Op EdsOP. ED.

With an increase in arbitration agreements, the issues with respect to jurisdiction have also increased. We have witnessed the issue of jurisdiction of courts in foreign seated arbitration getting more settled from Bhatia International[1] to Balco[2] and then to the 2015 Amendment. However, with the increase in domestic arbitration, the issue of jurisdiction of courts in India still has scope of being more precise and clear.

Section 20 CPC confers jurisdiction to such court, in case of a dispute pertaining to an agreement, within the local limits of whose jurisdiction either cause of action or part of cause of action has arisen or place of the defendant.[3] Therefore, the jurisdiction may lie upon more than one court. It is a settled position of law that an agreement may exclude the jurisdiction of other courts in case it lies upon more than one court but the jurisdiction can only be conferred upon the court which originally had it in the first place. The situation is a little different when it comes to arbitration agreement. Section 20 of the Arbitration Act, 1996[4] gives the parties autonomy to mutually choose jurisdiction of the court even if it did not have jurisdiction in the first place. For example, business of X is in Ahmedabad while Y is from Jaipur, a dispute arose between the parties wherein cause of action arose in Vadodara and part of cause of action also arose in Ahmedabad, X may choose either to file the suit in the courts of Vadodara, Ahmedabad or Jaipur, they may also exclude the jurisdiction of courts of Jaipur and Vadodara submitting themselves exclusively to the jurisdiction of the courts of Ahmedabad but cannot choose the jurisdiction of the court other than Vadodara, Ahmedabad or Jaipur, while in an arbitration agreement they may exclusively choose to submit to the jurisdiction of the court of Mumbai even if no part of cause of action arose in Mumbai.

This article discusses issues related to implied exclusion of courts in arbitration agreements. The above-stated issue arose in  Swastika Gases (P) Ltd. v. Indian Oil Corporation Ltd.[5] wherein Clause 18 of the agreement between the parties conferred jurisdiction on the courts at Kolkata. It was the case of the appellant that part of cause of action arose in Jaipur and that the agreement does not expressly oust the jurisdiction of other courts as Clause 18 cannot be construed as an ouster clause due to lack of words like “alone”, “only”, “exclusive” and “exclusive jurisdiction” in the clause and therefore the courts of Jaipur also have the jurisdiction. The Supreme Court held that for jurisdiction clause in the agreement the words like “alone”, “only”, “exclusive” or “exclusive jurisdiction” are not decisive and do not make any material difference, that the intention of the parties by having Clause 18 in the agreement is clear and unambiguous and that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction.[6]

The said judgment was followed in B.E. Simoese Von Staraburg Niedenthal v. Chhattisgarh Investment Ltd. [7] and in Indus Mobile Distribution (P) Ltd.  v. Datawind Innovations (P)  Ltd.[8]  In B.E. Simoese[9] jurisdiction clause of the agreement stated that “the courts at Goa shall have exclusive jurisdiction”. Whereas in Indus Mobile[10], the seat of arbitration was Mumbai and the jurisdiction clause stated that “all disputes and differences of any kind whatever arising out of or in connection with this agreement shall be subject to the exclusive jurisdiction of courts of Mumbai only”. It is pertinent to note here that there was express exclusion of jurisdiction of other courts by using words like exclusive and only in respective cases. However, in Indus Mobile[11] the  Supreme Court went on to hold that in arbitration law, the moment “seat” is determined, the court of that place would vest with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties.

The issue was thereafter discussed in Brahmani River Pellets Ltd. v. Kamachi Industries Ltd.[12] wherein the jurisdiction clause of the agreement stated that “Arbitration shall be under the Arbitration and Conciliation Act, 1996 and the venue of arbitration shall be Bhubaneswar”. The respondent in the present case filed a petition under Section 11 of the Arbitration Act before the Madras High Court for appointment of sole arbitrator. The case of the appellant was that the parties have agreed that the seat of arbitration be Bhubaneswar, that when the parties have agreed for a place/venue for arbitration, it gets the status of seat which is the juridical seat and therefore, only the Orissa High Court has exclusive jurisdiction to appoint the arbitrator. The Supreme Court held that the contract specifies the jurisdiction of the court at a particular place, only such court will have the jurisdiction to deal with the matter and the parties intended to exclude all other courts. In the present case, the parties have agreed that the “venue” of arbitration shall be at Bhubaneswar. Considering the agreement of the parties having chosen Bhubaneswar as the venue of arbitration, the intention of the parties is to exclude all other courts. As held in Swastika[13], non-use of words like “exclusive jurisdiction”, “only”, “exclusive”, “alone” is not decisive and does not make any material difference. The  Supreme Court relied upon the judgments in Swastika[14] and Indus Mobile[15]  to establish that choosing of seat of arbitration not only vests jurisdiction to the courts of the chosen seat but also implies exclusion of other courts as well. By virtue of the said series of judgments, it is safe to conclude that Section 11 application would be maintainable only before a High Court under whose jurisdiction the place chosen as seat of the arbitration is situated and not before any other High Court.

Though the situation might slightly be different when it comes to application filed under Section 9 before a court. Swastika[16], Mobile[17] and Brahmani River[18] were dealing with Section 11 application whereas B.E. Simoese[19] dealt with Section 9 application. The Supreme Court in Indus Mobile[20] held that the moment “seat” is determined, the court of that place would vest with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties, it is pertinent to note that Section 9 application is not for regulating arbitral proceeding but to provide interim relief to the parties before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36 and hence mere choosing of seat would not oust the jurisdiction of other competent courts[21] to entertain Section 9 application. Nevertheless, any specific clause in the arbitration agreement vesting jurisdiction to the court of chosen seat, even if without the usage of words such as “only”, “alone”, “exclusive” and “exclusive jurisdiction”, would imply the ouster of jurisdiction of other courts from entertaining Section 9 application.


* Advocate, Gujarat High Court

[1] Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105 

[2] Bharat Aluminium Company Ltd.  v. Kaiser Aluminium Technical Services, (2012) 9 SCC 552

[3] Section 20 of Civil Procedure Code: Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.

[4] Arbitration and Conciliation Act, 1996, S. 20

[5] (2013) 9 SCC 32

[6] Swastika Gases (P)  Ltd. v. Indian Oil Corpn. Ltd., (2013) 9 SCC 32, para 32.

“It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither a forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner. It is not necessary to include words like alone, only, exclusively to confer jurisdiction to a court and that the intension of parties matter. Therefore exclusion of courts can also be implied.”

[7] (2015) 12 SCC 225

[8] (2017) 7 SCC 678

[9] (2015) 12 SCC 225

[10] (2017) 7 SCC 678

[11] Ibid

[12] (2020) 5 SCC 462

[13] (2013) 9 SCC 32

[14] Ibid

[15] (2017) 7 SCC 678

[16](2013) 9 SCC 32

[17]  (2017) 7 SCC 678

[18] (2020) 5 SCC 462

[19]  (2015) 12 SCC 225

[20]  (2017) 7 SCC 678

[21] Clause (e) of sub-section (1) of Section 2 of the Arbitration Act, 1996 defines “court” which means the Principal Civil Court of Original Jurisdiction in a district, and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade inferior to such Principal Civil Court, or any Court of Small Causes.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that the High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.

The Court was hearing the case relating to suit for permanent injunction wherein the High had dismissed the second appeal without framing any substantial question of law. It was contended before the Court that framing of substantial question of law is mandatory in terms of Section 100 CPC and hence, the matter should be remitted back to the High Court for determination of the substantial question of law framed by the appellants.

On this, the Court explained that Sub-section (1) of Section 100 CPC contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 CPC.

Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law.

“The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law.”

It was the case of the appellants that the First Appellate Court had ordered that the question of jurisdiction of Civil Court would be decided first, however the appeal was decided without dealing with the said issue., thereby causing serious prejudice to the rights of the appellants. Similarly, the application under Order XLI Rule 27 of the Code was not decided which was again prejudicial to their rights.

The Court, however, found that such substantial questions of law did not arise for consideration. The issue of jurisdiction was not an issue of fact but of law. Therefore, it could very well be decided by the First Appellate Court while taking up the entire appeal for hearing.

It was noticed that the suit was simpliciter for injunction based upon possession of the property, hence, the said suit could be decided only by the Civil Court as there is no mechanism prescribed under the Land Revenue Act for grant of injunction in respect of disputes relating to possession. The Civil Court has plenary jurisdiction to entertain all disputes except in cases where the jurisdiction of the Civil Court is either expressly or impliedly barred in terms of Section 9 CPC. Since there is no implied or express bar of jurisdiction of the Civil Court in terms of Section 9 CPC, the Civil Court has plenary jurisdiction to decide all disputes between the parties.

Hence, it was held that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.

[Kirpa Ram v. Surendra Deo Gaur,  2020 SCC OnLine SC 935, decided on 16.11.2020]


*Justice Hemant Gupta has penned this judgment 

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., observed that,

“The practice of pronouncing Judgments in appeal against conviction in absence of the accused, thereby dismissing the appeal and then directing the trial Court to issue warrant, requires to be deprecated.”

The instant application was filed by the original accused for suspension of substantive sentence, during the pendency of revision imposed against him by Judicial Magistrate after holding him guilty of committing an offence punishable under Section 138 of the Negotiable Instruments Act.

Bench stated that at first it is required to be seen, as to whether before admitting the revision and while dealing with the present application whether it is necessary first to direct the applicant to surrender himself.

It appears that the Appellate Court in the present case pronounced the Judgment on 04-05-2019 in absence of the appellant-accused.

Section 387 of CrPC deals with Judgment of subordinate Appellate Court and it provides that the rule contained in Chapter XXVII as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate.

“…if directions/ order is passed by the Appellate Court for exemption of the accused, then only the Judgment can be pronounced in absence of the accused; otherwise his presence should be secured before the Judgment is pronounced.”

No doubt, sub section (7) of Section 353 of the Code provides, that no judgment delivered by any Criminal Court shall be deemed to be invalid by the reason only in absence of any party, however, the Appellate Court cannot insist upon invoking sub section (7) of Section 353 of the Code if there was no endeavour on its part to secure the presence of the accused.

Court stated that it is the Appellate Court’s duty to see that the Judgment in an appeal against conviction should be pronounced in presence of the accused (only exception as enumerated in Section 353 (6) of the Code) and to take such appellant in custody upon the confirmation of the conviction.

Coming to the question of whether in the present case, Court could direct the revision applicant to surrender himself before the Appellate Court and then take up revision for hearing, Bench stated that the answer for the said question was in the Supreme Court’s decision of Bihari Prasad Singh v. State of Bihar, (2000) 10 SCC 346.

In the above-cited case, the following question was considered:

Whether the High Court while exercising its jurisdiction can refuse to hear or entertain the matter on the ground that the accused has not surrendered?

Following was observed:

“Under the provisions of the Criminal Procedure Code, there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Court. But it is stated to us that there is no such rule in the Patna High Court Rules. In that view of the matter the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered.”

In view of the above discussion, Court held that the revision application cannot be rejected on the ground that the accused did not surrender and therefore, there was no bar on considering the present application.

What was the basic crux and background of the matter?

The complainant stated he had extended loan amount, from time to time, and the disputed cheque was given by the accused in the discharge of said legal debt or liability. Accused took a defence that he had already given certain cheques in possession of the complainant and one of the said cheques was misused. He led evidence and in his defence he tried to show, that the presumption under Section 139 of the Negotiable Instruments Act had been rebutted by him.

Court found the above to be an arguable case and hence held that the revision deserves to be admitted.

Bench directed for the suspension of the substantive part of the sentence till the revision was decided.[Fazal Khalil Ahemad Shaikh v. Nadkishor Ramnivasji Agrawal, Criminal Application No. 2743 of 2019, decided on 13-02-2020]

Case BriefsHigh Courts

Patna High Court: In a petition filed under Article 226 of the Constitution for issuance of a writ of certiorari, Birendra Kumar, J., dismissed the same finding no reason warranting interference.

The instant petition has been filed by the petitioner who pleads for the quashing of the order contained in Memo No. 3751 dated 10-10-2018 passed by the respondent 3, the Secretary of Bihar Sanskrit Shiksha Board in which the petitioner was put under suspicion and departmental proceedings were initiated against him.

The facts of the case are such that in a writ petition CWJC No. 10951 of 2015, this Court by order dated 27-06-2016 had directed CBI investigation in the matter of appointment of 73 Gramin Dak Sevaks during the period 2008-13 in Muzaffarpur Postal Division on the basis of fake and forged Madhyama Marksheet. R.C.’s were registered and during investigation, it came to light that one of the schools namely, Krishnadev Niranjan Dr Jai Narayan Sharma Sanskrit High School, Patahi, Muzaffarpur in a conspiracy, accepted forms of Madhyama examination for the period 2005-09 from the students and their fee was also collected an unauthorized manner. Subsequently, R.C. 1A of 2017 was registered on 18-01-2017. The S.P., C.B.I. vide his letter dated 04-04-2018 addressed to the Chairman of Bihar Sanskrit Shiksha Board (respondent 4) reported that during investigation, sufficient material came on the record to initiate a departmental proceeding for major punishment against three persons including the petitioner who were Assistants in Bihar Sanskrit Shiksha Board as they had allowed backdoor entry of students.

The primary ground for challenging the impugned order is that Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 is not applicable on the employees of the Sanskrit Shiksha Board nor there is any other Rule governing the service condition.

Other ground is that the disciplinary action has been taken by the competent authority solely based on the recommendation of the C.B.I. without any application of its own mind.

The petitioner has admitted that the Board has adopted the State Government’s Rules with respect to payment of gratuity, leave encashment and other benefits.

The Court observed that it’s not possible for an institution to run without any service rules. It is evident from the impugned order that Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 and Amendment Rules 2007 are applicable and under those Rules, action has been taken. Moreover, based on petitioner’s admittance, immunity cannot be claimed from the disciplinary proceeding rule.

For the second ground of non-application of mind by the competent authority, the Court thoroughly perused the impugned order and observed that it can’t be made out from the order that action has only been taken on the recommendation of the C.B.I. rather the competent authority has applied its mind while accepting the allegations which were brought on record during the investigation of the case by the C.B.I. for initiating the departmental proceeding.

Counsel for the petitioner, Bam Bahadur Jha has relied on the case of Bipin Bihari Singh v. State of Bihar, 2014 SCC OnLine Pat 5306. The Court questioned its relevance and applicability and found it unconvincing.

In view of the above, the petition has been dismissed by the court finding absolutely no reason to interfere in the impugned order.[Raja Jha v. State of Bihar, 2020 SCC OnLine Pat 1661, decided on 16-10-2020]


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Case BriefsHigh Courts

Orissa High Court: Biswajit Mohanty J., dismissed the petition being non-maintainable.

The facts of the case are such that the petitioner took loan from opposite party 1, a Non-Banking Financial Company i.e. NBFC recognized by Reserve Bank of India and is understood as such under the provisions of the SARFAESI Act, 2002. The petitioner is paying its EMI regularly, however, due to high-interest rate i.e. 12% on a floating basis approached the ICICI Bank Home Loan for taking over of the existing loan with the opposite parties which was later sanctioned by the ICICI Bank. However, the opposite party 2 vide an email declined the request of foreclosure of loan account on the ground that since the loan is under lock-in period, the aforesaid loan cannot be closed. Aggrieved by the same, the present writ petition has been filed for issuance of direction to the opposite parties to foreclose its loan account with the opposite party.

The present issue is regarding maintainability of the writ petition as the opposite party is a private banking company. On being queried the same, Counsel Mr Pal brought the attention of the Court towards the fact is a non-banking financial institution recognized by the Reserve Bank of India and is a financial institution as understood under the provisions of the SARFAESI Act and as such amendable to the jurisdiction of the Court.

Maintainability of the writ petition vis-a vis Opposite Party i.e. Private Banking Company

RBI ACT, 1934

A reading of Sub-Section (c), (e) & (f) of Section 45-I of the Reserve Bank of India Act, 1934 show that a nonbanking financial company/institution mainly deals with advancing of loans, acquisition of share, stock, bonds, debentures and marketable securities, letting or delivering of goods to a hirer under a hire purchase agreement, carrying on insurance business, managing & supervising of chits and collecting monies in lumpsum by way of sale of units and awarding prizes and gifts etc. All these make it clear that non-banking financial companies deal with ordinary commercial activities having no monopoly status. Therefore, such activities cannot be classified as discharging of public function/public duties/statutory duties.

SARFAESI Act, 2002

Chapter-II of the SARFAESI Act, 2002 deals with regulation of securitization and reconstruction of financial assets of banks and financial institutions. Section 12 of the Act deals with power of Reserve Bank to determine policy and issue directions which are in public interest or to regulate financial system of the country. Thus, merely because opposite party 1 is understood as financial institution under the SARFAESI Act and merely because R.B.I. also regulates its activities, it cannot be said that it is discharging public duties.

The Court further relied on judgment titled Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733 and stated that

“A writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Govt.); (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function.”

The Court further observed that banking is a kind of profession and a commercial activity and the primary motive behind it is to earn returns and profits. It works like any other private company in the banking business having no monopoly status. These companies have been voluntarily established for their own purpose and interest but their activities are kept under check so that their activities may not go way ward and harm the economy in general. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability, it does not mean that private companies carrying on the business of banking, discharge any public function or public duty. Non-banking financial companies only indulge in ordinary business or commercial activities which cannot be described as akin to governmental function.

In view of the authoritative pronouncement and observations laid above, the court held that these private companies would normally not be amenable to the writ jurisdiction unless these violate statutory provisions. When there is no violation of any statutory provisions, a writ may not be issued at all.

Note: No pleadings were made to show that either the opposite party 1 is a “State” within the meaning of Article 12 of the Constitution of India or is under an obligation to discharge any statutory function.

 In view of the above, petition dismissed.[Radhakrishna v. Aditya Birla Finance Ltd., 2020 SCC OnLine Ori 189, decided on 03-04-2020]


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Case BriefsHigh Courts

Kerala High Court: While deciding an application for transfer of two cases from one jurisdiction to another, R. Narayana Pisharadi, J., disposed of the same finding no reason to pass an order to that effect.

The factual matrix in the present case is that the respondent has filed O.P. No. 460 of 2019 against the first petitioner in the family court, Muvattupuzha for restitution of conjugal rights. The respondent has filed another O.P. No. 662 of 2019 against the petitioners in the same court seeking guardianship and permanent custody of the two minor children.

The present application has been filed by the petitioners to transfer the above mentioned two cases from the family court, Muvattupuzha to the family court, Thrissur.

The following grounds have been set forth by the petitioner for transfer of the cases: (1) The family court, Muvattupuzha has got no jurisdiction to entertain

and try the case O.P. No. 662 of 2019 and it should’ve been filed before the Family Court, Thrissur. (2) The first petitioner has filed a case as M.C.No.639 of 2019 against the respondent under Section 125 CrPC in the family court, Thrissur claiming maintenance for the two minor children. Consolidation of the two cases pending in the family court, Muvattupuzha and the case M.C.No. 639 of 2019 pending in the family court, Thrissur is necessary. (3) The first petitioner and her parents are residing at Thrissur. The convenience of the wife and the children has to be given preference in matrimonial matters.

With reference to the contention that family court, Muvattupuzha lacks jurisdiction, the Court observed that the said contention is irrelevant as it should have been raised before that family court itself. It requires consideration of disputed facts which can be done by the family court and not this Court.

The Court also observed that just because of the fact that first petitioner has instituted a case as M.C.No.639 of 2019 in the family court, Thrissur is also not a sufficient ground to transfer the other two cases pending in the family court, Muvattupuzha to the family court, Thrissur.

While deliberating over the principle generally followed that in applications for transfer of cases relating to matrimonial matters, the convenience of the wife has to be given preference; the Court observed that in the present matter preference has to be given to the convenience and welfare of the children.

Counsel for the respondent, Biju Abraham has submitted that currently children are in the custody of the respondent and they are living with him and his parents at his house which is within the jurisdiction of the family court, Muvattupuzha. The petitioner has failed to provide any evidence which could show otherwise. The respondent is a practicing doctor while the first petitioner is pursuing her post-graduate studies. Transfer of the cases from the family court, Muvattupuzha to the family court, Thrissur would cause considerable hardship to the respondent and also to the children.

The Court also noted that the respondent had filed O.P.(FC) Nos. 309 of 2020 and 323 of 2020 before this Court for speedy disposal of the cases O.P. No. 460 of 2019 and O.P. No. 662 of 2019 pending before the family court, Muvattupuzha in which this Court allowed the prayer issuing a direction that family court, Muvattupuzha has to dispose of the aforesaid two cases within a period of six months. If the cases are transferred now, then the same would result in an unnecessary delay thus defeating the purpose of expeditious disposal in return.

In view of the above, the Court has dismissed the present application finding no merit in the arguments raised by the petitioner.[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]


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Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., dismissed a petition which was filed aggrieved by the cancellation of selection process of the direct recruitment on the 12 posts of Forest Guard.

An advertisement was issued inviting applications from open market for direct recruitment on the 12 posts of Forest Guard. The selection process consisted of physical examination, written examination followed by physical endurance test. While at the last stage of the selection process a complaint was received by the respondents regarding unfair practice in the selection process, after due inquiry, a notification was issued, canceling the entire selection process for the post of Forest Guard along with notice of re-exam in future.

The counsel for the petitioner, Mr. Aditya Singh contended that there was no reason to cancel the entire selection and in the present case, there is no material whatsoever which may warrant such decision to cancel the selection. It was also contended that the cancellation of the selection has a serious consequence for the petitioners which may result in the denial of the petitioners of a public employment to them forever. In the counter affidavit it was mentioned that finding and recommendation of the enquiry officer were placed before the Committee where it was clear that appointing authority and the selection committee have sufficient proof on the basis of which decision was taken to cancel the entire selection. A perusal of the record revealed that out of the 21 candidates, only 18 candidates responded to the registered letter sent by the department, and submitted the desired information; out of these 18 candidates, fathers of 10 candidates were working in Forest department. This being the position, foul play and unfair practice in the selection process cannot be ruled out and the cancellation of selection process cannot be said to unjustified or irrational.

The Court while dismissing the petition explained that merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment, quoting from the judgment of the Supreme Court in Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 where the Court said,

            “A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. ….”

The Court further observed that it is a well-settled principle in law that while exercising its powers of judicial review of any administrative action, Courts could not interfere with the administrative decision unless it suffers from the vice of illegality, irrationality or procedural impropriety quoting from yet another Supreme Court judgment in Municipal Council, Neemuch v. Mahadeo Real Estate, (2019) 10 SCC 738. [Ashish Bisht v. State of Uttarakhand,  2020 SCC OnLine Utt 610, decided on 13-10-2020]


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Case BriefsHigh Courts

Delhi High Court: Navin Chawla, J., refused to pass an interim injunction in regard to the communication dated 03-09-2020 along with Press Release dated 03-09-2020 and Frequently Asked Questions issued by the respondent, BARC.

Jurisdiction to adjudicate the present dispute

The basis of the present petition was that the disputes raised challenge raised by the petitioner to the above-mentioned communication and press release comes under the jurisdiction of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), however, the working of which is suspended due to COVID-19.

Impugned Communication

Respondent which is registered as a television rating agency introduced algorithms into its data validation method purported to mitigate the impact of ‘Landing Page’ on viewership data across all genres of television channels.

The said data was published on 03-09-2020 and thereafter, published every Thursday.

The above-stated communication was challenged before TDSAT, which was allowed. TRAI again challenged the order of TDSAT before the Supreme Court, wherein the Court held that,

“.. we direct that the appellant shall not enforce Landing Page Regulations/directions against the respondents and other similarly situated members of the Association.”

In view of the Supreme Court’s decision, petitioners counsel submitted that, placement of television channels on the Landing Page is still permitted, though the operation of the Judgment of the TDSAT has been stayed.

Respondent has sought to restrict the rights of the television channels to be placed on the Landing Page on the same grounds as was sought to be done by TRAI.

Breaking down the High Court’s decision

With regard to the maintainability of the petition, Bench referred to Clauses 19.1 and 24.1 of the Policy Guidelines issued by the Government of India according to which the respondent is governed by the provisions of the Telecom Regulatory Authority of India Act, 1997 and any dispute between the Government of India and the respondent is to be raised before the TDSAT.

Section 14 of the Telecom Regulatory Authority of India Act, 1997:

“14. Establishment of Appellate Tribunal- The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to-

(a) adjudicate any dispute-

(i) between a licensor and a licensee;

(ii) between two or more service providers;

(ii) between a service provide and a group of consumers.”

End-User License Agreement executed between petitioner 1 and the respondent in Clause 6(v) and 9(i)(g)(v) allows the respondent to change the methodology used by it for the TV channel rating.

 End-User License Agreement

Further, the Bench added that, once it is held that TDSAT would have jurisdiction under Section 14 of the TRAI Act, 1997 the same cannot be diversified through an Agreement between the parties and especially Clause 24 of the End User License Agreement.

Clause 5.4.2 of the Policy Guidelines requires the rating agency to use necessary algorithms to detect outliers having unusual viewing behaviour and discard such data.

Landing Page by a channel exaggerates viewership estimates by “forcing viewership”.  The new methodology evolved by the respondent is after detailed study and testing across multiple genres and would ensure minimization of any “false positives or negatives”.

Adding to its analysis, the Court stated that the respondent can be presumed to be an expert in the field as also in possession of knowledge of the industry and the steps required for its improvement. Decisions of such a body cannot be interfered with lightly.

“TDSAT was considering the powers of the TRAI to issue the Direction prohibiting placement of TV channels on the Landing Page and concluded that TRAI had no such powers under the provisions of the Act.”

Hence, petitioners could not make out the case of grant of interim injunction. It was however clarified that no observation in the present order shall bind the TDSAT in deciding any petition filed before it.

[Bennett Coleman & Co. Ltd. v. Broadcast Audience Research Council of India, 2020 SCC OnLine Del 1330, decided on 29-09-2020]


Petitioner’s Counsels:

Senior Advocates Dr Abhishek Manu Singhvi and Maninder Singh with Advocates, Kunal Tandon, Kumar Shashank Shekhar, Prabhas Bajaj, Amit Bhandari & Amandeep Singh.

Respondent’s Counsels:

Senior Advocate Neeraj Kishan Kaul with Advocates Saikrishna Rajagopal, Sneha Jain, Ranjeet Singh Sidhu, Sudarshana MJ & Akash Lamba.

Case BriefsSupreme Court

Supreme Court: The single judge bench of V. Ramasubramanian, J has held that

  • the issue of jurisdiction of a court to try an “offence” or “offender” as well as the issue of territorial jurisdiction, depend upon facts established through evidence;
  • if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various rules enunciated in sections 177 to 184 of the Code; and
  • these questions may have to be raised before the court trying the offence and such court is bound to consider the same.

DETERMINATION OF JURISDICTION OF CIVIL COURTS VIS-À-VIS CRIMINAL COURTS

While jurisdiction of a civil court is determined by (i) territorial and (ii) pecuniary limits, the jurisdiction of a criminal court is determined by (i) the offence and/or (ii) the offender. But the main difference between the question of jurisdiction raised in civil cases and the question of jurisdiction arising in criminal cases, is two-fold i.e.

CIVIL COURT

CRIMINAL COURT

The stage at which an objection as to jurisdiction, territorial or pecuniary, can be raised, is regulated in civil proceedings by Section 21 of the Code of Civil Procedure, 1908. There is no provision in the Criminal Procedure Code akin to Section 21 of the Code of Civil Procedure.
In civil proceedings, a plaint can be returned, under Order VII, Rule 10, CPC, to be presented to the proper court, at any stage  of  the  proceedings But in criminal proceedings, a limited power is available to a Magistrate under section 201 of the Code, to return a complaint.  The power is limited in the sense that:

 

  1. it is available before taking cognizance, as section 201 uses the words “Magistrate who is not competent to take cognizance”
  2. the power is limited only to complaints, as the word “complaint”, as defined by section 2(d), does not include a “police report”.

“TRIES AN OFFENCE” VERSUS “TRIES AN OFFENDER” UNDER SECTION 461(l) CrPC, WHICH IS MORE APPROPRIATE?

The rules relating to territorial jurisdiction are given in Chapter XIII in detail. However, it is in that Chapter XXXV that one has to search for an answer to the question as to what happens when a court which has no territorial jurisdiction, inquires or tries an offence.

A cursory reading of Section 461(l) and Section 462 gives an impression that there is some incongruity. Under Clause (l) of Section 461 if a Magistrate not being empowered by law to try an offender, wrongly tries him, his proceedings shall be void.

“A proceeding which is void under Section 461 cannot be saved by Section 462.”

The focus of clause (l) of Section 461 18 is on the “offender” and not on the “offence”. If clause (l) had used the words “tries an offence” rather than the words “tries an offender”, the consequence might have been different.

Section 460, which lists out nine irregularities that would not vitiate the proceedings, uses the word “offence” in three places namely clauses (b), (d) and (e).  Section 460 does not use the word “offender” even once. On the contrary Section 461 uses the word ‘offence’ only once, namely in clause (a), but uses the word “offender” twice namely in clauses (l) and (m).

“Therefore, it is clear that if an offender is tried by a Magistrate not empowered by law in that behalf, his proceedings shall be void under Section 461. Section 462 does not make the principle contained therein to have force notwithstanding anything contained in Section 461.”

Hence, the jurisdiction of a criminal Court is normally relatable to the offence and in some cases, to the offender, such as cases where the offender is a juvenile (section 27) or where the victim is a women [the proviso to clause (a) of section 26]. But Section 461(l) focuses on the offender and not on the offence. The saving clause contained in Section 462 of the Code of 1973 is in pari materia with Section 531 of the Code of 1898.

Considering the aforementioned scheme of CrPC, the Court held that the words “tries an offence” are more appropriate than the words “tries an offender” in section 461 (l). This is because, lack of jurisdiction to try an offence cannot be cured by section 462 and hence section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void.

“In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of section 462, provided there is no other bar for the court to try the said offender (such as in section 27). But Section 461 (l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.”

[Kaushik Chatterjee v. State of Haryana, 2020 SCC OnLine SC 793, decided on 30.09.2020]

Case BriefsHigh Courts

Delhi High Court: Najmi Waziri, J., while addressing the present matter considered the following issues:

Whether elections to the Board of Directors of a company; allegations of oppression and mismanagement; wrongful appointment of an Ombudsman in violation of Articles of Association could be adjudicated by a civil court

OR

Whether jurisdiction vests exclusively with the National Company Law Tribunal?

Background

Appeal under Sections 104 and 151 read with Order XLIII Rule 1 CPC, impugns an order of the ADJ, Tis Hazari Courts, New Delhi whereby the appellant’s two applications were dismissed and the interim injunction sought by the plaintiff was granted.

Contention of the appellant

Appellant submits that the suit is not maintainable before a Civil Court because of the bar placed on Civil Courts by Section 430 of the Companies Act, 2013.

Section 430 of the Companies Act, 2013

Civil court not to have jurisdiction:

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate.” The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred.

Appellant also relied on the decision of this Court in SAS Hospitality Pvt. Ltd. v. Surya Constructions Pvt. Ltd., 2018 SCC Online Del 11909, wherein it was observed that,

“The bar contained in Section 430 of the 2013 Act is in respect of entertaining “any suit”, or “any proceedings” which the NCLT is “empowered to determine”.”

Appellant also relied on the decision of Madras High Court in Viji Joseph v. P. Chander, 2019 SCC OnLine Mad 10424 wherein the Court examined an election dispute under Section 20 of the Companies (Management and Administration) Rules, 2014, involving the maintainability of the election of the Board of Directors through electronic means.

After analyzing Section 242 and other circumstances pertaining to the case, Madras High Court concluded that only the Tribunal had powers to deal with the issue raised in the suit and the civil court had no jurisdiction to entertain the suit.

Issues raised in the present matter

Challenging matters relating to the AGM, the Board of Directors of the appellant company, the appointment of an ombudsman and other related issues.

The Madras High Court Decision as referred above has also discussed the expanse of Section 430 of the Companies Act, 2013.

Senior Advocate for the appellant submits that the Companies Act and the National Company Law Tribunal Rules, 2016, are together a complete code. Ample power has been provided to the NCLT – akin to a civil court – to deal with all issues for which powers have been conferred upon the Tribunal.

Further, the appellant submitted that, in the present case, the process of election to the Board of Directors/Members of the Apex Council, has been challenged because of it being allegedly contrary to the procedure laid down in the AoA and the notice calling for the AGM, and that the elections were held on the basis of a voice vote instead of paper ballot, contrary to what was mentioned in the AGM notice.

Hence, the High Court on perusal of the above stated that Sections 241, 242 and 244 of the Companies Act deal with the issues raised in the present suit.

NCLT has been specifically conferred powers to address grievances relating to the affairs of the company, which may be prejudicial or oppressive to any member of the company, or for issues of appointment of directors.

The appointment of an Ombudsman, would also form a part of the conduct and management of the affairs of the company.

Supreme Court in its’ decision in Shashi Prakash Khemka v. NEPC Micon, 2019 SCC Online SC 223 discussed the scope of Section 430 and stated the same to be vast and the jurisdiction of the civil court to be completely barred when the power to adjudicate vests in the Tribunal.

Therefore, the lis and grievances raised in the present suit can be agitated only before the NCLT as the civil court would have no jurisdiction.

The appeal was allowed. [Delhi & District Cricket Association v. Sudhir Kumar Aggarwal,  2020 SCC OnLine Del 1223, decided on 21-09-2020]

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., while addressing the present petition observed the principle laid down by the Supreme Court of India with regard to Industrial Disputes.

Challenge in the Present petition

Trade Union of PTI Employees and Federation of four PTI Employees’ Unions have challenged the retrenchment of 297 employees by the Press Trust of India.

Permanent and regular workmen have been retrenched while contractual workers have been retained. The principle of ‘last come first go’  has not been followed.

Reasons why retrenchment is violative of certain provisions of the Industrial Disputes Act

Further, it has been stated that retrenchment is violative of Section 25-N of the Industrial Disputes Act as PTI employs more than 100 employees and has not taken the prior permission from the State Government before retrenchment;

retrenchment is violative of Section 25-N of Industrial Disputes Act as three months notice/three months wages in lieu of notice has not been given;

retrenchment is violative of Sections 25-F and 25-G of the Industrial Disputes Act as one month notice indicating the reasons for retrenchment and the retrenchment compensation has not been given;

retrenchment is violative of Section 9A of the Industrial Disputes Act read with Clauses 10 and 11 of the Fourth Schedule as the service conditions of the employees relating to rationalization/technique were altered without notice;

the retrenchment is violative of Section 16A of the Working Journalists Act, 1955 as the reason for retrenchment was the liability for payment of wages and mandating promotional grades as per Clause 18(f) of Majithia Award;

the retrenchment is violative of Section 25-G of the Industrial Disputes Act as there is the substantial short payment of retrenchment compensation to the employees;

closure of Attendees, Transmission and Engineering departments is violative of Section 25-O of the Industrial Disputes Act as the closure was without permission and the retrenchment is illegal and mala fide to sabotage the continued disbursement of Majithia Award benefits and to discourage the employees to pursue their remedies under the Wage Board.

retrenchment constitutes an unfair trade practice as set out in clauses 5(a), (b) and (d) of the Fifth Schedule of the Industrial Disputes Act;

large number of employees have not yet received individual notice of their retrenchment; and the plea of “No work” of PTI is false and contrary to PTI work registers.

Analysis and Decision

Whether the writ petitions should be entertained in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act?

Bench while deciding the present matter observed that,

The law is well settled by the Supreme Court that a writ petition should not be entertained in respect of industrial disputes for which a statutory remedy is available under the Industrial Disputes Act unless ‘Exceptional circumstances’ are made out.

Writ jurisdiction is a discretionary jurisdiction and the discretion should not ordinarily be exercised if there is an alternative remedy available to the petitioner.

Sum and Substance:

  • If the writ petition discloses ‘Exceptional circumstances’ and does not involve disputed questions of fact, the writ petition in respect of an industrial dispute may be entertained.
  • If the writ petition discloses ‘Exceptional circumstances’ but the facts are disputed, the writ petition should not be entertained and the petitioner has to invoke the statutory remedies available as per law.
  • If the writ petition does not disclose ‘Exceptional circumstances’, the writ petition should not be entertained irrespective of whether the facts are disputed or not.
  • Writ jurisdiction is a discretionary jurisdiction and the discretion is ordinarily not exercised, if an alternative remedy is available to the petitioner. The powers conferred under Article 226 of the Court are very wide but these are extraordinary remedies subject to self-imposed restrictions.

With regard to ‘exceptional circumstances’ Court referred to the decision of Delhi High Court, Hajara v. Govt. of India, 2017 SCC OnLine Del 7982.

In the present matter, there are no exceptional circumstances for the exercise of the writ jurisdiction under Article 226 of the Constitution.

Bench stated that the present matter is squarely covered by the principles laid down by the Supreme Court in U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam Karamchari Sangh,2004 (2) L.L.N. 93 wherein the Court held that,

“We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent Union at all. The dispute was an industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well as U.P. IDA, 1947. The rights and obligations sought to be enforced by the respondent Union in the writ petition are those created by the Industrial Disputes Act.”

High Court observed that,

“The principles of uniformity and predictability are very important principles of jurisprudence.”

Most of the retrenchment cases are simpler than the present case but the writ jurisdiction is not exercised as the law is clear and well settled that the rights under the Industrial Disputes Act have to be agitated before the Industrial Tribunal.

In the present matter, Court declines to exercise the writ jurisdiction in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act.

Court noted there is no averment in that in any of the retrenched employees authorized the petitioners to espouse their cause. There is no averment that shows the authority of the petitioners to file the petitions.

Held

Bench held that the petitions are being dismissed on the ground that the retrenched employees have a statutory remedy under the Industrial Disputes Act and no ‘Exceptional circumstances’ have been made out by the petitioners.

Post Script

In view of the well-settled law by the Supreme Court that the writ petition relating to an industrial dispute can be entertained only if there are ‘Exceptional circumstances’, it is mandatory for the writ petitioner to disclose the ‘Exceptional circumstances’ in the Synopsis as well as in the opening paras of the writ petition.

Hence, if the writ petitioner does not disclose the “Exceptional circumstances” in the writ petition, the Registry shall return the writ petition under objections to enable the writ petitioner to disclose the “Exceptional circumstances” in the Synopsis as well as in the opening paras of the writ petition.[PTI Employees Union v. Press Trust of India Ltd., 2020 SCC OnLine Del 1216, decided on 18-09-2020]

Case BriefsHigh Courts

Bombay High Court: Anil S. Kilor, J., while addressing the present petition observed that,

“Unless and until the lapse on part of the trustee is proved to be actuated by dishonestly, the drastic action under Section 41-D of the Bombay Public Trust Act, 1950 may not be warranted.”

The present appeal questions the dismissal of proceeding under Section 41-D(5) of the Bombay Public Trust Act, 1950 upholding the removal of appellants from posts of President, Secretary and Trustees of the Trust by the Joint Charity Commissioner, Nagpur.

Respondents 1 to 7 are claiming to be trustees whereas the appellants dispute the same. An application was filed under Section 41-D against the appellants and respondent 8 for removal of them from their respective posts.

Allegations against appellants and respondent 8 were of misappropriation of non-salary grant and amount of fees of the students and procurement of hand loan without any resolution of the Managing Committee and in violation of Section 36(A) of the Act, 1950.

Counsel for the appellants Shambharkar, Counsel for respondent’s 1, 2, 5 and 7 Jibhkate, Senior Advocate R.L. Khapre, assisted by D.R. Khapre, counsel for the respondent 3 and 4, A.G.P for respondent 9.

Analysis and Decision

Section 41D(1)(c) makes it clear that the Charity Commissioner may either on the application of a trustee or any person interested in the trust, or on receipt of a report under Section 41B or suo motu suspend, remove or dismiss any trustee of public trust, if he, continuously neglects his duty or commits any mal-feasance or misfeasance, or breach of trust in respect of the trust under clause (c) of Sub-Section 1 of Section 41-D of the Act, 1950.

Bench had considered the scope of inquiry under Section 41D of the Bombay Public Trust Act in the case of Mukund Waman Thatte v. Sudhir Parshuram Chitale, 2012 SCC OnLine Bom 392.

Court states that “Misfeasance” as used in Clause (c) of Section 41D is more than mere negligence of the trustee to perform his duty.

“Misfeasance” includes breach of duty by the trustee which would result into loss to the trust or would cause unlawful gain to such a trustee, charged with the act of misfeasance.

Further, the above Judgment makes it clear that imputation reflecting on the integrity of trustees has to be fortified by proof of high degree which will have to be higher than the standard of proof required in civil proceedings.

Unless and until the lapse on part of the trustee is proved to be actuated by dishonestly, the drastic action under Section 41-D of the Act, 1950 may not be warranted.

Courts below have committed error in holding that the appellants have committed malfeasance and misfeasance or breach of trust in respect of Trust.

Bench also held that the orders and judgments passed against appellant 2 by both Courts below are without jurisdiction.

Hence, the Court does not want to go into the issue raised by the counsel for the appellants that the respondents 1 to 7 are removed from the trusteeship of the Trust, as an answer, either way to the said issue will not change the result of the present proceeding because even if they are held to be removed as trustees, they are ‘persons having an interest in the Trust’ which is sufficient to maintain the application under Section 41-D of the Act, 1950. [Eknath Tukaramji Pise v. Rama Kawaduji Bhende, 2020 SCC OnLine Bom 934, decided on 17-09-2020]

Case BriefsHigh Courts

Calcutta High Court: Ravi Krishan Kapur, J., while addressing an issue pertaining to Employees’ State Insurance Act, 1948, observed that,

The ESI Act provides for certain benefits to employees in case of sickness, maternity and employment injury and makes provisions for certain other matters in relation thereto. A perusal of the various sections of the Act would reveal that the Act is made applicable to all factories.

Present petition was filed challenging an order passed under Section 85B of the Employees’ State Insurance Act, 1948 whereby the Employees’ State Insurance Authorities levied penal damages of nearly Rs 60 lakhs under Section 85B of the Act on the petitioner establishment for the delay in making payment of its contributions for the period from September 2002 to March 2010.

By a conversion agreement between the owner of Jute Mill and petitioner 1, petitioner 1 was allowed to utilize the entire production capacity of the jute mill for the production of jute goods.

Further, the ESI authorities claimed that a sum of Rs 3,73,04,297 was in arrears out of which only a sum of Rs 1,10,97,511 was on account of ESI contributions and the rest represented damages and interest.

Petitioners contended that the above-stated dues said to be payable by the petitioners were primarily for the period prior to the agreement which had been executed between the owners of the jute mill and petitioner 1.

An impugned order came to be passed inter alia holding the petitioner company liable for a sum of Rs 59,61,588 on account of damages for the delayed payment of contributions for the period from September, 2002 to March, 2010.

Petitioner contended that the said order was liable to be set aside and quashed on the ground that the same was an unreasoned order.

Decision

Bench opined that the question as to whether the damages imposed under Section 85B of the Act are justiciable or not or whether the quantum of damages is in accordance with the principles for computing damages is certainly a dispute which would fall within the ambit of clause (g) of Section 75 (1) of the Act.

Court further added that, under Section 75(1)(g) of the Act, the Insurance Court would ordinarily have jurisdiction to decide the question as to whether damages imposed under Section 85B of the ESI Act are justifiable or not.

Bench referred to the Supreme Court decision in B.M. Laxmanamurthy v. Employees’ State Corporation, Bangalore (1974) 4 SCC 365, wherein it was held that

“the Act is a beneficial piece of social security legislation in the interests of labourers in factories at the first instance with the power to extend to other establishments”.

Thus, the Act is a welfare measure meant to provide certain benefits to the employees in certain cases of sickness, maternity and employment injury. It is also a well-settled principle of statutory interpretation that socio-economic legislation should be interpreted liberally with an end to promote the scheme of the Act and avoid the mischief which it seeks to control.

Crux of the dispute in this petition pertains to the applicability and imposition of the damages by the ESI authorities under Section 85B of the Act.

What is the intention behind the insertion of Section 85B of the ESI Act?

To deter the employer who makes any default or delay in depositing the contribution amount.

In the present matter, there was a delay of 8 years on the part of the establishment in making payment of their ESI dues.

Delayed payment, which means untimely payment gives rise to a breach of the obligations under the Act and for such failure and omission (if not explained) the employer exposes itself to recovery of damages.

Hence, the levy of damages as per Section 85B of the Act was fully justified and warranted.

In view of the admitted indisputable and unassailable fact of delay for more than 8 years in making payment of the ESI contributions, no reasonable or prudent person apprised of these facts could take a different view on the question of whether such non-payment on the part of the petitioners was intentional or not.

Petitioner failed to show any mitigating factors or offer any cogent explanation.

Court further added that in the absence of any prescribed special period of limitation for levy of damages under the Act, the levy of damages or penalty for defaults beyond the period of 3 years cannot be rejected as being beyond the jurisdiction of the respondent Corporation.

Section 93A of the Act clearly provides that both the employer and the person to whom the factory or establishment has been transferred remain jointly and severally liable to pay the amounts due in respect of any amount under the Act.

In view of the above-stated Section, Court stated that a transferee cannot claim that he being the transferee of an establishment is not liable to pay the dues accruing before the transfer.

Court found no aspect of limitation insofar as damages were concerned.

Therefore, failure on the part of the establishment to carry out their statutory obligations was in conscious and wilful disregard of their lawful obligations.

“An the absence of any prescribed special period of limitation for levy of damages under the Act, the levy of damages or penalty for defaults beyond the period of three years cannot be rejected as being beyond the jurisdiction of the respondent Corporation.”

Respondent authorities were directed to take all available steps in accordance with law for expeditious recovery of the balance amount payable under the impugned order by the petitioner.[Premchand Jute & Industries (P) Ltd. v. Employees State Insurance Corporation, 2020 SCC OnLine Cal 1574, decided on 18-08-2020]

Case BriefsForeign Courts

Supreme Court of the United Kingdom: While deciding the instant appeal raising questions important to the international market in telecommunications such as –

  1. Whether a court in the United Kingdom has jurisdiction and may properly exercise a power, without the agreement of both parties to grant an injunction to restrain the infringement of a UK patent where the patented invention is an essential component in an international standard of telecommunications equipment, which is marketed, sold and used worldwide, unless the implementer of the patented invention enters into a global licence of a multinational patent portfolio.
  2. Whether a UK Court can determine royalty rates and other disputed terms of such a global licence
  3. The circumstances in which it is appropriate for English court to grant a prohibitory injunction or to award damages.

 Answering the aforesaid questions, the Full Bench of Lord Reed, Lord Hodge, Lady Black, Lord Briggs and Lord Sales, JJ., unanimously held that English courts have the power to require telecoms companies and smartphone makers to take out a global patents licence or face a UK Court injunction. It was further observed that the contractual arrangements European Telecommunications Standards Institute (ETSI) has created under its IPR Policy give the English courts jurisdiction to determine the terms of a global license of a multi-national patent portfolio.

The instant matter consisted of 2 appeals which concern actions for infringement of UK patents said to be essential to the implementation of international standards for mobile telephony, such that it is not possible to make, sell, use or operate mobile phones and other equipment that is compliant with the standards without infringing the patents. Patents of this kind are called Standard Essential Patents (SEPs). The international standards in question are those set by the ETSI for 2G (GSM), 3G (UMTS) and 4G (LTE). Under its IPR Policy, ETSI requires the SEP owner to give an irrevocable undertaking to license their patented technology on terms that are “fair, reasonable and non-discriminatory” (FRAND). The first appeal concerns an action brought by Unwired against Huawei for infringement of five UK patents which Unwired claimed to be SEPs. The second appeal concerns an action brought by Conversant against Huawei and ZTE for infringement of four of its UK patents.

Acknowledging the importance of the issues raised in the instant appeal vis-à-vis international market in telecommunications, the Full Court meticulously addressed the questions-

  • Regarding Jurisdiction and Forum Conveniens – It was contended that properly construed, ETSI’s IPR Policy only permits the English courts to determine the terms of a license of UK SEPs. Dismissing the contention, the Bench held that English courts have jurisdiction and may properly exercise their powers of granting injunctions etc. Questions as to the validity and infringement of a national patent fall to be determined by the courts of the state which has granted the patent. It was observed that the IPR Policy envisages 2 things namely- the courts may decide whether or not the terms of an offered licence are FRAND and that the courts should look to and draw on commercial practice in the real world while making this assessment. Regarding the issue of proper Forum, the Court noted that Chinese courts currently do not have the jurisdiction needed to determine the terms of a global FRAND licence, unless all parties agree that they should do so.
  • Regarding Royalty- upon perusing the contention that Unwired should have offered Huawei a licence with a worldwide royalty rate because non-discrimination limb of the FRAND undertaking means that ‘like situations must be treated alike and different situations differently’, the Court observed that non-discriminatory part of the undertaking indicates that, to qualify as FRAND, a single royalty price list should be available to all market participants. This must be based on the market value of the patent portfolio, without adjustment for the characteristics of individual licensees.
  • Regarding Injunctions and Damages- it was contended by Huawei that, even if it is infringing Unwired and Conversant’s SEPs, the more appropriate and proportionate remedy would be for the Court to award the claimants damages. Rejecting the argument, the Bench held that an award of damages would not be an adequate substitute for an injunction. It was observed that there is no risk that Unwired or Conversant could use the threat of an injunction as a means of charging exorbitant fees, since they cannot enforce their rights unless they have offered to license their SEPs on terms which the Court is satisfied are FRAND.

[Unwired Planet International Ltd. v. Huawei Technologies (UK) Co Ltd., [2020] UKSC 37, decided on 26-08-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J.has framed an eminent question for determination which will have an impact on the dispensation of justice to complainants under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”).

The High Court will determine whether the broad interpretation of the “workplace” under Section 2(o)(vi) of the POSH Act would bring within its ambit attending a private marriage function in a private hotel.

The applicant sought direction upon the respondents not to take any step on the basis of the show-cause notice dated 10-06-2019 and the order of termination pursuant to the report of the respondent 4. 

Petitioner sought to allow him to join the post of a professor of the Department of Mass Communication, appoint him as the Head of the Department and pay his regular salary including his arrears.

Kalol Basu, Counsel represented the applicant and Karma Thinlay Namgyal, Senior Advocate assisted by K.T. Gyatso, on behalf of the respondents.

Applicant’s counsel urged that the entire enquiry conducted by respondent 4 was without jurisdiction as the alleged incident of sexual harassment purportedly had taken place at a hotel during a marriage function and the same does not fall within the definition of “workplace” as per the existing law.

Decision

Bench stated that admittedly the alleged incident took place at a marriage function in a private hotel.

Section 2(o) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines the workplace.

In view of the said definition of “workplace”, it seems that the petitioner does have a strong arguable point on the jurisdiction or the lack of it.

Whether the broad interpretation of “workplace” would bring within its ambit attending a private marriage function in a private hotel, is a question which may have to be examined.

In the stated circumstances, High Court is of the considered view that during the pendency of the writ petition before this court, the respondents 1 to 3 should not give any further effect to the termination order dated 28-06-2019.

The application was disposed of in the above view. [Silajit Guha v. Sikkim University, 2020 SCC OnLine Sikk 99, decided on 20-08-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Dr S. Muralidhar and Avneesh Jhingan, JJ., dismissed the instant petition upon discovery of availability of alternate remedies to the petitioner.

In the present case, the petitioner has questioned the demand for concession fees to the tune of Rs 2,19,10,897 sought from the Petitioner by the Respondent/Airport Authority of India, through minutes of meeting dated 25-05-2020 and letter dated 01-07-2020.

During the course of the proceedings, Article 22.1 of the Concessionaire Agreement (CA) dated 11-12-2019, caught the attention of the Court which affirmed the liability of the petitioner to pay the respondent for actual advertisement area made available to it at Amritsar Airport. The Dispute Resolution clause is reproduced below for reference-

“22.1 – Dispute Resolution – Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Concession Agreement (including its interpretation) between the parties, shall be governed and regulated in accordance with the provisions contained at Clause 5.16 of the RFP and in accordance with the provisions of Arbitration and Conciliation Act, 1996 as amended from time to time.”

On perusal of the above stated Clause 22.1 along with Clause 5.16 of the Request For Proposal (RFP), the Court was successful in grasping that any grievance under the CA has to be resolved via a two-tier mechanism. The mechanism includes submission of a written application before the Dispute Resolution Committee (DRC) and later, resolution under the Arbitration and Conciliation Act, 1996, if the same remains unresolved.

The petitioner invoked the dispute resolution mechanism subsequent to which a meeting of DRC was held on 25-05-2020. Counsel for the respondent, Vivek Singla has asserted that the petitioner ought to have availed all the further remedies in terms of the CA.

When the counsel for the petitioner, Varun Singh was catechized over the maintainability of the present petition, he referred to a plethora of cases such as Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107, Hindustan Petroleum Corpn. Ltd. v. Super Highway Services, (2010) 3 SCC 321 and Union of India v. Tantia Construction (P) Ltd., (2011) 5 SCC 697. However, unfortunately, the Court found all of them to be of no assistance in the petitioner’s case. The Court was not content with the arguments advanced by the petitioner with respect to the maintainability of the present petition.

Thus, the Court declined to exercise its jurisdiction under Article 226 of the Constitution of India since an “efficacious and effective alternative remedy” is available to the petitioner in view of the CA. In the event of a dispute, the parties could also plead for interim relief under the Arbitration and Conciliation Act, 1996.

Given the circumstances, the Court declined to examine the factual dispute leaving it open for the parties to avail other remedies under the law.

In view of the above, the petition has been dismissed by the Court.[Proactive In and Out Advertising (P) Ltd. v. Airport Authority of India, 2020 SCC OnLine P&H 1172, decided on 11-08-2020]

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., refused to entertain a writ petition filed by a member of All India Services holding that the remedy lies with Central Administrative Tribunal.

Petitioner qualified the Civil Services Examination in the year 1986 and was allocated Indian Police Service (IPS) and assigned Haryana Cadre.

Petitioner assailed the empanelment dated 18-02-2019 made by UPSC and the subsequent appointment of respondent 4 as DGP, State of Haryana vide appointment order dated 18-02-2019.

Appointment of respondent 4 was initially challenged by the petitioner in the Supreme Court which was disposed of with the order that petitioner may approach the jurisdictional High Court.

UPSC Counsel raised an objection to maintainability and submitted that this Court has no jurisdiction to entertain the petition.

He contended that, IPS is an All India Service, and thus petitioner is amenable to the jurisdiction of Central Administrative Tribunal.

Senior counsel for the petitioner further submitted that the present petition had been filed in terms of the liberty granted by the Supreme Court and thus it is not open to respondents to raise any objection to its maintainability.

Decision

Petitioner is a member of an All India Service, which is covered under Section 14(1)(b)(i) of the Administrative Tribunals Act, 1985

Section 14(1)(b)(i) of the Act provides that, save as otherwise expressly provided in the Act, the Central Administrative Tribunal shall exercise on and from the appointed day, all the jurisdiction, power and authority exercisable immediately before that day, by all Courts in relation to all service matters concerning a member of any All India Service.

Section 3(q) of the Act defines ‘Service Matters’ as all matters relating to conditions of a service and includes matters with respect to tenure, confirmation, seniority, promotion etc.

Constitution Bench of Supreme Court observed in the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, that the Tribunals created pursuant to Article 323-A or under Article 323-B of the Constitution of India are competent to hear matters entrusted to them and will continue to act as only Courts of ‘first instance’ in respect of the areas of law for which they have been constituted.

Insofar as the jurisdiction of the High Courts is concerned, Supreme Court further observed that the jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution of India, is a part of the inviolable basic structure of the Constitution.

While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred on the High Courts and the Supreme Court.

Thus, in view of the above stated Supreme Court decision, High Court cannot entertain the present petition and remedy of the petitioner lies only before the CAT. [Prabhat Ranjan Deo v. UPSC, 2020 SCC OnLine Del 738 , decided on 13-07-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Shashi Kant Gupta and Saurabh Shyam Shamshery, JJ., allowed the plea by the wife seeking  the approval of being appointed as the guardian of her husband lying in vegetative state.

The Court while acknowledging the fact that there was no legislative enactment providing appointment of a guardian for a person lying in a comatose state considered the fact that they have been called to discharge ‘parens patriae’ jurisdiction. However under Article 226 of the Constitution of India they can pass orders and given directions as are necessary for subserving the ends of justice when no remedy is provided in any statute in respect to persons lying in comatose condition.

The petitioner had approached the High court praying to be appointed as the guardian of her husband who had been lying in a vegetative state in order to protect his interest and administer his investments, business, bank accounts etc. and utilize them when in need to meet expenses towards medical treatment and family welfare. Petitioner’s Counsel, Bidhan Chandra Rai, submitted that petitioner’s husband had been in comatose state for past one and a half years and the Doctors’ had advised that he would remain so until his eventual demise and now the petitioner has the sole responsibility of meeting the medical expenses and marrying her two daughters. It relied on the decision of the Kerala High Court in the case of Shobha Gopalakrishnan v. State of Kerala, 2019 SCC Online Ker 739, whereby a division bench appointed the legal heir of the victim as the guardian, reliance was also placed on the judgment of Delhi High Court, in the case of Vandana Tyagi v. Government of National Capital Territory of Delhi, 2020 SCC Online Del 32, which followed the suit.

The Court while allowing the petition further observed the case of Shobha Gopalakrishnan (supra) wherein certain broad guidelines with regard to appointment of guardian qua a person lying in a comatose state were laid, since no specific provision was available in any statute in this regard. The guidelines framed appear to be formidable and sound and, therefore, can be used as framework for formulating guidelines that need to be implemented in the State of Uttar Pradesh till such time, the legislative enactments are framed and specific provisions are made as to how guardians are to be appointed qua persons in a comatose state. [Uma Mittal v. Union of India, 2020 SCC OnLine All 777 , decided on 15-06-2020]

Case BriefsHigh Courts

Delhi High Court: Rajnish Bhatnagar, J., while addressing petition in regard to matrimonial discord resulting into husband committing suicide held that,

“…deceased/husband appears to be a weak character who was not in a position to face the ups and downs of life and he adopted the short cut method in order to bring an end to his agony and worldly affairs.”

On the rise of matrimonial disputes between the husband and wife i.e. deceased and petitioner/accused, respectively, petitioner left and started residing with her parents at Sikkim.

Allegations such as — gold jewellery and cash all worth 18 Lakhs was taken by the petitioner which actually belonged to the deceased.

After the said allegations were made, a complaint was filed by the police and deceased filed two cases including a petition under Section 9 of Hindu Marriage Act for Restitution of Conjugal Right.

Deceased suffered with stress and depression due to the pertaining circumstances and faced continuous threats from the petitioner resulting into committing suicide.

Deceased left a suicide note stating that the petitioner and his family members were responsible for his death.

Ramesh Gupta, Senior Counsel, for the petitioner submitted that there was no direct and proximate link between cruelties allegedly inflicted by the petitioner.

The alleged Gold Jewellery was petitioner’s Stridhan and all the other allegations are vague and false.

“…court should not act as a mouthpiece of the prosecution.”

Further, the Senior Counsel adding the following to his submissions:

Court has undoubted power to sift and weigh the evidence for finding out whether or not a prima facie case is made out against the accused.

He further urged that for the invocation of Section 306 of Penal Code, 1860, ingredients of Section 107 of the IPC have to be satisfied and it has to be established that there was instigation, provocation, incitement, or encouragement from the side of the petitioner to the deceased who committed the act of such a desperate nature.

It is further urged that the deceased was of hypersensitive nature, who failed to cope up with the hardships of life.

Analysis and Decision of the Court

Scope of this Court

At the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused.

However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence.

There is no one fixed definition that may be ascribed to the term prima facie’ nor can the term strong suspicion have a singular meaning.

Trial Court charged the petitioner for the offence under Section 306 IPC for abetting the murder of her husband.

What did the suicide note contained?

“…I am unable to face the present circumstances for which my wife Reena Prasad is responsible. Due to her false allegations against me, I am committing suicide. I wish that after my death, my dead body be handed over to my in laws. I love my wife very much but she loves money.”

“… I do not have enough means to fight court cases against Reena. Whatever cases she has filed against me are all false.”

“… I can not think clearly ever since my wife has left me. It is my desire that after my death, the money which has been taken away by my wife be utilized to pay my debts.”

Bench on perusal of the facts and the suicide note placed stated that the ingredients of abetment are totally absent in the instant case for an offence under Section 306 IPC.

Taking the totality of material on record, tone and tenor of the suicide note and facts and circumstances of this case into consideration, it leads to the irresistible conclusion that it is the deceased and he alone and none else is responsible for his death.

Deceased appeared to be hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide.

In High Court’s opinion, Trial Court had failed to apply the law properly to the facts of the present case and committed an error in reading the suicide note which is shorn of ingredients of Section 306 IPC.

Reading of the suicide note clearly shows that the petitioner at no point of time instigated, goaded, incited and encouraged the deceased with such an intention that he should commit suicide.

Thus High Court found trial court’s Order to be of complete non application of the law in the right perspective and allowed the present revision petition. [Reena v. State (NCT of Delhi), 2020 SCC OnLine Del 630  , decided on 08-06-2020]

Op EdsOP. ED.

Amid the din against the CAA-NRC combine, a fresh challenge under a seldom employed and much less provocative provision of the Constitution of India has emerged. As per ­­the ostensible remit of Article 131 of the Constitution, the challenge has emerged in the form of Governments of constituent States of the Indian Union challenging the constitutional validity of a lawfully enacted statute by Parliament. In challenging the validity of a law that has sharply divided public and political opinion, the move throws up some interesting questions as to the invocation of such a remedy under the scheme of our federal Constitution.

Ambit of Article 131

Article 131 is in many respects an anathema to the Government’s oft-quoted catchphrase ‘cooperative federalism’. The Constitution Framers were well aware that disputes between the Union and the constituent States is an inevitability for any federal polity and therefore provisioned for either the Government of India or a State Government to by-pass the judicial hierarchy and directly approach the Supreme Court under its original and exclusive jurisdiction. However, the remit of Article 131 is tempered on certain counts and the same assumes great significance vis-à-vis the issue at hand.

A bare perusal of Article 131 manifests that (1) exclusive jurisdiction vests in the Supreme Court of India to the exclusion of any other court, (2) there must exist a ‘dispute’, (3) said dispute must be between either the Government of India i.e. the Central Government and one or more constituent State or States or between two or more of such constituent States of the Union of India, and most importantly (4) the dispute must involve a question of law or a question of fact upon which the extent or the very existence of a legal right is predicated. Two integral constituents of Article 131 i.e. ‘dispute’ and ‘legal right’ must therefore be emphasised.

Maintainability of the Suit

The  Supreme Court, vide its law settling judgments in State of Rajasthan  v. Union of India[1]  as well as State of Jharkhand v. State of Bihar[2] have authoritatively established that ‘dispute’ must involve the assertion and/or vindication of a legal right of the Government of India and/or that of a constituent State of the Union. A caveat in that regard is that a genuine legal right must have been asserted by way of the suit concerned and any issue merely touching upon political concerns would be outrightly rejected by the Supreme Court.

It becomes absolutely fundamental to take into consideration that any invocation of Article 131 must concern itself with the rights, obligations, duties, powers, immunities and liberties only insofar as the parties to the suit are concerned. The Supreme Court has further established, vide the above cited judgments, that an original suit under Article 131 must not and cannot be likened to a civil suit in terms of the Code of Civil Procedure, 1908 (CPC) and therefore in the matter at hand it is not necessary that the plaintiff States must assert the ‘legal right’ unto themselves.

Evidently, Article 131 has been manifested to not be encumbered with any such narrow expositions and a suit thereof would be maintainable so far as it brings into question any dispute centred around the legal or constitutional right asserted by the defendant Government of India not in consonance with such rights and powers asserted by the plaintiff States. However, this is precisely where the plaintiff States’ suit falters for nowhere in the respective plaints, have the States of Kerala as also Rajasthan challenged or brought into question the constitutional power of the Government of India to enact the Citizenship (Amendment) Act, 2019. In fact, vide the respective plaints it has been submitted that by virtue of Article 256, the constituent States of the Union shall be constitutionally obligated and duty bound to implement the provisions of the Amendment Act, 2019 unless the Supreme Court deems it unconstitutional.

It is no one’s case that the validity of a Central legislation cannot be challenged by the Government of a State under Article 131. However, the same has to be tempered by way of the Constitution Bench judgment in State of Rajasthan[3]whereby two conditions were laid out as already exhibited hereinabove. For invoking Article 131 therefore, there has to be a dispute between the legal/constitutional right or authority or power asserted by the defendant vis-à-vis the plaintiff. The constitutional power of the Central Government to enact the Amendment Act, 2019 as per List I (Union List) of the VIIth Schedule having nowhere been challenged, the pre-requisite conditionalities under Article 131 are not satisfied.

In fact, the  Supreme Court, vide its judgment in State of Jharkhand[4]  furthered the abovecited position of law and came to the conclusion that there isn’t any bar to a test of constitutional validity of a statute under the original jurisdiction of the Supreme Court. However, the same has to concern a disputed question of law/fact that impinges, erodes, diminishes or even outrightly strips the legal right asserted by a ‘party to the proceedings’.

Notably, the plaintiff States have predicated the ‘dispute involving questions of law and fact’ on the alleged violation of the fundamental rights of their inhabitants. This is erroneous on two primary grounds; one, the Amendment Act, 2019 does not in any manner deem to take away or abridge the rights of Indian citizens for it is merely an enabling provision to speed up the grant of Indian citizenship for certain religious communities and two, the said averment is grossly dehors the constitutional scheme of our federal polity wherein the constitutional power to regulate affairs pertaining to ‘Citizenship, naturalisation and aliens’, ‘Extradition’ and ‘Admission into, and emigration and expulsion from, India; passports and visas’, vests with Parliament to the absolute exclusion of State Legislatures. Evidently thus, the State Governments are merely manufacturing a ‘dispute’ where none exists as per the scheme of the Constitution of India.

In conclusion, the reader must be apprised of the fact that the question pertaining to invocation of jurisdiction under Article 131 insofar as it concerns a challenge to the constitutional validity of a statute has in fact been referred to a larger Bench of the Supreme Court in light of the apparent conflict between the two judgments in State of Madhya Pradesh v. Union of India[5] and the abovecited State of Jharkhand v. State of Bihar[6]. Regardless, the same doesn’t alter or dilute the ambit and scope of Article 131 as laid out by State of Rajasthan[7]  judgment.


*Authors are practising Advocates in Delhi.

[1] (1977) 3 SCC 592

[2] (2015) 2 SCC 431

[3] State of Rajasthan v. Union of India, (1977) 3 SCC 592

[4] State of Jharkhand v. State of Bihar, (2015) 2 SCC 431

[5] (2011) 12 SCC 268

[6] (2015) 2 SCC 431

[7] State of Rajasthan v. Union of India, (1977) 3 SCC 592