Read Order: SUBHASH @ SUBANNA & ORS v. STATE OF KARNATAKA MINISTRY OF HOME AFFAIRS [SC-CRIMINAL APPEAL NO. 328 OF 2012]

LE Correspondent

New Delhi, April 15, 2024: While upholding the conviction of the accused persons in a murder case, the Supreme Court has dismissed the contention that the act of the appellants was in exercise of the right of private defence as there was no provocation by the deceased.

The First Information Report, in this case, was lodged against the accused persons for commission of offences under Section 143, 147, 148, 504, 323, 324 and 302 r/w Section 149 of Indian Penal Code, on the basis of complaint submitted by Kumari Sangeeta alleging that on February 17, 2009, her uncle brought fire wood which was dumped on the way, blocking the path of the complainant. Thus, Sangeeta tried to reach the said path to throw dust, at that time she found that her pathway was covered with the fire wood. As such, she demanded an explanation from her uncle Subhash. When She raised the question, her uncle Subhash, his wife and his children responded by abusing Sangeeta. When her parents were apprised about the fact, then a verbal altercation started between both the families. Subhash and the other family members started abusing Mahadevappa and then they assaulted Mahadevappa with a stick on his forehead and face, causing grievous injuries to Mahadevappa.

Dattatrey (appellant No.2), who was carrying a chopper, laid an assault on the forehead and head of Mahadevappa, causing grievous injuries to Mahadevappa. Digambar (appellant No.3) threw a big stone below the right knee of Mahadevappa, resulting in grievous blood injuries. Then Digambar picked up a stone in his hand and hit Mahadevappa on his face causing injury. When Mahadevappa was brought to his house, he was unconscious as he had received grievous injuries. When Mahadevappa was brought to the hospital, he was declared dead and his body was sent for autopsy.

By way of an appeal before the Top Court, the appellants challenged the judgment of the Karnataka High Court convicting the appellants (accused Nos. 1, 2 and 4) under Section 302 of IPC and sentencing them to life imprisonment. Additionally, the High Court also upheld the conviction and sentence of appellant Nos.1 and 3 (accused Nos 2 & 4) under Sections 324 and 326 of IPC as awarded by Trial Court.

The first aspect noted by the Division Bench of Justice Sudhanshu Dhulia and Justice Prasanna B. Varale was that except 7-8 witnesses, the majority of other witnesses, who were neighbours of the deceased Mahadevappa, have turned hostile.

To establish the death of Mahadevappa being a homicidal one, the prosecution mainly drew support from the testimony of P.W.12 Dr. Balachandra Joshi who in his testimony before the Trial Court stated that he was working as Senior specialist since June, 2006 in Government Hospital, Gulbarga. The Bench noted that version of Dr. Basawaswamy supported the case of the prosecution on the aspects i.e., the presence of the prosecution witnesses Sharanappa and Sangeeta on the spot and their attempt to interfere to save their father Mahadevappa from the attack of the accused/appellants, and receiving injuries in that process.

The Bench did not accept the contention of the appellant that the act of the appellants was in exercise of the right of private defence and as such, offence under Section 302 of Indian Penal code was not attracted against them. Reference was also made to the judgement in Darshan Singh v. State of Punjab and Another.

As per the Bench, the evidence clearly showed that Mahadevappa was alone, he went to the house of appellants to make an inquiry, but he had not entered in his house and on the contrary, accused No.1 Subhash s/o Shivaray Natikar thrashed the deceased using stick on the head of Mahadevappa. The evidence also showed that accused no.1 was armed with stick, accused no.2 was armed with chopper and accused no.4 picked up the stones lying on the spot.

Even though the evidence further revealed that there was a verbal exchange, but there was nothing to show that this verbal exchange was in the form of a provocation by the deceased to the appellants.

The evidence of these injured eyewitnesses clearly showed that the intention of the accused person was to do away with Mahadevappa. It was clear that the victim Mahadevappa was unarmed, whereas the accused persons who were armed led a brutal attack on the victim Mahadevappa by stick, by koita and stone. 

Thus, dismissing the appeal, the Bench concluded that the Karnataka High Court committed no error in upholding and confirming the judgment and order of Trial Court/Sessions Court.

Read Order: AABID KHAN v. DINESH AND OTHERS [SC- CIVIL APPEAL NO. 4828 of 2024]

LE Correspondent

New Delhi, April 15, 2024: While observing that no reason had been assigned by the Motor Accidents Claims Tribunal for substituting its opinion to that of the doctor who treated the claimant, the Supreme Court has enhanced the motor accident compensation from Rs 1.27 lakh to Rs 2.42 lakh along with interest.

The Division Bench of Justice Sanjay Karol and Justice Aravind Kumar was considering a challenge to the order of the Madhya Pradesh High Court whereunder the compensation awarded by the Motor Accidents Claims Tribunal was enhanced from a sum of Rs 87,700 to Rs 1,27,700 with same interest contending inter-alia that compensation so awarded by the High Court was on the lower side and same had to be enhanced.

The occurrence of the accident, injuries sustained by the appellant/ claimant in the road accident that took place on 23.04.2013, consequential disability sustained, issuance of insurance policy to the offending vehicle and policy being in force on the date of accident were are all undisputed facts. 

After a perusal of the award passed by the tribunal as modified by the High Court revealed that the claimant had sustained compound fracture in the left acetabulum and left rib. The Doctor had deposed that the whole body disability suffered by the claimant was to the extent of 17% and this fact had been elicited in the cross-examination. However, the tribunal computed the compensation towards loss of future income by considering the whole body disability at 10%. 

On surmises and conjectures the percentage of disability had been reduced. No reason was assigned by the tribunal for substituting its opinion to that of the expert opinion, namely, the doctor who treated the claimant and examined as PW-5.

The Bench was of the view that the tribunal and the High Court committed a serious error in not accepting the said medical evidence and in the absence of any contra evidence available on record, neither the tribunal nor the High Court could have substituted the disability to 10% as against the opinion of the doctor (PW-5) certified at 17%. 

“In that view of the matter the compensation awarded under the head loss of income towards permanent disability deserves to be enhanced by construing the whole body disability at 17%”, the Bench said.

The monthly income of the claimant which had been construed as Rs 3,500 was held to be on the lower side particularly in the background of the fact that the accident in question having occurred on 23.04.2013 and the evidence on record disclosing that claimant was self-employed as a mechanic and had work experience of over 30 years. As per the Bench, his income had to be construed at Rs.6,500 per month in substitution to Rs 3,500 computed by the Tribunal and the High Court. Thus, the claimant/appellant was held to be entitled for enhanced compensation of Rs.92,820 towards loss of future income.

“We are also of the considered view that compensation awarded by the Tribunal under the heads of Attendant charges, pain and suffering, transportation together in a sum of Rs.9,000 being abysmally on the lower side and same deserves to be enhanced and accordingly a lump sum compensation of Rs.1,00,000/- is awarded under these three (3) heads”, it added.

Thus, allowing the appeal, the Bench enhanced the compensation amount to Rs 2,42,120 and also asked the Respondent-Insurance Company to pay the balance amount of compensation with interest @ 7% P.A. as awarded by the Tribunal by depositing the same before the jurisdictional tribunal within 6 weeks.

Read Order: MAHAKALI SUJATHA v. THE BRANCH MANAGER, FUTURE GENERALI INDIA LIFE INSURANCE COMPANY LIMITED & ANOTHER [SC-CIVIL APPEAL NO. 3821 OF 2024]

Tulip Kanth

New Delhi, April 15, 2024: Considering the fact that the respondent-Insurance Company failed to adequately discharge its burden of proof about the fact of suppression of previous life insurance policies of the insured, the Supreme Court has asked the company to make the payment of over Rs 17 lakh with interest to the complainant.

The factual background of the case was such that Late Sri Siriveri Venkateswarlu, father of the complainant, obtained two insurance policies from the opposite party – one in the year 2009 for a sum of Rs. 4,50,000, and the other in 2010, for a sum of Rs 4,80,000. Under the said two policies, in the event of death by accident, twice the sum assured was payable by the insurer. In the application form of the policy, the insured had been asked about the details of his existing life insurance policies with any other insurer, and the insured had answered the same in the negative. The complainant, being the daughter of the policyholder Late Sri Siriveri Venkateswarlu, was nominated to receive the proceeds under both the policies.

In 2011, the policy holder unfortunately lost his life in a train accident, leaving behind the complainant alone as his legal heir as well as nominee for death benefits. Immediately thereafter, the complainant approached the opposite party and informed them about the death of her father and they advised the complainant to submit a claim form along with necessary documents which she did. However, by a letter dated 31.12.2011, the complainant’s claims were repudiated by the opposite party on the ground that the policy holder had suppressed material facts in his application form with respect to existing life insurance policies from other insurers. 

The complainant approached the concerned District Forum by way of a consumer complaint which was allowed on the ground that no documentary evidence was available to show that the deceased- insured had taken various insurance policies from various other companies. The Commission directed the opposite parties to pay the insurance amount of Rs.7,50,000 + Rs.9,60,000 under two policies jointly and severally with interest at the rate of 6% per annum from 31.12.2011, i.e., the date of repudiation of the claim of the complainant, till realization, along with costs of Rs. 2000 to the complainant.

The insured/opposite party’s appeal before the State Consumer Forum was dismissed. The opposite party thereafter approached the NCDRC through Revision Petition and the consumer complaint was dismissed. Hence, the complainant preferred the present Special Leave Petition before the Apex Court.

In this matter, before the Division Bench of Justice B.V. Nagarathna & Justice Augustine George Masih, the controversy pertained to the factum of repudiation of the insurance claim of the Complainant on the ground of the material suppression of information regarding the previous policies allegedly held by the insured-deceased, while taking the life insurance policy from the Opposite Party.

It was clarified by the Bench that the repudiation of an insurance claim is largely governed by Section 45 of the Insurance Act, 1938 which bars the calling in question of an insurance policy beyond expiry of the stipulated period, except in a few circumstances that have to be proved by the insurer.It was opined that  since the present case dealt with a policy and its repudiation before the 2014 amendment to Section 45, the pre-amendment time period of two years would be applicable to the case and the insurer cannot question the policy after the expiry of the time period. If it does, then the burden rests on the insurer to establish materiality of the fact suppressed and the knowledge of the insured about such suppression, so that the repudiation of the claim could be justified by the insurer, the Bench added.

“In the present case, the onus was on the insurer to show that the insured had fraudulently given false information and the said information was related to a material fact”, it said while also adding, “ Thus, the principle of utmost good faith imposes meaningful reciprocal duties owed by the insured to the insurer and vice versa…In relation to the duty of disclosure on the insured, any fact which would influence the judgment of a prudent insurer and not a particular insurer is a material fact.”

In this case, the respondent insurance company had produced no documentary evidence whatsoever before the District Forum to prove its allegation that the insured had taken multiple insurance policies from different companies and had suppressed the same. The District Forum had therefore concluded that there was no documentary evidence to show that the deceased-life insured had taken various insurance policies except an averment and on that basis the repudiation was held to be wrong. 

Before the State Commission, the respondent had provided a tabulation of the 15 different policies taken by the insured-deceased, amounting to Rs.71,27,702.  However, the same was not supported by any other documentary evidence, like the policy documents of these other policies, or pleadings in courts, or such other corroborative evidence. It was also noted by the Bench that there was no effort made by the respondent to bring any authenticated material on record.The NCDRC however accepted the averment of the respondents, without demanding corroborative documentary evidence. The NCDRC, on the contrary, also held that the fact about multiple policies was not dealt with by the appellant in her complaint or evidence affidavit and this therefore proved that the insured had indeed taken the policies from multiple companies as claimed by the respondents.

Observing that this approach adopted by the NCDRC was incorrect, the Bench said, “The cardinal principle of burden of proof in the law of evidence is that he who asserts must prove, which means that if the respondents herein had asserted that the insured had already taken fifteen more policies, then it was incumbent on them to prove this fact by leading necessary evidence. The onus cannot be shifted on the appellant to deal with issues that have merely been alleged by the respondents, without producing any evidence to support that allegation.”

Noting that the respondents had merely provided a tabulation of information about the other policies held by the insured-deceased and the said tabulation also had missing information with respect to policy numbers, issuing dates & different dates of births, the Bench considered the admitted fact that this information had not been supported with any other documents to prove the averment in accordance with law. No officer of any other insurance company was examined to corroborate the table of policies said to have been taken by the deceased policyholder. 

“A fact has to be duly proved as per the Evidence Act, 1872 and the burden to prove a fact rests upon the person asserting such a fact. Without adequate evidence to prove the fact of previous policies, it was incorrect to expect the appellant to deal with the said fact herself in the complaint or the evidence affidavit, since as per the appellant, there did not exist any previous policy and thus, the onus couldnt have been put on the appellant to prove what was non-existent according to the appellant”, it held.

As per the Bench,  the respondents, vide their counter affidavit sought to produce some documents to substantiate their claim of other existing insurance policies of the insured- deceased, but the same couldn’t be permitted to be exhibited at this stage, that too, in an appeal filed by the complainant who was the beneficiary under the policies in question. 

“Therefore, it can be safely concluded that the respondents have failed to adequately prove the fact that the insured-deceased had fraudulently suppressed the information about the existing policies with other insurance companies while entering into the insurance contracts with the respondents herein in the present case. Therefore, the repudiation of the policy was without any basis or justification”, the Bench held while allowing the appeal. The Top Court also asked the respondent-company to make the payment of the insurance claim under both the policies to the appellant, amounting to Rs 7,50,000 and Rs. 9,60,000, with interest at the rate of 7% per annum from the date of filing the complaint, till the actual realisation.

Read Order: SANJAY CHAUDHARY AND ANR v. PIONEER URBAN LAND & INFRASTRUCTURE LTD. AND ANR [SC- CIVIL APPEAL NO(S). 1454 OF 2023]

Tulip Kanth 

New Delhi, April 13, 2024: The Supreme Court has come to the aid of aggrieved homebuyers by setting aside a direction passed by the National Consumer Disputes Redressal Commission whereby the respondent-developer was permitted to charge interest at the rate of 9% per annum on the balance amount.

The appeal in question was directed against the final order passed by the National Consumer Disputes Redressal Commission (Commission) allowing a consumer case and directing the opposite parties to issue a fresh statement of account, duly crediting delayed compensation of Rs 2433120 within one month of the judgment. On the balance amount (except stamp duty and registration charges), the opposite parties were asked to charge interest @9% per annum, from 14.11.2017 till the date of payment. The complainants were given a months’ time to deposit the amount. On settlement of the account, the opposite parties were to execute conveyance deed in favour of the complainants and handover possession of the unit, complete in all respect to them without any further delay.

The appellants were aggrieved by the direction passed by the Commission giving liberty to the respondent developer to charge interest @9% per annum on the balance amount (except stamp duty and registration charges) from November 14, 2017 till the date of payment from the appellants homebuyers.

The Division Bench comprising Justice B. R. Gavai & Justice Sandeep Mehta noted the admitted fact that that the appellants being the homebuyers, had made payment of 90% of the total sale consideration of the flat in question to the respondent-developer till 23rd June, 2014. The said amount ran to nearly Rs.2,21,56,942.42 (total consideration for 4111 sq. ft super area and amenities being Rs.2,38,20,932/-).

The respondent-developer failed to handover the possession of the flat to the appellants-homebuyers by the scheduled date i.e. March 16, 2014 upon which the consumer dispute came to be registered.

“In this background, we are of the view that the learned Commission erred in directing that the opposite party i.e. respondent-developer shall be entitled to charge interest @9% per annum from the appellants-homebuyers on the balance amount (except stamp duty and registration charges) from 14th November, 2017 till the date of payment. Thus, the said part of the impugned order whereby, the respondent-developer has been permitted to charge interest at the rate of 9% per annum on the balance amount is quashed and set aside”, the Bench held.

The Top Court directed the respondents to convey the outstanding amount to the appellants within a period of two months and upon payment being made, hand over the possession of the flat in question to the appellants forthwith and not later than a period of 30 days from the date of final payment being made.

Read Order:RAVISHANKAR TANDON v. STATE OF CHHATTISGARH [SC- CRIMINAL APPEAL NO. 3869 OF 2023]

Tulip Kanth

New Delhi, April 12, 2024: Referring to section 27 of the Evidence Act, the Supreme Court has asserted that when a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and it can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused.

The incident in question was of the year 2011 when Ramavtar (PW-1) had lodged a missing person report after his son Dharmendra Satnami (deceased) went missing. While an extensive search was being conducted, on the basis of suspicion, the police interrogated the appellants. During the interrogation, the appellants, who disclosed that they had strangulated the deceased to death on the Bhatgaon Canal Road and had thereafter thrown his body into a pond at Village Bhatgaon. On the basis of the memorandum statements, the police recovered the dead body of the deceased from the pond and the dead body was identified. Thereafter, on the very same day, a First Information Report (FIR) was registered wherein it is recorded that the aforesaid offences were committed between the days of November 30,2011 and December 3, 2011. According to the Post-Mortem Report, the cause of death of the deceased was stated to be asphyxia due to strangulation and the nature of death was homicidal.

The prosecution case stemmed from the memorandum statements of the appellants wherein they admitted that Dinesh Chandrakar (accused No.3) had instructed Ravishankar Tandon (accused No.1) and Satyendra Kumar Patre (accused No.4) to murder the deceased in exchange for Rs.90,000, which was to be paid upon the execution of the said murder. Upon receiving the aforesaid instruction, Ravishankar Tandon (accused No.1) and Satyendra Kumar Patre (accused No.4) along with Umend Prasad Dhritalhare (accused No.2) hatched a criminal conspiracy to kill the deceased and worked out a plan to execute the same. 

The appeals before the Top Court challenged the judgment of the Division Bench of the Chhattisgarh High Court wherein the Division Bench dismissed the criminal appeals preferred by the appellants, namely Ravishankar Tandon (accused No.1), Umend Prasad Dhrutlahre (accused No.2), Dinesh Chandrakar (accused No.3) and Satyendra Kumar Patre (accused No.4) and upheld the order of conviction as recorded by the trial court. 

The appellants submitted that the case was based on circumstantial evidence and the prosecution had failed to prove any of the incriminating circumstances beyond reasonable doubt. 

It was contended on behalf of the respondent-State that both the High Court and the trial court had concurrently held that the prosecution had proved the case beyond reasonable doubt. 

Noting that the matter was based on circumstantial evidence, the Bench  placed reliance upon Sharad Birdhichand Sarda v. State of Maharashtra wherein it has been opined that it is a primary principle that the accused must be and not merely may be proved guilty before a court can convict the accused. 

“It is settled law that suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt”, the Bench said.

Referring to State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, the Top Court further affirmed, “As such, for bringing the case under Section 27 of the Evidence Act, it will be necessary for the prosecution to establish that, based on the information given by the accused while in police custody, it had led to the discovery of the fact, which was distinctly within the knowledge of the maker of the said statement. It is only so much of the information as relates distinctly to the fact thereby discovered would be admissible. It has been held that the rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and it can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused.”

After a perusal of the evidence and materials on record, the Bench opined that that the prosecution had utterly failed to prove that the discovery of the dead body of the deceased from the pond at Bhatgaon was only on the basis of the disclosure statement made by the accused persons under Section 27 of the Evidence Act and that nobody knew about the same before that. Moreover, Ajab Singh (PW-18) had clearly admitted that he had signed the papers without reading them and that too on the instructions of the police.

Not only this but insofar as the statement of Dinesh Chandrakar (accused No. 3) was concerned, even the statement recorded under Section 27 of the Evidence Act was not at all related to the discovery of the dead body of the deceased. Nothing in his statement recorded under Section 27 led to discovery of any incriminating fact.

The IO had also failed to state as to what information was given by the accused persons which led to the discovery of the dead body. The evidence was also totally silent as to how the dead body was discovered and subsequently recovered. The Bench held, “We find that therefore, the evidence of the IO (PW-16) would also not bring the case at hand under the purview of Section 27 of the Evidence Act.”

Noting that the prosecution had utterly failed to prove any of the incriminating circumstances against the appellants the chain of circumstances was not so complete to lead to no other conclusion than the guilt of the accused persons, the Bench allowed the appeals.

“The appellants are directed to be acquitted of all the charges charged with and are directed to be released forthwith, if not required in any other case”, the Supreme Court ordered.

Read Order: Bhupatbhai Bachubhai Chavda & Anr v. State of Gujarat [SC-CRIMINAL APPEAL NO. 334 OF 2019]

LE Correspondent

New Delhi, April 12, 2024: While observing that there was no reason for the High Court to overturn the order of acquittal when the findings of the Trial Court were possible findings that could be arrived at after re-appreciating the evidence, the Supreme Court has acquitted a father-son duo in a murder case.

The appellants, who are father and son, were prosecuted for the offence punishable under Section 302, read with Section 34 of the Indian Penal Code (IPC). 

The prosecution case was that the deceased was engaged in the business of diamond polishing. At about 9.45 pm on September 17, 1996, when PW-1, brother of the deceased, was sitting in his pan-bidi shop, one Vajsurbhai came to him by motorcycle and told him that the appellants had assaulted the deceased. PW-1 met his uncle Ramabhai on the outskirts of the village, who was taking the deceased to the hospital by a tempo. According to the prosecution case, Karshanbhai (PW-4), Dayabhai, Jivabhai and other villagers were sitting in the tempo. The deceased was taken to a clinic and was immediately shifted to Bhavnagar in a private hospital. The deceased succumbed to the injuries. 

The Trial Court disbelieved the testimony of PW-4 Karshanbhai for various reasons. In the impugned judgment, the High Court noted that though, according to the case of PW-4, he received injuries on September 17,  at the hands of the accused, Dr Jagdishbhai (PW-5) deposed that PW-4 informed him that he suffered injuries on September 18, 1996. The High Court, in the impugned judgment, held that in his police statement, PW-4, had correctly stated that he was injured on  September 18,  1996. 

Therefore, the statement he gave before the Court and the statement given by the doctor were meaningless. The High Court held that although the number of persons who witnessed the incident have not been examined, the appellants failed to adduce any evidence to falsify the prosecution's version. By the impugned judgment, after overturning the acquittal of the appellants, the High Court sentenced them to undergo life imprisonment.Aggrieved thereby, the appellants-father & son, approached the Top Court with the present appeal.

The Division Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan stated, “...it is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal.”

As per the Bench, the High Court had ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. 

The second error committed by the High Court was that it had gone to the extent of recording a finding that the appellants had failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. 

“This concept of the burden of proof is entirely wrong. Unless, under the relevant penal statute, there is a negative burden put on the accused or there is a reverse onus clause, the accused is not required to discharge any burden. In a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused”, the Bench said.

In the absence of the statutory provisions, the Bench opined that the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. The High Court’s finding on the burden of proof was held to be completely erroneous. 

It was also noticed that PW-1 did not state that PW-4 was present when he reached the place where he found that the deceased was laid in a tempo, and according to his version, PW-4 came to Bhavnagar. Though PW-4 stated that PW-1 came on a bicycle and came to Dhola with them, the version of PW-1 was that PW-4 joined him at Bhavnagar and this created a doubt about the presence of PW-4 at the time of the incident. Importantly, one Vajsurbhai, who informed PW- 1 about the assault on the deceased, has not been examined as a witness.

Asserting that the incident was of September 17, 1996, the Bench opined that the High Court had completely brushed aside this statement of PW-5 by observing that once the police recorded statements of the Doctor and PW-4, the statements of PW-4 and the Doctor before the Court became meaningless. 

“As is apparent from Section 162 of the Code of Criminal Procedure, 1973 (CrPC), statements recorded by police under Section 161 of the CrPC cannot be used for any purpose except to contradict the witness”, the Bench said while further noting that the Trial Court gave several reasons for discarding the testimony of PW-4. His prior enmity with the appellants and his failure to report the incident to the police, notwithstanding available opportunities, were also some factors considered by the Trial Court.

After having perused the evidence of the material prosecution witnesses, the Bench was of the view that the finding of the Trial Court that the evidence of PW-4 did not inspire confidence was a possible finding which could have been recorded on the basis of the evidence on record. There was no reason for the High Court to overturn the order of acquittal when the findings of the Trial Court were possible findings that could be arrived at after reappreciating evidence.

Thus, allowing the appeal, the Top Court set aside the conviction of the appellants and cancelled their bail bonds. 

Read Order: Delhi Metro Rail Corporation Ltd v. Delhi Airport Metro Express Pvt. Ltd [SC- Curative Petition (C) Nos.108-109 of 2022]

Tulip Kanth

New Delhi, April 12, 2024: The Supreme Court has allowed a curative petition filed by the DMRC challenging a Rs 7,687 crore arbitral award passed in favour of the Delhi Airport Metro Express Private Limited in a dispute pertaining to a concession agreement, which envisaged a public-private partnership for providing metro rail connectivity between New Delhi Railway Station and the Indira Gandhi International Airport as well as other points within Delhi.

In this matter, the respondent, Delhi Airport Metro Express Private Limited (DAMEPL/ Concessionaire), a special- purpose vehicle incorporated by a consortium comprising of Reliance Infrastructure Limited and Construcciones Y Auxiliar de Ferrocarriles SA, Spain, bagged the contract for the construction, operation and maintenance of the Delhi Airport Metro Express Ltd (AMEL) in 2008. The Concession Agreement (2008 Agreement) envisaged a public-private partnership for providing metro rail connectivity between New Delhi Railway Station and the Indira Gandhi International Airport and other points within Delhi.

Under the 2008 Agreement, DAMEPL was granted exclusive rights, license and authority to implement the project and concession in respect of AMEL and the petitioner Delhi Metro Rail Corporation (DMRC) was to undertake clearances and bear costs relating to land acquisition, and civil structures. DAMEPL was to complete the work in two years, and thereafter, to maintain AMEL until August 2038.

In April 2012, DAMEPL sought a deferment of the concession fee, citing delays in providing access to the stations by DMRC. Meanwhile, DAMEPL expressed its intention to halt operations, alleging that the line was unsafe to operate. Operations were stopped on July 8, 2012. The next day, DAMEPL issued a notice to DMRC containing a non- exhaustive list of eight defects which, according to them, affected the performance of their obligations under the 2008 Agreement (Cure Notice). The notice stated that the defects were attributable to faulty construction and deficient designs which affected project safety.

DAMPEL issued a notice terminating the 2008 agreement. DMRC initiated conciliation under as well as arbitration proceedings. In 2013, DAMEPL halted operations and handed over the line to DMRC. 

CMRS issued sanction and consequently, on June 30, 2013, the project assets were handed over by DAMEPL to DMRC. Meanwhile the arbitral tribunal passed the unanimous award holding that DAMEPL was entitled to the termination payment, expenses incurred in operating AMEL, refund of the bank guarantee and security deposits with the service providers. DMRC has paid the decretal amount of Rs 2599.18 Crores while Rs 5088 Crores under the decree is outstanding as on January 31, 2024.

DMRC's application filed under Section 34 of the Arbitration and Conciliation Act 1996 (Arbitration Act) before the Delhi High Court challenging the award, was dismissed. The Division Bench partly allowed the appeal. Against the decision of the Division Bench of the High Court, DAMEPL moved a Special Leave Petition under Article 136 of the Constitution was allowed and the award was restored. The review petition assailing this decision was dismissed and hence, the curative petition was filed before the Top Court.

The 3-Judge Bench of Chief Justice D.Y. Chandrachud, Justice B.R. Gavai and Justice Surya Kant observed that a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside under the head of patent illegality. An award without reasons would suffer from patent illegality. The arbitrator commits a patent illegality by deciding a matter not within his jurisdiction or violating a fundamental principle of natural justice.

The Bench also made it clear that a judgment setting aside or refusing to set aside an arbitral award under Section 34 is appealable in the exercise of the jurisdiction of the court under Section 37 of the Arbitration Act. The jurisdiction under Section 37 of the Arbitration Act is akin to the jurisdiction of the Court under Section 34 and restricted to the same grounds of challenge as Section 34. However, the Constitution provides the parties with a remedy under Article 136 against a decision rendered in appeal under Section 37. This is the discretionary and exceptional jurisdiction of this Court to grant Special Leave to Appeal. As per the Bench, unlike the exercise of power under Section 37, which is akin to Section 34, the Court (under Article 136) must limit itself to testing whether the court acting under Section 37 exceeded its jurisdiction by failing to apply the correct tests to assail the award.

The Top Court was of the view that rather than considering the vital evidence of the CMRS certificate towards safety and effective steps, the arbitral tribunal focussed on the conditions imposed by the Commissioner on speed and regarding inspections. “While the Division Bench correctly noted that the certificate was relevant for the issue of the validity of termination, this Court held that safety was not in issue, even though DAMEPL insisted on discontinuing operations citing safety concerns. We respectfully disagree with this Courts re-assessment of the Division Benchs interpretation. The cure notice was relevant for the reasons stated above. Moreover, the fact that DAMEPL premised it on safety could not have been overlooked by the Tribunal. In doing so, it overlooked vital evidence pertaining to an issue that goes to the root of the matter. The cure notice was obviously on the record and merited consideration for its contents bearing on vital elements of safety”, it said.

It was clear from the record that DMRC took steps towards curing defects which led to the eventual resumption of operations. The award contained no explanation as to why the steps which were taken by DMRC were not effective steps within the meaning of the termination clause. It was further opined that the award was unreasoned as it overlooked the vital evidence in the form of the joint application of the contesting parties to CMRS and the CMRS certificate. The arbitral tribunal ignored the specific terms of the termination clause.  Moreover, the Division Bench had correctly held that the arbitral tribunal ignored vital evidence on the record, resulting in perversity and patent illegality, warranting interference.

The Bench observed that the findings of the Division Bench were borne out from the record and were not based on a misappreciation of law or fact. This Court failed, while entertaining the Special Leave Petition under Article 136, to justify its interference with the well-considered decision of the Division Bench of the High Court. The decision of the Top Court failed to adduce any justification bearing on any flaws in the manner of exercise of jurisdiction by the Division Bench under Section 37 of the Arbitration Act.

It was held that the Top Court had restored a patently illegal award which saddled a public utility with an exorbitant liability and this caused a grave miscarriage of justice, warranting the exercise of the power under Article 142 in a Curative petition, in terms of Ashok Hurra vs Rupa Hurra.

Allowing the Curative petitions, the Bench held that the execution proceedings before the High Court for enforcing the arbitral award must be discontinued and the amounts deposited by the petitioner pursuant to the judgment of this Court shall be refunded. The orders passed by the High Court in the course of the execution proceedings for enforcing the arbitral award were also set aside.

The Bench concluded the matter by observing, “The curative jurisdiction should not be used to open the floodgates and create a fourth or fifth stage of court intervention in an arbitral award, under this Court's review jurisdiction or curative jurisdiction, respectively.”

Read Order: Karikho Kri v. Nuney Tayang and another [SC-CIVIL APPEAL NO. 4615 OF 2023]

Tulip Kanth 

New Delhi, April 12, 2024: While observing that a candidate's right to privacy would still survive as regards matters which are of no concern to the voter, the Supreme Court has upheld the 2019 election of Arunachal Pradesh independent MLA Karikho Kri from Tezu Assembly Constituency.

The factual background of this case was that in the year 2019, Karikho Kri, an independent candidate, Dr. Mohesh Chai, candidate of the Bharatiya Janata Party, and Nuney Tayang, candidate of the Indian National Congress, contested the election to the Arunachal Pradesh Legislative Assembly from 44 Tezu (ST) Assembly Constituency. The election was held on 11.04.2019 and Karikho Kri emerged victorious with 7538 votes, while Dr. Mohesh Chai secured 7383 votes and Nuney Tayang secured 1088 votes. Nuney Tayang filed Election Petition before the Assam High Court seeking a declaration that the election of Karikho Kri was void. 

The Court allowed the election petition in part, declaring the election of Karikho Kri void under Sections 100(1)(b), 100(1) (d)(i) and 100(1)(d)(iv) of the Representation of the People Act, 1951, but rejecting the prayer of Nuney Tayang to declare him duly elected, as he had not led any evidence to prove the allegations leveled by him against Dr. Mohesh Chai, the candidate with the second highest number of votes. Aggrieved thereby, Karikho Kri filed an appeal and the Top Court directed that an election should not be held for the subject Constituency which was represented by Karikho Kri and permitted him to enjoy all the privileges as a Member of the House and of the constituted committees but restrained him from casting his vote on the floor of the House or in any of the committees wherein he participated as an MLA.

Karikho Kri filed an interlocutory application as a fresh schedule for election to the Legislative Assembly of the State of Arunachal Pradesh and he wished to contest in the election that is proposed to be held on 19.04.2024. He sought leave to contest as a candidate in the upcoming assembly election in the State of Arunachal Pradesh during the pendency of this appeal. The Supreme Court stayed the operation of the impugned judgment and also made it clear that any steps taken by Karikho Kri in view of the stay order would be subject to the final decision that would be taken upon conclusion of the hearing of these appeals.

In his election petition, Nuney Tayang claimed that the nomination submitted by Karikho Kri was improperly accepted by the Returning Officer, Tezu, as he did not disclose material particulars in his Affidavit. As the High Court was of the opinion that the nomination of Karikho Kri had been improperly accepted by the Returning Officer, Tezu, his election was held liable to be declared void under Section 100(1)(d)(i) of the Act of 1951.

Referring to the judgement in Santosh Yadav vs. Narender Singh, the Division Bench of Justice Aniruddha Bose and Justice Sanjay Kumar said, “It is well-settled that the success of a winning candidate at an election should not be lightly interfered with.” 

The issue pertained to the validity of the High Court's findings that the grounds under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) were established, warranting invalidation of the election of Karikho Kri. Further, the finding of the High Court that Karikho Kri committed a corrupt practice within the meaning of Section 123(2) also required to be examined.

The Bench was of the opinion that there were no actual outstanding dues payable by Karikho Kri in relation to the government accommodation occupied by him earlier. His failure in disclosing the fact that he had occupied such accommodation and in filing the No Dues Certificate in that regard, with his nomination form, couldn’t be said to be a defect of any real import as he did submit the relevant documents of 2014 after Nuney Tayang raised an objection before the Returning Officer. His explanation that he submitted such Certificates in the year 2014 when he stood for re-election as an MLA is logical and worthy of acceptance. 

The Bench also refused to accept the blanket proposition that a candidate is required to lay his life out for examination by the electorate. “His right to privacy would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, non-disclosure of each and every asset owned by a candidate would not amount to a defect, much less, a defect of a substantial character”, the Bench held while also adding, “It is not necessary that a candidate declare every item of movable property that he or his dependent family members owns, such as, clothing, shoes, crockery, stationery and furniture, etc., unless the same is of such value as to constitute a sizeable asset in itself or reflect upon his candidature, in terms of his lifestyle, and require to be disclosed… Each case would, therefore, have to be judged on its own facts.”

Referring to Section 100(1)(d)(iv) which requires that the established non-compliance with the provisions of the Constitution or the Act or any rules or orders made thereunder necessarily has to be shown to have materially affected the result of the election insofar as it concerns the returned candidate, the Bench noted that in the High Court's order no discussion was made on what were the violations which qualified as non-compliance with the provisions of either the Constitution or the Act of 1951 or the rules and orders framed thereunder, for the purposes of Section 100(1)(d)(iv), and as to how the same materially affected the result of the election.

The Bench also did not find adequate pleadings or proof to substantiate and satisfy the requirements of Section 100(1)(d)(iv). “Therefore, it is clear that Nuney Tayang tied up the improper acceptance of Karikho Kris nomination, relatable to Section 100(1)(d)(i) of the Act of 1951, with the non-compliance relatable to Section 100(1)(d)(iv) thereof and he did not sufficiently plead or prove a specific breach or how it materially affected the result of the election, in so far as it concerned the returned candidate, Karikho Kri. It was not open to Nuney Tayang to link up separate issues and fail to plead in detail and adduce sufficient evidence in relation to the non-compliance that would attract Section 100(1)(d)(iv) of the Act of 1951”, the Bench said.

Thus, the Bench held that the High Court was in error in concluding that sufficient grounds were made out under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) to invalidate the election of Karikho Kri and, further, in holding that non-disclosure of the three vehicles, that still remained registered in the names of his wife and son as on the date of filing of his nomination, amounted to a corrupt practice under Section 123(2) of the Act of 1951. 

Allowing the Civil Appeal and setting aside the Judgment of the High Court, the Bench upheld the election of Karikho Kri as the returned candidate from 44 Tezu (ST) Assembly Constituency of the State of Arunachal Pradesh.

Read Order: M/S RAJCO STEEL ENTERPRISES v. KAVITA SARAFF AND ANOTHER [SC- PETITION FOR SPECIAL LEAVE TO APPEAL (CRIMINAL) NO.5583 OF 2022]

LE Correspondent

New Delhi, April 12, 2024: In a cheque bounce case where the complainant/petitioner had failed to produce any document showing any loan transaction pertaining to the cheques in question, the Supreme Court has dismissed a petition challenging a Calcutta High Court order whereby the accused was acquitted of the charges. 

The common petitioner in these four petitions for special leave to appeal was a partnership firm dealing in iron and steel products. The petitioner had assailed a common judgment of the Calcutta High Court by which the petitioner’s appeal against acquittal of the first respondent in respect of offences under Section 138 of the Negotiable Instrument Act, 1881 (1881 Act) had been dismissed.

The petitioner, through its partner, Ramesh Kumar Gupta, had lodged four complaint cases under the aforesaid provision, after four cheques alleged to have been issued by the accused/respondent no.1, were dishonoured on the ground of insufficiency of funds. The petitioner claimed that these cheques were issued between 07.11.2008 and 24.11.2008, drawn on the Axis Bank Limited, Burra Bazar in Kolkata.

Four independent complaint cases were lodged in the Court of the Metropolitan Magistrate, Kolkata by the petitioner. The petitioner contended before the Trial Court that it had granted financial assistance to the accused/respondent no.1 and the said cheques were issued by the accused/respondent no.1 in discharge of her liability towards the petitioner. The petitioner/complainant had issued a statutory demand notice which was duly served upon the accused/respondent no. 1 on but the accused neither complied with the requisition as contained therein, nor gave any reply thereto. To further substantiate its case, the petitioner/complainant also relied upon the testimony of its partner, Ramesh Kumar Gupta.

The accused/respondent no.1 had taken the defence that the petitioner had not provided any financial assistance, but money was advanced to the accused/respondent no.1 for undertaking stock market related transactions through her account.

The defence case, in essence, was that the cheques, the dishonour of which was the subject of this proceeding, were neither issued nor handed over to the complainant, but these were illegally procured by the complainant/petitioner from the custody of the investigating agency i.e., CBI and were subsequently presented for encashment intentionally.

The First Appellate Court acquitted the accused/respondent no.1. It found that the complainant/petitioner had failed to produce any document showing any loan transaction. The petitioner approached the Top Court after the appeal against the judgment of acquittal was also dismissed.

The Division Bench comprising Justice Aniruddha Bose & Justice Sanjay Kumar observed that both the Courts had examined the evidence threadbare and in the opinion of these two fora, the evidence went against the complainant/petitioner. On the question as to whether the sum involved in the cheques was advanced in discharge of a legally enforceable debt or not, the petitioner had failed to show if any sum was advanced towards financial assistance. 

The High Court found that the debt/liability, in discharge of which, according to the petitioner, the cheques were issued, did not reflect in the petitioner's balance-sheet. The other partners of the firm did not depose as prosecution witnesses to establish that the cheque-amounts were advanced to the accused as financial assistance.

As per the Bench, the respondent no.1/accused had put up a plausible defence as regards the reason for which the petitioner's funds had come to her account. “Both the appellate fora, on going through the evidence did not find existence of any enforceable debt or other liability. This strikes at the root of the petitioners case”, the Bench said.

Thus, dismissing the petitions, the Bench held that no point of law is involved in this set of cases that would warrant interference.

Read Order:KIZHAKKE VATTAKANDIYIL MADHAVAN (DEAD) THR. LRS v. THIYYURKUNNATH MEETHAL JANAKI AND ORS [SC- CIVIL APPEAL NO. 8616 OF 2017]

Tulip Kanth

New Delhi, April 10, 2024: The Supreme Court has observed that if right, title or interest in certain property is sought to be conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.

The Division Bench of Justice Aniruddha Bose & Justice Sudhanshu Dhulia was considering an appeal which arose out of a suit for partition instituted by one ThiyyerKunnathMeethal Chandu (Chandu) claiming 8/20 shares in the suit property. The appellants were the defendants in the said suit, and were successors-ininterest of one Sankaran.

The latter and Chandu were uterine brothers, both being the sons of one Chiruthey, who was married twice. Her first husband was Madhavan, within whose wedlock Sankaran was born. Madhavan passed away sometime before the year 1910, though the exact year of death has not been specified in the pleadings nor it has appeared in evidence. After Madhavans death, Chiruthey contracted second marriage with Neelakandan, who was the father of Chandu.

The Trial Court sustained the claim for partition and decreed in favour of the plaintiff therein whose interest was represented by the respondents. The First Appellate Court set aside the decree and dismissed the suit. The main issue before the Court was whether Chiruthey had any title over the subject-property which the plaintiff claimed through the series of transactions.

The Bench was of the opinion that the First Appellate Court had rightly come to a finding that Chiruthey had only a reversionary right over the suit property held by her first husband Madhavan and the plaintiff (Chandu) could not claim partition right on the strength of his being a uterine brother of Sankaran born to Chiruthey after she contracted her second marriage. She lost all her rights and interests in her deceased husband's property on contracting second marriage with Neelakandan. 

It was observed that when Chiruthey contracted her second marriage by operation of Section 2 of the 1856 Act, she had lost title of her share over the property of Madhavan. The High Court in the judgment under appeal, however, primarily relied on the deeds executed on 14th July 1910 to sustain the claim of Chandu (since deceased), represented by his successors-in-interest.

As per the Bench, on remarriage of Chiruthey, after the death of Madhavan, her title or interest over the suit property stood lapsed in terms of Section 2 of the 1856 Act. Thus, Chiruthey's right to deal with property derived from Madhavan stood extinguished so far as the deed of 14th July 1910 is concerned (Exhibit A-20). But it was not Chiruthey alone who had executed that instrument, it was Nangeli and also Sankaran, (son of Chiruthey) who had executed it and remained valid legal heirs of Madhavan (since deceased). 

Finding no material that Madhavan had any other legal heir, the Bench opined, “...even if we discount Chirutheys title over the property forming subject of lease, it stood conveyed by its actual owners i.e., Nangeli and Sankaran. To that extent, we accept the validity of the lease deed, that was otherwise proved in the Trial Court. Once we find the Exhibit A-20 to be valid conveyance, we do not think the corollary transaction which is marked as Exhibit A-1 bearing No.2329/1910, by which the same property was leased back to Chiruthey and Kuttiperavan to be invalid.”

These back-to-back transactions may be unusual, but in absence of any evidence pointing to any illegality, the Bench held them to be valid. The High Court on finding that these deeds are valid restored the Trial Court's judgment and decree. The underlying reasoning of the High Court was that Chiruthey had legitimate right over the property. The Bench, however, found a flaw in this reasoning of the judgment of the High Court.

“The High Court as also the Trial Court have held that since the deeds were proved, implying that Cheruthey had the right to execute the lease deed on 14th July 1910 so far as the deed of re- lease is concerned, the same might entitle her to be the beneficiary as a lessee thereof. But it would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence”, the Bench added.

“If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument”, it added.

The plaintiff (now represented by his successors as respondents) sought to claim his share of suit property through Chiruthey. But the Bench opined that Chiruthey had lost her right over the subject property on her contracting second marriage.

Also, her status over the said property, post-1910 if at all was that of lessee. There was no indication in any of the deeds that the said lease could travel beyond the stipulated term of twelve years. The ownership of the suit property could not be said to have devolved in any manner whatsoever to the original plaintiff, who was born within the wedlock of Chiruthey and Neelakandan. 

Thus, allowing the appeal, the Bench set aside the decision of the High Court and confirmed the decision of the First Appellate Court.

Read Order:M K Ranjitsinh&Ors v. Union of India &Ors [SC- Writ Petition (Civil) No. 838 of 2019]

LE Correspondent

New Delhi, April 10, 2024: The Supreme Court has recently directed the formation of an Expert Committee in order to identify alternatives which would balance the conservation of the Great Indian Bustard with the arrangement of power lines in a manner that would facilitate the fulfilment of the international commitments made by India for developing renewable sources of energy.The Top Court also opined that Articles 14 & 21 of the Constitution are important sources of the right to a clean environment and the right against the adverse effects of climate change.

The 3-Judge Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra was considering a petition filed for protecting the Great Indian Bustard (GIB) and the Lesser Florican, both of whom are on the verge of extinction.

The GIB is native to southern and western India. It typically occupies grasslands or arid regions. The State of Rajasthan is home to a majority of the current population. With time, the country has seen a rapid and steady decline in the population of the GIB. As of 2018, the International Union for Conservation of Nature, or IUCN as it is popularly known, classified the GIB as a ‘critically endangered’ species. In IUCN’s system of classification, only two categories indicate a graver threat to a particular species – ‘extinct in the wild’ and ‘extinct’. The GIB has been classified as a critically endangered species from 2011 until the most recent assessment in 2018.

In the context of the dwindling population of GIBs and the existential threat looming over them, a writ petition invoking the constitutional jurisdiction under Article 32 was instituted for seeking directions relating to the conservation of the species.In the order of this Court dated April 19, 2021, restrictions were imposed on the setting up of overhead transmission lines in a large swath of territory of about 99,000 square kilometres. 

A committee was also appointed for assessing the feasibility of laying high voltage underground power lines. The Court had directed that in all cases where overhead power lines exist as on date in the priority and potential GIB areas, steps shall be taken to install bird diverters pending consideration of the conversion of overhead power lines into underground power lines. Moreover, the court directed that in all cases, where it is found feasible to convert the overhead lines to underground power lines, this shall be undertaken and completed within a year.

The order of this Court had been implemented by the Committee by granting case- specific sanctions to projects where undergrounding was found not to be possible. Respondent Nos. 1, 3, and 4 (the Ministry of Environment, Forests, and Climate Change, the Ministry of Power, and the Ministry of New and Renewable Energy respectively) filed applications for modification of the directions.

The Union of India filed an additional affidavit and an updated, comprehensive status report stating that the direction by this Court for laying high voltage, or as the case may be, low voltage lines underground was practically impossible to implement. The measures taken for protection were also presented.

Highlighting the manifold efforts of the Nation to combat climate change, the Bench observed that the people have a right against the adverse effects of climate change. As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right. It is recognised by Articles 14 and 21.

Stating that the GIB is seriously endangered as a species,  the Bench noted that in the course of the hearing, it emerged that there was no basis to impose a general prohibition in regard to the installation of transmission lines for the distribution of solar power in an area about 99,000 square kilometres. There were several reasons due to which it was not feasible to convert all transmission lines into underground power transmission lines. 

The Bench was of the view that the order passed by this Court on April 19, 2021 needed to be suitably modified. A blanket direction for undergrounding high voltage and low voltage power lines of the nature that was directed by this Court would need recalibration, it added.

Directing the constitution of an Expert Committee, the Bench opined that the committee would carry the following tasks:

• Determining the scope, feasibility and extent of overhead and underground electric lines in the area identified as priority areas in the reports of the Wild Life Institute of India in the States of Rajasthan and Gujarat;
• The need for adopting conservation and protection measures for the GIB as well as other fauna specific to the topography;
• Identification of the measures to be adopted in the priority areas to ensure the long- term survival of the GIB and facilitating an increase in its population. Such measures may include habitat restoration, anti-poaching initiatives, and community engagement programs;
• Evaluating the potential consequences of climate change on GIB habitats, considering factors such as shifting precipitation patterns, temperature extremes, habitat degradation and developing adaptive management strategies to enhance their resilience;
• Identification of suitable options in the context of sustainable development in the matter of laying power lines in the future. The alternatives identified should balance the conservation and protection of the GIB with the arrangement of power lines in a manner that would facilitate the fulfilment of the international commitments made by India for developing renewable sources of energy.
• Engaging with relevant stakeholders, including government agencies, environmental organizations, wildlife biologists, local communities, and energy industry representatives, to solicit inputs, build consensus, and promote collaborative efforts towards achieving conservation and sustainable development goals;
• Conducting a thorough review of conservation efforts and innovative approaches in similar contexts globally, such as the Houbara Bustard in the Middle East or the Black Stilt in New Zealand, to inform best practices;
•  Implementing a robust monitoring and research program to track GIB populations, habitat dynamics, and the effectiveness of conservation measures over time. This may include employing techniques such as satellite tracking, camera trapping, and ecological surveys to gather essential data for informed decision-making; and
• Adopting any additional measures both in regard to the priority and potential areas, as the Committee considers appropriate including considering the efficacy and suitability of installing bird diverters on existing and future power lines on the basis of a scientific study.

The Committee has also been asked to complete its task and submit a report to this Court through the Union Government on or before July 31, 2024.

The Bench concluded the matter by further asking the Union of India and the concerned ministries to implement the measures which have been already undertaken. It was also held that the project clearances which have been granted pursuant to the recommendations of the earlier committee appointed in terms of the order April 19, 2021 shall not be affected by the present judgment.