Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ., allowed the petition while hearing an appeal against the order against the order passed by the Jabalpur bench of the central administrative tribunal in O.A. No.697/2014 on 17-01-2020 in the matter where the application preferred by the petitioner challenging the order of penalty of compulsory retirement was rejected.

The present petition was initiated by the petitioners before the court after not getting the desired relief in the original application No. 697/2014 and then in the review application besides challenging the order of penalty of compulsory retirement and also the order of Appellate Authority rejecting the appeal against the order of penalty.

In the instant case, the advocate for petitioners Amit Seth refarined from going into the actual merit of the case confined his argument on a single ground that based on the rulings of the apex court in the cases of Balaji Baliram Mupade v. State of Maharashtra, 2020 SCC Online SC 893 and Anil Rai v. State of Bihar, (2001) 7 SCC 318 the order in question, thus passed by the Tribunal has vitiated the law as there was an unusual delay in the reservation and pronunciation of the judgement and therefore the tribunal should reconsider the original application of the aggrieved party.

As far as the present matter was concerned the following opinion was formed by the Court:

“It is the need of the hour to emphasize over the need to pronounce judgment expeditiously and curtailing the time gap between reserving of a case and pronouncing of judgment to the bare minimum, it is vivid that the Tribunal heard and reserved the original application preferred on 20.02.2019 whereafter the impugned judgment was pronounced by the Tribunal on 17.01.2020 i.e. after nearly 11 months, which is a very long period of time”

Court emphasized to bridge the time gap in the reservation and pronunciation of the judgement to avoid the unnecessary delay.

In the light of the facts in the present matter, the Court dismissed the orders passed by the Central Administrative Tribunal in O.A No. 697/2014 and also the order passed in the Review Application No. 03/2020 and eventually the court directed the tribunal to re-hear the matter and pronounce the judgement at the earliest.[Sudesh Kumar Yadav v. Union of India, W.P No. 24337 of 2021, decided on 23-12-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

For petitioners: Shri Amit Seth, (Advocate)

For respondent 1: Shri J.K Jain, Assistant Solicitor General

For respondent 3: Shri C.M Tiwari, Advocate

Case BriefsSupreme Court

Supreme Court: Dealing with an important question as to the constitutional validity of the third proviso to Section 254(2A) of the Income Tax Act, 1961, the 3-judge bench of RF Nariman*, BR Gavai and Hrishikesh Roy, JJ has held that any order of stay shall stand vacated after the expiry of the period or periods mentioned in the Section only if the delay in disposing of the appeal is attributable to the assessee.

Section 254 (2A) of the Income Tax Act states that “In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal is filed under sub-section (1) or sub-section (2) of section 253”

However, the third proviso provides that “if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.”

By a judgment dated 19.05.2015, the Delhi High Court struck down that part of the third proviso to Section 254(2A) of the Income Tax Act which did not permit the extension of a stay order beyond 365 days even if the assessee was not responsible for delay in hearing the appeal. The Revenue, hence, challenged the said judgment and several other judgments from various High Courts holding the same.

The Delhi High Court, in it’s judgment, held that

“Unequals have been treated equally so far as assessees who are responsible for delaying appellate proceedings and those who are not so responsible, resulting in a violation of Article 14 of the Constitution of India.”

Agreeing to the said reasoning, the Supreme Court added,

“This is a little peculiar in that the legislature itself has made the aforesaid differentiation in the second proviso to Section 254(2A) of the Income Tax Act, making it clear that a stay order may be extended upto a period of 365 days upon satisfaction that the delay in disposing of the appeal is not attributable to the assessee.”

It was further explained that ordinarily, the Appellate Tribunal, where possible, is to hear and decide appeals within a period of four years from the end of the financial year in which such appeal is filed. It is only when a stay of the impugned order before the Appellate Tribunal is granted, that the appeal is required to be disposed of within 365 days. So far as the disposal of an appeal by the Appellate Tribunal is concerned, this is a directory provision. However, so far as vacation of stay on expiry of the said period is concerned, this condition becomes mandatory so far as the assessee is concerned.

“The object sought to be achieved by the third proviso to Section 254(2A) of the Income Tax Act is without doubt the speedy disposal of appeals before the Appellate Tribunal in cases in which a stay has been granted in favour of the assessee. But such object cannot itself be discriminatory or arbitrary…”

The Court, hence, concluded:

  • Since the object of the third proviso to Section 254(2A) of the Income Tax Act is the automatic vacation of a stay that has been granted on the completion of 365 days, whether or not the assessee is responsible for the delay caused in hearing the appeal, such object being itself discriminatory, was held liable to be struck down as violating Article 14 of the Constitution of India.
  • Also, the said proviso would result in the automatic vacation of a stay upon the expiry of 365 days even if the Appellate Tribunal could not take up the appeal in time for no fault of the assessee.
  • Further, vacation of stay in favour of the revenue would ensue even if the revenue is itself responsible for the delay in hearing the appeal. In this sense, the said proviso is also manifestly arbitrary being a provision which is capricious, irrational and disproportionate so far as the assessee is concerned.

Hence, partially upholding the validity of the third proviso to Section 254(2A) of the Income Tax Act, the Court held that the same will now be read without the word “even” and the words “is not” after the words “delay in disposing of the appeal”. Therefore, any order of stay shall stand vacated after the expiry of the period or periods mentioned in the Section only if the delay in disposing of the appeal is attributable to the assessee.

[Deputy Commissioner of Income Tax v. Pepsi Foods Ltd., 2021 SCC OnLine SC 283, decided on  06.04.2021]

*Judgment by Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

Appearances before the Court by:

For Revenue: ASG Bikarma Banerjee

For Assessees: Senior Advocate Ajay Vohra and Advocates Himanshu S. Sinha, Deepak Chopra and  Sachit Jolly


ITAT’s power to grant stay: Is the Supreme Court decision in Pepsi Foods the last word?

Case BriefsSupreme Court

Supreme Court: The State of Madhya Pradesh yet again irked the Court by filing a Special Leave Petition after a delay of 588 days, prompting the bench of SK Kaul and Hrishikesh Roy, JJ to say,

“The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible!”

Earlier, on October 15, 2020, in case of an inordinate delay of 663 days by the State of Madhya Pradesh in filing a Special Leave Petition, the bench of SK Kaul and Dinesh Maheshwari, JJ had said,

“it appears that all our counseling to Government and Government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the  Governments to walk in when they choose ignoring the period of limitation prescribed.”

In the present case, the Court was told  that on 05.01.2019, the Government advocate was approached in respect of the judgment delivered on 13.11.2018 and the Law Department permitted filing of the SLP against the impugned order on 26.5.2020. Surprised at the fact that the Law Department took almost about 17 months’ time to decide whether the SLP had to be filed or not, the Court said,

“What greater certificate of incompetence would there be for the legal Department!”

The Court, hence, directed the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the legal Department as “it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation.”

Looking to the period of delay and the casual manner in which the application has been worded, the wastage of judicial time involved, the Court imposed a cost of of Rs.35,000/- to be deposited with the Mediation and Conciliation Project Committee within four weeks. The amount be recovered from the officer(s) responsible for the delay in filing and sitting on the files and certificate of recovery of the said amount be also filed in this Court within the said period of time.

Deputy Advocate General has also been cautioned that for any successive matters of this kind the cost will keep on going up. The cost imposed in the October 15, 2020 order was Rs. 25, 000.

The Court concluded by stating that if the present order is not complied with, the Court will be constrained to initiate contempt proceedings against the Chief Secretary.

[State of Madhya Pradesh v. Chaitram Maywde, 2020 SCC OnLine SC 875, Order dated 27.10.2020]

Also read

Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed

Case BriefsSupreme Court

Supreme Court: Irked by the inordinate delay of 663 days by the State of Madhya Pradesh in filing a Special Leave Petition, the bench of SK Kaul and Dinesh Maheshwari, JJ said,

“… it appears that all our counseling to Government and Government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed.”

Sending a signal, the Court wrote that where there are such inordinate delays that the Government or State authorities must pay for wastage of judicial time which has its own value. Directing the State to deposit a cost of Rs. 25000 with the Mediation and Conciliation Project Committee within 4 weeks, the Court said that such costs can be recovered from the officers responsible.

The reason accorded for the delay by the State Government was “due to unavailability of the documents and the process of arranging the documents” and that “bureaucratic process works, it is inadvertent that delay occurs”.

The Court noticed that that in the present case a preposterous proposition was sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by.

“If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.”

The Court further said that

“… if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute subsists, the appeals/petitions have to be filed as per the Statues prescribed.”

Terming such cases as “Certificate Cases”, the Court said that the object of such cases appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed.

“The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.”

The Court concluded by stating that if the present order is not complied with, the Court will be constrained to initiate contempt proceedings against the Chief Secretary.

Earlier on July 27, 2020, in an application filed by State of Odisha, seeking condonation of delay of 587 days, the 3-judge bench of SK Kaul, Ajay Rastogi and Aniruddha Bose, JJ had imposed a cost of Rs. 50, 000 and directed that an enquiry be conducted and cost be recovered from the delinquent officer.

In Office of the Chief Post Master General v. Living Media India Ltd., (2012) 3 SCC 563, all the government bodies, their agencies and instrumentalities were informed that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The bench of P. Sathasivam and J. Chelameswar, JJ said,

“The law shelters everyone under the same light and should not be swirled for the benefit of a few.”

[State of Madhya Pradesh v. Bherulal, 2020 SCC OnLine SC 849, decided on 15.10.2020]

Case BriefsSupreme Court

Supreme Court: In an application filed by State of Odisha, seeking condonation of delay of 587 days, the 3-judge bench of SK Kaul, Ajay Rastogi and Aniruddha Bose, JJ imposed a cost of Rs. 50, 000 and directed that an enquiry be conducted and cost be recovered from the delinquent officer.

“The Department should hold an enquiry, fix responsibility and recover the cost from the delinquent officer and file the certificate of recovery in this Court. The needful be done within four weeks.”

The Court observed that the application for condonation of delay reflected a saga of movement of file from one department to the other with no cogent explanation why for months together files have been detained in the department.

“These are what we categorise as “certificate cases” filed by the departments to obtain an order of dismissal from the Supreme Court so that they can go back and say that they have made all endeavours to limit the loss to the State.”

The Court, hence, imposed a cost of Rs. 50,000/- to be deposited with the Supreme Court Advocates on Record Welfare Fund.

[State of Odisha v. Dilip Kumar Pratihari, 2020 SCC OnLine SC 603 , order dated 27.07.2020]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of Vasantha Kodagoda and Arjuna Obeyesekere, JJ., dismissed an appeal filed against the Judgment of the Commissioner-General of Inland Revenue.

The petitioner had stated that he was a building contractor and his business was registered with the Department of Inland Revenue (the Revenue) for the payment of Value Added Tax (VAT). He had admitted that he had delayed the filing of the VAT returns due to which the Revenue had disallowed the claims he had made for VAT refunds. The Revenue had served the Petitioner a Certificate of Tax in default in a sum of Rs 11,137,283. Further, the petitioner had appealed and the penalty on the sum had been waived and the sum in default had been reduced to Rs 6,405,616. The revenue had filed a case against the petitioner in the district court to recover the specified sum. The petitioner stated that he had faced many difficulties while carrying out several projects in 2009 in the district of Mannar and that he was discriminated by public servants on the basis of his ethnicity due to which payments due to the Petitioner for work had been delayed disrupting the smooth functioning of his business which is why the petitioner had made an application to the revenue. The Court after going through the application observed that even though the petitioner had explained the difficulties faced but was unable to produce any document in support of his facts and it was concluded that an exemption cannot be granted to him aggrieved by which the petitioner had appealed to the Commissioner-General of Inland Revenue but his appeals had been rejected, thus the instant application, as well as a Writ of Mandamus compelling the Revenue to grant an exemption, was filed. 

The Court while dismissing the appeal explained that there was considerable delay in invoking the jurisdiction of this Court as the application was filed almost six years after the appeal was rejected, it observed that the Petitioner had not offered any explanation for the delay and further the petitioner was not alleging that the decision of the Commissioner-General of Inland Revenue was illegal, thus the application deserves to be dismissed. [Hitibandara Attapattu Mudiyanselage Ananda Parakrama Kumara Aigama v. Nadun Guruge, CA (Writ) Application No: 108 of 2019, decided on 02-12-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Dinesh Mehta and Sangeet Lodha, JJ. dismissed the appeal filed against the order passed by the Single Judge of the Court whereby writ petition preferred by the writ-petitioner/appellant seeking a direction to respondents to rectify the inventory after an inordinate delay of 54 years was dismissed on the ground of delay and laches.

The appeal was barred by limitation for 11 days. The only reason assigned for condonation of delay in filing the appeal was that due to the ongoing vacation of ‘Navratri’, and non-availability of counsel in Jodhpur, appellant could not give instructions for filing of appeal.

The Court held that the reason assigned for not filing the appeal within limitation, could hardly be considered a sufficient cause and, therefore, the application under Section 5 of the Limitation Act seeking condonation of delay, should to be rejected. [Jagmal Singh v. State of Rajasthan, 2019 SCC OnLine Raj 164, Order dated 21-02-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Single judge bench comprising of Mohammad Yaqoob Mir, CJ. while dealing with a civil writ petition filed by a retired employee ruled that delay in release of retrial benefits cannot be justified on grounds on a financial crunch.

Brief background of the matter was that the petitioner worked as a driver in the respondent corporation. Though he had retired from service on 31-12-2017, his retrial benefits had not been released to him. Aggrieved by inaction on the part of respondent, he filed the instant writ petition. The respondent corporation pleaded that the retrial benefits had not been released since it was facing acute financial crisis and thus its resources were not enough to meet the petitioner’s demand.

The court dismissed the contention forwarded on behalf of the respondent holding that an employee has a vested right of getting retrial benefits on retirement and the release of such benefit cannot be linked with the financial health of the employer. It is for the employer to mobilize his resources to ensure that the retired employee gets his retrial benefits.

In the present case, the respondent – corporation could not be permitted to delay the benefits due to petitioner and thereby subject him to misery, mental agony and financial hardship. It was further stated that it is not only the petitioner but his entire family who were suffering in such a situation. As such, a guaranteed right to retrial benefits could not be delayed pleading financial crunch of the employer. On the aforesaid holding, the court High Court directed the respondent to ensure that all retrial benefits that the petitioner was entitled to, be sanctioned and released in his favour within two months. [Phlester Swer v. Meghalaya Transport Corporation,2018 SCC OnLine Megh 180, decided on 01-10-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: A Single Judge Bench comprising of Sanjay K. Agrawal in an order stated that “Post office is not liable to pay damages for delay in delivery of speed post-postal articles in light of Section 6 of the Indian Post Office Act, 1898.”

The facts of the case stated that, the petition dealt with the issue of whether Permanent Lok Adalat, Public Utility Services is justified in granting damages to the respondent whose speed post in regard for an application for a post at Bastar University did not reach on time and in light of the said circumstance, the respondent reached before the Permanent Lok Adalat to claim damages.

The contentions of the petitioner-Union of India rejecting the claim stated that in view of Section 6 of the Indian Post Office Act, 1898, for the delay in transmission of the postal article, the petitioner does not stand responsible as the delay did not occur due to any kind of fraud or willful intention of the petitioner.

Therefore, the High Court on careful consideration of the facts and circumstances of the case and on perusal of Section 6 of the Indian Post Office Act, 1898 the court made clear that Post office is run by the Government and it shall not be liable for any delay caused during the delivery of the postal articles, except the liability which may be expressed by the Central Government. Hence the Court by setting aside the order by the Permanent Lok Adalat stated that petitioner is not liable to pay any damages and respondent is only entitled to compensation equal to the composite speed post charges that have been already paid.[Post Master, Main Post Office, Jagdalpur v. Rajesh Nag, 2018 SCC OnLine Chh 552, order dated 19-07-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: The Single Judge Bench comprising of Arvind Singh Chandel, J., granted regular bail to an offender charged under Sections 366, 376(2) (n), 342/34 of the Penal Code.

The brief facts of the case are that the prosecutrix had lodged a complaint against the applicant who had forcibly asked her to marry him and later when the prosecutrix went to complain about the same, she was taken by her brother-in-law (co-accused) to a lodge where she stayed along with him where he committed rape with her and it continued. Later on, it was discovered on collection of some information that the applicant was already married.

The submissions of the learned counsel for the applicant states that the applicant was falsely implicated in the case as the prosecutrix was a consenting party in the present case and taking due reference through these submissions he has prayed for bail of the applicant.

Therefore, the Hon’ble High Court on taking due consideration from the facts and circumstances of the case along with the contention of the applicant’s counsel, observed that the prosecutrix being a major girl had on her own will stayed with the applicant at the lodge and the crux of the case is that she took 3 months to lodge the complaint against the same, Court concluded its order on the same by granting bail to the applicant as trial would take some time and till that time he is allowed to be released on bail. [Bandhan Jagte v. State of Chhattisgarh,  2018 SCC OnLine Chh 390; dated 05-04-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Vineet Kothari, J. decided a batch of writ petitions filed under Articles 226 and 227 of the Constitution, wherein the Court held that it is the right of the State to engage any particular advocate to represent it in cases.

The petitioners (practicing advocates in Bangalore courts belonging to Scheduled Castes) filed the writ petition seeking direction from the Court to remove Respondent 5 who was engaged by the State to represent the State in various cases relating to Scheduled Caste and Scheduled Tribe persons in the State. Petitioners contended that the said respondent was inefficient and incompetent due to which a large number of cases relating to SC/ST persons were pending before the courts. They also submitted that adequate opportunity should be given to other advocates to represent the State.

The High Court perused the material available on record and observed that the Court cannot interfere in such matters under Article 226 of the Constitution. It is the discretion of the State, like any other client, to engage any advocate to represent it in cases. Further, the delay in disposal of cases cannot be solely attributed to anyone advocate appearing for a litigant. The Indian judiciary is overburdened with number of cases and it is a well-known fact that there is a huge delay in disposal of cases for countless reasons.

The Court categorically held that, “a particular Advocate engaged by the State cannot be blamed for delay in disposal of the cases, as is sought to be made out by the petitioners. The petitioners do not have any locus standi to issue any kind of Certificate or brand any Advocate like 5th Respondent. Whether he is efficient or inefficient, whether his services are proper or not, it is for the State to decide. It is a choice of the State to select its own Advocate. It is none of the business of the Court much less of the complaining petitioners – Advocates to interfere in the same.”

Accordingly, any relief as prayed for by the petitioners was declined and the petitions were dismissed. [Prabhu V. v. Deptt. of Social Welfare, Karnataka, 2018 SCC OnLine Kar 489, order dated 28-02-2018]

Case BriefsHigh Courts

Rajasthan High Court: The accused-appellant who was in custody in relation to offences punishable under various sections of IPC and POCSO Act, was enlarged on bail by a Single Judge Bench comprising of P.K. Lohra, J.

The accused was charged under Sections 363, 366-A, 342 and 376 of IPC along with Sections 5 and 6 of the POCSO Act. The accused had filed a post-arrest bail application which was rejected by the learned Special Judge. The said order was challenged by the accused-appellant in the instant petition. Learned counsel for the petitioner submitted that the trial court did not appreciate the evidence in proper light and prayed that the accused be enlarged on bail.

The High Court bestowed its consideration to the arguments advanced at the Bar and perused the evidence on record as well as the impugned order. The Court closely considered the submissions made on behalf of the appellant that in his statement, the medical expert stated that the prosecutrix was above 18 years of age. There was a delay of more than one and a half month, from the date of incident, in lodging the FIR which per se creates doubt about the incident. The prosecutrix accompanied the appellant of her own volition and lived with him for about two months. There were contradictions in the statements of the prosecutrix herself. Further, the appellant was in custody for about one and a half year and completion of trial was likely to take considerable time. Considering these facts and circumstances of the case, the Court held that the trial court erred in declining bail to the accused-appellant. Therefore, the impugned order was set aside and the appellant was enlarged on bail. [Ramdev v. State of Rajasthan, 2018 SCC OnLine Raj 740,  order dated 05-04-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The Commission recently dealt with a second appeal wherein the appellant contended that after having taken voluntary retirement from the post office, even though she was supposed to receive her on the 1st of every month, that was not the case when in March 2017, her pension was withheld for want of linkage of her Aadhaar to her pension account along with 55 other such similarly situated pensioners. She mentioned that the CPIO and the FAA had held back information which she sought, regarding the names of all the other pensioners whose pensions were withheld owing to the same reason forwarded to her as the authorities under the grab of Section 8(1)(j) of the RTI Act, 2005 refused to give out personal information which the appellant believed to be an unsatisfactory reply. The appellant also sought a copy of the order wherein it said that Aadhaar is necessary for payment of pension since that had not been produced to her yet.

Prof. M. Sridhar Acharyulu, sitting for the Commission, observed that pension “is a matter of life and living” for pensioners who are “totally dependent upon the paltry amount of pension”. Hence, information which relates to pension should be treated as information concerning life and hence, response should be given within 48 hours. Special mention was afforded to Section 7 of the RTI Act wherein it has been mentioned that the PIO shall “as expeditiously as possible” give out the information sought which was not done in the present case. Further on, the Commission notes that it is a duty under the Contract Act, Consumer Protection Act, Trusts Act and also the Right to Information Act to pay timely pension or to rectify any problem relating to payment of pension to relieve the pensioner of any suffering arising out of the delay/ non-payment of pension. The Commission held that the postal authorities have a statutory duty to disclose the reasons behind their demand of linking the Aadhaar with pension payment and withholding payment of pension on not doing so. The Commission referred to K.S Puttaswamy v. Union of India, (2015) 10 SCC 92 wherein the Court held that citizens cannot be forced to produce their Aadhaar to receive government welfare scheme benefits. This Court had further clarified in its order dated 15/12/2017 that such a compulsion couldn’t be made since that was in contravention of the citizens’ fundamental rights.

As for the issue of not presenting the appellant with the names of all the other people whose pension had been withheld on the same grounds as the appellants, the Commission did not think of such information being “personal information” which the CPIO would have to protect. The Commission thus directed the CPIO to show-cause why maximum penalty should not be imposed upon him for the wrongful reasons given by him in his reply and why the postal authority should not be ordered to pay compensation to the appellant for causing delay, loss and harassment to her in the entire process. Additionally, the Commission directed the respondent authority to provide the certified copies of the orders by which the other employees’ pension had been delayed along with their names. [N.N. Dhumane v. PIO, Department of Posts, 2018 SCC OnLine CIC 21, order dated 27.2.2018]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a criminal petition filed under Section 439 of CrPC praying to enlarge the petitioner on bail, a Single Judge Bench comprising of Rathnakala, J. rejected the petition holding that mere delay by itself will not entitle the accused for bail.

The petitioner was charge-sheeted for the offences punishable under Sections 498(A) and 302 of IPC. Learned counsel for the petitioner submitted that the petitioner is in custody from the year 2013 and till now the trial has not concluded. The Court called for explanation from the Presiding Officer and found that the case was transferred thrice, many a times the accused did not appear, he changed his advocate when the witness were present, etc.

The Court on the basis of above facts held that the case has to be looked along with all facts and circumstances and mere delay by itself is not a ground for bail. Accordingly, the petition was rejected. The trial court was directed to dispose of the case as expeditiously as possible. [Sri Channappaji @ Channappa v. State of Karnataka, Criminal Petition No. 1897 of 2017, decided on August 1, 2017]

Case BriefsHigh Courts

Madras High Court: While relying upon the Supreme Court decision in Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, (2004) 3 SCC 90, the Single Bench of K. Kalyanasundaram, J. has observed that an injunction would normally follow in the cases of infringement of  intellectual property rights, especially when the dishonesty qua the defendants was apparent, and a mere delay would not be a ground to deny an order of interim injunction in such cases.

The plaintiffs submitted that the defendants had deliberately copied their registered bottle design, and thereby had caused design infringement and passed off their bottles as that of the plaintiffs. The defendants contended that there was no novelty in the design of the plaintiffs since the curves on the bottles and the vertical projection on the caps were functional features, and similar designs were in public domain even prior to the plaintiffs’ design registration, hence, the design registration was invalid. The defendants also submitted that they had been selling the alleged infringing products from past five years to the knowledge of the plaintiffs, therefore, as per Section 41(g) of the Specific Relief Act, the plaintiffs had acquiesced their right.

The High Court noted that it was an admitted fact that the plaintiffs’ design was registered in 2008, whereas the defendants launched the impugned design only in 2011. Moreover, it was not the case of the defendants that they were prior user of the design. The defendants had also not produced any material to substantiate their submissions that the designs of the plaintiffs were not new and the similar bottled designs had been used previously. Also, since the defendants themselves claimed to be the registered proprietor of similar designs, hence, they could not be permitted to approbate and reprobate as to the registrability of the bottle design. The Court also noted that the utility of the grip of a bottle, or the feature to facilitate the opening of the cap, could also be attained by other design options, therefore, such features could not be considered as “essentially functional”. The Court, thus, concluded that the design of the plaintiffs had been copied and adopted by the defendants, and the plaintiffs had made out a strong prima facie case for the grant of interim injunction. [Dart Industries Inc v. Cello Plastotech, 2017 SCC OnLine Mad 1851, decided on 12.05.2017]

Case BriefsForeign Courts

Supreme Court of Canada: While hearing an appeal for stay of proceedings due to undue delay as under Section 11(b) of the Canadian Charter of Rights and Freedoms, the Court in by a majority view put out a new framework of jurisprudence for the application of the provisions under the said section for achieving reasonably prompt justice.

The Court observed that the framework set out in R. v. Morin [1992] 1 SCR 771  had given rise to both doctrinal and practical problems, contributing to the culture of delay and complacency towards it.

The framework was based on factors constituting the length of the delay, the defence waiver, the reason for the delay and ‘prejudice’ to the accused’s interests in liberty, security and a fair trial. The framework was too unpredictable, confusing and complex and did not encourage participants in the justice system to take preventive measures to address inefficient practices and resourcing problems.

In the new framework set out by the Majority view, a presumptive ceiling of 18 months for cases tried in the provincial court and 30 months for the cases in the superior court, beyond which delay is presumed to be unreasonable. It was held that the delay attributed to or waived by the defence would be subtracted by the total delay. However, the burden would be on the Crown to prove reasonableness of the delay once the ceiling is exceeded on the basis of exceptional circumstances, or a stay of the proceedings shall follow. In the event where the ceiling has not been exceeded the burden of proving unreasonableness of delay shall lie on the defence. It was held that in regard to cases currently in the system the new framework would be applied contextually to avoid thousands of proceedings been stayed due to abrupt change.

The dissenting minority opinion of the Court, held that the new framework is unnecessary and the 30 year old jurisprudence would be enough in dealing with breach of Section 11(b) of the Charter. It was also maintained that a reasonable time for a trial should not be defined by numerical ceilings and that it diminishes the right to be tried within reasonable time. Moreover, the task of fixing presumptive ceilings should rest with the legislature and not the Courts.

However, in the context of the present litigation, a total delay of 49.5 months in a case of dial-a-dope operation of no exceptional complexity, was found unreasonable regardless of framework adopted. Hence, the appeal was allowed, the conviction was set aside and a stay of proceedings was entered. [R. v. Jordan (Barrett Richard Jordan v. Her Majesty the Queen), 2016 SCC 27, decided on 8 July 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): While observing that a public spirited person is expected to be diligent in pursuing public cause and not be indolent and lackadaisical, particularly when his action is likely to hinder and jeopardize public work of high magnitude and proportion, NGT dismissed an appeal filed by an environmentalist stating that the appeal was barred by limitation. The said appeal was filed before NGT by a former Professor of economics of IIM Begaluru, presently living at Lakshmoli in Uttarakhand. It was alleged in the appeal that Singoli-Bhatwari hydro-electric project on the river Mandakini in the State of Uttarakhand has been started by L&T Uttranchal Hydro Electric Pvt. Ltd. without complying with the Environment and Forest Clearance and various other safeguards. It was further alleged that no permission of the National Board of Wildlife was sought for before the land for the project was transferred to the State Forest Department and the design of the project was also faulty. Before the Tribunal, L&T Uttranchal Hydro Electric Pvt. Ltd. denied all the allegations and submitted that all the required conditions for the Project have been complied. It was further contended by L&T Uttranchal Hydro Electric Pvt. Ltd. that the delay in filing the application was inordinate as the project had commenced on the basis of valid environment and forest clearances given in the 2006, 2007 and 2009. In his defence, the appellant submitted that the matter came to his knowledge only in July, 2014, after which he approached the Tribunal. After perusing the material on record and hearing both the parties, NGT dismissed the appeal and noted, “We unhesitatingly hold that the Application is inordinately delayed and, therefore, barred by limitation. A public spirited person which the Applicant claims to be is expected to be diligent in pursuing public cause and not be indolent and lackadaisical, particularly when his action is likely to hinder and jeopardize public work of the magnitude and proportion as the project in question.” [Bharat Jhunjhunwala v. Union of India, 2016 SCC OnLine NGT 161, decided on May 4, 2016]

Case BriefsHigh Courts

Delhi High Court: While dealing with a question relating to condoning of delay after deducting the days which were spent for the purpose of settlement, the Court held that deducting the number of days spent for the purpose of settlement can be considered sufficient reason to condone the delay.

In the present case, the plaintiff filed the suit for permanent injunction against the defendant to restrain violation and infringement of its rights in its 8 patents along with damages, rendition of accounts, delivery up etc. In furtherance of the court proceedings, a notice in the counter claim was issued by Court vide order dated 31st July, 2015 and a period of 8 weeks was given to the plaintiff to file its written statement. For 59 days, both the parties were negotiating. Thereafter, the plaintiff informed the Court that both the parties have not been able to resolve the matter. Later, an application was filed by the Defendant counsel that as per Section 16 read with Schedule I of the Commercial Courts Ordinance, a written statement filed after expiry of 120 days from the date of service of summons cannot be taken on record. Ms. Pratibha M. Singh, learned Senior counsel appearing on behalf of plaintiff submitted that the present suit was filed by the Plaintiff before the Original Side of this Court on 20th March, 2015 and now as per the Commercial Court Ordinance, the present suit stands transferred before the Commercial Division of this Court with effect from 15th November, 2015. Therefore, in the light of the proviso of Section 15 (4) of the Commercial Court Ordinance, this Court has the discretion to take on record the written statement filed by the plaintiff on 5th December, 2015 inasmuch as the timelines as laid down by the Commercial Courts Ordinance will become applicable to the present case from 15th November, 2015.

The Court while relying on Dr. Sukhdev Singh Gambhir v. Amrit Pal Singh, ILR (2003) I Delhi 577 held that since the parties were trying to resolve their dispute amicably and that process took 59 days, the said period is to be excluded from the period provided in the Civil Procedure Code and Clause 4D(i) of Commercial Courts Ordinance. The Court also held that the present suit squarely falls under the said exemption and therefore provides for extended timelines for completion of pleadings as per the prior statute. The Court also said that the prescribed period of 120 days’ timeline will be applicable in cases filed subsequent to the notification of the Ordinance and the same is not applicable in the present case. [Telefonaktiebolaget L.M Ericsson v. Lava International Ltd., 2015 SCC OnLine Del 13990, decided on December 9, 2015]

Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While coming down heavily upon Delhi Government for delay in deciding the legal guardianship of mentally-challenged persons, CIC noted that as at every hour of delay in recognizing guardianship, the minor is being deprived of parental support, Government must not keep such kind of vital issues pending, especially when it is concerned with mentally retarded persons, who require constant guardianship. The Commission was hearing an appeal filed by a person who sought to know information regarding the requirements for issue of Legal Guardian Certificate. In his appeal he submitted that his brother is ready to be the legal guardian of the mentally retarded nephew of the appellant, but for the past one and half years, he is not able to get the guardianship certificate, details about which were sought by him in his RTI application. He further submitted that in response to his application he was informed that there is a prescribed procedure for issuing the guardianship certificates for the mentally retarded persons. There will be a Local Level Committee constituted by the Divisional Commissioner consisting of a doctor, senior lawyer, a representative of NGO and social welfare officer and if need, they will also call the ward concerned. This Committee will examine all such applications for Legal Guardian Certificate. But so far the Government has not appointed the committee because of prolonging correspondence in naming the members. Hence the issue of the Legal Guardian Certificate is pending. After perusal of material in record, CIC noted that, “The Divisional Commissioner should have constituted the said committee long back on a priority basis and decided the legal guardians in such cases of urgency.” “A meeting on this issue has to be held on March 27, 2015 and the appellant can wait for the outcome of the same,” CIC further noted. (Mohan Singh v. SDM (Karol Bagh), 2015 SCC OnLine CIC 605, decided on March 25, 2015)