.2009 and the

bids were submitted prior to the said date and hence it was
urged that the appellants were not guilty of violation of
Section 3 of the Act.

2.4 The Supreme Court held that though the bids were submitted prior to
the date of enforcement, however, the effect of the agreement
continued after 20.05.2009 i.e. the appellants were successful in the
contract and had also reaped the benefit and so that appellants were
held to have violated Section 3 of the Act. [para 30, 31]

2.5 The Supreme Court also considered a very important principle of

statutory interpretation namely noscitur a sociis i.e. when two or
more words which are susceptible to analogous meanings are coupled
together, the words can take colour from each other.

2.6 In the present case, the argument of the Petitioner's was that Section
3(3)(d) of the Competition Act mentioned about bid rigging and
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collusive bidding, but the Explanation only referred to bid rigging and
not collusive bidding and therefore, it was argued that if there was a
collusive bidding, the same would not be covered by Section 3(3)(d)
of the Act.

2.7 The Supreme Court held that these 2 expressions would have to take
colour from each other.

2.8 The last issue was regarding the method to calculate penalty i.e.
whether the entire turnover of the entire company should be consider
or the relevant turnover is concerned. The Supreme Court held that
para-91, as follows:-

a) The statute is a penal statute.

b) If 2 interpretations are possible, one that leans in favour of the
infringer has to be adopted and principle of strict construction
needs to be given.

2.9 When the agreement leading of a contravention of Section 3 involves

1 product, there seems to be no justification for including other
products of an enterprise for the purposes of imposing penalty.

2.10 The Supreme Court also referred to the doctrine of proportionality

which should lean in favour of relevant turnover i.e. the penalty
should not be disproportionate. It should be based on equity and
rationality. The doctrine of proportionately can be traced to Article 14
and 21 of the Constitution. Proportionately achieves balancing
between 2 completing interests. Penalty should not result in the death
of the entity itself. The Supreme Court held:-

"93. "….If we adopt the criteria of total turnover of a company by

including within its sweep the other products manufactured by
the company, which were in no way connected with
anticompetitive activity, it would bring about shocking results
not comprehended in a country governed by Rule of Law."

3. Competition Commission of India v. Bharti Airtel Ltd (2019) 2

SCC 521

3.1 The present appeal concerned with the scope and powers of CCI
under the Competition Act in relation to the companies in the
telecom services which are governed by the TRAI Act. The facts of
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the case are that a complaint was made by Reliance Jio Info Com
Ltd to the Competition Commission of India alleging
anticompetitive agreements and a having been formed by 3 other
companies, namely Bharti, Vodafone and Idea. CCI formed a prima
facie opinion that an investigation was warranted and directed the
Director General to cause an investigation in the matter.

3.2 The said order was challenged before the High Court on the ground
interalia that CCI did not have jurisdiction to deal with the matter.
The High Court allowed the Writ Petition interalia on the ground
that in so far as the telecom sector/ industry/ market is concerned,
the same is governed by the Telegraph Act/ TRAI Act and therefore,
all issues relating thereto have to be dealt with by the TRAI/TDSAT
and not by the Competition Commission.

3.3 The matter was traveled before the Supreme Court.

3.4 The Court construed the provisions of the TRAI Act and came to the
conclusion that [para 103], TRAI being an expert regulatory body, it
specifically governs the telecom sector. The disputes have to be
decided by the TRAI in the first instance. Unless TRAI finds fault
with the aforesaid companies, the matter cannot be taken further. It
was held that when jurisdiction is conferred upon an expert
regulatory, the matter would lie within the jurisdiction of TRAI.

3.5 However, the Supreme Court ruled out the CCI is not denuded of the
jurisdiction. If TRAI finds that there was a violation a question
would arise whether the violation of provisions of TRAI Act
amounts of abuse of dominance or anticompetitive agreements under
the Competition Act and this can be looked after by CCI.

3.6 This interpretation, the Supreme Court has harmonized the two laws
and has ensured that conflict situation is avoided and balance is
maintained.

4. Indore Development Authority v. Manoharlal, (2020) 8 SCC 129:

4.1 The Constitution Bench of Supreme Court decided various issues in

this matter. The principal question was about interpretation of
Section 24 (2) of the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013
[2013 Act]. The said section reads as follows:-
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"24. Land Acquisition process under Act No.1 of 1894 shall be

deemed to have lapsed in certain cases-

2) Notwithstanding anything contained in sub-section (1),

in case of land acquisition proceedings initiated under
the Land Acquisition Act, 1894, where an award under
the said section 11 has been made five years or more
prior to the commencement of this Act but the physical
possession of the land has not been taken or the
compensation has not been paid the said proceedings
shall be deemed to have lapsed and the appropriate
Government, if it so chooses, shall initiate the
proceedings of such land acquisition afresh in
accordance with the provisions of this Act:

Provided that where an award has been made and

compensation in respect of a majority of land holdings has not
been deposited in the account of the beneficiaries, then, all
beneficiaries specified in the notification for acquisition under
section 4 of the said Land Acquisition Act, shall be entitled to
compensation in accordance with the provisions of this Act."

4.2 A 3 Judge Bench in Pune Municipal Corporation v. Harakchand

Misirimal Solanki, (2014) 3 SCC 183 had interpreted the aforesaid
section to mean that the acquisition would lapse if (i) possession is
not taken, OR (ii) if the amount of compensation is not deposited in
court.

4.3 The matter was referred to a 5 Judge Bench. The 5 Judge Bench-
Constitution Bench overruled the 3 Judge Bench decision in Pune
Municipal Corporation case and held that:-

i) The word OR in section 24(2) of 2013 Act is not disjunctive,

but is conjunctive i.e. both the conditions have to be satisfied
for the acquisition to lapse.

ii) It is not necessary that the compensation should be deposited

in the reference court. It is sufficient if the compensation is
deposited in the treasury and/or offered to the landowner.
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4.4 What is important in the Constitution Bench judgment is that all

judgments which have followed Pune Municipal Corporation case
are also overruled. The question which has arisen in subsequent
decisions is what happens to those cases which have attained
finality, namely cases where the Supreme Court has already declared
that the acquisition has lapsed. This issue is now pending
consideration before a 3 Judge Bench.

4.5 The other proposition of law which has been decided by the
Constitution Bench in Indore Development Authority case is that the
period of stay granted by a court has to be excluded while counting
the period of 5 years.

5. Supreme Court Advocates on Record Association v. Union of

India, (2016) 5 SCC 1:

5.1 The Constitution was sought to be amended by the Constitution (99th

Amendment) Act 2014. By the said amendment, interalia Articles
124A, 124B and 124C were inserted. The purpose of the said
amendment was to replace the system of the collegium which made
recommendations for appointment of High Court and Supreme
Court Judges and substitute the same by a Judicial Commission,
which diluted the primacy of the judiciary in the appointment of
Judges.

5.2 The question which arose for consideration was whether the
Constitution Amendment was violative of the basic structure
interalia independence of judiciary. It may be recalled that a
Constitution Amendment can be struck down only if it violates basic
structure of the Constitution.

5.3 The contention of the Government was that the independence of

judiciary was not in any manner compromised by the said
amendment as the concept of independence of judiciary did not
mean that there should be primacy of judiciary in appointment of
judges. As long as the Judges of the High Courts and Supreme Court
enjoyed security of tenure etc the independence of judiciary is not
compromised by the amendment.

5.4 The Supreme Court held that the Constitution of the NJAC does not
preserve the privacy of the judiciary in the matter of selection and
appointment of judges of the High Court/Supreme Court and
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therefore, violates the basic feature of the Constitution i.e.

independence of judiciary. It was also held that inclusion of the Law
Minister as the member of MJAC is violative of the principle of
separation of power.

5.5 The reasoning is primarily captured in para 306 of the Constitution

Bench judgment where the Supreme Court held that even if the
Chief Justice of India and 2 senior Judges found that the individual
was fit to be appointed, the person will not be appointed if any 2
other members of NJAC opined otherwise.

6. Dheeraj Mor v. High Court of Delhi, (2020) 7 SCC 401:

6.1 The question which arose for consideration in the present matter was
interpretation of Article 233 of the Constitution, which reads as
under:-

"233. Appointment of District Judges:

2) A person not already in the service of the Union or of
the State shall only be eligible to be appointed a District
Judge if he has been for not less than 7 years an advocate or
a pleader and is recommended by the High Court for
appointment."

6.2 The question which arose for consideration was whether members of
the Subordinate Judicial service can claim appointment to the post of
District Judge as against the quota reserved for the Bar by way of
direct recruitment

6.3 The Writ Petitioners were the judicial officers who claimed that if
they have completed 7 years of practice or 7 years of judicial service
or both together, they can be eligible for being considered in the
direct recruitment quota for District Judges which was reserved for
the members of the Bar.

6.4 The Supreme Court held that in service candidates cannot apply as
against post reserved for advocate/pleader as the candidate should be
in continuous practice in the past and at the time when he has
applied and appointed.

6.5 The Court also held that members of the judicial service could seek
promotion or accordingly promotion through limited competitive
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examination and they cannot lay a claim to the 25% quota, marked
for advocates.

6.6 The Supreme Court also held [para 47.5] "The rules framed by the
High Court prohibiting judicial service officers from staking claim
to the post of District Judge against the posts reserved for Advocates
by way of direct recruitment, cannot be said to be ultra vires and are
in conformity with Articles 14, 16 and 233 of the Constitution of
India."

7. Natural Resources Allocation, In Re: Special Reference No.1 of

2012, (2012) 10 SCC 1:

7.1 The present case arose out of a reference made by his Excellency the
President of India under Article 143(1) of the Constitution of India
seeking opinion of the Supreme Court interalia on the following
questions:-
Q.1 Whether the only permissible method for disposal of all natural
resources across all sectors and in all circumstances is by the
conduct of auctions?

Q.2 Whether a broad proposition of law that only the route of auctions
can be resorted to for disposal of natural resources does not run
contrary to several judgments of the Supreme Court including
those of Larger Benches?

Q.3 Whether the enunciation of a broad principle, even though

expressed as a matter of constitutional law, does not really amount
to formulation of a policy and has the effect of unsettling policy
decisions formulated and approaches taken by various successive
governments over the years for valid considerations, including
lack of public resources and the need to resort to innovative and
different approaches for the development of various sectors of the
economy?

Q.4 What is the permissible scope for interference by courts with

policy making by the Government including methods for disposal
of natural resources?

7.2 The Supreme Court held:-

a) Auctions may be the best way of maximizing the revenue, but
revenue maximization may not be the best way to sub-serve
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public good/ common good as understood in Article 39(b) of

Constitution.

b) Common good is the sole guiding factor under Article 39(b)

of the Constitution for distribution of natural resources.

c) The manner in which the common good is best sub-served

would depend upon the economic and political philosophy of
the Government.

d) Where revenue maximization is the object of a policy, auction

would be one of the preferable methods, though not the only
method.

e) Where revenue maximization is not the object of policy

distribution, then revenue consideration may assume
secondary consideration to development consideration.

f) The methodology of distribution is not fixed. Economic logic

establishes that alienation / allocation of natural resources to
the highest bidder may not necessarily be only way to sub
serve the common good and may at times run counter to
public good.

g) Auction despite being a more preferable method of

alienation/allotment of natural resources, cannot be held to be
a constitutional requirement or limitation for alienation of all
natural resources and therefore, every method other than
auction cannot be struck down as ultra-vires the constitutional
mandate.
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8. Shreya Singhal v. Union of India, (2015) 5 SCC 1:

8.1 By way of Writ Petition under Article 32 of Constitution, the
Petitioners challenged Section 66A of the Information Technology
Act, 2000 as was amended by the Amendment Act of 2009. Section
66A reads as under:-
"66A. Punishment for sending offensive messages through
communication service, etc.* -
Any person who sends, by means of a computer resource or a
communication device,-
a) any information that is grossly offensive or has menacing
character; or
b) any information which he knows to be false, but for the
purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity,
hatred or ill will, persistently by making use of such
computer resource or a communication device; or
c) any electronic mail or electronic mail message for the
purpose of causing annoyance or inconvenience or to
deceive or to mislead the addressee or recipient about the
origin of such messages, shall be punishable with
imprisonment for a term which may extend to three years
and with fine."
8.2 There was a related challenge to Section 69A of the Act. The
challenge was on the ground that the said section violates freedom
of speech and expression guaranteed under Article 19(1)(a) of the
Constitution.
8.3 The Supreme Court held public's right to know is directly affected
by Section 66A. The information sent can be annoying, inconvenient
or grossly offensive to some and not to others. Therefore, the
Petitioners were right in contending that Sec 66A offends Art
19(1)(a) of the Constitution.
8.4 Thereafter, the Supreme Court considered whether the said
provision was a reasonable restriction as saved by Art 19(2) of the
Constitution. The Supreme Court held that Section 66A was not
saved by exception of public order as it has no element of creating
public disorder which ought to be an essential ingredient of the
offence which it creates. [para 44] Supreme Court further held that
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Section 66A has no proximate connection with incitement to commit

an offence. [para 47]

8.5 However, the most important part of this judgment is that question
of vagueness of the provision which is the substantial development
in the field of Constitutional Law. It was argued by the Petitioner
that Sec 66A is so vague that neighed would an accused person be
put on notice as to what exactly is the offence which has been
committed nor would the authorities administering the section be
clear as to on which side of a clearly drawn line a particular
communication will follow.
8.6 The Supreme Court held that the expressions used in Sec 66A are
completely opened ended and undefined. [para 72]
8.7 In para 79, the Supreme Court held as follows:-
"79. Quite apart from this, as has been pointed out above, every
expression used is nebulous in meaning. What may be offensive to
one may not be offensive to another. What may cause annoyance
or inconvenience to one may not cause annoyance or
inconvenience to another. Even the expression "persistently" is
completely imprecise - suppose a message is sent thrice, can it be
said that it was sent "persistently"? Does a message have to be
sent (say) at least eight times, before it can be said that such
message is "persistently" sent? There is no demarcating line
conveyed by any of these expressions - and that is what renders the
Section unconstitutionally vague."

8.8 In para 86, the Supreme Court held as follows:-

"86. Ultimately, applying the tests referred to in Chintaman Rao and
V.G. Row's case, referred to earlier in the judgment, it is clear
that Section 66A arbitrarily, excessively and disproportionately
invades the right of free speech and upsets the balance between
such right and the reasonable restrictions that may be imposed on
such right."

8.9 The Supreme Court held that Sec 66A is unconstitutional also on the
ground that it takes within its remit protected speech and speech that
is innocent in nature and is liable therefore to be used in such a way
as to have a chilling effect on free speech and would therefore, have
to be struck down on the ground of over breadth
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9. Municipal Corporation, Ujjan v. BVG India Ltd, (2018) 5 SCC

462:

9.1 The brief facts of the case are that the Municipal Corporation Ujjain
issued a notice inviting tender for appointment of an agency to carry
out municipal solid waste door to door collection and transportation
for 10 years. A technical expert appointed for evaluation the
technical and financial bids. The tender was awarded to Global
Based Management Self Pvt Ltd who got 1st rank amongst 3 bidders.
This award was questioned by the Respondent BVG India Ltd.

9.2 The High Court by its order impugned in SLP allowed the Writ
Petition and set aside the contract awarded to the successful party.

9.3 One of the questions which arose for consideration of the Supreme
Court was the nature and scope of judicial review of administrative
decision especially those relating to acceptance and award of the
tender. The Supreme Court has held that the Government is bound to
award tenders in a fair manner and to prevent arbitrariness or
favoritism. Art 14 is squarely applicable to the decisions of the
Government while accepting or refusing the tender. The right to
choose cannot be considered to be an arbitrary power. If the power
is exercised for any collateral purpose, the exercise of power will be
struck down.

9.4 However, the Supreme Court also held that it does not sit as a court
of appeal in such matters, but merely reviews the manner in which
the decision was made. It cannot substitute its own decision. A fair
play in the joints is a necessary requirement for an administrative
body to function. If the process adopted or the decision made by the
authority is not malafide and not intended to favour somebody, if the
process adopted or decision made is nor arbitrary or irrational that
no responsible authority acting reasonably and in accordance with
relevant law could have reached such a decision and if a public
interest not affected, there should be no interference under Art 226
of the Constitution. [para 14]

9.5 Para 64.1 & 64.3 are relevant for present purposes which is quoted
herein below:-
"64.1 Under the scope of judicial review, the High Court could not ordinarily
interfere with the judgment of the expert consultant on the issues of
technical qualifications of a bidder when the consultant takes into
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consideration various factors including the basis of non-performance of

the bidder;

64.3 It is not open to the Court to independently evaluate the technical bids
and financial bids of the parties as an appellate authority for coming to
its conclusion inasmuch as unless the thresholds of mala fides, intention
to favour someone or bias, arbitrariness, irrationality or perversity are
met, where a decision is taken purely on public interest, the Court
ordinarily should exercise judicial restraint."

9.6 The Supreme Court referred to the judgment in Ramana Dayaram

Shetty v. International Airport Authority, (2019) 3 SCC 489, in the
context that:-

a) All words in the documents have to be given meaning as far

as possible [save for compelling necessity].

b) The court should not ascribe superfluity to the language of a

document.

c) To reject words as insensible should be last resort of judicial

interpretation.

d) The court must as far as possible avoid a construction which

would render the words used by the author of the document
meaningless and futile. [para 37]

10. Sangyong Egg & Construction C Ltd v. NHAI, (2019) 15 SCC

131:

10.1 In the present case, NHAI awarded a tender to the appellant for
construction of a road. Dispute arose between the parties relating to
price adjustment on account of cement component which was to be
paid. The matter was referred to the arbitration. By a majority
award, the appellant was partly awarded certain amount a minority
award favour payment of earlier claim made. Section 34 & 37
petitions were rejected, resulting in the present appeal.

10.2 In the present case, the question was on interpretation of the word
public policy in India and the explanation which said that the award
should be in contravention with the fundamental policy in Indian
law for it to be set aside.
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10.3 It was held in para 36 that an award can be set aside only if it is
contrary to fundamental policy of Indian law. The Supreme Court
further held that there is now a new ground for challenge, which is
inserted in Section 34(2A) i.e. where the award suffers from patent
illegality appearing on the face of the award which goes to the root
of the matter.
10.4 It is also held by the Supreme Court that appreciation of evidence
cannot be permitted under the ground of patent illegality appearing
on the face of the award.
10.5 It was held that construction of term of the contract is primarily for
an arbitrator to decide unless the arbitrator construes the contract in
such a manner that no fair minded or reasonable person would
construe i.e. arbitrator view is not possible view to take.
10.6 Further a finding based on no evidence at all or an award which
ignores vital evidence would be liable to be set aside on the ground
of patent illegality. In this regard, para 36 to 41 of the judgment are
relevant.
10.7 It is also relevant to mention an important aspect of the judgment.
The Supreme Court held that as follows [para 77]:-
"77. The judgments of the Single Judge and of the Division Bench of the
Delhi High Court are set aside. Consequently, the majority award
is also set aside. Under the Scheme of Section 34 of the 1996 Act,
the disputes that were decided by the majority award would have
to be referred afresh to another arbitration. This would cause
considerable delay and be contrary to one of the important
objectives of the 1996 Act, namely, speedy resolution of disputes
by the arbitral process under the Act. Therefore, in order to do
complete justice between the parties, invoking our power
under Article 142 of the Constitution of India, and given the fact
that there is a minority award which awards the appellant its
claim based upon the formula mentioned in the agreement between
the parties, we uphold the minority award, and state that it is this
award, together with interest, that will now be executed between
the parties….."