Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: While deciding the instant appeal wherein the issue was whether the liability of the Insurance Company is absolved in cases where the driver of an insured vehicle had died due to heart attack when such insured vehicle was not in use at the time of his death; the Bench of H.P Sandesh, J., observed that usage of vehicle does not mean that at the time of his death, the driver was necessarily driving the vehicle. Since in casual connection of his employment, the driver was sleeping in the lorry and while taking a rest, suffered a heart attack, therefore this scenario would not absolve the Insurance Company from paying the compensation.

Facts of the Case: The deceased Eranna was working as a lorry driver with the respondent. In order to take some rest, he halted his vehicle near Idya village. It while taking rest that Eranna died due to cardiac arrest.

Eranna’s legal representatives laid a claim before the Workmen’s Commissioner. The vehicle’s owner admitted to Eranna’s employment and to the fact that he died due to cardiac failure during the course of employment. The insurance company contested the claim and contended that Eranna’s death was not an accidental death and since he was taking intoxicating drugs, hence, the Insurance Company is not liable to pay the compensation as the same is not covered under the policy.

Upon examining the claims, the Commissioner allowed the same and directed the Insurance Company to pay compensation of Rs. 3,03,620 with 12% interest. Aggrieved with the Award, the Insurance Company preferred the instant appeal.

Contentions: The counsels for the Insurance Company submitted that Eranna’s death is due to cardiac failure and the same is not a ground of usage of vehicle and the Commissioner was not justified in saddling liability on the insurer.

It was further submitted that there were complaints lodged against the deceased stating that he was in the habit of indulging in intoxication every day and since the deceased was a habitual drinker, there is no liability on the employer to pay the compensation and there must be a causal connection between the death and the use of vehicle.

Per- contra, the claimants presented the deceased’s post-mortem report which revealed that the deceased drove a tipper lorry, which is heavy vehicle and operating such vehicles are stress and heart attack inducing. It was contended that stress was the very nature of the deceased’s employment. The respondents also pointed out that the vehicle owner had not been examined.

Observations and Decision-

  • Upon perusal of the facts and contentions, the Court observed that the deceased’s employment and his death by heart attack is not in dispute; and neither there is a dispute as to the fact that the deceased had parked his vehicle and was resting.

  • The Court observed that the core question in the dispute is related to the exoneration of the Insurance Company’s liability on ground of the vehicle’s non-usage during the time of death.

  • The Court noted that the vehicle owner (the insured) had already admitted that Eranna had died during the course of employment, thus Insurance Company now cannot dispute that the death occurred during the course of employment. The Court also noted the Commissioner’s findings regarding the high degree of stress involved while driving a tipper lorry.

  • Regarding the non-usage of the tipper lorry during the time of death, the Court pointed out that it is not necessary that the vehicle must be in usage at the time of death and the Court must take note of casual connection with employment and death and the policy taken to cover the risk of the driver. The Court also rejected the contention of the Insurance Company that since Eranna’s died a natural death, the Company does not have any liability to pay compensation. The claims of Eranna’s alleged habitual alcoholism were also rejected by the Court, as no material was presented in this regard.

  • Finally, the Court noted that Eranna died while sleeping in the vehicle itself and the fact that he was working on the day of his death. Furthermore, the Court pointed out that the Insurance Company failed to place any relevant material before the Court that may have revealed that there was no casual connection with cause of death and his employment.

  • With the afore-stated observations, the Court held that the Insurance Company cannot be exonerated with the liability to pay compensation and dismissed the appeal.

[The Divisional Manager v. Shankaramma, M.F.A. NO.20003/2010 (WC), decided on 09-09-2022]


Advocates who appeared in this case :

S. K. Kayakamath, Advocate, for the Appellants;

Shivakumar S. Badawadagi, Advocate, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In two cross letter Patents appeal, one by the petitioner/appellant for the enhancement of costs imposed upon the Municipal Corporation of Delhi (MCD) and other by the MCD setting aside of the compensation imposed upon it, the division bench of Satish Chandra Sharma, CJ. and Subramonium Prasad, J. while enhancing the compensation awarded to the appellant, observed that the Municipal Corporation was constituted for the precise purpose of providing basic amenities to the citizens, thus, it cannot shirk off its responsibility on the ground that society was once unauthorised or by citing financial constraints.

In this case, when the appellant’s property was constructed, it was placed at the road level. However, subsequently, the MCD has re-laid the adjoining road and each time the road was repaired/re-constructed, the level of the road rose by about 2½ feet. Due to this, the appellant’s house has gone below the road level, thus, the rain water gets collected in the house which has caused damage to the house.

The Court noted that the issue has been under consideration before the Court since 2011 and several status reports have been filed. Also, the MCD has been adamant about not bringing down the road level on the ground that, if it is done then it will create problems for other house owners. Further, a Status Report had been filed on 24.05.2011, admitted that since 1997, roads were repaired many times and because of which the roads have elevated, and that out of 101 properties in the area, 82 properties are at the road level, meaning thereby that the residents have demolished and reconstructed the properties by bringing it to the road level and 11 properties, which are not demolished and re-constructed, are below the road level.

The Court further noted that the MCD admitted that 11 houses were facing the same issue. However, it diverted the blame on the Petitioner and the Delhi Jal Board, by stating that the problem has been caused as Azad Nagar was an illegal/unregularized society. The Court rejected this argument by observing that a sizeable population of Delhi lives in areas designated by the Government as “unauthorized colonies”, which did not feature in the original development area of Delhi or were areas which were not zoned for residential use. Thereafter, the Government of NCT Delhi initiated the regularisation process in the 1970s, then the early 1980s, with the aim of including these societies within the development plans of the city. Thereby, the appellant’s colony was regularised in 1987.

Moreover, the Court viewed that the locality of Azad Nagar faces the issue of waterlogging because the MCD has indiscriminately repaired the roads, without following basic care and caution and this has compelled individuals, who did not have the finances to raise the level of their houses to sell their houses to builders, thus, it rejected the argument that the issue of waterlogging has occurred due to the status of the colony, further, the MCD needs to ensure that other societies which were “unauthorised” and have subsequently been regularised are provided with the requisite sanitation facilities, functional drainage system, roads, and other similar infrastructural amenities.

The Court strongly objected to the MCD’s suggestion that the petitioner should apply for a fresh sanction plan and rebuild her house, as MCD is a public body duly enacted for the benefit of the public at large, thus, it cannot reasonably expect individuals to reapply for sanction plans, and further build their houses from scratch. Moreover, the Court viewed that it should not be the prerogative of a few, with the requisite finances, to enjoy the basic amenities as basic as sanitation, functional drainage systems, and mindfully constructed roads.

The Court observed that it is unfortunate that not only has the MCD created the issue of waterlogging but also aggravated the situation by not taking appropriate measures to avoid choking drains during monsoon. Further, it observed that “it is well settled that it is the duty of the MCD to ensure that there is no water logging and proper storm water drains are constructed, and it cannot pass the buck to the residents to contend that since the storm water drains are clogged nothing can be done by the MCD” therefore, MCD has failed in discharging its duties.

The Court placed reliance on the ruling in Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC 162, wherein the Court held that a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability.

The Court took note of the ruling in Municipal Corpn. of Delhi v. Subhagwanti, (1966) 3 SCR 649 wherein the Court while dealing with the issue as to whether MCD can be held liable to pay compensation in a writ petition, observed that liability to pay compensation arises “in a situation where the circumstances surrounding the thing which causes the damage are exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant’s part.”

The Court also took note of various Supreme Court’s rulings like Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, Municipal Corpn. of Delhi v. Sushila Devi, (1999) 4 SCC 317 and S Sube Singh v. State of Haryana, (2006) 3 SCC 178, wherein the Court observed that “it is well-settled that award of compensation against the State is an appropriate and effective remedy for redressal of an established infringement of a fundamental right under Article 21, by a public servant”, and observed that a responsible Municipal Corporation consisted for the precise purpose of providing the basic public goods cannot shirk off its responsibility by citing financial constraints. Further, the MCD has been grossly negligent in its conduct, and to do complete justice, providing monetary compensation to the appellant is the most viable mode of redress available.

Moreover, it was observed that a fresh evaluation indicates that the appellant would have to spend close to Rs. 21.20 lakhs to carry out the necessary repairs. Further, the appellant is 80 years old and has been pursuing this litigation for over a decade, has suffered loss of her material possessions, and has undergone immense agony and anxiety for a prolonged period, thus, the Court enhanced the compensation awarded to the appellant by a sum of Rs. 9,00,000/ and rejected the challenge by the MCD to the impugned order awarding compensation of Rs. 3,00,000/- to the appellant.

[Leela Mathur v. Municipal Corporation of Delhi, 2022 SCC OnLine Del 2731, decided on 02.09.2022]


Advocates who appeared in this case:

For Appellant: Senior Advocate Akhil Sibal

For Respondents: Advocate Tushar Sannu,

Advocate Pooja Gupta

Advocate Ajjay Aroraa

Advocate Anuj Bhargava

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: In an appeal filed challenging the impugned judgment passed by the lower court, wherein the court awarded Rs 51,000 towards compensation to the respondent due to the failure of a Laparoscopic Tubectomy (LTT) operation, P. Sam Koshy, J. held that respondent would not be entitled for any compensation/damages as upon conceiving the 5th child (unwanted child) as a result of the alleged failure of the LTT operation, as there was no intimation given by the respondent to the Government or to the concerned Doctor at Primary Health Centre (PHC) from where she had undergone LTT Operation, and if she was really not interested in having the 5th child or was serious about the family planning operation , she must have approached the concerned Doctor at the PHC with a request for termination of her pregnancy in terms of the Medical Termination of Pregnancy Act, 1971.

In this case a family planning camp was organized on 9.12.1998, wherein a large number of women belonging to the said locality had undergone the LTT Operation. The said operation is a surgical sterilization procedure adopted on the willing ladies in order to ensure that they do not have any further children. However, the respondent’s surgery resulted in a failure, as immediately about a year’s time she again conceived and gave birth to her 5th child.

The Court noted that there was no pleading, no evidence led by the respondent to show any lapse or negligence on the part of the doctor conducting the operation or on the part of any other persons involved in the said operation. Further, placing reliance on the Explanation (2) of S.3 of the Medical Termination of Pregnancy Act, 1971 (‘MTP Act’) that provides for termination of pregnancy where pregnancy occurs as a result of failure of device or methods used by any married women or husband for the purpose of limiting the number of children, the court observed that the respondent does not seem to have made any immediate approach to the PHC where the Doctors could have advised the respondent about the options available to her.

The court further observed that “it is established that even after having the 5th child the respondent has further conceived and gave birth to another child i.e., 6th child at a later stage which further gives an indication of the fact that she was not quite serious about the issue of failure of LTT Operation or else she would have taken appropriate remedial measures that were medically available at that point of time”.

The Court took note of the ruling in State of Punjab v. Shiv Ram, (2005) 7 SCC 1, wherein the Court held that “merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam’s test”. It further relied on State of Chhattisgarh v. Meenabai, 2019 SCC OnLine Chh 132 having an almost similar set of facts, wherein the Court has allowed the appeal of the State Government of setting aside the decision passed by the Trial Court.

[State of Chhattisgarh v. Triveni Bai, 2022 SCC OnLine Chh 1557, decided on 22.08.2022]


Advocates who appeared in this case :

Avinash K. Mishra, Advocate, Counsel for the Appellant;

Vivek Tripathi, Advocate, Counsel for the Respondent.

High Court Round UpLegal RoundUp

The High Court Roundup brings a curated list of the top stories of the month to ensure readers do not miss any important updates. This month’s roundup covers the stories of Rights of LGBTQIA+, Bigamy & Talaq under Muslim Law, Non-payment of GST, Deceased’s right to dignity, WhatsApp’s Privacy Policy, Trademark Infringements, and many more:

Allahabad High Court

Top Story—Deceased’s Right to Dignity

The Court in Suo-Moto v. State of U.P., 2020 SCC OnLine All 1088 while dealing with the extremely sensitive matter of Hathras gangrape where dead body of the victim was taken to her native village but surprisingly and painfully enough it was not handed over to the family members so that the last rites of the deceased victim could be performed as per prevalent customs and religious inclinations in a decent and dignified manner but it was cremated with the help of some other persons at about 2- 2.30 a.m.

“The right of dignified life under Article 21 of the Constitution of India is not only available to a living person but also to the ‘dead’. These rights are not only for the deceased but, his family members also have a right to perform last rites as per religious traditions.” Read more…

On the trend of Compromise

Allahabad High Court points out the trend of compromise after receiving the compensation from the State; Suggests disbursement only after conviction. The Court opined,

“Taxpayers’ money is being misused in this process. It would be appropriate to disburse the compensation only on conviction of the accused and not filing of the FIR and submission of the charge-sheet.” Read more…

On Trade Tax

Allahabad High Court upholds order by Trade Tax Tribunal holding insulated glass as taxable unclassified commodity @ 10%. Read more…

On Sidhique Kappan Bail

Charge-sheet and documents adduced prima facie point towards guilt; Allahabad High Court denies bail to journalist Sidhique Kappan [Hathras gang-rape row]. Read more…

On Age Relaxation in Recruitment

Over-aged candidates can neither claim participation in selection process nor seek conduct of recruitment every year as a matter of right. Read more…

On PIL in Service Matters

“PIL in service-related matters ought not to be entertained”; Allahabad High Court dismisses PIL seeking increase in retirement age of PwD. Read more…

On Social, Moral Responsibility to Maintain Wife

Allahabad High Court | Social, Legal and Moral Responsibility of a man to maintain his wife; Appeal dismissed. Read more…

Andhra Pradesh High Court

On Abetment of Suicide

Subba Reddy Satti J. granted anticipatory bail to the Chief Executing Officer (applicant-accused) as on perusal of complaint there was no sign of instigation and abetment and mere allegation of harassment will not attract offence under Section 306 Penal Code, 1860 (‘IPC’) unless such actions compelled the victim to commit suicide. Read more…

Bombay High Court

Top Story—Environment Protection

While perusing the newly framed Policy for Environmentally Safe Making and Immersion of Idols/Tazia and its Enforcement (‘the Policy’), as drafted by Maharashtra Government’s Environment and Climate Change Ministry, the Division Bench of A.S. Chandurkar and Urmila Joshi-Phalke, JJ., observed that the presented Policy which will be operational for this year (2022), must be given adequate publicity so as to create awareness in the public. The Bench also expressed its hope that the local authorities will also take necessary steps to dutifully follow the Policy, so that it achieves its intended targets for this year. Read more…

On Unhygienic Sanitary Conditions of Schools

DLSA’s to conduct surprise inspections in Government schools over unclean and unhygienic sanitary conditions. Bombay High Court takes cognizance of a PIL alleging unclean and unhygienic state of affairs in the washrooms and toilets for the young girl students in Government aided schools. Read more…

On wrongful Arrest of Nigerian National

Bombay High Court grants bail to Nigerian national who spent 2 years in jail on NDPS charges due to a typing error in forensic report; asks State to come up with compensation proposal. Read more…

On Abetment to Suicide

Sudden reaction of a 19-year-old boy to the news of pregnancy, May fall short of the essential ingredients required to form the offence of abetment to suicide: Bombay High Court Read more…

On Rape

Once prosecution has proved the offence of rape, there is no reason for the Trial Court to award a lesser sentence than what the statute prescribes: Bombay High Court Read more…

On SARFAESI

S. 14 of SARFAESI Act empowers the Designated Authority only to assist secured creditors in taking possession of secured assets and nothing more: Bombay High Court Read more…

Calcutta High Court

Top Story—Non-payment of GST

Calcutta High Court stays any coercive action until final decision in matter of arbitrary action of State for non-payment of GST on contracts executed prior GST regime. Md. Nizamuddin, J. directed the respondents authority concerned to consider neutralizing the impact of unforeseen additional tax burden on Government contracts since the introduction of GST w.e.f. 01-07-2017 for ongoing contract awarded before the said date and to update the State SOR incorporating applicable GST in lieu of inapplicable West Bengal VAT henceforth. Read more…

On Arbitration

Conduct of Parties — not a substitute for an arbitration agreement| Calcutta High Court holds the court cannot substitute arbitration agreement with conduct of parties while exercising powers under Section 11 of the Arbitration and Conciliation Act, 1996. Read more…

Illegal procedure for appointment of Arbitrator does not render Arbitration agreement illegal in toto; Guiding Principles for Appointment of Arbitrator reiterated Read more…

Chhattisgarh High Court

On Election

Chhattisgarh High Court declares election null and void for non-disclosure of criminal antecedents, including acquittal in criminal case. In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right. Read more…

Delhi High Court

Top Story—Anti-competitive WhatsApp Terms

Delhi High Court upholds CCI’s direction to investigate alleged anti-competitive WhatsApp Terms of Service and Privacy Policy, 2021; Prima facie case established to investigate; FB a proper party. The appeals were filed by WhatsApp and its parent company Facebook challenging the jurisdiction of Competition Commission of India (CCI) to direct investigation into the 2021 Terms of Service and Privacy Policy of the Appellant on the ground that it violates the provisions of the Competition Act, 2002, when the matters arising from the same issue is pending before Supreme Court. Read more…

On Copyright Infringement

Delhi High Court denies injunction against News Laundry Media on allegations of copyright infringement, defamation and commercial disparagement by TV Today Network. Commenting on commercial disparagement, the Court said,

“Commercial Disparagement would occur when one player in the field derides a rival and belittles or discredits or detracts from the reputation of such a rival in respect of its products, services or business. While claiming to be the best, any statement about a competitor’s goods, which could be untrue or misleading and is made to influence or tend to influence the public, would amount to disparagement”. Read more…

On False Rape

Delhi High Court reprimands filing false FIR alleging rape charges; Directs woman to work at blind school; Directs man to plant 50 trees as punitive measure. Read more…

On Trademark Infringement

Theo recognizes Theobroma as owner and proprietor of mark “THEOBROMA”; Settlement terms agreed between parties. Read more…

Delhi High Court injuncts Royal Champ from using Royal Stag/ Seagram marks; Similar label also amounts to copyright infringement; Directs Rs 20 lakh as damages . Read more…

Delhi High Court grants ad-interim injunction against Bikaner’s Madhav Namkeens having deceptively similar logo as of Pepsico’s Lays. Read more…

Delhi High Court injuncts myshoeshop from violating trademark rights by selling first copy shoes of NB Device mark as well as Adidas, Nike, Louis Vuitton etc. Read more…

On Flipkart’s “Latching On” Feature

Delhi High Court restrains Flipkart from allowing third-party sellers to ‘latch on’ to mark ‘V Tradition’; Directs to ensure ‘Latching On’ feature is disabled. Read more…

On Chinese Manjha

Delhi High Court denies complete ban on kite flying but directs to comply directions already in place against use of Chinese Maanjha. Reade more…

On Non-compliance of Sports Code

Compliance with Sports Code non-negotiable; Delhi High Court warns IOA of derecognition if compliance with Sports Code is not made; Temporary CoA constituted. Read more…

On Criminal Liability of Intermediary

Intermediary entitled to claim protection u/s 79 IT Act for criminal liability unless ‘active role’ is disclosed; Delhi High Court quashes FIR against Flipkart. Read more…

On Legitimate Expectations of Students

Delhi High Court grants relief to a student seeking admission in BITS Pilani after CBSE violates ‘legitimate expectation of the students’. Read more…

On POCSO

Judicial scrutiny of date of birth for establishing consensual sexual relation not necessary; Delhi High Court grants bail in light of accused being honey trapped Read more…

Gujarat High Court

Top Story—On Right to Medical Claim

Gujarat High Court reiterates right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order; Reimbursement directed. The Court stated,

“The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.” Read more…

On Electricity

‘Occupier’ of the land cannot be denied electricity connection only because land is in dispute. Read more…

On Pharmacy Diploma

Students of Diploma in Pharmacy Course can’t be denied registration as Pharmacists on Council’s failure to approve medical stores for training. Read more…

Himachal Pradesh High Court

Top Story—Family Pension to Second Wife

In a petition related to family pension, Jyotsna Rewal Dua, J has held that the second wife of a deceased employee is not entitled to family pension under the Central Civil Services (Pension) Rules, 1972 unless the personal law of the deceased employee allows more than one subsisting marriage. Read more…

On MV Compensation

Himachal Pradesh High Court | Inability to produce documentary evidence of deceased’s income may not justify adoption of lowest tier of minimum wage for computing Motor Vehicle Accident compensation. Read more…

Jammu & Kashmir and Ladakh High Court

Top Story—Right to Property

While deciding the instant petition wherein the issue was that whether misuse of a building from residential to commercial or vice versa in violation of the permitted land use as per the master plan would fall within the ambit of unauthorized ‘erection or re-erection’; the Division Bench of Wasim Sadiq Nargal and Tashi Rabstan, JJ., observed,

“In a democratic polity governed by the rule of law, the State by no stretch of imagination, can deprive a citizen of his/her property without the sanction of law, besides complying with the procedure envisaged in the statutory provision.” Read more…

On Matrimonial Crimes

Courts must carefully scrutinize the allegations of matrimonial crimes against a husband’s relatives. Read more…

On Compassionate Appointments

Compassionate Appointments are not for conferring status on a family; Jammu and Kashmir and Ladakh High Court holds an applicant has no right to claim a compassionate appointment in a particular class or group and it is not for conferring status on the family. Read more…

Jharkhand High Court

On Renewal of Competency Certificate

Past record of competent person for renewal of competency certificate held to be a relevant consideration for renewal; Petition dismissed. Read more…

On Income Tax

Liability cannot be fastened upon the company for delay in TDS when it had taken steps within time. Read more…

Karnataka High Court

Top Story—Eidgah Maidan Controversy

In a case where the State has filed an appeal to seek modification in an interim order passed by Single Judge giving permission for using Eidgah Maidan, the land under challenge for title, for celebrating Independence Day/Republic Day or as a public playground or for offering prayers by Muslim community only in Ramzan and Bakri Eid festivals, a Division Bench of Abhay Shreeniwas Oka CJ., and Vishwajith Shetty J. permitted the State Government to consider applications filed by organizations seeking use of the land in question for holding religious and cultural activities. Read more…

On Bhang under NDPS Act

In a case where the applicant-accused seeks bail on being apprehended by police, having possession of Ganja and Bhang together, K Natarajan, J. granted bail to the applicant as Bhang will not be considered along with Ganja to measure commercial quantity. The Court held that until forensic science lap report does not confirm that Bhang is prepared out of charas or ganja, it is not safe to conclude the same. Read more…

On Azan & Fundamental Right to Faith

A Division Bench of Alok Aradhe CJ., and S. Viswajith Shetty, J., held that azan or the contents of azan does not violate fundamental rights of petitioner of any person from a different faith. The use of loudspeakers, however, must be ensured to be within permissible limits from 10pm to 6 am in accordance with law. Read more…

On Wrongful Arrest

Karnataka High Court appalled to see a case of wrongful arrest as fathers’ name was similar; Directs DGP to issue SOP/Guidelines if not in place; Compensates aggrieved. Read more…

On POCSO

Pulling down pants of kid forcefully as a punishment measure; Karnataka High Court denies relief u/s 482 CrPC to the female teacher. Read more…

On Minimum Wage

Whether Head cooks and cooks employed under Mid-Day Meal Scheme covered under Minimum Wages Act, 1948? Karnataka High Court analyses Read more…

Kerala High Court

Top Story—Mental Cruelty

In a divorce case, Anil K. Narendran and C. S. Sudha, JJ., held that constant and repeated taunts by the husband towards his wife that she is not a wife of his expectations; the comparisons with other women, etc. would certainly be mental cruelty which a wife cannot be expected to put up with. Read more…

On Transgenders Right to Participation in Sports

In a case where a transgender person was declined participation in District Judo Competition, V.G. Arun, J., held that if the organisers have not made arrangements for participating transgenders, they have to allow the petitioner to participate in her chosen category. Read more…

On Talaq and Bigamy under Muslim Law

In a case relating to talaq as per Muslim personal law and bigamy, A. Muhamed Mustaque, J. held that the Family Courts have no jurisdiction to restrain a person from pronouncing talaq or conducting a second marriage as per personal law. The Court remarked,

“The Court has no role in restraining the parties invoking their personal law remedies. The Court should not forget the mandate of Article 25 of the Constitution, which not only allows one to profess religion but also to practice.” Read more…

On Road Safety

Can’t let the roads of Kerala be a killing field; Kerala HC issues directions to NHAI and District Collectors to ensure the roads are craters & potholes free. Read more…

On Medical Termination of Pregnancy

Kerala HC allows a 14-year-old girl to get medical termination of her 28-week pregnancy. Read more…

On Offence of Insulting National Flag

Kerala HC grants anticipatory bail to BJP State General Secretary accused of insulting National Flag by holding it upside down. Read more…

On Rights of PWD

Kerala HC issues notice to Centre & State in a PIL seeking extension of facilities to every person with disability in need of special assistance irrespective of percentage of disability. Read more…

Madhya Pradesh High Court

Top Story—Order XLVII Rule 9

The Division Bench of Ravi Malimath, CJ. and Vishal Mishra, J. dismissed a second review petition holding that pursuant to the provision under Order XLVII Rule 9 Civil Procedure Code, 1908 (CPC), a review of an order passed in a review petition is not maintainable. Read more…

On Illegal Detention

Madhya Pradesh High Court directs State to pay 3 lacs as compensation for illegal detention; Registrar to conduct an inquiry Read more…

On Modification of Criminal Charges

Madhya Pradesh High Court| Charge of Murder added at the time of framing of charge based on Hospital’s MLC can be altered only after further examination. Read more…

Madras High Court

Top Story—Medical Examination for Impotency

In a case where husband filed for annulment of marriage alleging suppression by wife regarding her hormonal imbalance and irregular periods resulting in non-consummation of marriage, R N Manjula J. quashed Family Court’s ruling that directed the wife ‘revision petitioner’ to undergo medical examination of the same and even went ahead to direct medical examination of her genitals which was beyond the scope of the original petition. Read more…

On Removal of Husband from Matrimonial Home

n a case of marital discord and petitioner-wife, a practicing advocate was seeking removal of respondent-husband from the matrimonial home, R N Manjula, J. granted protection order and directed the husband to move out of the matrimonial home in the best interest and welfare of the children and to ensure peaceful possession and enjoyment of the petitioner wife in the home in any manner. The Court said,

“Allowing the respondent to be at the same home but directing him that he should not disturb the other inmates of the home is something impractical. A relief for a person who fears about an impending atom bomb, would be just to remove the bomb from his/her vicinity.” Read more…

On Virtual Wedding

Virtual wedding would meet the requirements of law under S. 12 of Special Marriage Act, 1954. Read more…

On Doctrine of Substantial Compliance

Madras High Court applies doctrine of ‘substantial compliance’ to determine implications of limitation period in the Customs Act, 1962. Read more…

On Nalla Thangal Syndrome

Madras High Court condemns a scornful society that sees misfortune with the birth of a girl child and reduces punishment in the instance of ‘Nalla Thangal Syndrome’. Read more…

On Colonial Slavery

Extracting household work by trained uniformed Police personnel in the residences of the higher Police officials; Madras High Court calls it ‘colonial’ and slap on Constitution and democracy. Read more…

On Orderly System

‘Orderly system’ unconstitutional: Madras High Court directs Tamil Nadu government to eradicate it completely in four months. Read more…

On Appointment of Archaka

Madras High Court holds the temple or group of temples which were constructed as per the Agamas would be governed by the custom and practice, not only in respect of the worship of the deity, but in all respects, which includes even the appointment of Archakas, and not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. Read more…

On Rights of LGBTQIA+

Madras High Court| LGBTQIA+ community sidelined from society’s mainstream for too long; Time for Tamil Nadu Government to frame guidelines to protect their rights. Read more…

On Criminal Procedure

PT warrant can never be converted into regular warrant in a case where the accused person is already on bail; opportunity should be given to the accused to explain his non-appearance Read more…

Meghalaya High Court

On Consensual Sex with Minor Wife

W. Diengdoh, J. allowed a petition where a man was arrested under the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) for allegedly having ‘consensual sex’ with his minor wife. The Court opined that it would be an injustice to separate or to divide a well knitted family unit. Read more…

Manipur High Court

On Accused’s Right to Dignity

In a case where the criminal appeal was pending and the applicant convicted under Section 6 of the Protection of children from sexual offences Act, 2012 (POCSO Act) filed an application for the suspension of sentence, on the ground of ill-health, M.V. Muralidaran, J. observed,

“Under-trial prisoner’s right to life does not diminish even a wee bit when in jail as an accused/convict for an offence and such person’s health concerns have to be taken care by the State and if not done so, by the judiciary. The right to dignity of an accused does not dry out with the Judges. Rather, it subsists beyond the prison gates and operates until his last breath”. Read more…

Orissa High Court

On Tortious Liability of State

Unfortunate death of 7-year-old girl by collapse of newly constructed kitchen wall in school; Orissa High Court directs compensation to the family of the deceased. The Court noted,

“The negligence of the State authorities in using defective materials to construct a kitchen on the school premises has already been established during the enquiry. The death of the young child was totally avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.” Read more…

Punjab and Haryana High Court

Top Story—Downgrading of VIP security Cover

Withdrawal/Downgrading of VIP security cover: Punjab and Haryana High Court directs State to make fresh assessment of security threats; Provide one security personnel until then. The Court said,

“Security issue is not a static phenomenon, rather it is a dynamic process. The security reviews have to be done on a periodical basis by assessing the security threat of the protectees with the passage of time on the basis of official inputs provided by the different agencies including State and Central agencies”. Read more…

On Arbitration

Merely showing existence of another reasonable interpretation not sufficient to allow for interference; Punjab and Haryana HC refuses to interfere with arbitration award. Read more…

On Co-ownership

Possession of joint land by one co-owner valid in absence of proof showing disagreement between other co-owners. Read more…

Rajasthan High Court

On Arms License

Vijay Bishnoi, J. held the appeal filed by District Magistrate before Divisional Commissioner under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner who was the holder of license, as non — maintainable. The Court noted that a bare perusal of Section 18 Arms Act, 1959 clearly reveals that there is no provision where appeal can be entertained under Section 18 of the Arms Act against the order of issuance of arms license. Read more…

Tripura High Court

On Allotment of Land

In suit for recovery of possession of land, the Tripura High Court observed that,

“It is not for this Court to decide the validity of the allotment of land by the Government in favour of the respondents in this second appeal. If there is any violation of conditions or attraction of disqualifications, it is for the appropriate authorities to look into the matter.” Read more…

On Conviction

Mere presence of the accused person and last seen of the offence cannot draw an inference to committing of the crime ; Conviction reversed Read more…

On Employees’ Dues

Tripura High Court directs TSECL to pay all the cumulative dues to employee who suffered accident while discharging duty. Read more…

Uttaranchal High Court

On Service Rules

Uttaranchal High Court holds non-communication of all the Service Rules does not indicate that there are no Rules. The Division bench of Vipin Sanghi, C.J., and R.C. Khulbe, J., had held that merely because the communication sanctioning a post does not indicate the promotion rules, does not mean that there are no Rules framed or applicable for promotion, requiring minimum service in the feeder cadre. Read more…


*Kamini Sharma, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case pending for 5 years before Court, the parties finally reached compromise and sought quashing of FIR, Swarana Kanta Sharma, J. remarked that such conduct has consumed precious time of Courts. The Court imposed a cost of Rs 25,000 and directed the parties to pay the amount towards the depleting green cover by contributing in Green Highways Fund, a fund created for the purpose of landscaping and plantation of trees along the National Highways.

Respondent 2 invested Rs 26,50,000 with the petitioners as they falsely promised regarding doubling of money on investment in a society namely Anand Jan Sewa. On non-payment of money, conflict arose between the two, however an amicable oral settlement was reached with the intervention of family and friends . Thus, an instant petition was filed under Article 226 read with Section 482 of Criminal Procedure Code, by the petitioners, praying for quashing of FIR offences punishable under Sections 420 of Penal Code, 1860.

Respondent 2 submitted before the Court that he has entered into a compromise out of his own free will and without any pressure, coercion or threat. Thus, the Court noted that the parties have amicably resolved their differences of their own free will, and without any coercion and hence, it would be in the interest of justice to quash the above-mentioned FIR and the proceedings pursuant thereto.

The Court, however, noted that the matter has been pending for the last 5 years before various courts and the parties have taken their own time to inform the Court . In these circumstances, the time of the Court and the investigating agency have both been consumed.

Thus, the Court observed the latest urgent call to pay attention towards the depleting green cover. It stated that a project for Greening (Plantation & Its Maintenance) of National Highways was launched by the Ministry of Road Transport & Highways. The objective of the project is to ensure landscaping and plantation of trees along with the National Highways. A fund regarding the same has been formed called “Green Highways Fund”. The NHAI has been empowered to act as a Fund Manager for maintaining the account and to ensure release of payments as per the requests made by Regional Officer / PD and recommendations of monitoring agency (IHMCL).

The Court directed the parties to deposit the cost of Rs.25,000/- imposed upon them towards “Green Highways Fund” which shall be used for the purpose of landscaping and plantation of trees along the National Highways.

[Anil Kumar v. The State, WP (Crl.) 1954 of 2022, decided on 29-08-2022]


Advocates who appeared in this case :

For petitioner- Mr. Ashish Aggarwal, Advocate for petitioner 1 and 2 and Ms. Anuradha Yadav, Advocate for petitioner 3 and 4.

For respondent- Ms. Rupali Bandopadhyay, ASC for the State with SI Bansi Lal, P.S. Ambedkar Nagar.


*Arunima Bose, Editorial Assistant has put this report together.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In an appeal filed against the ruling of the Motor Accident Claims Tribunal, granting compensation to the three deceased persons travelling on a single motorcycle and one of the claimant being the rider of the only vehicle involved in the accident; R. Tharani, J. has held that under S.166 of the Motor Vehicles Act, 1988 which provides for the application of compensation for certain nature of accidents, it is the duty of the claimants to prove negligence on the part of the rider. It further held that the tort feasor himself cannot claim compensation, and as the rider has borrowed the vehicle from the owner; thus, he stepped into the shoes of the owner and he must be considered as the owner of the vehicle, and due to that he cannot claim any compensation from the Insurance Company. It was further observed that claimants can file a petition either under S.163 (A) or S.166 of the Motor Vehicles Act, 1988 and it’s not proper to file it under both the provisions.

In this case, the rider of the two-wheeler allowed two persons to occupy the vehicle as pillion riders and he hit the vehicle on the sand heap on the road and dashed against a palmara tree. The rider of the two-wheeler, died on the spot and the other two persons died on the way to the hospital. The Appellants are their dependents and they have claimed compensation. The Motor Vehicle Tribunal has awarded separate compensation to all the claimants. The Insurance company has filed the present appeal against those awards.

The Court took note of the Supreme Court’s ruling in Ningamma v. United India Insurance Co. Ltd. ,(2009) 13 SCC 710, wherein the Court also dealt with the similar issue, whether the legal representatives of a person who was driving a vehicle after borrowing it from the owner meets with accident without involving any other vehicle, would be entitled to claim compensation under Section 163-A of M.V. Act? The Supreme Court held that “No borrower steps into the shoes of the owner and the owner cannot himself be a recipient of compensation as liability to pay the same is on him.”

The Court in the present appeal, set aside the award granted by the Tribunal to the rider of the two-wheeler, and observed that “the rider of the motorcycle was the tort feaser and he borrowed the vehicle from his brother – the first respondent therein and hence, the claim on his death is not maintainable. The claimants are not entitled to claim any compensation”.

The Court, by relying on its own judgments and other Supreme Court judgments observed that there were three persons travelling on a motorcycle at the time of accident, which is against the Rules. Hence, there was contributory negligence on part of the two pillion riders. The Court deducted 50% towards the contributory negligence of the two-pillion riders.

[National Insurance Company Limited v. Sumathi , 2022 SCC OnLine Mad 4221 decided on 12-08-2022]


Advocates who appeared in this case :

D.Sivaraman, Advocate, Counsel for the Petitioners;

N.Sudhagar Nagaraj, Advocate, Counsel for the Respondent.

Case BriefsHigh Courts

   

Orissa High Court: In a case where a father (‘petitioner') is seeking compensation on the death of his seven-year-old daughter, a Division Bench of S. Muralidhar CJ. and R K Pattnaik J. directed the State (‘Opposite party') to pay compensation on account of negligence by its authorities.

The Petitioner's daughter was a student of Class-I at Kolhabeda Ashram School under Ghasipura Block in the district of Keonjhar. She was staying in the hostel of the said school when one day due to sudden collapse of a newly constructed area of the hostel, she succumbed to death . Aggrieved by the unfortunate death of a young girl, the father of the deceased filed the instant writ petition seeking compensation for her death.

The District Welfare Officer, Keonjhar submitted that the Petitioner had been provided with ex gratia sum of Rs.50,000/- apart from Rs.10,000/- paid out of the District Red Cross Society Fund. Also, the In-charge Head Sevak of the Ashram School was suspended for negligence committed by constructing a kitchen shed without obtaining permission from the competent authority as well as without any technical support.

Placing reliance on Nilabati Behera v. State of Odisha (1993) 2 SCC 746, Shyam Sundar v. State of Rajasthan (1974) 1 SCC 690 and Darshan v. Union of India, 1999 SCC OnLine Del 326, the Court in Jambeswar Naik v. State of Odisha in WP (C) No. 24882 of 2012 held that a clear case has been made out for grant of compensation for violation of the constitutional right to life of the two children, resulting in their avoidable deaths at a very young age.

The Court further noted that the negligence of the State authorities in using defective materials to construct a kitchen on the school premises has already been established during the enquiry. The death of the young child was totally avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.

The Court directed the Opposite Party-State to pay the petitioner a sum of Rs.10,00,000/- (Rupees Ten Lakhs) as compensation deducting the amount already paid to him by the State within a period of eight weeks from today. The aforesaid amount shall be directly deposited into the bank account of the Petitioner.

[Madhav Soren v State of Odisha, 2022 SCC OnLine Ori 2459, decided on 11-08-2022]


Advocates who appeared in this case :

Mr. Prabir Kumar Das, Advocate, for the Petitioner;

Mr. Ishwar Mohanty, Addl. Standing Counsel, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: While deciding an appeal against award of Rs. 15,85,000/- compensation to the deceased’s mother, Jyotsna Rewal Dua, J. held that inability to produce documentary evidence of deceased’s income while commutation of income may not justify adoption of lowest tier of minimum wage.

An appeal was preferred by the Insurance company against the award of Rs. 15,85,000/- compensation passed by the Tribunal to the deceased’s mother. The Appellant argued that in the absence of any documentary evidence of deceased’s income, the compensation must be calculated as per minimum wage rate, i.e. Rs. 7,000/- per month. On the other hand, deceased’s mother argued that deceased’s income was Rs. 10,000/- per month from agricultural pursuits and in addition to that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and if he had lived, he would have earned more than Rs. 10,000/- per month.

The Court relied on Kirti v. Oriental Insurance Co. Ltd., (2021) 2 SCC 166 in which it was observed that the court needs to keep in mind its duty to award just compensation, neither assessing the same conservatively nor so liberally so as to make it a bounty to the claimants.

The Court also took into account Chandra v. Mukesh Kumar Yadav, (2022) 1 SCC 198, where it was observed that just because the claimants were unable to produce documentary evidence to show the monthly income of the deceased, it should not justify adoption of lowest tier of minimum wage while computing the income. It was stated that,

“In absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be totally detached from reality.”

Relying on the facts of case, documents relating to educational qualification of the deceased and authority cited, the Court held that deceased’s income was correctly assessed by the Tribunal and there is no reason to interfere with the impugned award.

[United India Insurance Co. Ltd. v. Sumna Devi, 2022 SCC OnLine HP 3964, decided on 10-08-2022]


*Ritu Singh, Editorial Assistant has put this report together.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J. directed to release a Nigerian National on bail who was arrested in 2020 under the Narcotic Drugs and Psychotropic Substances Act, 1985 after discovering that there was a typing error in the forensic analysis report of the seized substances.

On specific information received that a Nigerian National (the applicant) would be coming on the given spot at the given time to sell cocaine, a team was formed by the ATS and raid was conducted. On personal search the alleged contraband purported to be cocaine concealed in blue coloured plastic bag weighing around 116.19 gms and a transparent plastic pouch containing Saffron coloured heart shape pills weighing around 40.73 gms and some pink coloured Ecstasy tablets weighing around 4.41 gms were recovered. He was arrested and FIR was lodged on 23-10-2020.

Directorate of Forensic Science Laboratory’s report regarding the materials seized was held to be sufficient to charge the applicant under section 8C, 20, 22 of Narcotic Drugs and Psychotropic Substances Act (the Act). After the expiry of more than one year, the Assistant Director realized the mistake committed by him while issuing his report and he addressed a communication to the Sr. PI, ATS clarifying that there was a typing mistake and he expressed his apology while issuing a corrigendum.

The Court in the wake of the corrigendum noted that the substance which was alleged to be contraband and recovered from the applicant at the time when the raid was conducted, does not fall within the purview of the Act.

The Court observed that the error, which is sought to be explained and projected as a typing error, is a blatant mistake, which is admitted by the Assistant Director after more than a year, of incarceration of the applicant. It deserves to be looked at seriously, but for the said report, the applicant could not have been detained.

“Liberty of an individual is of paramount importance and it is the fulcrum of the Indian democracy. Recognized as a fundamental right, enshrined in Article 2, it is available to every person, citizens and foreigners alike. The State Authorities, though supreme and in-charge of the law and order situation, which includes implementation of various statutes intended to achieve specific purpose and particularly a special statute like NDPS are expected to behave in a responsible manner.”

The Court asked the State to come up with a proposal as to how it wants to compensate the applicant for realizing that his incarceration was unnecessary as the raid did not lead to recovery of any contraband/psychotropic substance covered under the NDPS Act. The applicant was granted bail.

[Novafor Samuel Inoamaobi v. State of Maharashtra, Bail Application NO. 2816 of 2021, decided on 10-08-2022]


Ashwini Achari with Taraq Sayed i/b Advait Tamhankar for the applicant.

A.A. Takalkar, APP for the State.


*Suchita Shukla, Editorial Assistant has reported this brief.

New Jersey Supreme Court
Case BriefsForeign Courts

   

Supreme Court of New Jersey: While considering whether certain workers employed by East Bay Drywall, LLC, were properly classified as employees or independent contractors as per the “ABC Test” set forth under the Unemployment Compensation Law; the Supreme Court of New Jersey held that East Bay did not supply sufficient information to prove the workers' independence under the ABC Test and the Commissioner's findings of the same was not arbitrary, capricious, or unreasonable. The Court decided that East Bay misclassified its workers as independent contractors. The Bench of the Court comprising Stuart Rabner, CJ., and Anne M. Patterson, Lee Solomon and Fabiana Pierre-Louis JJ., joined the opinion delivered by Jose L. Fuentes, J.

Facts and Legal Trajectory: East Bay (a business registered as an employer), is a drywall installation business that hires on a per-job basis. Once a builder accepts East Bay's bid for a particular project, East Bay contacts workers to see who is available. Workers are free to accept or decline East Bay's offer of employment. East Bay provides the workers with the raw materials necessary to complete the drywall installation. The workers perform the labor but must provide their own tools and arrange for their own transportation to the worksites. East Bay does not dictate who or how many laborers the workers must hire to complete the project and also does not direct how the workers install drywall. However, East Bay remains responsible for the finished product.

On 30-06-2013, East Bay ceased reporting wages to the Department of Labor and Workforce Development (hereinafter Department). Consequently, an auditor for the Department conducted a status audit that reviewed the workers hired between 2013 and 2016, to determine whether they were independent contractors, as defined by the ABC Test, or employees of East Bay, requiring the employer to contribute to the unemployment compensation and temporary disability funds. In addition to meeting with East Bay's principal and accountant, the auditor requested documentation such as tax forms, business cards, and business insurance to determine whether the workers' businesses were independent entities. The auditor found that approximately half of the alleged sub-contractors working for East Bay between 2013 and 2016 — four individuals and twelve business entities (total- 16) should have been classified as employees. East Bay owed $42,120.79 in unpaid unemployment and temporary disability contributions as per the findings of the auditor.

East Bay challenged the results of the audit and requested a hearing in the Office of Administrative Law, which concluded that three of the workers were employees but the other thirteen were independent contractors. The Commissioner of the Department determined that all sixteen workers failed all three prongs of the ABC Test and that they were therefore employees of East Bay. The Appellate Division affirmed the Commissioner's final determination as to five workers but reversed as to the eleven other workers. The Department then appealed for the eleven workers, and the Court granted certification.

What is the ‘ABC Test' under Unemployment Compensation Law? 1

The ABC test is used in some states to determine whether a person is an employee or an independent contractor for the purpose of determining state unemployment tax. Some courts use this test to look at whether a worker meets three separate criteria (prongs) to be considered an independent contractor:

  1. The worker is free from the employer’s control or direction in performing the work.

  2. The work takes place outside the usual course of the business of the company and off the site of the business.

  3. Customarily, the worker is engaged in an independent trade, occupation, profession, or business.

Observations and Conclusion: The unanimous decision of the Court was delivered by temporarily assigned Justice Jose L. Fuentes, P.J.A.D.

  • The Court observed that The Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to -71, acts as a “cushion against the shocks and rigours of unemployment”. The law requires that employers and employees make contributions to the unemployment compensation and temporary disability benefit funds. However, even if a worker receives compensation for work performed, the worker will not be considered an employee if the ABC Test is fulfilled.

  • Regarding the ABC Test, the Court observed that test is conjunctive; thus, all three prongs must be satisfied for a worker to be considered an independent contractor. The ABC Test presumes a worker is an employee therefore, the party challenging the classification carries the burden to establish the existence of all three criteria of the ABC test.

  • It was further observed that East Bay did not supply sufficient information to satisfy prong C burden regarding the eleven entities whose classification has been challenged by the Department. Prong C of the ABC Test broadly asks whether a worker can maintain a business independent of and apart from the employer. If the worker “would join the ranks of the unemployed” when the relationship ends, the worker cannot be considered independent under prong C.

  • The information East Bay provided is insufficient to prove the entities' independence. The probative value of refusal to accept or complete work is limited because, like an employee, even a bonafide independent contractor is not free from the pressure to accept a job. “A certificate of insurance could be a significant indication of independence, and business registration information may bolster the inference of independence. Here, however, these documents do not elucidate whether the disputed entities were engaged in independent businesses separate and apart from East Bay”.

  • The Court concluded that the instant case presents one of those less-obvious situations of whether the workers are truly independent business entities. Thus, consideration of the prong C factors is appropriate; but, in attempting to meet its burden, East Bay has provided little or no documentary evidence to address those factors. “For example, East Bay has not provided evidence that the entities maintained independent business locations, advertised, or had employees”.

  • It was further stated that any business practice that requires workers to assume the appearance of an independent business entity, can give rise to speculation that such a practice was intended to obscure the employer's responsibility to remit its fund contributions. “That type of subterfuge is particularly damaging in the construction context, where workers may be less likely to be familiar with the public policy protections afforded by the ABC test and consequently particularly vulnerable to the manipulation of the laws intended to protect all employees. Such a business practice also undermines the public policy codified in the UCL”.

Decision: With the afore-stated observations, the Court held that, since each entity at issue fails prong C of the ABC Test, therefore they can be properly classified as an employee. The Court remanded the matter to the Department for calculation of the appropriate back-owed contributions.

[East Bay Drywall, LLC v. Department of Labor & Workforce Development, (A-7-21) (085770), decided on 02-08-2022]


Advocates who appeared in this case :

Christopher Hamner, Deputy Attorney General, Advocate, for the Appellant;

Jennifer B. Barr, Advocate, for the Respondent;

Ravi Sattiraju, Advocate, for the Amicus Curiae.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.


1. ABC Test, LII, Cornell Law School

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Sushrut Arvind Dharmadhikari, J. allowed a petition which was filed seeking direction to the respondents to pay him the compensation for his illegal detention for almost four years in jail. 

 

Petitioner is a poor villager, an FIR was registered against him for the offence under Section 302 of the Penal Code, 1860 (IPC) and via judgment dated 14-03-2005 the petitioner was sentenced to rigorous imprisonment for life and fine. A criminal appeal was preferred by him aggrieved by the above conviction and sentence, Consequently, by the judgment dated 25-09-2006 Court modified the conviction and sentence of the petitioner opining that this was a case of culpable homicide not amounting to murder. Therefore, conviction of appellant under Section 302 of the IPC was set aside and he was convicted for the offence under Section 304 Part II IPC and sentenced to 5 years rigorous imprisonment and fine. 

The petitioner was to be released on 25-09-2009 but he was not released. Neither modified warrant, as required under Rule 315 of the Criminal Courts Rules and Orders was issued by the Court concerned for his release nor the jail authorities approached the Court in this regard. The petitioner was finally released after almost 3 years 11 months and 5 days of illegal detention on 02-06-2012. 

 

The counsel for the petitioner contended that the petitioner was , shattered by his prolonged  i11ega1 detention for no fault of his and it was submitted that there is no dispute or any doubt that the petitioner was detained illegally in prison for almost 3 years 11 months and 5 days even after his sentence was reduced.  

 

Counsel for the State opposed the prayer and contended that by virtue of Rule 315 (2) of the Criminal Courts Rules and Orders read with Rule 768 of the Jail Manual, issuance of super-session warrant/ release warrant upon reversal/modification of sentence in appeal is the responsibility of the Court to which the appellate judgment or order is certified under Section 425 of the Criminal Procedure Code, 1973. 

 

The Court consequently established that the petitioner remained in jail illegally for a period of 3 years 11 months 5 days which has resulted in violation of the fundamental right guaranteed under Article 21 of the Constitution of India i.e. protection of life and personal liberty. The Court also recalled the case of Pooran Singh v. State of M.P., 2009 SCC OnLine MP 176 wherein it was established that the defence of sovereign immunity is not available when the State or its officers, acting in the course of employment, infringe a person’s fundamental right of life and personal liberty as guaranteed by Article 21 of the Constitution of India and the State can be directed in a writ jurisdiction under Article 32 and 226 to repair the damage done to the victim by paying appropriate compensation.

 

The Court thus directed the State to pay him the compensation of Rs.3 lakhs within a period of 2 months keeping in mind the fact that the petitioner was kept in illegal detention for almost 4 years. The Court further directed the Registrar (Vigilance), Madhya Pradesh High Court, Jabalpur to immediately hold an inquiry and submit a report within a period of two months to the Registrar General as to why the modified warrant was not issued from the Court of First Additional Sessions Judge. 

[Inder Singh v. State of Madhya Pradesh, Writ Petition No. 13667 of 2013, decided on 21-07-2022] 


For petitioner: Arun Vishwakarma 

For respondent: Swaphil Ganguly, Praveen Hamdeo 


*Suchita Shukla, Editorial Assistant has reported this brief. 

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. in the present case took opportunity to point out a trend that in large number of cases that after receiving the compensation from the State Government, the complainant enters into compromise with the accused for quashing of the proceedings and a petition is filed under Section 482 Criminal Procedure Code, 1973 to quash the proceedings on the basis of compromise arrived at between the parties.

The present case was a classic example where the complainant, being a member of the S.C. community, lodged an FIR against the accused (Hereinafter ‘petitioner’ ) and police after investigating the offence filed charge-sheet. After filing of the charge-sheet, the parties have entered into compromise for quashing of the proceedings. In the meantime, the complainant has been paid Rs.75,000/- as compensation by the State Government.

The Court opined that tax payers money is being misused in this process. It would be appropriate to disburse the compensation only on conviction of the accused and not filing of the FIR and submission of the charge-sheet.

However, coming to the present case grounds for quashing the proceedings was compromise arrived at between the parties. The Court opined that offence against the petitioners were trivial in nature except offence under Section 3(1) (da) and (dha) SC/ST Act. Thus, the Court allowed the petition and quashed the proceedings under Sections 147, 323, 504, 506 IPC, 3(1)(da), 3(1)(dha) of S.C./S.T. Act relying on the judgment of Ramawatar v. State of M.P., 2021 SCC OnLine SC 966.

[Israr v. State of U.P., 2022 SCC OnLine All 518, decided on 26-07-2022]


Advocates who appeared in this case :

Chandra Bhanu Singh, Advocate, Counsel for the Applicant;

G.A.,Seema Upadhyay, Advocate, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court– G Chandrasekharan, J. ordered further investigation into the case where a man died under suspicious circumstances and alleged negligence on the part of the Police and the Medical Authorities. The Court thus directed the State to pay compensation to the aggrieved family.

A writ petition was filed seeking issuance for further investigation by an independent agency regarding the suspicious death of the petitioner’s husband, N. Arumugam. The petition also seeks direction to the respondents to pay an exemplary compensation of Rs.25,000 to the petitioner, her three children and the aged father-in-law and mother-in-law who have alleged to been deprived of their means to livelihood due to the death of their husband.

The petitioner contended that after the death of the husband, a final report was filed closing the investigation as ‘charge abated.’ The petitioners also apprehended that her husband might have been hit by a heavy vehicle with a possible involvement of a VIP and her husband was deliberately shown as an accused in order to suppress the true manner in which he suffered injuries. The petitioners highlighted that no surgical intervention was made within due time.

Counsel for the petitioner relied on the judgement of Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, where it was held by the Supreme Court that the relief of monetary compensation as exemplary damages under Article 32 of the Constitution or Article 226 of the High Court is a remedy available in public law and is based on strict liability. Further reliance was placed on the judgement of Supreme Court in DK Basu v. State of West Bengal (1997) 1 SCC 416 where it was held that monetary or pecuniary compensation is an appropriate and effective remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants.

It was contended by the respondents that the petitioner’s husband was under the influence of alcohol. It was noted that though he was conscious, he was not able to speak due to his head injury. It was further contended by the respondent that the deceased was mainly responsible for the accident by drunken driving and therefore he was himself shown to be an accused.

Placing reliance on Harish Kumar Khurana v. Joginder Singh, (2021) 10 SCC 291, it was contended that the finding of medical negligence must be based on proper medical evidence on crucial medical aspects. Subsequent reliance was placed on the judgement of Ganesh Nayak v. V. Shamanna, 2022 SCC Online Kar 131 for the proposition that there must be a nexus between the procedure and death of the patient must be established for medical negligence.

The Court noted that the Police Department, especially the Police personnel serving in the Kudimangalam Police Station as well as the Doctors, Nurses and staff members attending the deceased N. Arumugam had violated the fundamental right of the deceased N. Arumugam for competent medical treatment. Therefore, the Court was of the view that the petitioner was entitled for compensation under public law remedy and a Writ of Mandamus could be issued for issuing directions to the first respondent to pay compensation.

The Court directed that there was a need to further investigate the case and relied on the judgement of Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685 where it was observed that the learned Magistrate can order further investigation if the same has been found to be tainted or it is necessary for achieving the ends of justice. Further reliance was placed on the case of Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 to observe that “fair and proper investigation” has dual purpose of ensuring that the investigation remains unbiased and is in accordance with the law.

For determining the scope of compensation, the Court relied on the judgement of National Insurance Company v. Pranay Sethi, (2017) SCC OnLine SC 1270, where the Court had adopted the procedure followed in Motor Vehicle Accident Cases for fixing the compensation and the compensation for the victim of motor vehicle accident was determined.

The Court directed further investigation into the case and directed the first respondent to pay compensation amount of Rs15,00,000 to the petitioner at 6% interest per annum.

[Muthulakshmi vs The Secretary to the Government of Tamil Nadu, 2022 SCC OnLine Mad 3751, decided on 20-7-2022]


Advocates who appeared in this case :

Mr. M. Purushothaman (In both W. Ps’), Advocate, for the Petitioner;

Mr. P. Kumaresan (In both W. Ps’) Additional Advocate General, for the RR 1, 3, 5 & 8;

Mr. Pratap (In both W. Ps’) Government Advocate, for the RR 2, 4, 6 & 7.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: While reversing the impugned decision of the Bombay High Court, M.R. Shah* and B.V. Nagarathna, JJ., held that the prices mentioned in the Ready Reckoner cannot be the basis for determining compensation for the land acquired under the Land Acquisition Act, 1894. 

By the instant appeal, Bharat Sanchar Nigam Limited (BSNL) had assailed the impugned order of the Bombay High Court enhancing amount of compensation for the acquired land by mainly relying upon the prevailing Ready Reckoner rates of the land. 

Background  

The respondents’ land was acquired by the State Government for BSNL. The Land Acquisition Officer declared the award determining the total compensation at Rs.14,33,703/- (at Rs.13.32 per sq. ft.). At the instance of the respondents, a reference was made to the Reference Court, which enhanced the amount of compensation to Rs.21/- per sq. ft.  

In appeal, the Bombay High Court enhanced the amount of compensation to Rs.174/- per sq. ft. (more than 800% of the Reference Court compensation and about 1300% of the compensation awarded by the Land Acquisition Officer).  

The Rule for Determination of Compensation  

In Jawajee Nagnatham v. Revenue Divisional Officer, A.P., (1994) 4 SCC 595, and Krishi Utpadan Mandi Samiti v. Bipin Kumar, (2004) 2 SCC 283, the Court while determining whether the prices mentioned in the Ready Reckoner can be the basis for determining the compensation for the land acquired under the Land Acquisition Act had observed and held that the amount of compensation for the land under the Land Acquisition Act is determined by adopting the method of valuation namely,  

(1) opinion of experts;  

(2) the price paid within a reasonable time in bona fide transactions of purchase of the land acquired or the land adjacent to the land acquired and possessing similar advantages; and  

(3) a number of years purchase of the actual or immediately prospective profits of the land acquired.  

It was observed that in determining the market value, the Court has to take into account either one or the other of the three methods to determine the market value of the land appropriate to the facts of a given case to determine the market value. Subsequently, in Lal Chand v. Union of India, (2009) 15 SCC 769, the Court observed that the market value of the land under Section 23 of the Land Acquisition Act cannot be fixed on the basis of the rates mentioned in the Basic Valuation Registers’ maintained for the purpose of collection of proper stamp duty.  

Following the aforementioned views, the Court opined that the prices mentioned in the Ready Reckoner for the purpose of calculation of the stamp duty, which are fixed for the entire area, cannot be the basis for determination of the compensation under the Land Acquisition Act.   

Relying on Chimanlal Hargovinddas v. LAO, (1988) 3 SCC 751, the Court opined that there may be various factors, which are required to be considered for determining the market value of the land. The market value of the land depends upon the location of the land; area of the land; whether the land is in a developed area or not; whether the acquisition is of a small plot of land or a big chunk of land and the number of other advantageous and disadvantageous factors are required to be considered.  

Hence, the Court held that there cannot be a uniform market value of the land for the purpose of determination of the compensation for the land acquired under the Land Acquisition Act and that the market value of the different land varies from place to place and it depends upon various factors as observed hereinabove.  

Analysis of the Impugned Decision  

Finding the impugned decision per incuriam, the Court noted that the High Court had not followed the decisions laid down in Jawajee Nagnatham (supra) and Krishi Utpadan Mandi Samiti, Sahaswan (supra), on whether while determining the compensation for the land acquired under the Land Acquisition Act, the Ready Reckoner prices, which are for the determination of the stamp duty can be considered or not. Hence, the Court held that the High Court had seriously erred in not following the aforementioned decisions which were binding on it under Article 141 of the Constitution.  

Therefore, the Court held that the High Court was wrong in enhancing the amount of compensation by 800% from Rs. 21/- per sq. ft. to Rs. 174/- per sq. ft. relying upon the rates mentioned in the Ready Reckoner. 

Conclusion  

In view of the above, the appeal was allowed and the impugned decision was set aside. The judgment passed by the Reference Court determining the compensation at Rs.21/- per sq. ft. was restored. 

[BSNL v. Nemichand Damodardas, 2022 SCC OnLine SC 815, decided on 11-07-2022]  


Judgment by: Justice M.R. Shah 


Appearance: 

For BSNL: Senior Advocate R.D. Agrawala  

For State: Advocate Sachin Patil  

For Respondents: Senior Advocate Kiran Suri 


Kamini Sharma, Editorial Assistant has put this report together 

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Prathiba Singh, J. permanently injuncts Neeraj Food Products (‘defendants’) for trading JAMES BOND a chocolate product in pillow packs which is deceptively similar with Mondelez India Foods Private Limited (formerly Cadbury India Ltd.) (‘plaintiff’) GEMS, the name of which has derived inspiration from a copyrighted artistic character GEMS BOND. The Court thus directed the compensation upto 15 lakhs to Cadbury India finding deceptive similarity in the product under challenge.

The suit was filed in August 2005 against Neeraj Food Products (‘defendant’), the sole proprietary concern of Mr. Charan Das. The Plaintiff 1 – Cadbury India Ltd. and Plaintiff 2 – Cadbury Schweppes Overseas Limited claim ownership in the mark ‘CADBURY GEMS’/‘GEMS’ which is the subject matter of the present suit. The case of the Plaintiffs is that the Defendant launched a chocolate product under the mark ‘JAMES BOND’ with an identical colour scheme, layout, and arrangement as that of the Plaintiffs’ ‘CADBURY GEMS’/ ‘GEMS’ products. Thus, the present suit has been filed seeking permanent and mandatory injunction and damages for infringement of trademark and copyright, passing off, unfair competition and other reliefs.

Plaintiff 1 holds copyright registrations in its former name being Hindustan Cocoa Products Ltd. bearing registration numbers A-50680/90 and A-49975/89 for the artistic works in respect of a character known as ‘GEMS BOND’ which character has been used by the Plaintiffs for promotion of its ‘GEMS’ branded products.

The Court opined that the present is a case of res ipsa loquitur and the comparative labels set out hereinabove show that the two products have startling similarities. The elaborate features that are similar are set out in order copy are skipped here for the sake of brevity.

The Supreme Court discussed the test of infringement and deceptive similarity of competing marks in Corn Products Refining Co. v. Shangrila Food Products Ltd., (1960) 1 SCR 968 and Parle Products (P) Ltd. v. J.P. & Co., Mysore, (1972) 1 SCC 618 wherein it was observed that, the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them and the Court has to see similarities and not the dissimilarities.

Reliance was placed on ITC Ltd. v. Britannia Industries Ltd. 2016 SCC OnLine Del 5004 wherein it was observed

Where the product is eatable like a biscuit, the colour and the colour scheme of the packaging plays an important role in the consumer making an initial choice and in enabling a discerning consumer to locate the particular brand of a manufacturer.

Explaining the aspect of ‘initial interest’ in the same judgment, the Court relied on Baker Hughes Limited v. Hiroo Khushalani to observe

“In some case, however, it is also possible that such a purchaser after having been misled into an initial interest in a product manufactured by an imitator discovers his folly, but this initial interest being based on confusion and deception can give rise to a cause of action for the tort of passing off as the purchaser has been made to think that there is some connection or nexus between the products and business of two disparate companies.”

However, that may not be entirely true when it comes to products like biscuits. The packaging of a biscuit does become associated with the manufacturer or brand. The colour on the wrapper would certainly play an important part.

The Court noted that in the present case, the products in question are chocolates which may be consumed by young and old alike. The ‘GEMS’ product is also usually consumed by small children, both in urban and rural areas. The test in such a matter is not that of absolute confusion but even the likelihood of confusion is sufficient. Hence, the product’s get-up layout, and also, the colour combination of the packaging plays a significant role at the point of purchase. Moreover, chocolates are sold not merely in big retail stores or outlets, but also, in roadside shacks, paan shops, patri vendors, kirana stores and stalls outside schools, etc. Thus, there is an immense likelihood of confusion, particularly considering the class of consumers that the product is targeted at, that is, children.

The Court grants permanent injunction restraining the Defendant, its proprietor, partners, directors, servants, agents, distributors, franchisees, representatives and assigns from using the trademark as well as pillow packs of JAMES and/or JAMES BOND and/or any other trademark deceptively or confusingly similar to the Plaintiffs’ registered trademark GEMS or in any other manner infringing the registered trademark GEMS of the Plaintiff.

Placing reliance on Uflex Limited v. Government of Tamil Nadu, (2022) 1 SCC 165, the Court directed damages to the tune of Rs.10 lakhs and thereby actual costs of Rs.15,86,928/- were awarded in favour of the Plaintiffs, in terms of the relief as sought, to be paid within three months.

[Mondelez India Foods Pvt. Ltd. v. Neeraj Food Products, 2022 SCC OnLine Del 2199, decided on 26-07-2022]


Advocates who appeared in this case :

Ms. Prakriti Vaishney, Advocate, for the Petitioner.


*Arunima Bose, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: G R Swaminathan J. directed the State to pay compensation of Rs 1 Lakh to a student who could not take admission in the medical course in the academic year 2021-2022 as he was unable to register his name on the portal for NEET counseling even after obtaining marks beyond cut off limit, due to poor internet connectivity.

The petitioner aspiring to be a doctor is aggrieved because even after securing 409 marks in NEET exam, he could not register his name on the portal on time because of poor internet connectivity and the server being busy. He later found that students who scored as low as 108 marks in NEET were allotted seats under the management quota. Thus, instant petition was filed under Article 226 praying to issue a writ of Mandamus directing the respondents to give admission to the petitioner in any one of the Medical College under the Management Quota based on the petitioner’s NEET Examinations score.

The Court reaffirmed the stand of the counsel for respondent stating that it is not possible to direct the admission of the petitioner for any medical course for the academic year 2021-22 as the writ petition was filed in April 2022 .

The Court also remarked for the marks obtained by him was entitled to get admission in a medical course under management quota but could not because of online glitches. If the respondents adopted a dual mode of counselling, i.e., both physical and online, the situation could have been avoided and also,If the respondents had given the petitioner reasonable time to register himself in the portal, then probably, he could have made it.

Placing reliance on Asha v. PTBD Sharma University of Health Sciences, (2012) 7 SCC 389 and S Krishna Sradha v. State of Andhra Pradesh, (2020) 17 SCC 465, the Court noted that Court must do complete justice between the parties, particularly, where the legitimate right of the Appellant stands frustrated because of inaction or inappropriate action on the part of the concerned Respondents and in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.

Further reliance was placed on Action Committee Unaided Recognized Private Schools v. Justice for All, Special Leave to Appeal (C) No. 4351 of 2021, decided on 08-10-2021 to emphasize that the digital divide has produced stark inequality in terms of access to education. Children belonging to EWS/DG suffer the consequence of not being able to fully pursue their education and many may have to drop out because of lack of access to internet and computers.

The Court directed the State to pay a sum of Rs.1 lakh as compensation to the petitioner-student within a period of eight weeks and ensure that the selection process is conducted and finalized in such a way so as to ensure that incidents such as the one on hand do not recur.

[K Lal Bhagadhur v. Director of Medical Education, 2022 SCC OnLine Mad 3661, decided on 13-07-2022]


Advocates who appeared in this case :

Mr. D. Srinivasaraghavan for Mr. S.M. Mohan Gandhi, Advocates, for the Petitioner;

Mr. V. Om. Prakash, Government Advocate, for the Respondents.


*Arunima Bose, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Devendra Kumar Upadhyaya and Rajnish Kumar, JJ. took cognizance of the PIL which was admitted by the previous order of the Court dated 07-04-2022 which was necessitated on account of the incident reported in the newspapers where some stray dogs not only attacked but killed a boy of very tender age and seriously injured his sister.

The Court had also directed the Chief Medical Officer to provide all medical assistance to the girl by keeping her admitted for treatment in King George Medical University. This Court had further directed that all possible medical treatment shall be given to the injured girl child without any charges. The Court appreciated the efforts of Chief Medical Officer, Lucknow and the Registrar and the Vice Chancellor of KGMU for the same.

The Court in the current hearing called upon Lucknow Nagar Nigam to file separate affidavits as to the legal position and compliance thereof by Nagar Nigam for ensuring the safety of street dogs after an application seeking intervention has been moved by Sri Kamal Sharma through Sri Amal Rastogi regarding the welfare of the animals.

In pursuance to the previous order wherein the Court had asked Additional Advocate General to apprise the District Magistrate, Lucknow about the incident and also to seek instructions as to how the family of the deceased boy child can be monetarily compensated on account of his tragic death in the incident, a letter was produced stating that sanction has been accorded to provide a sum of Rs.1,50,000/- to the family members of the deceased child from Lucknow Rifle Club. However, advocate appearing on behalf of the family members of the deceased child, Mohd. Kumail Haider argued that it is not in dispute that a human life has been lost in a horrifying incident which prima facie occurred on account of negligence in discharge of its duties by Nagar Nigam. If State or any of its instrumentalities fails to discharge its statutory or otherwise obligations and duties which becomes the cause of loss of human life, though such life cannot be compensated in any terms including in terms of money, however, surviving family members of the deceased are necessarily to be provided some solace by way of monetary compensation or otherwise.

The Court considering the argument directed the Lucknow Nagar Nigam to file an affidavit stating as to why adequate compensation of Rs. 10,00,000/- may not be awarded to the family of the deceased child. The Court also requested the amicus curiae Vijay Dixit, Abhishek Pratap and Mohit Pandey to give a written brief as to why and under what provision of law the family members of the deceased child can be compensated monetarily.

The matter is again listed for further hearing on 30-08-2022.

[Suo-Moto In Re- Menace Created By Stray Dogs v. State of U.P., 2022 SCC OnLine All 473, decided on 08-07-2022]

*Suchita Shukla, Editorial Assistant has reported this brief.

Foreign LegislationLegislation Updates

The Senate Bill 22-234 has received the assent of Governor. The legislation is intended to update the notice requirements regarding unemployment insurance that employers must provide to employees upon termination.

Key Points:

  • Division of unemployment insurance is required to issue revenue bonds, power to levy bond assessments and the state treasurer, as the advisor to the division to issue the bonds.
  • The requirement that an individual wait at least one week before becoming eligible for unemployment compensation has been repealed. It will take effect when the unemployment compensation fund reaches a balance of at least $1 billion.
  • The Division is required to study how to implement a dependent allowance for individuals receiving unemployment compensation.
  • Section 4 and 10 deals with employment support fund. The Department of Labor and Employment requires the state treasurer to credit .00035 of the premium each employer and to submit to the division and require to grants to one or more third-party administrators for the purpose of providing recovery benefits to eligible individuals.
  • Employer is required to provide an employee with certain information about unemployment compensation upon the employee’s separation from employment.Employers hold on solvency surcharge has been extended and sub-section (7)(c) of Section 6 is repealed, effective 01-01-2024.
  • Section 8 requires the transfer from money received by the State under the federal “American Rescue Plan Act 2021”. The money in fund is only used to repay the outstanding balance of federal advances.
  • Section 11 deals with the waive in the division which determines such repayment to be inequitable.
  • Section 12 requires the State Treasurer to transfer $ 600 million from the revenue loss restoration cash fund.

*Disha Srivastava, Publication Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: A Division Bench of Siddharth Mridul and Gaurang Kanth, JJ. dismissed the writ petition as it was filed after almost 62 years challenging the acquisition proceedings whose enhanced compensation has been enjoyed already by the petitioners merely on the basis of coming to knowledge of a recent Supreme Court pronouncement declaring the notifications that led to proceedings being bad in law.

The facts of the case are such that Late Dewan Kesho Das ‘predecessor in interest’ was a displaced person under Displaced Persons (Compensation and Rehabilitation) Act, 1954 “Displaced Persons Act” successfully participated in the public auction of the ‘evacuee property’ in the year 1959 and executed an Indemnity Bond in favour of the President of India for the 10% of bid amount. Being declared as the highest bidder, he was directed to deposit the balance purchase price and even though the provisional possession of the evacuee property was offered the predecessor in interest never took the possession.

The predecessor-in-interest in year 1959 accepted the offer made by the Settlement Commissioner and offered their verified amount towards the balance purchase price. After adjusting the verified amounts, the sale certificate was finally issued in the year 1961. The Delhi Administration ‘Respondent 2′ issued the impugned Notifications on 13-11-1959 and 18-08-1960 ‘notifications’ and accordingly acquired the evacuee property. The predecessor, in interest being aware of the acquisition proceedings in respect of the evacuee’s property accepted the compensation and further sought for enhancement of compensation which was thereby granted.

It is the case of the petitioner that the Petitioners that they came to know about the Supreme Court judgment Saraswati Devi v. Delhi Development Authority, (2013) 3 SCC 571, in the year 2021 and later sought information from the Respondents under the Right to Information Act, 2005. Accordingly, the Petitioners came to know that the impugned Notifications are bad in law as the notices under section 4 of the Land Acquisition Act, 1894 had been issued prior to any sort of encumbrance being created on the evacuee property.

The petitioners, being son of the predecessor in interest herein filed the instant petition challenging the validity of notifications by Respondent 2 under Section 4 of the Land Acquisition Act, 1894 regarding acquisition of ‘evacuee property’.

Placing reliance on M S Dewan v. UOI, 2008 SCCOnLine Del 484, the Court noted that in the present case, there is an inordinate delay of almost 62 years in challenging the acquisition proceedings. The Petitioners accepted the enhanced compensation without reserving any right whatsoever. The law does not permit a person to approbate and reprobate at the same time. Inordinate delay in making the motion for a writ is indeed adequate ground for refusing to exercise discretion in favour of the petitioner. Therefore, now after an inordinate delay of about 62 years after the acquisition, the Petitioners cannot challenge the said acquisition proceedings.

Further, reliance was placed on Naresh Kumar v. UOI, (2019) SCC OnLine Del 7741 wherein it was observed

“We are of the view that the petitioners cannot after such a long period seek to rake up the issue of acquisition merely on the basis of some recent pronouncements by the Hon’ble Supreme Court even when they accepted the compensation qua acquisition of the land by neither challenging the acquisition proceedings nor the award but on the other hand were only interested in enhancement of compensation for which they have sought a reference.”

The Court while dismissing the petition noted that f an axiomatic delay disentitles a party to discretionary relief under Article 226 of the Constitution of India.

[Nardev Soni v. Union of India, WP (C) No. 7815 of 2022, decided on 05-07-2022]


Advocates who appeared in this case :

Snr. Adv. Neeraj Kishan Kaul, Azmat H. Amanullah, Namisha Chaddha, Nitya Sharma, Pritma Suri and Aarzoo Aneja, Advocates, for the Petitioner;

Jitesh Vikram Srivastava and Prajesh Vikram Srivastava, Advocates, for the Union of India ‘R1′;

Manika Tripathy Pandey, Shubham Hasija and Ashutosh Kaushik, Advocates, for R3;

Yeeshu Jain and Jyoti Tyagi, Advocates, for R 9.


*Arunima Bose, Editorial Assistant has reported this brief.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal directed against the decision of the Single Judge Bench in Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433; the Division Bench of Pankaj Mithal, CJ., and Javed Iqbal Wani, J., directed the appellants to allow Mohd. Lateif Magery and his family to perform Fatiha Khawani (religious rituals/prayers after burial) of deceased Mohd. Amir Magrey at the Wadder Payeen graveyard, subject to taking into account the required security measures and COVID-19 guidelines. The Court also upheld the compensation of Rs. 5 Lakhs awarded to the respondents in the afore-stated case.

Facts of the case: The respondent’s son named Mohd Amir Magrey, was amongst four persons who were killed in an encounter between the Police and Militants that took place on 15-11-2021 at Hyderpora area of Budgam, Kashmir. Next day, the respondent received a call from Gool Police Station that his son got killed in an encounter. The respondent upon reaching Saddar, Police Station, Srinagar, was told that his son, was in fact a militant and had got killed along with his two other associates and had been buried by appellants at the Wadder Payeen graveyard. The respondent even met the Lieutenant Governor on 07-12-2021 seeking return of the body of his son, but the meeting yielded no results.

Legal Trajectory: In Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433, dated 27-05-2022, the Single Judge Bench of this Court directed the Union Territory to make arrangements for exhumation of the body/remains of the deceased Amir Latief Magrey from the Wadder Payeen graveyard in presence of Mohd. Lateif. The State was also directed to pay to the father compensation of Rs. 5 lakhs for deprivation of his right to have the dead body of his son and give him decent burial as per family traditions, religious obligations and faith.

The decision was appealed in UT of J&K v. Mohd. Latief Magrey, LPA No. 99/2022 thereby which the operation of impugned judgement was stayed by way of an interim relief by the Division Bench. Next date of hearing was set for 28-06-2022.

The stay was challenged by Mohd. Latief in the Supreme Court. Lateif submitted before the Court that he wants to perform the last rites of his deceased son, as per their family’s religious practices at the Wadder Payeen Graveyard. He also sought the alternative relief of payment of compensation of Rs. 5 lakhs as granted by the Single Judge in his decision dated 27-05-2022. The Division Bench of Surya Kant and J.B. Pardiwala, JJ., in Mohd. Lateif Margey v. UT of J&K, Special Leave to Appeal (C) no. 10760/2022, observed that the matter is already slated for hearing in the High Court. The Bench directed the High Court to consider the alternative reliefs sought by Mohd. Lateif within 1 week.

Contentions

  • The respondent stated that the dead body of his deceased son was not handed over to him by appellants for burial as per religious rites and practices, thus, resulting in infringement of rights guaranteed under Art. 21 of the Constitution, as it extends to the right to have a decent burial as per religious ceremonies. The respondent submitted that that right to live with human dignity extends even beyond death and the said dignity has to be given to the dead by providing a proper funeral/burial.
  • The respondent submitted before the Court that his request to hand over the dead body of his son to provide a decent burial was rejected by the appellants citing the reason that the deceased was a militant. The respondent however stated that dead bodies of two other persons, killed in the encounter returned back to their families following relentless protests.
  • The respondent also contended that he has been instrumental in fighting and curbing the militancy in his native place Gool Sangaldan, Ramban, along with Indian Army and in this regard, cited an incident, which took place on 06-08-2005, when he and his wife caught hold of a LeT militant, who had barged into their house and opened indiscriminate firing. It was also submitted that the respondent had been conferred with the State Award for Bravery for the afore-stated incident by the then Government of Jammu and Kashmir in the year 2012. The respondent was also well appreciated by the Indian Army and for the services rendered by him in eradicating the militancy in Gool Sangaldan area.

Per-contra, the appellants argued that-

  • The respondent’s demand to return the body of his deceased son is not fair, because it is not the dead body of an ordinary citizen but of a terrorist having got killed in an encounter with security forces. Return of the dead body would lead to law, order and security problems.
  • The deceased was found to be a terrorist indulging in militant activities by the authorised investigating agency. In terms of previous practice and procedure to avoid larger ramifications and adverse impact upon law-and-order situation, the dead body of deceased was shifted and was buried in accordance with all religious obligations at Wadder Payeen Graveyard, performed in presence of Executive Magistrate, Zachaldara. A proper procedure was followed by appellants while dealing with the dead body of deceased in the matter of his burial.
  • It was submitted that after taking adequate security measures, the dead bodies of other two persons killed in the encounter, were returned to their families, as they were not found to be terrorists.
  • It was submitted that, Mohd. Latief and his family can be allowed to perform Fatiha Khawani (prayers after burial) at the grave of the deceased subject to security measures as may be required to be put in place.

Observations: Perusing the ‘peculiar’ facts of the case and contentions of the parties, the Court observed that, Mohd. Lateif has given up the first relief granted by the Single Judge vis-a-vis exhumation of the remains of his son. The Court rejected the insistence by the counsels of Mohd. Latief regarding exhumation of the remains stating that the last rites of deceased have already been performed while burying him at the Wadder Payeen Graveyard.

The Court also rejected the prayer of the respondent’s counsel that the family members be allowed to see the face of the deceased by opening the grave, on the ground of the advanced stage of decay the body will be in; and also taking into account that the respondent has given up the prayer of exhumation of the dead body.

The Court pointed out that the respondents have been subjected to ‘emotional and sentimental melancholy’ as the authorities deprived them of the right to perform last rites and rituals of deceased admittedly without there being any policy/guideline, which cannot be endorsed by law. The Court also stated that there was no way that the appellants could have overlooked the contribution made by the respondents’ family in fighting terrorism; therefore, the decision to award compensation by the Single Judge was correct.

Decision: Allowing the respondents to perform Fatiha Khawani, the Court directed the appellants to fix a date for the same in consultation with the respondents.

Regarding the direction to pay compensation of Rs. 5 Lakhs, the Court clarified that said compensation shall not form a precedence for future in view of the fact that the same was awarded in relation to the peculiar facts and circumstances of the instant case.

[Union Territory of J&K v. Mohd. 2022 SCC OnLine J&K 516, decided on 01-07-2022]


Advocates who appeared in this case :

D. C. Raina, Advocate General with Asifa Padroo, AAG and Sajad Ashraf GA, Advocates, for the Appellants;

Deepika Singh Rajawat, Advocate with Zarin Ali and Yasmeen Wani, Advocates and T. M. Shamsi, ASGI, Advocates, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief