Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Agarwal, J. deciding a second bail application filed by the applicant in connection with Crime under Sections 376, 376(2)(N), 506 of IPC and Sections 3,4,5J(ii), 5L POCSO Act and Sections 3(1)(w)(II), 3(1)(w)(II), 3(II)(V) of SC/ST Act directed the Trial Court to ask the prosecutrix to refund the compensation amount paid by the State.

The earlier bail application was dismissed as withdrawn with liberty to file an application after prosecutrix was examined and FSL/DNA report was brought on record.

Counsel for the applicant submitted that prosecutrix was examined before the trial court on 23-03-2022 and she had turned hostile, not supporting the prosecution story. It was submitted that the trial will take time to conclude thus the applicant must be enlarged on bail.

The Court allowed the bail application after taking into consideration that the prosecutrix was already examined, she had not supported the prosecution story and applicant was in custody since 03-11-2021. The Court further asked the Trial Court to consider issuing a direction against the prosecutrix to refund the amount received by her because she admitted in her examination in chief that she has lodged false report on account of some oral dispute between the parties.

“Alleged false report is lodged, therefore she is not entitled to keep the amount of compensation paid by the State government collected from the tax payer of the country.”

[Bablesh Patel v. State of Madhya Pradesh, Misc. Criminal Case No. 22808 of 2022, 17-05-2022]


For petitioner: Mr Kamlesh Singh Rajpoot

For respondent: Mr Vivek Lakhera


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In the issue relating to the use of a toxic pesticide called Endosulfan leading to a spread of mental and physical ailments among residents of Kasargod district in Kerala, the bench of Dr. DY Chandrachud* and Surya Kant, JJ has held that the inordinate delay by the State Government in compensating the persons affected by the use of Endosulfan not only reflects its failure to comply with the Court’s order but also further compounds the violation of the fundamental rights of such persons.

“The failure to redress the infringement of their fundamental rights becomes more egregious with each passing day.”

Background

Supreme Court had, by its order dated 10 January 2017, directed the State Governments to compensate all the affected persons by distributing an amount of Rs 5 lakhs to each affected person within three months. It also directed the State Governments to consider the feasibility of providing medical facilities and treatment for life-long ailments arising from the effects of Endosulfan, considering the larger number of affected persons.

In the case at hand, a contempt petition was instituted by the residents of Kasargod district in Kerala as the State Government failed to compensate the affected residents. It was argued that the petitioners are yet to be compensated and the medical facilities have not been improved because of which the affected persons in Kasargod District are compelled to travel to Trivandrum, about 600 kms away for their treatment.

Out of the 3704 victims, 102 are bedridden, 326 are mentally disabled, 201 are physically disabled, 119 are afflicted with cancer while 2966 fall in the residual category.

The State Government has, on 15 January 2022, issued a GO to authorize the disbursal of an additional amount of Rs 200 crores for providing compensation to the victims of Endosulfan. However, as of date, an amount of Rs 5 lakhs has been disbursed only to eight persons who are the petitioners who have moved these contempt proceedings.

Observations

The Court observed that the Government of Kerala has done virtually nothing for five years. Besides the fact that the delay is appalling, the inaction is in breach of the orders of the court.

The Court also failed to understand the logic or the rationale of the State Government in disbursing compensation only to those who have the ability to move the Supreme Court.

Noticing that most of the victims are from the marginalized segments of society and many of the victims are in a serious condition to whom compensation on an urgent basis has to be provided, the Court said,

“The right to health is an integral part of the right to life under Article 21 of the Constitution. Without health, the faculties of living have little meaning.”

Stating that it would be justified in taking recourse to the coercive arm of law, the Court confined itself to providing immediate relief and rehabilitation to the victims who are suffering and issued the following directions:

  • Since the payment of compensation has been made, though belatedly to eight petitioners who have moved these proceedings, costs quantified at Rs 50,000 each shall be paid over in addition to each of the eight persons within a period of three weeks from the date of the order;
  • The Chief Secretary shall hold monthly meetings to ensure that the judgment of this Court dated 10 January 2017 is diligently implemented by undertaking the process of (a) identifying the victims of Endosulfan and drawing up a list of beneficiaries; (b) ensuring the disbursement of compensation of Rs 5 lakhs to each of the victims; and (c) taking steps for ensuring due medical facilities within reasonable distance from their places of residence in terms of the earlier directions of this Court
  • An affidavit of compliance shall be filed before theCourt indicating the progress which has been made between the date of this order and the next date of listing

The Court will now hear the matter on July 18, 2022.

[Baiju KG v. Dr. VP Joy, Contempt Petition (Civil) No 244 of 2021, decided on 13.05.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For Petitioner(s): Sr. Adv, P.N. Ravindran and Advocates P.S. Sudheer, Rishi Maheshwari, Shruti Jose and Bharat Sood

For Respondent(s): Advocates Nishe Rajen Shonker, Anu K. Joy and Alim Anva

Case BriefsHigh Courts

Karnataka High Court: K.S. Mudagal, J., allowed the petition and set aside the impugned award awarding compensation as well as the silver medal allowance without considering the question of maintainability of the petition under Section 33C(2) of the I.D. Act.

The facts of the case are such that the respondent was working as a driver in the petitioner’s organization. On 03-03-2004, during the course of his duty, the bus driven by him met with an

accident on Bengaluru – Mangaluru route and he suffered injuries. The medical board issued certificate stating that due to the said injuries, the respondent cannot discharge his duty as driver. Thus, the petitioner assigned the respondent alternate light work. The petitioner treated the respondent’s period of absence from March 2004 to October 2005 as on duty and paid full salary. Admittedly, the respondent claimed compensation under Motor Vehicles Act and was awarded compensation with interest. The respondent got notice issued to the petitioner claiming compensation  with interest under the Employee’s Compensation Act, 1923 (for short ‘Act, 1923’) on the ground that he suffered disability during the course of employment. Then he preferred claim petition before the Labour Court Mangaluru under Section 33C (2) of the Industrial Dispute Act, 1947 (for short ‘the I.D.Act’) claiming compensation along with interest and Silver Medal Allowance. The Labour Court  allowed the claim petition and awarded compensation as well as the silver medal allowance without considering the question of maintainability of the petition under Section 33C(2) of the I.D. Act. Assailing this, the present petition was filed.

Counsel for petitioner Ms. Shwetha Anand submitted that Section 33C (1) and (2) of the ID Act shall be read in an integrated and holistic manner. Section 33C (2) of the Act can be invoked only in relation to an award or the settlement contemplated under Section 33C(1) of the I.D. Act. As the respondent did not perform the duty of driver, after the accident he was not entitled to silver medal allowance.

Counsel for respondent Mr. VS Naik submitted that Section 33C(2) of the I.D. Act is an independent provision and need not be preceded by an award. Irrespective of workmen getting compensation under the Motor Vehicle Act, he is entitled to claim under the Act, 1923.

The Court observed that Section 33C(2) of the I.D. Act refers to any amount due to workman. Section 33C(1) of the I.D. Act speaks of any amount due to workman under the settlement or award under the provision of Chapter 5-A or 5-B of the I.D. Act. The respondent claimed that he was entitled to claim the amount due to the injuries suffered by him during the course of employment. Therefore his claim was under the Act, 1923. In such event the claim lies before the Employee’s Compensation Commissioner and not before the Labour Court.

The Court relied on judgment Municipal Corporation of Delhi v. Ganesh Razak,  (1995) 1 SCC 235  and State of U.P v. Brijpal Singh (2005) 8 SCC 58 wherein it was observed

The Labour Court has no jurisdiction to first decide the workmen’s entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court’s power under Section 33C(2) like that of the Executing Court’s power to interpret the decree for the purpose of its execution. 

It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act.”

The Court thus observed that in view of the respondent not performing the work as a driver and assignment of lighter work to him, whether he was entitled to silver medal allowance was a matter of adjudication. Therefore that could have been subject matter of a dispute under the I.D Act. Without such adjudication, in the light of the judgment of Supreme Court, the respondent could not have maintained the petition under Section 33C(2) of the I.D. Act.

The court held “The Labour Court committed error in assuming the jurisdiction under Section 33C(2) of the ID Act. The award is liable to be set aside.”  [Managemnet of KSRTC v. K. Shivaram, WP No. 17583/2017, decided on 04-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT), Southern Zone, Chennai: While imposing a fine of Rs 41.21 crores on Singareni Collieries Company Limited, for violation of environmental clearance conditions and mining excess coal, the Coram of Justice K. Ramakrishnan (Judicial Member) and Dr Satyagopal Korlapati (Expert Member) expressed that,

“The Government Corporations are expected to be more law abiding and if any leniency or discrimination is shown for committing violation, then it is very difficult to maintain the rule of law, if any violations were committed by other persons. There will not be any moral right for the regulators to take action against others, if similar violations were committed by them.”

A resident of Telangana filed an application regarding the violation committed by respondent 1 in respect of violation of conditions in the Environmental Clearance (EC) and Consent granted and also pollution caused on account of the operation of the unit.

Allegations

It was alleged that the applicant along with 700 families were living adjacent to the Opencast Coal Mine operated by respondent 1 facing severe air, noise and water pollution besides severe heat due to massive blasting, drilling, and extraction of coal in the Opencast Mine.

Analysis and Decision

Tribunal noted that the grievance of the applicants was that, SCCL, a Government-owned public sector undertaking corporation had conducted their operation without necessary clearances and also in violation of the conditions of the Environmental Clearance (EC) granted and also doing excess mining, causing pollution to the neighbouring water bodies and properties of the residents of the locality both air and sound. Damage was being caused on account of the indiscriminate unscientific manner in which blasting was being done.

In a way it was admitted by the SCCL themselves that they had done excess mining than the permitted quality and when they applied for an expansion of the project, it was treated as a violation case, hence proceedings were initiated by filing a complaint under Section 19 of the Environment (Protection) Act, 1986.

The Joint Committee, after conducting the Ambient Air Quality and Vibration Study, found that the Ambient Air Quality and the sound level were within the permissible limit and the pollution control mechanism provided was adequate and that was not causing any dust pollution as claimed by the applicants.

The Joint Committee had come to the conclusion that except for excess mining and also partial cause for damage to the houses on account of the vibration caused during blasting, there was no other violation noted by the Joint Committee. 

It is seen from the report that excess mining was done at the instance of the Government to meet the supply of coal to thermal power stations to meet the power demand. It may be mentioned here that though it is a Government owned corporation, they are not expected to exploit natural resources, as no one including the Government said to be the owners of the natural resources are only the trustees to hold the natural resources to be used in a scientific manner so as to make the natural resources available for the generation to come, applying the “Doctrine of Public Trust”. 

Further, it was noted from the Joint Committee that on account of excess mining, they earned a profit of Rs 588.60 Crores in 11 years and 3% of that amount namely, Rs 17.65 Crores had to be contributed to remediation and including this amount, an amount of Rs 26,67,00,000/- (Rupees Twenty Six Crores and Sixty Seven Lakhs only) was directed to be produced as Bank Guarantee, which they had produced.

Coram directed the Mining Department to calculate the penalty for the excess mining done in view of the Supreme Court directions issued in Common Cause v. Union of India, (2017) 9 SCC 499.

Considering the period of violation, Tribunal opined that instead of 3% (Three percent), 10% (Ten percent) of the profit namely, Rs 58.86 Crore (Rs.588.60 Crore x 10%) can be imposed as compensation for excess mining and deducting Rs.17.65 Crores which was directed to be utilized for remediation purpose, the balance amount of Rs. 41.21 Crores will have to be paid by the Singareni Collieries Company Limited (SCCL) as compensation for excess mining done by them and this amount will have to be paid to the Telangana State Pollution Control Board within a period of 3 (Three) months.

Telangana State Pollution Control Board was directed to identify the persons whose houses were damaged due to vibration caused on account of blasting and quantify the amount required for repairing the houses.

SCCL was directed to comply with the recommendations of the Joint Committee and also conditions imposed in the Environmental Clearance (EC) already granted and subsequently granted for their combined expansion project, enhancing the capacity to 5 MTPA.

The gist of the Directions

(i) The Singareni Collieries Company Limited (SCCL) is directed to pay a compensation of Rs 41.21 Crores [i.e. Rs.58.86 Crores (10% of the profit) – Rs 17.65 Crores (3% of the profit) which was directed to be adjusted towards the remediation plan] within a period of 3 (Three) months with the Telangana State Pollution Control Board and if the amount is not paid within that time, the State Pollution Control Board is directed to take steps to recover the amount from them by requesting the District Collector to initiate revenue recovery proceedings.

(ii) The Mining Department is directed to calculate the penalty payable for the excess mining done in view of the directions issued by the Supreme Court in Common Cause V. Union of India (2017) 9 SCC 499, as even at the time when it was treated as a violation case, the project proponent/SCCL has filed an undertaking that they will abide by the directions issued by the Supreme Court in Common Cause’s case cited supra.

(iii) The Telangana State Pollution Control Board in consultation with the District Collector of the concerned area, identify the persons whose houses have been damaged as observed by the Joint Committee partially due to vibration caused on account of blasting during the initial stages and the amount required for repairing the houses will have to quantified and the same will have to be paid to those persons whose houses have been identified as damaged on account of the operation of the Singareni Collieries Company Limited (SCCL) and this amount will have to be realized from SCCL. The environment compensation amount will have to be utilized for the purpose of preparing a welfare scheme for protecting the welfare and interest of the people who are residing in and around the coal mining area who are likely to be affected by the project activities and also a portion of the out of compensation will have to be utilized for meeting the welfare of the Tribal settlement, if any, situated in Khammam District or nearby districts. Mode of welfare scheme etc. will have to be evolved by the Committee appointed by this Tribunal for this purpose.

(iv) The preparation of scheme must be in consultation with the Chief Secretary to Government, State of Telangana and the Special Chief Secretary to Government – Department of Environment, Science & Technology and that will have to be jointly implemented by the State Pollution Control Board and the concerned District Collector.

(v) The Singareni Collieries Company Limited (SCCL) is directed to comply with the recommendations of the Joint Committee and also conditions imposed in the Environmental Clearance (EC) already granted and subsequently granted for their combined expansion project, enhancing the capacity to 5 MTPA. The expanded project can be permitted to be carried by the project proponent namely, the Singareni Collieries Company Limited (SCCL) after complying with the direction issued by the MoEF&CC while granting the Environmental Clearance (EC) as violation case and also after depositing the amount as directed by this Tribunal as compensation for excess mining done over and above the permitted quantity mentioned in the Environmental Clearance (EC) earlier granted.

(vi) In order to monitor the implementation of certain CSR Projects said to have been launched by the project proponent, we appoint a Joint Committee under the chairmanship of the Special Chief Secretary to Government, Department of Environment, Science and Technology, State of Telangana with following members (i) a Senior Officer from the Integrated Regional Office, MoEF&CC, Hyderabad, and (ii) the District Collector – Khammam District and they are directed to monitor the compliance of the Environmental Clearance (EC) conditions and also the projects said to have been launched by the SCCL in compliance with the direction issued in the Environment Remediation Plan as well as their CER activities and if they did not comply with the same, the MoEF&CC is directed to take appropriate action for violation of the conditions of the Environmental Clearance (EC) against the SCCL.

(vii) The Telangana State Pollution Control Board is directed to monitor the pollution control mechanism and compliance of conditions in the Environmental Clearance (EC) and Consent granted periodically and if there is any violation found, then they are directed to take appropriate action against the SCCL in accordance with law.

(viii) The Singareni Collieries Company Limited (SCCL) is also directed to take all necessary precautions to avoid complaints of pollution being caused on account of their operation both air and soil and also control the vibration and sound that is likely to be emanated during blasting operation to avoid complaints from the nearby residents.

(ix) The Singareni Collieries Company Limited (SCCL) is also directed to provide necessary greenbelt and also other pollution control mechanism to avoid air and dust pollution being caused. They are also directed not to discharge any trade effluents or liquid waste generated during the operation of their mine and they are directed to strictly implement the ZLD within their unit.

(x) The Singareni Collieries Company Limited (SCCL) is also directed to expedite the laying of railway track and complete the same and take steps to transport the coal using railway line instead of road as directed to be complied with within the timeline specified in the Environmental Clearance (EC) granted.

In view of the above directions, the applications were disposed. [Banothu Nandu Nayak v. Singareni Collieries Company Ltd., OA No. 174 of 2020 (SZ), decided on 6-5-2022]


Advocates before the Tribunal:

O.A. No.174/2020 (SZ):

For Applicant(s): Mr. Sravan Kumar.

For Respondent(s): Mr. A. Sanjeev Kumar, Spl. Govt. Pleader for R1. Mrs. Me. Saraswathy for R2.

Mr. T. Sai Krishnan for R3.

Mrs. H. Yasmeen Ali for R4 & R5.

O.A. No.20/2021 (SZ):

For Applicant(s): Mr. Sravan Kumar.

For Respondent(s):

Mrs. Me. Saraswathy for R1.
Mr. T. Sai Krishnan for R2.
Mr. A. Sanjeev Kumar, Spl. Govt. Pleader for R3

Case BriefsSupreme Court

Supreme Court: In a case where the Court was posed with the question as to whether determination of market value subsequent to the notification would be relevant to determine the market value of the land acquired more than two years earlier, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the same was not permissible.

In the present case, the notification dated 26.10.1990 was published intending to acquire 32 acres 6 kanal and 3 marlas of land in Village Sohana and 90 acres 7 kanal and 18 marlas of land in Village Lakhnaur. The said notification was followed by a notification dated 6.11.1991 issued under Section 6 of the Land Acquisition Act, 1894. The Land Acquisition Collector awarded compensation of Rs.1,75,000/- per acre. Aggrieved by the market value determined by the Land Acquisition Collector, the land owners sought reference under Section 18 of the Act. The Reference Court awarded compensation of Rs.4 lakhs per acre apart from the compensation for super-structures. The said award of the amount of compensation was based upon a judgment dated 11.10.2002 by the Reference Court pertaining to the same notification in respect of land situated in Village Lakhnaur.

It is important to note that the land situated at Village Sohana was also acquired vide notification dated 11.11.1993. The Reference Court awarded Rs.6,96,000/- per acre. However, the High Court has awarded compensation @ Rs.8 lakhs per acre. It was hence argued before the Supreme Court that suitable deduction should be made from such determination of the market value of the land acquired vide notification dated 26.10.1990.

The Court, however, noticed that, in the case at hand, when the later notification is issued, the development activities had already been taken place in view of the earlier two notifications. Therefore, it was not the percentage of increase in the market value but increase due to the development which has taken place on account of earlier notifications.

The Court, hence, held that the market value of the land cannot be based upon the land acquired vide notification dated 11.11.1993 i.e., more than two years later of the notification in question and when there were other notifications intervening on 26.10.1990 and 25.7.1991.

[Bhag Singh v. Union of India, 2022 SCC OnLine SC 553, decided on 05.05.2022]


*Judgment by: Justice Hemant Gupta


Counsels

For Land Owners: Senior Advocate Rameshwar Singh Malik

Case BriefsSupreme Court

Supreme court: In a long ongoing battle between Life Insurance Corporation of India (LIC) and its temporary/badli/part-time employees over claim for absorption, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has appointed a two member committee to carry out fresh verification of the claims of workers who were working between 20 May 1985 and 4 March 1991 and who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out.

The Committee will consist of:

  • Justice P K S Baghel, former Judge of the Allahabad High Court; and
  • Rajiv Sharma, former District Judge and member of the UPHJS

In a 90-pages-long verdict that led to the aforementioned conclusion, the Court observed,

“The dispute is now of an antiquity tracing back to nearly four decades. Finality has to be wrung down on the dispute to avoid uncertainty and more litigation. Nearly thirty-one years have elapsed since 1991. We have come to the conclusion that the claims of those workers who are duly found upon verification to meet the threshold conditions of eligibility should be resolved by the award of monetary compensation in lieu of absorption, and in full and final settlement of all claims and demands.”

Background

The genesis of the present dispute relates to a demand raised by the Unions on 4 March 1991, pertaining to the claim for regularisation of those workers who were employed India with LIC as temporary/badli/part-time workers from 20 May 1985 till the date of reference on 4 March 1991.

The Central Government Industrial Tribunal (CGIT) which was presided over by K S Srivastav, directed that the temporary, badli and part-time workers who were employed after 20 May 1985 should be granted absorption on the same terms and conditions as was stipulated in the Tulpule and Jamdar Awards (in respect of workers who were employed from 1 January 1982 to 20 May 1985). LIC was directed to publish a notice in the newspapers for inviting applications from individual workers for absorption. If no regular vacancy was available, the award directed supernumerary posts to be created.

The Delhi High Court, however, set aside the said award.

On 12 December 2018, while dealing with the batch of contempt petitions, a two-judge Bench of the Supreme Court directed the CGIT to “look into the matter with regard to the claims made by the Union(s) individual workmen”. As many as 15,500 claims were submitted on behalf of the Unions, Associations and individual workers claiming absorption and the benefit of the Srivastav Award dated 18 June 2001. The CGIT submitted its report i.e. the Dogra Report on 31 May 2019.

The Dogra Report was primarily challenged by LIC on the ground that, as a consequence of the same, LIC would be required to regularise about 11,780 workers who claim to have worked for a limited number of days. No verification of these claims has been done either by the LIC or by the CGIT in the Dogra Report. This would amount to an illegal backdoor entry, which would be contrary to the statutory regulations framed by the LIC. Further, LIC would also face the issue of a lack of sanctioned posts for these workers.

Supreme Court’s Ruling

Dogra Report is Flawed

Holding the Dogra Report to be flawed, the Supreme Court observed,

“LIC as a statutory corporation is bound by the mandate of Articles 14 and 16 of the Constitution. As a public employer, the recruitment process of the corporation must meet the constitutional standard of a fair and open process. Allowing for back-door entries into service is an anathema to public service”

The Court found the Dogra Report to be flawed as,

(a) It failed to carry out an accurate verification of only those Class III workers who had put in at least 85 days of work in a period of two years and Class IV workers who had put in 70 days of work in a period of three years;

(b) The lists which are appended to the report contain patent inconsistencies and errors as a consequence of a failure to carry out an adequate verification; and

(c) The report accepted the claims for absorption of those workers who were specifically governed by the decision of this Court in E Prabavathy v. LIC[1], in spite of an express stipulation to the contrary in the order of the Supreme Court as well as in paragraph 75 of the Srivastav Award;

It was, hence, held that,

“A public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process which is consistent with the principles of equality of opportunity governed by Articles 14 and 16 of the Constitution. Such an absorption would provide the very back-door entry, which negates the principle of equal opportunity and fairness in public employment.”

Directions

  • A fresh verification of the claims of workers who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out;
  • The verification shall be confined to persons who were working between 20 May 1985 and 4 March 1991;
  • All persons who are found to be eligible on the above norm shall be entitled to compensation computed at the rate of Rs 50,000 for every year of service or part thereof. The payment of compensation at the above rate shall be in lieu of reinstatement, and in full and final settlement of all claims and demands of the workers in lieu of regularisation or absorption;
  • In carrying out the process of verification, the Committee appointed by this Court shall not be confined to the certified list before the CGIT and shall consider the claims of all workers who were engaged between 20 May 1985 and 4 March 1991;
  • For the purpose of verification, LIC shall make available all the records at the Divisional level to the Committee appointed by this Court;
  • It will be open to the workers concerned or, as the case may be, the Unions and Associations representing them, to make available such documentary material in their possession for the purpose of verification;
  • The process of verification shall be carried out independently without regard to the Dogra Report, which is held to be flawed;
  • The payment of compensation in lieu of reinstatement shall be effected by LIC within a period of three months from the date of receipt of the report of verification by the Committee

[Ranbir Singh v. SK Roy, Chairman, Life Insurance Corporation of India, 2022 SCC OnLine SC 521, decided on 27.04.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For LIC: Senior Advocate ANS Nadkarni

For Unions, Associations and workers: Senior Advocates Dr Manish Singhvi, Pallav Sishodia, R Singaravelan, V Prakash and Salman Khurshid and Advocates Nandakumar, Rakesh Shukla and Shailesh Madiyal


[1] SLP (Civil) No 10393 of 1992

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Vinay Joshi, JJ., expressed that only because 83% of the property for the project is acquired, it would be egregious not to apply the provision of the statute for determination of compensation.

Further, the Bench added that, if by private negotiation, the lands are acquired the compensation paid cannot be the criteria to determine the market value for the claimants who do not agree to private negotiation.

Petitioner had assailed corrigendum dated 11-9-2018, under the said corrigendum, the circular dated 30-8-2019 was not made applicable to the acquisition for the Nagpur-Mumbai Express Highway Project.

Further, under the Government Resolution dated 13-8-2018, the Government had taken a decision to consider the ready reckoner as per the Maharashtra Stamp Act, 1958 for the purpose of determining the market value of the land. The said decision was sought to be escaped for the Nagpur-Mumbai Express Highway Project.

Petitioner’s counsel submitted that the respondents cannot differentiate between the projects while determining the compensation amount and same would be violative of Article 14 of the Constitution of India.

Advocate General for the State submitted that guidelines were provided for the determination of the ready reckoner rates under the Indian Stamps Act. Further, it was submitted that in case the award was passed, the petitioners have right to assail before the executive. Before the executive, the petitioner can raise all the contentions.

High Court stated that the acquisition made for Nagpur-Mumbai Express Highway is under the provisions of the Maharashtra Highway Act and if the acquisition is under the Maharashtra Highway Act, then the provisions of Section 26 to 30 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 are applicable for determination of the compensation.

Section 26 of the Right to Fair Compensation Act lays down the following criteria for determination of compensation.

Bench remarked that, for determining the compensation amount, the market value, if any, specified in the Stamp Act for registration of Sale Deed and/or Agreement of Sale as the case may be in the area of the land situated has to be considered.

Powers of Executive

The Executive in absence of any provision has got powers to issue Government Resolutions, Circulars, and Administrative Instructions under Article 162 of the Constitution of India.

In case, no provision exists governing the field, then in that case, the Government Resolutions and Circulars can be issued, exercising executive powers. If a particular field is governed by the statute and/or rules, then the executive instructions has to be in conformity with the statutory provisions and the Rules. In exercise of executive power, the Executive cannot issue instructions, circumscribing the statutory provisions and the rules.

High Court held that executive instructions cannot supplant statutory provisions or the rules.

In light of the above discussion, the impugned corrigendum dated 11-9-2018 was set aside and the petitioner has a remedy to assail the award before the appropriate forum in accordance with law as may be permissible. [Radhika J. Bhalerao v. State of Maharashtra, 2022 SCC OnLine Bom 856, decided on 24-32022]


Advocates before the Court:

Mr. Nikhil Mengade with Mr. Dhaval Deshpande, Rahul Lathi, Yash Jariwala and Pranay Dave, for the Petitioners in all the Petitions.
Mr. Vijay Patil, for Respondent No.3 in WP No.3683 of 2020 and WP(St.) No.94031 of 2020.

Mr. A. A. Kumbhakoni, Advocate General with Mr. P. P. Kakade, G.P. with Mr. Akshay Shind, ‘B’ Panel Counsel with Mr. R. M. Shinde, AGP for the Respondent-State in all the Petitions.

Case BriefsHigh Courts

Orissa High Court: Narendra Kumar Vyas, J., directed the petitioner to approach Civil Court as the writ court cannot pronounce the legal right of the petitioner to receive compensation.

The instant petition was filed seeking compensation for the wrongful disconnection of electricity. The prayer sought is to award the compensation amounting to rupees one crores in favour of the petitioner at an early date and to take appropriate legal action against the opposite parties.

Counsel for Electricity Company submitted that it does not have any compensation policy. The Court observed that where licence is granted to a supplier for the supply of electricity and before the expiration of the period of licence, the State Electricity Board exercises option to purchase the undertaking of supplier, there is the question of compensation to be paid. But in the instant case, the petitioner is a consumer and has not been able to disclose a policy of the supplier regarding payment of compensation.

The Court thus held “In the circumstances, the writ Court cannot pronounce on a legal right of petitioner to receive compensation. Petitioner must approach the Civil Court and prove wrongful disconnection for decree of compensation.”[Pramod Kumar Rout v. Superintending Engineer Electrical Circle, 2022 SCC OnLine Ori 1123, decided on 13-04-2022]


Appearances

For the Appellants: Mr. A.K. Dash

For the Respondent: Mr. S.C. Das


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

The Appellant was serving as a cleaner on the appellant’s vehicle which was punctured on a highway and hence parked by the side of the road. When the appellant was replacing the tyre a truck drove in a rash and negligent manner and gave dash to the Tata Tempo vehicle which was in stationary condition and caused the accident.

Due to the above, the appellant was taken to the hospital for treatment. It was stated that the right leg of the appellant got crushed and it came to be amputed. Further, even his left leg was damaged badly.

Hence, the owner of the vehicle lodged an FIR against the truck driver.

Appellant filed injury claim under Section 166 of the Motor Vehicles Act, 1988 and sought compensation assessed at Rs 60 lakhs. Though the claim was allowed partly.

Aggrieved with the decision, the present appeal was preferred for the enhancement of compensation.

Analysis, Law and Decision


High Court expressed that it is the statutory duty of the tribunal and the Court as well to award “just compensation”.

Further, the Bench added that, the concept of ‘just compensation’ obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and courts. This reasonableness on the part of the tribunal and the Court must be on a large peripheral field.

Additionally, the Court stated that the impact of amputation of leg on the earning capacity of the appellant/claimant needed deep consideration.

Due to amputation of right leg of the appellant, certainly he is unable to discharge his work and job as a Cleaner on the vehicle. It has severe impact on the earning capacity of the appellant/claimant. 

In the case of Jakir Hussein v. Sabir, (2015) 7 SCC 252, it is held by the Supreme Court that though the claimant is suffering from permanent disability of 30% and 50%, the tribunal cannot overlook that it is a case of 100% functional disability. It is a case of amputation of one leg.

In the present matter, the Tribunal did not consider the severe impact on the income of the claimant due to amputation of the right leg below the thigh and left leg badly damaged.

In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non-pecuniary losses which he has suffered due to the injury.

The Court observed that the purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident.

Hence, the tribunal had committed an error in accepting the permanent disability of the claimant at 45% when it is a case of 100% loss of earning capacity due to amputation of leg. Therefore, the compensation needed to be re-assessed.

High Court concluded that respondents are liable to pay the enhanced amount of compensation jointly and severally with interest @ 7%. [Akshay v. Kailas Vitthalrao Shinde, 2022 SCC OnLine Bom 830, decided on 18-4-2022]


Advocates before the Court:

Mr Sanket S. Kulkarni and Mr Mukeshkumar R. Singh, Advocates for appellant Mr V.P. Savant, Advocate for respondents no.1

Mr Abhijit G. Choudhari, Advocate for respondent no.2

Case BriefsSupreme Court

Supreme Court: In the 2006 Meerut fire case, the bench of Hemant Gupta and V. Ramasubramanian, JJ has held the Organizers responsible for the incident and not the Contractor as the Contractor was only responsible for executing work as assigned to him by the Organizers. It observed,

“The contractor has worked for the Organizers and not for the victims. Hence, the Organizers alone are responsible to protect the life and liberty of the victims.”

The court was dealing with the writ petition preferred by the victims of the fire tragedy which occurred on 10.4.2006, the last day of the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar Pradesh by Mrinal Events and Expositions. The incident claimed the lives of 65 persons and left 161 or more with burn injuries.

The State of Uttar Pradesh had appointed Justice O.P. Garg (Retired) in terms of provisions of the Commission of Inquiry Act, 19521 vide order dated 2.6.2006 but the report submitted by this Commission was not found to be sustainable in Sanjay Gupta v. State of Uttar Pradesh, (2015) 5 SCC 283. The Court then appointed Justice S.B. Sinha (Retired) as a one-man Commission.

Observations

Holding that the report of the one-man Commission does not suffer from any infirmity so as to absolve the Organizers from their responsibility of organizing the exhibition, the Court made the following observations:

  • The victims or their families visited exhibition on the invitation of the Organizers and not that of the Contractor. The Organizers were supposed to make arrangements for putting up the exhibition hall, providing electricity and water and also the food stalls for the facility of the victims/visitors. They cannot now take shelter on the ground that the Contractor who was given work order was an independent contractor and the victims should seek remedy from him.
  • The Court Commissioner found that the contract with the Contractor was neither a turn-key project nor was he appointed as an independent contractor. Therefore, the argument of the Organizers that they are not liable for the acts of omission or commission on the part of the contractor was rejected by the Commission. Even otherwise, the Organizers were vicariously liable for the alleged acts of negligence on the part of the contractor. The Contractor was only responsible for executing work as assigned to him by the Organizers.
  • The ticket proceeds were collected by the Organizers. It is the responsibility of the Organizers, having collected the entry fee, to ensure the safety and well-being of the visitors. The Organizers have failed in that duty causing loss of life of the innocent victims who came to see the exhibition, which was purely a commercial event with an intention to earn profit by the organizers.
  • The argument that the Court Commissioner has not given any conclusive finding on the cause of the fire is not relevant in determining the civil liability. The maxim res ipsa loquitur would be applicable as organizing an exhibition of such substantial magnitude without proper and adequate safety factors which may endanger the life of the visitors, has been rightly found by the Court Commissioner, an act of negligence including negligence of the officers of the State.

Compensation

It is pertinent to note that,

  • The State has paid Rs.2 lakhs each as ex-gratia compensation to the families of the deceased, Rs.1 lakh each for the persons who suffered serious injuries and Rs.50,000/- each for the persons suffering from minor injuries.
  • The Union of India has paid ex-gratia compensation of Rs.1 lakh each for the deceased and Rs.50,000/- each for those with serious injuries. In terms of the order of this Court, the State has paid Rs.5 lakhs each to the deceased, Rs.2 lakhs each to the victims suffering serious injuries and Rs. 75,000/- each to the victims suffering minor injuries, apart from the amount paid by the Union of India.
  • The list of deceased and injured persons has been produced but the amount of compensation payable to each of the victim including the families of the deceased have not been computed and such amount is required to be computed in accordance with the principles of just compensation as in the case of accident under the Motor Vehicle Act, 1988 by the Motor Accidents Claims Tribunal.

The Court, hence, requested the Chief Justice of the Allahabad High Court to entrust the work of determination of compensation to a Judicial Officer in the rank of District Judge/Additional District Judge at Meerut within two weeks of the present order to work exclusively on the question of determination of the compensation on day-to-day basis. Further,

  • The High Court shall provide all necessary infrastructure to enable the Officer to discharge his duties.
  • The nominated Judicial Officer may permit the parties to lead such evidence as may be permissible.
  • The nominated Judicial Officer shall calculate the amount of compensation and forward the report to the Supreme Court for consideration in respect of compensation in accordance with law.
  • The amount paid by the State and a sum of Rs.30 Lakhs deposited by the Organizers has been disbursed to the victims. The said amount, excluding the ex-gratia payments made, be taken into consideration while determination of the amount payable by the Organizers and the State.

It is important to note that as per the report submitted by the Commission, the liability between the Organizers and the State was fixed as 60:40 and no dispute was raised regarding percentage of liability determined by any of the party.

The Court will now take up the matter after 4 months.

[Sanjay Gupta v. State of Uttar Pradesh, 2022 SCC OnLine SC 443, decided on 12.04.2022]


Counsels

For Organizers: Senior Advocate Shanti Bhushan

For Writ Petitioners: Senior Advocate Vikas Pahwa

Case BriefsSupreme Court

Supreme Court: In a case where the husband had disputed paternity of child on suspicion, though the Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., directed to conduct DNA test, the Bench granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and respondent-husband turns out to be the father of the child.

The instant appeal was filed against the order of Bombay High Court wherein the High Court had affirmed the directions of Family Court directing the appellant herein to conduct DNA test of the child. The husband of the appellant-respondent had filed a case before the Family Court on having strong suspicion regarding paternity of the child and had requested for a DNA test.

Quashing the revision application, the High Court observed that the respondent-husband could not be foisted with paternity of child, if it is prove by a scientific method that he is not the biological father of the said child, though, he was having access to the petitioner at the relevant time.

Assailing the findings of the High Court, the appellant-wife contended that they got married on 05-02-2014 and the marriage was consummated on 09-02-2014. On 27-28th June, 2014, she underwent medical tests in Singapore when the doctor opined that the foetus was about 21 weeks old. The appellant argued that time gap between 09-02-2014 and 27-28-06-2014 was about 20 weeks, hence, the difference, if any, was only of one week. Since the doctor’s opinion was based on estimation, it could never be absolutely accurate. Further, the child was born after 261 days, i.e., about 17 days earlier which was almost after 9 months, therefore, there was no reason to presume that the petitioner was pregnant when she married the respondent.

To resolve the dispute once and for all, the Bench refrained from interfering with the direction for paternity/DNA Test and directed that the paternity/DNA test may be conducted at the All India Institute of Medical Sciences, New Delhi, for which the appellant and the respondent were directed to give samples and the respondent was directed to bear the expenses.

However, the Bench added that if on testing, it is found that the allegations are based on suspicion and the respondent is, in fact, the father of the child, the respondent shall pay compensation of Rs.30,00,000 (Rupees thirty lakhs only) to the petitioner, in addition to usual maintenance and other costs and charges as he may be directed to pay for the petitioner and for the child. Expenses of the appellant and the child for travel to Delhi and back and for accommodation in Delhi were also directed to be borne by the respondent-husband.

[Priyanka Janardhan Patil v. Janardhan Raghunath Patil, SLA (C) No(s). 5554 of 2020, decided on 04-04-2022]


Appearance by:

For Petitioner(s): Advocate Sangeeta Bharti, AOR Sujeeta Srivastava and Advocate Kamna Vohra

For Respondent(s): Senior Advocate Vinay Navare and AOR Rashmi Singhania


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a case where the bench of S. Ravindra Bhat* and PS Narsimha, JJ was posed with the question as to whether the State can, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated, answering in negative, the bench held that the State cannot shield itself behind the ground of delay and laches as there cannot be a ‘limitation’ to doing justice.

Factual Background

The State of Himachal Pradesh utilised the subject land and adjoining lands for the construction of the ‘Narag Fagla Road’ in 1972-73, but allegedly no land acquisition proceedings were initiated, nor compensation given to the appellants or owners of the adjoining land.

Pursuant to a judgment by the Himachal Pradesh High Court directing the State to initiate land acquisition proceedings, a notification under Section 4 of the Land Acquisition Act, 1894 (hereafter ‘Act’) was issued on 16.10.2001 (published on 30.10.2001) and the award was passed on 20.12.2001 fixing compensation at ₹30,000 per bigha.

After a writ petition by similarly situated land owners was allowed by the High Court with the direction to acquire lands of the writ petitioners under the Act, with consequential benefits, the appellants approached the High Court in 2011, seeking compensation for the subject land or initiation of acquisition proceedings under the Act.

Relying on a Full bench decision of the High Court, it was held by the High Court in the impugned judgment that the matter involved disputed questions of law and fact for determination on the starting point of limitation, which could not be adjudicated in writ proceedings. The writ petition was disposed of, with liberty to file a civil suit in accordance with law.

Analysis

Right to property – Importance

While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.

When it comes to the subject of private property, this court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State.

Can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated?

The Court considered the facts of the present case that revealed that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants’ prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction.

Noticing that at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law, the Court observed that,

“When seen holistically, it is apparent that the State’s actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court’s directions to those who specifically approached the courts. The State’s lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners.”

The Court also noticed that the State had merely averred to the appellants’ alleged verbal consent or the lack of objection, but had not placed any material on record to substantiate this plea. It was also unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation.

Further, despite the property not being adjoining, the subject land was acquired for the same reason – construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court’s intervention under Article 226 jurisdiction. Hence, in the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law.

Ruling

The State was, hence, directed to treat the subject lands as a deemed acquisition and appropriately disburse compensation to the appellants in the same terms as the order of the reference court dated 04.10.2005 and to consequently to ensure that the appropriate Land Acquisition Collector computes the compensation, and disburses it to the appellants, within four months from today. The appellants would also be entitled to consequential benefits of solatium, and interest on all sums payable under law w.e.f 16.10.2001 (i.e. date of issuance of notification under Section 4 of the Act), till the date of the impugned judgment, i.e. 12.09.2013.

Given the disregard for the appellants’ fundamental rights for decades after the act of dispossession, the Court also directed the State to pay legal costs and expenses of ₹ 50,000 to the appellants.

[Sukh Dutt Ratra v. State of Himachal Pradesh, 2022 SCC OnLine SC 410, decided on 06.04.2022]


*Judgment by: Justice S. Ravindra Bhat


Counsels

For appellants: Advocate Mahesh Thakur

For State: Advocate Abhinav Mukerji

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna , JJ has held that a consent award cannot be the basis to award and/or determine the compensation in other acquisition, more particularly, when there are other evidences on record.

The Court was dealing with a case relating to a land acquired for improvement of Ranganathittu Bird Sanctuary. The Land Acquisition Officer passed an award fixing the market value of the acquired land @ Rs.21,488/- per guntha. The Reference Court enhanced the amount of compensation to Rs.30,49,200/- per acre, i.e., Rs.76,230/- per guntha. The original claimant preferred first appeal before the Karnataka High Court seeking enhancement of the amount of compensation. Relying on a consent award and thereafter on “guesswork”, by the impugned judgment and order the High Court enhanced the amount of compensation to Rs.40 lakhs per acre with all consequential statutory benefits.

The Supreme Court noticed that the consent award relied upon by the High Court was in respect of the property acquired in the year 2011 and which was acquired for a different purpose, namely, for formation of double line railway broad gauge between Bengaluru and Mysore City. However, in the present case, Section 4 notification was issued in the year 2008, i.e., three years before the land acquired in the consent award in question.

Hence, it was held that the High Court ought not to have relied upon the same while determining the market price of the land acquired in 2008 considering the market price determined for the lands acquired in the year 2011 and on the basis of some “guesswork”.

Even otherwise, the Court held that the consent award ought not to have been relied upon and/or considered for the purpose of determining the compensation in case of another acquisition.

“In case of a consent award, one is required to consider the circumstances under which the consent award was passed and the parties agreed to accept the compensation at a particular rate. In a given case, due to urgent requirement, the acquiring body and/or the beneficiary of the acquisition may agree to give a particular compensation.”

[Special Land Acquisition Officer v. N. Savitha, 2022 SCC OnLine SC 339, decided on 22.03.2022]


*Judgment by: Justice MR Shah

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Ajay Tewari and Pankaj Jain, JJ., contemplated the appeal where the interest on refund of excise duty was rejected by the authorities. The main question before the Court was whether the assessee was entitled to interest.

Factual Matrix of the case:

  • The assessee had registered office in Sonepat and applied for central excise duty along with interest before Deputy Commissioner, Central Excise, (Panipat) in 2017, eventually, the refund was sanctioned however claim w.r.t. interest was rejected.
  • An appeal was filed before the Commissioner of Central Excise, (Panchkula) against the rejection of interest, which was dismissed in 2018.
  • Again an appeal was filed before CESTAT, (Chandigarh), the decision of CESTAT was in favour of the assessee and he was entitled to interest on delayed refund from the date of deposit till its realization. An application was forwarded regarding the said claim.
  • While the application of the Assessee was pending before the authorities, the Commissioner of CGST and Central Excise, (Panchkula) filed rectification of mistakes application before the CESTAT.
  • The rectification application was dismissed in 2021.
  • Hence, the present appeal is filed by the Revenue i.e. Commissioner of Central Excise (Panchkula) against the orders passed by CESTAT, (Chandigarh).

Submissions:

Revenue Authority questioned the change of jurisdiction of the Authorities after the new CGST regime. It was contended that the assessee has impleaded wrong authorities for the claim of refund and interest as after the new regime from June 2017, division Sonepat was brought within the jurisdiction of Rohtak Commissionerate. Hence the proper authority would have been Rohtak.

Another contention of the Revenue Authority was that the tribunal has erred in granting interest as per the amended provisions of Section 35FF of the Central Excise Act, 1944.

Findings:

The Court rejected the contention of the Revenue Authority in the light of Section 142 of CGST Act, 2017. The Court held that, “Section 142 of the Act when read with Section 2(48) of the Act is a complete answer to the plea raised by the appellant qua the issue of jurisdiction.” The Court observed that the Sec explicitly provides that every claim of refund shall be dealt under the existing law i.e. Central Excise Act, 1944 and not by the provisions of the Act. Thus the plea of transfer of jurisdiction due to GST regime is not available to the appellant.

Further adjudicating whether the claim of interest was justified, the Court relied upon the judgment of Supreme Court in Sandvik Asia Ltd v. CIT, (2006) 2 SCC 508, where the Supreme Court answered that the Act provided for payment of compensation for delayed payment of amounts due to an assessee in case where the amounts included the interest and the appellant was entitled to interest u/Ss. 244 and 244-A of the Income Tax Act, 1961.

The Court applied the law laid down in Sandvik Asia Ltd in the case of the present assessee and dismissed the instant appeal.  [Commissioner of Central Excise, Panchkula v. Rabi Textiles Ltd. CEA No.8 of 2022 (O&M), decided on 14-03-2022]


Appearances:

Mr. Sourah Goel, Senior Standing Counsel and Mr. Tej Bahadur, Advocate for the appellant.


Aastha Sharma, Editorial Assistant has reported this brief.

Case BriefsCOVID 19Supreme Court

Supreme Court: Considering the submissions by Solicitor General Tushar Mehta on fixing an outer limit on fixing claims for compensation in case the death occurred due to COVID-19, the bench of MR Shah* and BV Nagarathna, JJ has fixed the outer limit of sixty days from the date of the order I.e. 24.03.2022 to file the claims for compensation in case the death occurred due to COVID-19 prior to 20.03.2022. For future deaths, ninety days’ time is provided from the date of death due to COVID-19 to file the claim for compensation. However, the earlier order to process the claims and to make the actual payment of compensation within a period of thirty days from the date of receipt of claim to be continued.

It was submitted before the Court that more than nine months have passed after the first judgment and order and thereafter four months have passed after the subsequent judgment and order dated 29.11.2021 passed by this Court and by now approximately 7,38,610 claims have been received by the concerned States. The Court agreed with the submission that by now all genuine claimants must have approached the authorities by establishing their claims and that if there is no outer time limit fixed, then the process of receiving the claims would go endless and, in that case, there is all possibility of submitting false claims.

The Court. However, refused to accept the suggestion of four weeks’ time by the Solicitor General and observed that this time was too short as the family would need some reasonable time to recover from the death and sorrow and filing the claim.

The Court, further, clarified that in case of extreme hardship any claimant could not make an application within the time prescribed, it will be open for the claimant to approach the Grievance Redressal Committee and make the claim through Grievance Redressal Committee which shall be considered by the Grievance Redressal Committee on case to case basis and if it is found by the Grievance Redressal Committee that a particular claimant could not make the claim within the stipulated time which was beyond their control his/her case may be considered on merits.

Th Ministry of Health and Family Welfare and Ministry of Home Affairs – Union of India and all the concerned States have hence, been directed to give wide publicity to the present order through print and electronic media so that the claimants can know the time limit fixed by this Court for making claims. Such advertisement shall be published fortnightly for a period of six weeks from the date of this order.

On the issue of false claims of ex-gratia compensation of Rs.50,000/- by the kin/family member of those, who died due to COVID-19, the Court observed that nobody can be permitted to misuse the same and it is also against morality and is unethical, which can never be accepted. The Court, hence, directed the NDMA/Union of India, through Ministry of Health and Family Welfare to conduct a random scrutiny of the 5% of the claim applications filed in the States of Andhra Pradesh, Gujarat, Kerala and Maharashtra shall be made at the first instance. If it is found that anybody has made a fake claim, the same shall be considered under Section 52 of the Act, 2005 and liable to be punished accordingly.

[Gaurav Kumar Bansal v. Union of India, 2022 SCC OnLine SC 357, decided on 24.03.2022]


*Judgment by: Justice MR Shah

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna, JJ has held that as per Section 4A of the Employee’s Compensation Act, 1923, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner.

The Court was deciding the case where a sugarcane cutting labourer, engaged by the Labour Contractor who provided sugarcane to a sugar factory, died of a snake bite while cutting sugarcane. Neither the sugar factory nor the contractor paid the compensation due and payable under the Act, 1923. Therefore the heirs of the deceased filed a claim petition before the Workmen’s Compensation Commissioner, who allowed the application and directed the respondents herein jointly and severally to pay the compensation amount of Rs.3,06,180/- alongwith simple interest @ 12% p.a. from the date of accident, i.e., 29.11.2009 till its full realization. The Commissioner also imposed the penalty of 50% on the compensation amount, i.e., Rs. 1,53,090/-.

The Bombay High Court has though dismissed the appeal insofar as the amount of compensation awarded by the Commissioner, it, however, set aside the penalty and modified the interest awarded @ 12% p.a. from the date of incident and directed that the interest be paid from the period after expiry of one month from the date of Commissioner’s order dated 25.01.2017.

However, going by the scheme of the 1963 Act, the Supreme Court observed that compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due.

As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner.

As per Section 4A(3)(b), if the Commissioner is satisfied that there is no justification for the delay, it can direct the employer, in addition to the amount of the arrears and interest thereon, to pay a further sum not exceeding 50% of such amount by way of penalty. Thus, provision for interest and provision for penalty are different.

The Court noticed that the provision for levy of interest would be under Section 4A(3)(a) and the provision for levy of penalty would be under Section 4A(3)(b). The Court observed that while directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A(3)(a) and has considered Section 4A(3)(b) only, which is the penalty provision. Hence, the impugned judgment and order passed by the High Court directing the employee to pay the interest on the amount of compensation as leviable under Section 4A(3)(a) from the date of the order passed by the Commissioner, i.e., 25.01.2017was held to be unsustainable.

[Shobha v. Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana Ltd, 2022 SCC OnLine SC 308, decided on 11.03.2022]


*Judgment by: Justice MR Shah


 

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Dinesh Singh (Presiding Member) and Justice Karuna Nand Bajpayee (Member) expressed that in the ‘service’ of ‘housing construction’, if, in a particular case, “compensation” is computed “by way of interest” on the deposited amount it shall not be differently treated than the other cases in which the term “interest” may not at all be used in computing the compensation.

Background

This Commission had by an earlier order directed that OP shall refund the entire principal amount of Rs 2,74,79, 831,48 to the complainant alongwith compensation in form of simple interest at the rate of 11% and OP shall also pay a sum of Rs 25,000 as the cost of litigation.

Both sides admitted that the entire amount paid by the decree holder to the judgment debtors has been refunded along with the cost of litigation.

Issue for Consideration

Whether or not compensation which was computed by way of interest on the deposited amount, attracts TDS?

Analysis, Law and Decision

Coram stated that the only issue was in respect of deduction of tax at source on the “compensation” awarded, which in the present case was computed “in the form of simple interest” on the deposited amount.

Certainly, tax is not deducted at source if the compensation is awarded in the form of a lumpsum amount, or when the formula or yardstick, if and as any adopted for the purposes of computation, does not involve or refer to the term “interest”. It will therefore be erroneous to deduct tax at source just because in a particular case the formula or yardstick adopted for computation alludes to the term “interest”.

Commission clarified that it is neither adding to nor subtracting from the Income Tax Act. If a person is responsible to pay income tax on any revenue or capital receipt under the aid Act, he will be so liable.

Adding to the above, Coram stated that compensation awarded under the Consumer Protection Act is for the loss or injury suffered and is universally applicable to both goods and services inclusive of the service relating to housing construction.

The context and meaning of the term “interest” if used in the mode of calculation or a formula or yardstick adopted for computing compensation under section 2(1)(d) of the Consumer Protection Act is identifiably different from the context and meaning as used in Section 194A of the Income Tax Act.

Hence, there was no justification for deducting tax at source in the instant case.

Concluding the matter, the Commission observed that the tax deducted at source on compensation appeared to be a mistake with no malafide and even though the tax ought not to have been deducted it is also seen that the same has not been retained by the judgment debtors and deposited in the account of the decree-holder in the Income Tax Department.

In view of the above discussion, the matter was closed. [Rita Bakshi v. M3M India Ltd., 2022 SCC OnLine NCDRC 40, decided on 2-3-2022]


Advocates before the Commission:

For the Appellant: Mr. Deepak Narayana, Advocate

For the Respondent: Mr. A. K. Takkar, Advocate with Ms. Syashee Pesswani, Advocate

Case BriefsHigh Courts

Kerala High Court: The Division Bench of P.B. Suresh Kumar and C.S. Sudha, JJ., expressed that,

“…compensation payable under Sections 73, 74 as also under Section 75 is only for loss or damage caused by the breach and not account of the mere act of breach. If in any case the breach has not resulted in or caused any loss or damage to a party, person concerned cannot claim compensation.”

The words ‘loss or damage’ in the Sections 73 and 74 would necessarily indicate that the party who complains of breach must have really suffered some loss or damage apart from being faced with the mere act of breach of contract. That is because every breach of every contract need not necessarily result in actual loss or damage.

An appeal was filed under Section 37 of the Arbitration and Conciliation Act, 1996 against the District Court’s Order.

Appellant was the petitioner before the lower court and the claimant before the Arbitral Tribunal.

Respondent warded the work of ‘doubling of track between Shornur and Mangalore, Cannanore-Uppala section: collection and stacking of 50mm size machine crushed hard stone ballast alongside the alignment/station yards/on top of the new formation between Kottikulam and Kasaragod stations to the claimant for a value of Rs 1,19,39,274. The work had to be completed within a period of 9 months, alleging the breach by claimant, the contract was terminated by the respondent.

In view of the above, disputes arose between the parties and arbitration proceedings were initiated.

Aggrieved with the order of the arbitral tribunal, the claimant/contractor took up the matter before the District Court. The said application which was filed under Section 34 was dismissed by the impugned order.

Analysis, Law and Decision

Firstly, the High Court referred to Sections 73 and 74 of the Indian Contract Act, 1872.

Bench noted that for a case coming under Section 74, it is not necessary for the party claiming compensation under this Section to prove that actual damage or loss has been caused.

Whether even in the absence of legal injury, compensation is liable to be paid for breach simplicitor?

The Court stated that whether it is a case of liquidated damages or penalty, what the party faced with the breach gets is only reasonable compensation, subject to the limit of the amount stipulated in the contract itself. Section 74 dispenses with proof of the extent of real or actual or factual loss or damage, but provides for grant of reasonable compensation, subject to the condition that it shall not exceed the sum stipulated as penalty in the contract.

Adding to the above, Bench expressed that the proof of the extent of loss or damage suffered in fact, i.e., proof of the extent of actual damage or loss suffered is dispensed within Section 74. This would not mean that there need not be any loss or damage. What is meant is only that proof of actual damage or loss is not necessary.

In Court’s opinion, Section 74 could not be invoked in the present matter because the Award did not say that any sum had been named in the contract as the amount to be paid in case of breach.

“Parties had never made a genuine pre-estimate of the amount to be paid in the event of any damage or loss likely to be caused by the breach or that there is any clause relating to liquidated damages in the contract.”

Elaborating further, the Bench stated that compensation payable under Sections 73, 74 as also under Section 75 is only for loss or damage caused by the breach and not account of the mere act of breach. If in any case the breach has not resulted in or caused any loss or damage to a party, person concerned cannot claim compensation.

In the Supreme Court decision of Union of India v. Rampur Distillery and Chemical Co. Ltd., (1973) 1 SCC 649, it was held that a party to a contract taking security deposit from the other party to ensure due performance of the contract, is not entitled to forfeit the deposit on the ground of default when no loss was caused to him in consequence of such default.

If the party complaining is in a position to adduce evidence whereby the court can assess reasonable compensation, then without proof of actual loss, damages will not be awarded and amount mentioned by the contract will be penalty. In such circumstances, it has been held that the security amount is liable to be forfeited.

The Award in the present matter clearly did not say that any loss or damage had been caused to the respondent, hence neither the provisions of Sections 73,74 or 75 could have been invoked nor the said sections are applicable in the present case.

In view of the above discussion, Arbitral Tribunal was certainly wrong in rejecting the claim of the claimant for release of the amount of security deposit of Rs 3 lakhs.

Arbitral Tribunal’s finding of the provisions of Section 73 to 75 of the Contract Act, was certainly in contravention of the fundamental policy of Indian Law as contemplated in Section 34(2)(b)(ii) of the Act.

Concluding the matter, High Court allowed the appeal and set aside the impugned order. [Devchand Construction v. Union of India, 2022 SCC OnLine Ker 826, decided on 16-2-2022]


Advocates before the Court:

For the Appellant:

Santha Varghese, Ranjith Varghese and Rahul Varghese, Advocates

For the Respondent:

Sri. S. Ananthakrishnan, SC, Railways

High Court Round UpLegal RoundUp

82 reports on High Court Judgments to read from February 2022.


Allahabad High Court


 Bail

 22-year-old woman, burnt and buried due to demand of dowry: All HC denies bail to accused husband

Noting the brutality with wife a 22-year-old lady and mother of a one year’s infant child in causing her death, beating her cruelly by “her husband” Vikas Kunvar Srivastav, J. held that the said act was not only grave in nature but heinous also.

Read report, here…

Law on S. 311 CrPC

Power to the Court to summon a material witness or to examine a person present in Court or to recall a witness already examined: All HC discusses

Sanjay Kumar Pachori, J., while addressing a matter with regard to recalling of the witnesses expressed that, Section 311 of the Code confers a wide discretion on the Court to act as the exigencies of justice require.

Read report, here…

Law on Recovery of Maintenance

Limitation of 1 year for recovery of maintenance under S. 125(3) of CrPC and the law on enforcement to claim order of maintenance under S. 128 CrPC: All HC explains

Dr Yogendra Kumar Srivastava, J., while addressing a matter regarding recovery of maintenance amount, expressed that,

“Sentencing to jail can only be seen as a means of recovering the amount of arrears and not a mode of discharging liability.”

Read report, here…


Andhra Pradesh High Court


If the de facto complainant feels insulted as he was beaten in front of public and if he takes a hasty decision to commit suicide; will the accused be held responsible in the eyes of law?

Cheekati Manavendranath Roy J. partly allowed the petition by quashing FIR for the offence punishable under Sections 306 r/w 116 IPC.

Read report, here…

Bail

AP HC considered alleged attempt to threatening witness as a vague allegation; Cancellation of bail sought was rejected

“…nothing was brought to the notice of the police or the investigating agency stating that the accused are interfering with course of investigation by way of threatening the witnesses through their men.”

Read report, here…


Bombay High Court


 Law on Voluntarily Causing Grievous Hurt

In a land dispute, a person subjected to grievous injury with the use of ‘Khurpi’: Will he be punished under S. 326 or 325 Penal Code, 1860? Bom HC explains

The Division Bench of S.S. Shinde and N.R. Borkar, JJ., upheld the decision of the Trial Court in a case of causing grievous injury voluntarily.

Read report, here…

Bail

Constant quarrels between husband and wife: Bom HC observes while granting bail to husband accused of dowry and cruelty

Sarang V. Kotwal, J., on noting that the husband and wife cannot live together and there were constant quarrels between them, granted bail to the husband who was accused under the provisions of Dowry Prohibition Act and Penal Code, 1860. 

Read report, here…

Provocation by Wife

Wife subjected husband to humiliation by publicly calling him impotent and abusing him resulting in assault by husband: Husband will be convicted for murder or culpable homicide? Bom HC analyses

The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., modified the conviction of a husband who in provocation by wife on being subjected to abuses assaulted wife.

Read report, here…

Abetment to Suicide

Employer setting big targets, not granting leave and not accepting resignation would be acts in normal course of business: Bom HC grants anticipatory bail to employer accused of abetting suicide committed by employee

 Sarang V. Kotwal, J., addressed a matter wherein an employer was accused of abetting the suicide of an employee.

Read report, here…

Law on Custody

9-year-old child prefers to stay with mother’s father and his family members and shows animosity towards father: Whether father will get custody of child or not? Bom HC decides 

Addressing a matter wherein a child’s mother was diagnosed with cancer due to which she started living at her parental home with the child, and after the passing of the mother, a custody battle arose between the father of the child and the father and brother of wifeDivision Bench of S.S. Shinde and N.J. Jamdar, JJ., noted animosity of the child towards his father, to which the Court expressed that, the same must have occurred due to ‘parental alienation syndrome’.

Read more, here…

Appeal

Appellate court can reverse the finding and sentence of the trial court ordering re-trial

The Division Bench of S.S. Shinde and Milind N. Jadhav, JJ. allowed an appeal against conviction of the Appellant by the Trial Court. The appellant was convicted of the offence punishable under Section 302 of the Penal Code, 1860, (“IPC”) read with Section 34 IPC. He was sentenced to suffer life imprisonment and to pay a fine of Rs. 15,000.

Read report, here… 

Transparency in Functioning

Disqualification of Sarpanch in suspicion of benefitting her close relations by allotting work under Panchayat’s order, without establishment of direct or indirect involvement as per S. 14(1)(g) of Maharashtra Village Panchayats Act: Is it correct? Bom HC analyses

Quoting a phrase from a story of a Roman Ruler Julius Caesar that, “Caesar’s wife should be above suspicion”, Bharati H. Dangre, J., remarked that,

“…those who are vested with the powers are to be made more accountable and transparent in their functioning and subjected to social audit with a view to minimize their discretionary decisions.”

Read report, here…

COVID-19 

Cinema Halls, Theaters, Malls, Restaurants, etc. permitted to carry on business with 50% capacity but banquet halls/Mangal Karyalaya & lawns not permitted with same capacity: Bom HC issues notice

The Division Bench of Sunil B. Shukre and Anil L. Pansare, JJ., addressed a petition wherein a grievance was filed stating that an unreasonable classification resulting in impermissible discrimination had been made by the respondents as Cinema Halls, Theaters, Malls, Restaurants and also other establishments have been permitted to carry on their business or operations with 50% capacity of the customers or attendees, provided customers or attendees are armed with two doses of vaccination, and whereas, Mangal Karyalaya/ Banquet Halls and Lawns where marriage functions are held and solemnised are not being permitted to carry on their business and operations with the same capacity of persons who have taken both the doses of vaccination. 

Read report, here… 

Consumer Protection

Consumer Protection Act requires State Government to constitute a State Consumer Disputes Redressal Commission and create circumstances to its effective functioning: Bom HC at Goa directs State of Goa to ensure filling up of vacant positions expeditiously

Stating that the State Administration comprises several IAS Officers, the least expected out of them is to find the solution to problems, so that State Consumer Disputes Redressal Commission functions effectively, The Division Bench of M.S. Sonak and R.N. Laddha, JJ., directed the State of Goa to ensure that the post of President and 3 other members of the Commission which are vacant be filled expeditiously.

Read report, here…

Dead Person

Notice to a dead person under S. 148 of Income Tax Act cannot be issued: Bom HC

The Division Bench of K.R. Shriram and N.J. Jamdar, JJ., reiterated that notice under Section 148 of the Income Tax Act, 1961 to a dead person cannot be issued.

Read report, here…

Legal Profession

“Notaries operating from public taxis around vicinity of Court”: Dignity of the profession needs to be maintained and the legal profession cannot be allowed to function from the streets | Bom HC

The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., requested the Department of Legal Affairs to give due consideration to this Court’s Order and the Report dated 9-12-2021 submitted by Nausher Kohli, Advocate whilst enacting the Draft Bill.

Read report, here…

Murder or Culpable Homicide?

Husband killed wife brutally in a heat of passion leaving husband with a wounded pride: Bom HC decides whether the said offence will come under “Murder” or “Culpable Homicide not amounting to Murder

Stating that, in the moment of anger spouses almost forgot about the two children who were hardly three years old at the time of incident, the Division Bench of Sadhana S. Jadhav and Prithiviraj K. Chavan, JJ., found that the case of a husband killing wife with a knife was a case of culpable homicide not amounting to murder.

Read report, here…

Arbitration

Bombay HC rejects argument that a dispute cannot be referred for arbitration on account of fraud: Read why

B.P. Colabawalla, J., addressed an arbitration application filed under Section 11 of the Arbitration and Conciliation Act, 1996

Read report, here…

Gangubai Kathiawadi

Can after certification granted by Board, public exhibition of a film be prohibited? Bom HC answers 

In respect to petitions with regard to the release of movie Gangubai Kathiawadi, Division Bench of Dipankar Datta, CJ and M.S Karnik, J., while expressing that “Once the film is granted a certificate by the competent statutory authority, i.e. the Board, the producer or distributor of the film has every right to exhibit the film in a hall unless, of course, the said certificate is modified/nullified by a superior authority/Court”, held that, there cannot be any kind of obstruction for the exhibition of a film, which is certified, unless the said certificate is challenged and Court stays its operation.

Read report, here…

Divorce 

If husband and wife get their marriage registered under Special Marriage Act & under Parsi Marriage and Divorce Act, 1936 as well, would this require them to get nullity of marriage under both Acts or one? Court decides

G.S. Kulkarni, J., expressed that, there is no provision under legislations, that if a marriage between the same couple is annulled under a competent law as enacted by the Parliament, it can as well be of a legal effect in the corresponding enactment.

Read report, here…


Calcutta High Court


Bail

S. 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act: Cal HC

The Division Bench of Bibhas Ranjan De and Debangsu Basak, JJ., while addressing a bail application in a case under NDPS Act, remarked that,

Section 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act.

Read report, here…

Sexual Assault

14-yr old girl subjected to penetrative sexual assault by man who called her grand daughter: Is girl’s complaint vital to form basis of conviction? Cal HC explains

The Division Bench of Joymalya Bagchi and Bivas Pattanayak, JJ., in a penetrative sexual assault case of a 14-year-old girl, expressed that,

“Crime against woman is increasing as a whole. Such type of crime is a direct insult to the human dignity of the society and therefore imposition of any inadequate sentence not only results in injustice to the victim and the society in general but also stimulates criminal activities.”

Read report, here…

Trademark

Disparagement or mere puffery? Court decides in matter of offending/misleading advertisements [Dabur India v. Baidyanath Ayurved]

Saraf, J. decided on a petition which was filed seeking remedy against impugned advertisements disparaging the goodwill and reputation of the petitioner and its product.

Read report, here…


Chhattisgarh High Court


 Jurisdiction

 Limited jurisdiction has been given to the High Court confined to the substantial question of law only

Anoop Kumar Dhand J. dismissed the appeal as it does not fulfill the requirement mandated under Section 30 of Workmen’s Compensation Act, 1923.

Read report, here…

If the party is able to make out an exceptional case and the court finds irretrievable injustice would occur if writ jurisdiction is not invoked, High Courts do have the power to entertain the writ petition

Sam Koshy J. partly allowed the petition and partly disposed of the petition expressing no opinion on the termination notice issued against the petitioner.

Read report, here…

Child Custody

Due to father’s field job, mother granted custody of child: Did Chh HC also grant contact and visitation right to father? Read

In a child custody battle, the Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., reiterated the position of law in the Supreme Court’s decision of Yashita Sahu v. State of Rajasthan(2020) 3 SCC 67, wherein it was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each, further this Court granted visitation and contact right to the father.

Read report, here…

Desertion 

If husband brings home concubine due to which wife leaves house, would that lead to desertion by wife? Chh HC explains

The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., expressed that,

“If the husband keeps another lady; gives shelter to her; and proceeds to have child with the said lady and for that reason if the first wife has to leave the matrimonial home because of physical and mental torture meted out to her it cannot be presumed as a desertion on the part of wife.”

Read report, here…


Delhi High Court


Trademark Dispute

Baazi v. WinZo | Trademark is used by a manufacturer or service provider to distinguish products from those of competitors: Here’s how Winzo appeared dishonest and unfair in adopting Baazi

“When people are satisfied with the products supplied by a manufacturer or service provider, they buy them on the basis of the trade mark and over time it becomes popular and well known. Thus, the use of a similar or identical trademark by a competitor in the same product would lead unwary customers to believe that it originates from the same source.”

Read report, here…

Deadly Weapons

Whether a ‘blade’ would be covered under S. 397 IPC as a deadly weapon? Del HC explains in view of settled position of law

Mukta Gupta, J., explained under what circumstances would Section 397 of penal Code, 1860 would be attracted.

Read report, here…

Law on Bail

Investigation complete, charge sheet filed, accused in jail since 6 months: Read whether Del HC grants bail

Dhari Singh, J., granted bail while referring to a catena of Supreme Court decisions with regard to the law on bail.

Read report, here…

4 years as undertrial, 2 witnesses examined out of 14, no probability of trial to be concluded in near future: Whether Del HC will grant bail to accused under S. 37(b)(ii) of NDPS Act? Read

Chandra Dhari Singh, J., granted bail to an accused on being satisfied with “reasonable grounds” as per Section 37 (b)(ii) of the NDPS Act, 1985.

Read report, here…

Judicial Separation 

Can judicial separation be granted instead of divorce for which party has approached the Court? Read what Del HC says

Expressing that the Family Court’s decision was based on optimism and hope rather than the actual factual matrix of the case, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., while addressing a matter wherein matrimonial dispute occurred between the parties, observed that,

“..a decree of judicial separation can be rescinded by the same court; but a decree of divorce can be reversed only by a judicial order: either in review or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.” 

Read report, here…

Money Laundering

Money laundering offence under PMLA is, layered and multi-fold and includes stages preceding and succeeding offence of laundering money: Del HC

While expressing the object of PMLA Act Chandra Dhari Singh, J., expressed that, offence of money laundering is threefold including the stages of placement, whereby the criminals place the proceeds of crime to the general and genuine financial system, layering, whereby such proceeds of crime are spread into various transactions within the financial system and finally, integration, where the criminals avail the benefits of crime as untainted money.

Read report, here…

Uphaar Case

Manner in which judicial records tampered revealed well-planned & methodical attempt to subvert justice system: Suspending sentence of Ansal brothers would amount eroding faith of public? Read Del HC’s decision

Stating that the manner in which Court records tampered was insidious and revealed a well-planned and methodical attempt to subvert the justice system in order to escape conviction in the Main Uphaar CaseSubramonium Prasad, J., held that since the matter relates to tampering of judicial record, the same has to be decided expeditiously in order to ensure faith of the public in the judicial system.

Read report, here…

Law on Review

Can review be sought wherein Court has to delve into materials, apply its mind afresh after re-evaluating materials? Del HC throws light

Expressing that, Minor mistakes of inconsequential importance are insufficient to seek a review, Asha Menon, J., elaborated that, while seeking review of orders passed in a Civil Suit, the grounds mentioned in Order XLVII Rule 1 of the CPC have to be satisfied, which would not equate the hearing with the original hearing of the case or a hearing in an appeal 

Read report, here… 

Eviction

Group of leading artistes asked to vacate Government allotted premises under Discretionary Quota: Right to continue in public premises infinitely? Detailed report

Expressing that a state of indecision could not have given rise to a legitimate expectation, Yashwant Varma, J., held that, while the petitioners undisputedly were illustrious and pre-eminent exponents in their respective fields of the classical arts, the Court was not shown any material which may justify the continued retention of public premises in Delhi or that they would be unable to propagate the classical arts in any other State or city of the nation.

Read report, here… 

Shared Household

Where the residence is a shared household, would it create any embargo upon owner to claim eviction against his daughter-in-law? Read what Del HC says

Yogesh Khanna, J., held that right of residence under Section 19 of the Domestic Violence Act is not an indefeasible right of residence in a shared household, especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.

Read report, here…

Section 138 NI Act

Vicarious Liability of Directors of Company for offences committed under S. 138 NI Act: Person claiming to not being able to manage business due to his age, could this be accepted as defence? Del HC answers

Subramonium Prasad, J., addressed a matter pertaining to vicarious liability of directors of the company alleged for offences under Section 138 NI Act.

Read report, here…

Passport

Adoptive Father of a minor girl seeks issuance of her passport with details of adoptive parents so that she could write her TOEFL examination: Here’s what Del HC directed

Kameswar Rao, J., addressed a matter wherein a minor child was not able to apply for a passport either in the name of her biological parents or in the name of her adoptive parents, was unable to pursue her academics in the USA.

Read report, here…

Other

Power under Article 227 of Constitution of India cannot be exercised to upset conclusions, howsoever erroneous they may be, unless there was something grossly wrong or unjust: Del HC

Asha Menon, J., while expressing the scope of power under Article 227 of the Constitution of India dismissed the present petition. 

Read report, here…


Gujarat High Court


Will

Opportunity of being heard needs to be granted; Court decided in matter of the Will of Guru Ranchhoddas

A.P. Thaker, J. decided over a petition wherein the case of the petitioner was that the properties in question were originaly private properties of Guru Keshavdas, and after the death of Guru Keshavdas, Guru Karsandas became the Mahant and succeeded the properties under his Will. On the death of Guru Karsandas his chela Guru Atmaram became Mahant and succeeded to the properties of Guru Karsandas under his Will dated 08.12.1941. Thereafter, Guru Atmaram died leaving his Will dated 06-05-1947, appointing Guru Ranchhodas as Chela.

Read report, here…


Himachal Pradesh High Court


Couples have to make their choice at the threshold between career prospects and family life; HP HC observes in a case where a mother seeks job transfer to be with her daughter

“…mandamus is a public remedy and this remedy lies, when a public authority fails to perform the duty entrusted to it by law.”

Read report, here…


Jammu and Kashmir and Ladakh High Court


Inherent Power

Instead of filing an appeal before the Sessions Court petitioner rushed to this Court invoking its inherent power. Can High Court exercise its inherent power? Read J&K and Ladakh HC’s decision

Mohd. Akram Chowdhury, J., reiterated the settled position of law that if an alternate efficacious remedy is available under the statute, the inherent power of this Court cannot be invoked.

Read report, here…


Jharkhand High Court


Lokayukta 

Does Lokayukta have power to pass directions upon disciplinary authority to take action against erring officials? Jharkhand HC elaborates in light of Jharkhand Lokayukta Act, 2001

Sujit Narayan Prasad, J., addresses a very pertinent question of whether the Jharkhand Lokayukta Act, 2001 provides power for issuance of direction upon the disciplinary authority to take action against erring officials or can it’s order be limited to a recommendation.

Read report, here…


Kerala High Court


Cruelty

Is not taking treatment for mental illness to bring out a peaceful family atmosphere a form of cruelty and thus, a ground for divorce? HC answers

In an interesting case the Division Bench of A.Muhamed Mustaque and C.R. Sophy Thomas, JJ., held that not taking treatment for mental illness in order to bring out a peaceful and harmonious family atmosphere can also be counted as cruelty to the persons at the receiving end.

Read report, here…

If Court finds that marriage failed due to incompatibility, but one of the parties withholds consent for mutual separation, would that be ‘Cruelty’? Kerala HC elaborates

Expressing that, “If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

Read report, here…

Constitutional & Statutory Obligation

Whether State empowered to reject medical reimbursement for treatment being from unrecognized department of recognized hospital? HC decides

Murali Purushothaman, J., held that there is a Constitutional as well a statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family.

Read report, here…

Reservation

“Marrying a Christian man would not wipe off the benefit of reservation granted to a scheduled caste persons”, HC reiterates caste of a person is to be decided on the basis of birth

Raja Vijayaraghavan V, J., held that marrying a Christian man would not wipe off the benefit of a reservation granted to scheduled caste persons.

Read report, here…

Corporal Punishment

Teacher administering moderate and reasonable force to enforce discipline in classroom, can be exposed to criminal prosecution? Kerala HC answers 

While explaining that inflicting corporal punishment on a Child by a parent or teacher is forbidden, Dr Kauser Edappagath, J., observed that,

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

Read report, here…

Registration of Marriage

If a foreign embassy doesn’t issue ‘Single Status Certificate’ or NOC of an OCI card holder, can Declarations and Certificates be accepted for registration of marriage in India? Ker HC answers

While addressing a matter wherein an Indian Citizen intended to soleminse and register his marriage with a British Citizen, an OCI card holder, N. Nagaresh, J., held that f a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

Read report, here…

Tobacco at residence

If a person keeps tobacco at residence, would that amount to being an offence? Ker HC answers

While addressing a matter for an offence alleged under Cigarettes and Other Tobacco Products Act, Juvenile Justice Act and Kerala Police Act, Dr Kauser Edappagath, J., expressed that mere keeping tobacco at residence would not amount to being an offence.

Read report, here…

Admin of WhatsApp Group

Can an Admin of a messaging service group be held criminally liable for the offensive content posted by member of a group? Kerala HC addresses

While addressing the question of whether the creator or administrator of a WhatsApp group is criminally liable for offensive content posted by a group member, Dr Kauser Edappagath, J., held that a person can be criminally liable for the acts of another if they are party to the offence.

Read report, here…


Karnataka High Court


 Hijab Case

When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order

While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

Read report, here…

Sentence

Conviction sentence not to affect career and not be treated as a remark for employment; Kar HC confined the sentence to fine only in accordance with Ss. 279 and 337 IPC

Sreenivas Harish Kumar, J., disposed of the petition and modified the judgment of the appellate court.

Read report, here…

GST Exemption 

Whether GST exemption can be claimed for leasing out residential premises as hostel to students and working professionals? Kar HC answers 

The Division Bench of Alok Aradhe and M.I. Arun, JJ., addressed whether GST exemption can be claimed for leasing of residential premises as a hostel to students and working professionals.

Read report, here…


Madras High Court


Negotiable Instruments Act

Whether proceedings under Ss. 138 and 141 of NI Act can be initiated against corporate debtor during moratorium period? Madras HC answers

Sathish Kumar, J., while addressing a matter with regard to the dishonour of cheques under Section 138 of Negotiable Instruments Act, 1881, held that the moratorium provision contained in Section 14 of the Insolvency and Bankruptcy Code, would apply only to corporate debtor, but the natural persons mentioned in Section 141 of Negotiable Instruments Act continue to be statutorily liable under Chapter XVII of the Negotiable Instrument Act.

Read report, here…

Religious Practice

“One of the basic tenets to be followed by every Hindu is tolerance. Tolerance must be his own community or religion and in particular, to also to every other religious practice”: Madras HC

“Fundamental Rights and Duties are sacrosanct and binding on the Courts which adjudicate issues relating to the religion.”

Read report, here…


Madhya Pradesh High Court


 MBBS Seat

CBI’s self-contained note cannot form basis for rejecting application for increase of MBBS Seat; HC directs NMC to consider the application afresh 

The Division Bench of Sujoy Paul and Arun Kumar Sharma, JJ., quashed the National Medical Commission’s decision rejecting L.N. Medical College & Research Centre’s application for increase of MBBS seats.

Read report, here…

Writ of Mandamus

Provision for redressal of grievance in matter of radiation by mobile tower exists; Permission for installation can’t be revoked

Nandita Dubey, J. heard a petition which was filed seeking issuance of the writ of mandamus to the respondents to take appropriate effective steps against the Reliance Telecom Services not to permit them for installation of the mobile tower in the premises of Jai Hind School, V.V. Giri Ward, Pipariya.

Read report, here…

Departmental Inquiry

Desirable to stay the departmental proceedings till conclusion of the criminal case; Court prohibits Department to continue inquiry

Atul Sreedharan, J. decided on a petition which was filed by the petitioner who was aggrieved by the departmental proceedings against him on the identical charges by the CBI in the criminal case. 

Read report, here…

Land Acquisition

What would be an appropriate factor by which market value of land was to be multiplied to assess the compensation in the case where the land was situated in the rural area? [NH- 148N land acquisition] 

The Division Bench of Vivek Rusia and Rajendra Kumar Verma, JJ. took up a bunch of petitions which had similar facts that the petitioners were owners of agricultural land that came under the acquisition for construction of 12 lanes Delhi-Mumbai Expressway i.e. NH-148N under the provisions of the National Highways Act, 1956 (‘the NH Act of 1956’). 

Read report, here…

Acquittal

Unless the acquittal in criminal trial is honourable/clean, the employer has enough discretion to find a candidate to be unfit for employment

The Division Bench of Sheel Nagu and Sunita Yadav, JJ. while hearing a petition under Article 227 against order the Central Administrative Tribunal, Jabalpur Bench., dismissed the petition.

Read report, here…


Meghalaya High Court


Meghalaya Civil Service and the Meghalaya Police Service

There is no question of apples and orange being put in the same basket: Court calls State’s action foolish and justification of such act real tragedy

Sanjib Banerjee, CJ. while deciding in the matter between groups of persons in the Meghalaya Civil Service and the Meghalaya Police Service, pertaining to seniority between or among them, disposed the writ petition in favour of petitioners.

Read report, here…

Rape Case | Confession

Unequivocal confession leads to dismissal of appeal in a Rape case with minor

The Division bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. dismissed the appeal which was filed on behalf of the convict with counsel engaged by the Legal Services Authority.

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Police Service 

“It is elementary that when the law requires a certain thing to be done in a particular manner, it has to be done in such manner or not at all”; Court upholds the dismissal of police official for passing information to outlaws 

“….the appellant had links with the banned outfit and had passed on information about police movements and operations to the outlawed organisation” 

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Orissa High Court


Ever-growing stock of seized vehicles

PIL filed about the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha; Directions issued

Muralidhar, CJ. issued directions regarding the ever-growing stock of seized vehicles and other properties in the various police stations in the State of Odisha

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Punjab and Haryana High Court


 Drug Menace

“Drug menace has become deep rooted and is taking its toll like a slow poison for the young generation”; HC expresses anguish over callously casual approach of officers

In a case exposing callous attitude of authorities while dealing with drug menace in the State of Punjab, Meenakshi I. Mehta, J., observed that in some paras of the Statu sreports/Reply, the police officers concerned had mentioned the tablets, allegedly recovered as ‘CLAVIDOL-100 SR’ whereas in certain other paras the same had been described as ‘CLOVIDOL-100 SR’. Criticizing the lackadaisical attitude of officers, the Bench remarked…

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State of Punjab which was known as one of the prosperous States is now at the brink of drug-trafficking

Expressing that, State of Punjab which was known as one of the prosperous States is now at the brink of drug-trafficking, Harnaresh Singh Gill, J., held that in order to curb the menace of drug trafficking the accused person are to be dealt with stringently even at the stage of granting her/him bail in NDPS Act cases involving commercial quantity.

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Patna High Court


Mental Health 

Mental health of a person and/or treatment of those who are in need, more so during the time of Covid-19, is the least priority of the State Government

The Division Bench of Sanjay Karol, CJ and S. Kumar, J., directed the Chief Secretary, Government of Bihar to take all steps ensuring the establishment of State Mental Health Authority as per Section 45 of the Mental Health Care Act, 2017.

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Rajasthan High Court


 Compensation | Motor Vehicle

Money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity in approach; Court observes in a MV accident case demanding higher compensation 

Birendra Kumar J. allowed the appeal and enhanced the award considering the settled guidelines in the subsequent judgments to reach at “just compensation”.

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Customs Act 

DRI officer is not Competent Authority to issue show cause notice and adjudicate the same as “proper officer”; Show cause notice set aside 

A Division Bench of Akil Kumar, CJ and Sameer Kureshi, J. allowed the writ petition and set aside the proceedings issued by show cause notice and subsequent demands confirmed by OIO. 

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Rajasthan Public Service Commission

It would be open for RPSC to conduct written main examination on the rescheduled date, Single Judge bench order stayed

A Division Bench of Akil Kureshi CJ and Sudesh Bansal J. stayed the impugned judgment and left it open for RPSC to conduct a written main examination on the rescheduled date.

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Compassionate Appointment

“…on the ground of delay itself, the heir of the deceased employee shall not be entitled to appointment on compassionate ground.”; Raj HC observes in a case where delay is of almost 13 years 

A Division Bench of Manindra Mohan Srivastava and Anoop Kumar Dhand, JJ. dismissed the petition on the ground that the writ petition filed by the petitioners is without any substance. 

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Transfer

Accepting requests for inter-district transfer can lead to chain reaction and at times considerable administrative difficulties; Raj HC observes while dealing a case related to inter-district transfer

A Division bench of Akil Kureshi CJ and Madan Gopal Vyas J. dismissed the petition stating that nothing would come in the way of the petitioner in seeking inter-district transfer if the Government rules and regulations recognize any such policy.

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 Tripura High Court


 Qualifying Examination

No grievance for non-selection; Court finds criteria fixed by ONGC clear and categorical

Indrajit Mahanty, CJ. dismissed a petition which was filed by the petitioner who was appointed as Junior Security Supervisor at (A-1 Level) in the category of Scheduled Tribe and had appeared for the computer-based test and physical standard test conducted by the ONGC. It was alleged that in the selection process the petitioner was awarded 72 marks but was not selected whereas the candidate (respondent 3) who got only 66.10 marks was wrongly and illegally selected by the respondent 2.

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Conjugal Rights

Whether maintenance granted to the wife under S. 125 CrPC can be cancelled in view of husband’s obtaining a decree for restitution of conjugal rights and wife’s refusal for the same?

S.G. Chattopadhyay, J., decided on a petition which was filed by the petitioner challenging order passed by the Additional Judge, Family Court which stated that the petitioner was not entitled to any maintenance allowance under section 125 Cr.P.C from her husband in view of her refusal to restore conjugal relationship with her husband pursuant to the judgment and decree passed by the District Judge for restitution of conjugal rights.

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Bail

Tests provided under S.37(1)(ii) of the NDPS Act should qualify in order to seek bail; Court rejects application 

S.G. Chattopadhyay, J., rejected a bail application which was filed for releasing the accused on bail who had been undergoing imprisonment since 16-09-2021 under NDPS Act, 1985. Successive applications of the accused for pre-arrest bail were rejected.

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Die-in-Harness Scheme

Exclusion of married daughters from the die-in-harness scheme of the State Government discriminatory? Court discusses

The Division Bench of Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. decided over a bunch of petitions which had a similar question pertaining to exclusion of married daughters from the die-in-harness scheme of the State Government. 

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Migratory Birds

More than 1000 ‘Rare’ Birds dead, no carcasses found; Court directs committee inspection 

The Division Bench of S.G. Chattopadhyay and Indrajit Mahanty, JJ., took up a PIL which was filed on the basis of press reports that in the Sukhsagar water body of Udaipur, Khilpara, large number of migratory birds of more than 1000 in numbers were found dead. Notices were issued and following the directions of this Court a report had come to be filed by the State wherein the State had taken note of the fact that many migratory birds come and find sanctuary in water bodies in the State of Tripura and they come all the way from Spain, Portugal, South East France, Italy and North Western Africa and have all been listed as “Rare” birds by the European Union, but it seems that the same has been detailed as localized by the State.

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Uttaranchal High Court


Right to Information

Husband seeking personal information such as salary of wife under Right to Information Act, 2005; Whether acceptable or not?

“….The only exception as to the information given under the Act under Section 8 of the RTI Act, is an exemption from disclosure of information.”

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Termination of Pregnancy

Compelling to continue pregnancy, infringement under Art. 21; Rape victim allowed to terminate Intrauterine Fetus of 28 weeks 5 days

Alok Kumar Verma, J., decided on a petition which was filed by the father of the minor petitioner to issue a writ in the nature of mandamus commanding and directing the respondent to ensure immediate medical termination of petitioner’s pregnancy after taking all precautions as required to be taken medically and legally.

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Bail

Denial of bail on sole ground of apprehension that he may commit crime again, overturned by the Court

R.C. Khulbe, J. granted bail in a criminal revision petition moved against the order of Juvenile Justice Board (JJB), Dehradun as well as a judgment by Addl. Sessions Judge (POCSO)/FTC, Dehradun against the petitioner.

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8 Legal Stories of the Week: From High Courts to District Courts

7 Legal Stories of the Week: From High Courts to District Courts

11 Legal Stories of the Week: From Hijab ban to a Sexual Harassment complaint from an employee in ScoopWhoop & more

8 Legal Stories of the Week: From the release of movie Gangubai Kathiawadi to WhatsApp Admin’s liability if a member of group shares objectionable content on group and many more such stories

Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court had directed Kolhapur Municipal Corporation to acquire an unusable land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and compensate the landowners, the bench of MR Shah* and BV Nagarathna, JJ has held that when land is found to be unsuitable and unusable for the purposes for which it has been reserved, Corporation cannot be compelled to pay a huge compensation for such a useless and unsuitable land.

The dispute is with respect to the land ad-measuring 3 Hectors and 65 Ares in Kolhapur. The development plan for the City of Kolhapur was sanctioned on 18.12.1999. Different portions of the land in question were reserved in the sanctioned development plan for various public purposes namely, parking, garden, extension of sewage treatment plant etc. By Resolution dated 18.02.2012, the General Body of the Municipal Corporation resolved to acquire the said property and accordingly on 17.04.2012, a proposal was submitted by the Municipal Corporation to the State Government for compulsory acquisition of the subject property.

However, the subject land is flood affected through which a rivulet named ‘Jayanti Nala’ passes, making it unsuitable for the public purposes for which it was reserved. Further, it was argued that unless and until the substantial development is carried out, the land in question was not usable at all. The reserved area is coming within High Flood Line and every year for a period of fifteen days to one month, the said area gets flooded during rainy season.

As the land in question was not acquired and/or used for the public purposes for which the same was reserved under the sanctioned development plan, the original landowners served a notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966.

It is also to be noted that the reservation had lapsed as a mere Resolution being passed by the General Body of the Corporation to acquire the land and sending a letter to the Collector to acquire the land, without any further steps being taken under the Land Acquisition Act, namely no declaration under section 6 thereof being issued within a period of one year from the receipt of the said purchase notice, would result in the reservation as deemed to have lapsed.

The Supreme Court observed that once the reservation of land under the Development Plan is deemed to have lapsed by operation of law and it is released from reservation, no writ of Mandamus could have been issued by the High Court directing the Corporation to still acquire the land and to issue a declaration under Section 19 of the Act of 2013 (as in the meantime, the Land Acquisition Act, 1894 has been repealed and Act of 2013 has been enacted).

“Once by operation of law, the reservation is deemed to have lapsed, it is lapsed for all purposes and for all times to come.”

The Court also held that the High Court was not justified in directing the Municipal Corporation to acquire the land in question and to issue a declaration under Section 19 of the 2013 Act and to pay compensation under the Act of 2013 as right from the very beginning it was stated in the counter before the High Court that the land in question was not suitable and/or usable for the purposes for which it has been reserved.

“… as such at the time when the planning was made and the land in question was put under reservation for public purposes, a duty was cast upon the Planning Officer to consider whether the land, which will have to be acquired and for which the compensation is to be paid is really suitable and/or usable for the public purposes for which it is reserved. Otherwise, every landowner will see to it that though his land is not suitable and/or not very valuable, is put under reservation and the same is acquired by the Corporation and/or the Planning Authority and thereafter he is paid the compensation.”

It was, hence, held that no Corporation and/or the Planning Authority and/or the Appropriate Authority can be compelled to acquire the land which according to the Corporation/Planning Authority is not suitable and/or usable for the purposes for which it is reserved. Any other interpretation would lead to colourable and fraudulent exercise of power and cause financial burden on the public exchequer.

Under the Act of 2013, the Corporation was required to pay a huge sum of Rs. 77,65,12,000/- by way of compensation under the Act of 2013. According to the Corporation, when the entire annual budget for acquisition was Rs. 21 crores, it was beyond their financial position and/or budgetary provision to pay such a huge compensation, that too, for the land which is not suitable and/or useable for the purposes for which it has been reserved.

In such circumstances, the Court observed that while under MRTP Act, the financial constraint cannot be the sole consideration to acquire the land for the purposes for which it has been reserved namely public purposes, however, at the same time, when such a huge amount of compensation is to be paid and there would be a heavy financial burden, which as such is beyond the financial capacity of the Corporation, such a financial constraint can be said to be one of the relevant considerations, though not the sole consideration before embarking upon reservation of a particular extent of land for development.

The Court also held that a landowner is entitled to TDR in lieu of compensation with respect to the land reserved provided the land to be acquired is suitable and/or usable by the Corporation. However, once it is found that the land is not usable and/or suitable for the purposes for which it has been reserved, the Corporation cannot still be compelled and directed to acquire the land and grant TDR in lieu of amount of compensation.

[Kolhapur Municipal Corporation v. Vasant Mahadev Patil, 2022 SCC OnLine SC 179, decided on 14.02.2022]


*Judgment by: Justice MR Shah


Counsels

For Corporation: Senior Advocate Aparajita Singh

For Original Landowners: Senior Advocate C.U. Singh