Case BriefsHigh Courts

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

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

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

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


Appearances

For the Appellants: Mr. A.K. Dash

For the Respondent: Mr. S.C. Das


Arunima Bose, Editorial Assistant has reported this brief.

Op EdsOP. ED.

“Law is the protector of the weak.”

–Frederick Schiller[1]

The ongoing months long farmers’ protests in several parts of Northern India have raised a demand of enacting a stringent special law mandating the Minimum Support Prices (MSP) for every crop in addition to the repeal of three farms Acts, namely, the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020[2], the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020[3] and the Essential Commodities (Amendment) Act, 2020[4]. The farmers have alleged that these farm laws would act as the death knell for the small and marginal farmers.  The issue that arises now is whether, if the Government maintains the status quo, the farmers would be protected under the ambit of the existing Indian laws against the abuse and unfair practices of the big corporates. The article analyses that how even if no law mandating the MSPs is enacted, the courts would not be deprived of the power to protect the farmers against the unfair trade practices by the corporates. The article analyses the provisions of existing Indian laws which can be used by the courts to impose the minimum prices to be paid by the corporates to the farmers for purchasing their crops.

The Contract Act, 1872[5] gives liberty to every person to come into a contract with the free consent of both the parties. However, the drafters of the Act had very aptly anticipated that there might be numerous situations where the big corporates having disproportionate and unequal bargaining power would endeavour to come into unfair bargains with the weaker section of the public. The Contract Act takes care of these situations by virtue of Section 19-A[6] read with the Section 16[7] of the Act.  Section 19-A of the Act gives the option to the weaker party in the contract to set aside the contract at his will if his consent was induced by “undue influence”. A consent is considered to be induced by “undue influence” if one of the parties to the contract is “in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other”[8]. The Supreme Court of India has observed in DTC v. DTC Mazdoor Congress[9] that the disparity in the economic strength of the contracting parties results in the unequal bargaining power and thus, leads to the abuse of weaker party by the stronger party. Sometimes, the weaker party is in a position in which it could obtain the means of livelihood only upon the terms imposed by the stronger party. It is obvious that the position of corporates, headed by billionaires and position of farmers, facing suicide crisis in India, cannot be compared. The corporates are per se the stronger parties and the farmers are per se the weaker parties. Thus, this clause perfectly applies to the situations where a stronger party buys a crop from a weaker party at a price below the Minimum Support Price (MSP).  Here the MSP should be considered as that threshold rate above which farmer would reap the profits. So, if the Court faces any dispute involving a transaction between a farmer and a buyer which per se indicates the unfair terms between the parties, such as buying a crop below its MSP rate, the consent of the farmer should be considered as consent induced under “undue influence”. The farmer should be then given the option to rescind the contract and simultaneously take compensation due to the loss incurred by that contract. However, here, the MSP would not be a price fixed by the Government on that particular crop. Rather, it would be that rate independently determined by the Court above which the farmer would reap the profits.

The question now arises is whether it is a matter of public policy and thus, a matter not to be decided by the courts. The public policy, as held by the Supreme Court of India[10], is not a policy of any particular Government. It is simply a matter which concerns the public good and the public interest. The principles governing public policy must be and are capable on proper occasion, of expansion or modification. If the conduct is against the public conscience, public good and public interest, then such conduct must be regulated by the courts. The Supreme Court of India has expressly held that “In any case which is not covered by authority, courts should be guided by Preamble to the Constitution[11] and the principles underlying the Fundamental Rights and the Directive Principles.” Thus, the courts as parens patriae cannot leave this matter as a matter to be decided only by Government even when there is no specific law on MSP. Thus, the courts are duty-bound to decide upon the transactions between corporates and farmers that are against the public policy.

Now, which constitutional principles compel the Court to secure the MSPs? It has been held several times that the “right to life” guaranteed under Article 21 of the Constitution[12] includes the “right to livelihood”[13].  It needs no proof that it has become extremely difficult for the farmers to earn their livelihood. Right to life means more than just physical existence. It takes within itself the bare necessities of life such as clothing, shelter, adequate nutrition, etc. Thus, forcing the farmer to sell below the MSPs leads to denial of their “right to livelihood” guaranteed under Article 21 of the Constitution. Further, Article 23 of the Constitution[14] protects the citizens against the exploitation from both State and private citizens.

In People’s Union for Democratic Rights v. Union of India[15], the Court held that the “force” means “not only the physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage”. Then Articles 38[16] and 39(c)[17], collectively known as principles of social security and social justice, direct the State to minimise the inequalities of justice, social and economic amongst its citizens. Article 43 of the Constitution[18] directs the State to secure the “living wage” to the farmers. These provisions when read collectively compel the Court to protect the right of the farmers to sell at a favourable price.

It is believed that it would be a perfect opportunity for the courts to determine the threshold rate and other guidelines after in-depth analysis and study of the risks and losses involved in the agriculture sector. If decided by constitutional courts, they would act as the binding guidelines on the future transactions between corporates and farmers. It is pertinent to note here that it would not be the first time when the constitutional courts would intervene to issue guidelines to protect the weaker section of the society.

The Supreme Court has held in Vishaka v. State of Rajasthan[19] that when conduct of one section of society results in the violation of fundamental rights of other section of the society and there is a legislative vacuum against that conduct then “an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum”. It was held that the obligation of the courts for the enforcement of the fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary. It was held that it is the function of judiciary to ensure the observance and attainment of human rights. Further, it was held that the guidelines would be treated as the law declared by this Court under Article 141 of the Constitution[20].

Thus, the absence of a law mandating the MSPs for contracts between farmers and corporates does not mean that the corporates would be able to take advantage of distressed farmers. The courts are still not deprived of the powers granted to them under the Contract Act, 1872 and the Constitution to protect the farmers of their right to sell crops at their favourable prices.


*Advocate,  Delhi High Court.

**Final year law student (LLB), Campus Law Centre, Faculty of Law, University of Delhi.

[1] Gene Ligotti, Accomplice: … a Novel (2013), p. 202.

[2]  http://www.scconline.com/DocumentLink/wdP4LxVM.

[3] http://www.scconline.com/DocumentLink/s4WyG5Ra.

[4] http://www.scconline.com/DocumentLink/8F35O644.

[5] http://www.scconline.com/DocumentLink/xAi185p6.

[6] http://www.scconline.com/DocumentLink/K5XuGL0N.

[7] http://www.scconline.com/DocumentLink/37B4H2v8.

[8] See S. 16 of the Contract Act, 1872.

[9]1991 Supp (1) SCC 600.

[10] Ibid.

[11] http://www.scconline.com/DocumentLink/8bvjrn3W.

[12] http://www.scconline.com/DocumentLink/VN1u87S9.

[13] Olga Tellis v. Bombay Municipal Corpn.,(1985) 3 SCC 545.

[14] http://www.scconline.com/DocumentLink/1RoWjnWY.

[15] (1982) 3 SCC 235 .

[16] http://www.scconline.com/DocumentLink/pd9EUWHe.

[17] http://www.scconline.com/DocumentLink/HgecD61Z.

[18] http://www.scconline.com/DocumentLink/C86Lq30R.

[19] (1997) 6 SCC 241 .

[20] http://www.scconline.com/DocumentLink/42L90IU1.

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Sandeep Sharma, JJ., while dismissing the present petition upon lack of merits said, “A writ of Mandamus can be issued only when there is a legal right that the parties asking for the writ to compel the performance of statutory duties cast upon the authorities.”

 Background

The present petition was filed to seek a writ of mandamus, directing the respondents to consider the issue of creation of bifurcation and re-organization of new Gram Sabha and Gram Panchayat, in order to facilitate the development work of villages and ensure necessary facilities to all. Prayer was also sought to grant the said writ on the ground that the population of villages as mentioned under the petition, exceeded 2700 and proper regulation/management is only permissible if the aforementioned residents are uniformly divided.

 Observation

The Court reproduced Section 3 of the Himachal Pradesh Panchayati Raj Act, 1994, which reads as hereunder;

Section 3 Declaration of Sabha area -(1) The Government may, by notification, declare any village or group of contiguous villages with a population of not less than one thousand and not more than five thousand to constitute one or more Sabha areas for the purposes of this act and also specify its headquarter:

Provided that in a Scheduled area the Government may by order declare any village or group of contiguous villages with a population of less than one thousand to constitute a

Sabha area:

Provided further that the Government may, after having due regard of the geographical location, lack of means of transport and communication and administrative convenience, declare an area comprising a village or group of contiguous villages having a population either less than one thousand or more than five thousand to constitute a Sabha area.

(2) The Government may, at the request of the Gram Sabha concerned or otherwise, and after previous publication of a proposal by a notification, at any time –

(a) Increase any Sabha area by including within such Sabha area any village or group of villages

(b) Diminish any Sabha area by excluding from such Sabha area any village or group of villages

(c) Alter the headquarter of any Sabha area

(d) Alter the name of any Sabha area

(e) Declare that any area shall cease to be a Sabha area

2-A When on account of the reason that the Sabha area is, during the term of the Gram Panchayat, increased or diminished or ceased under sub-section (2), the increase or diminution or cessation of the Sabha area shall not affect the term of the office bearers of Gram Panchayat, till the expiration of the duration of the Gram Panchayat specified in sub-section (1) of section 120 or its dissolution under section 140 of this Act.

(3) If the whole of the Sabha area is included in a municipality, the Sabha area shall cease to exist and its assets and liabilities shall in the manner prescribed be disposed of.

Reliance was further placed on other recent judgments by this Court, in CWP No. 4602 of 2020 titled Ratti Ram v. State of H.P., CWP No. 4118 of 2020 titled Bihari Lal v. State of H.P. and CWP No. 3999 of 2020 titled Joginder Singh decided on 16-12-2020.

Decision

Dismissing the present petition, the Court said, “…the issue, as raised in this petition, is not justifiable as no mandamus can be sought for bifurcation of Gram Panchayat(s) under Article 226 of the Constitution at the instance of an individual.”[Dharam Pal v. State of HP, 2020 SCC OnLine HP 3094, decided on 18-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Shircy V, J. held that an author has the legal right to protect his intellectual property even after he has sold his authorship while also directing the trial court to take all endeavour to dispose of the case, within six months.

The appellant is a film director and a scriptwriter, who claims to have researched the history of a grand ancient festival ‘Mamankam’, and on this subject, he had written a script for a film. Subsequently, he met the first respondent and an agreement was made for making a film on it.

The counsel for the appellant contended that though the appellant was initially the director, he was replaced shortly after and the film was completed after changing and damaging the script. Hence, a suit was filed, with a petition for interim injunction to restrain the respondents from releasing or distributing the film, but it was denied by the District Court.

The counsel for the respondent Saiby Jose Kidangoor and V. Ramkumar Nambiar contended that the appellant had sold his authorship for a sale consideration of Rs 3 Lakh and so he is neither entitled to get the credit of the film regarding story or screen play nor entitled to stop the release of such a big-budget film.

In deciding the issues, the Court analysed the Copyright Act, 1957 and emphasized on Section 2(d) which gives the definition of word ‘author’, Section 18 which explains ‘assignment of copyright’ and Section 57(1) of the Act which prescribes that even after assignment of the copyright in a work, the author of a work will have special rights to claim the authorship of the work.

The Court further remarked that according to Section 57 of the Copyright Act, 1957, rights of the author is always protected as it places the author in an elevated position and copyright being a form of the intellectual property gives rights to the creators for their work. The Court further added that it is doubtless that the author of the work is the creator of literary art and it is his idea developed as a screenplay to make the movie. So here the appellant is the rightful owner of the script. However, the Court had to balance the appellant’s concern that the film is made by damaging his original script, with the respondents’ unease regarding the imminent release date of the film. 

The Court, taking a middle path observed that though the appellant is the actual owner of the script but the film is to be released in almost all cities in India as well in foreign countries and all arrangements for this have been made, and if the release is postponed for the reason of the name of the scriptwriter, the damages that would be caused to the respondent “will be huge and is beyond imagination”.

Considering all the facts and issues, the Court held that the film may be released without displaying anyone’s name as the scriptwriter thereof till the disposal of the suit while also directing the trial court to dispose of the case within six months. [Sajeev Pillai v. Venu Kunnapalli, 2019 SCC OnLine Ker 5338, decided on 11-12-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: Ali Mohammad Magrey, J. allowed a petition under Section 561-A of the Criminal Procedure Code.

The petitioner married the respondent in 2002 and gave birth to a child in 2005 out of the wedlock. The couple got divorced in 2009, and the petitioner re-married another man in 2012. The child, being her minor daughter, was living with the petitioner ever since birth. Respondent never paid any maintenance for the child. On an application of the petitioner, the Divisional Commissioner directed the respondent to pay the maintenance.

Under the law, the respondent could not have succeeded in a guardianship suit because the child was yet to attain the age of 13 years and the petitioner being the natural guardian would have been entitled custody. In light of this situation, the respondent filed a petition under Section 100 of the CrPC. The trial Magistrate allowed the application filed by the respondent directing the petitioner to restore the custody of the minor daughter to the respondent. Aggrieved thereby, the petitioners herein preferred a revision petition before the Court of learned Principal Sessions Judge for seeking setting aside the said order.

Now the question before the High Court is whether the provisions of Section 100 of the CrPC could be invoked and, consequently, could it be said that the custody of the minor child with the mother was illegal and that the child was under her wrongful confinement?

The petitioner argued that the issue of guardianship and custody cannot be decided under Section 100. This Section confers the Magistrate with the power to issue a search warrant for the production of the confined person before the Court only if he has the reason to believe that the person has been kept in illegal confinement and such confinement constitutes an offence. The expression “reason to believe” imposes responsibility on the Magistrate to record cogent reasons which would suggest that the confinement amounts to an offence. The trial Magistrate in the present case held that the petitioner had no legal right whatsoever to the custody of the child and her refusal to hand over the child to the respondent resulted in illegal detention of the minor daughter within the meaning of Section 100 CrPC.

The High Court considered the facts of the case and held that the custody of the minor child with her mother was not wrongfully confined by the mother, stating that “a mother is also a natural guardian of the child”. If the respondent was aggrieved with the custody of the child, he should have filed an application before a competent Court of the jurisdiction in terms of the Guardians and Wards Act. The order of the Trial Magistrate was quashed.[Rehana Kouser v. Altaf Ahmed, 2019 SCC OnLine J&K 646, decided on 26-07-2019]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: An appeal was filed before a Single Judge Bench comprising of M.M.A. Gaffoor, J., against a judgment of district judge where the original plaintiff instituted an action seeking partition of a land.

Claim of plaintiff regarding the land was to receive undivided 1/2 share against the share of defendants whereas the two defendants were entitled to receive undivided 1/4 share according to his amended petition. The other defendants averted that they were exclusively entitled to the plantations and improvements in the land sought to be partitioned in this action. District court favoured the other defendants. Subsequently, the original plaintiff died and his son was substituted in his place as plaintiff-appellant who filed this appeal for setting aside of the above order of District Court.

Supreme Court observed after perusal of the plaint that the substituted plaintiff had amended the original plaint claiming that he was entitled to an undivided 1/2 share against two others entitled to an undivided 1/4 share while in the original plaint it was to be divided between four defendants. It was observed that substituted plaintiff was not completely aware of the facts of the case due to his admission of the fact that his father, the original plaintiff, was well aware of the facts of the case compared to himself and due to the same he had to amend the plaint. Appellant failed to show the existence of facts which could show his legal right or liability, thereby he failed to prove his case. Therefore, the appeal was dismissed. [Ahamed Abdulla Marikkar Mesthiriyar  Mohamed Ismail v. Sammon Hadjiar,2018 SCC OnLine SL CA 85, decided on 01-10-2018]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: The petition was filed before Krishna Murari, CJ. and Arun Palli, J., praying that the State Government should be commanded to declare an area in question as a protected monument and to preserve it accordingly. An affidavit was filed by Deputy Secretary, Department of Archaeology, Museums, and Archives, Punjab stating that a notification under Section 4(3) of the Punjab Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1964, had been issued and published.

As per the amicus curiae in this case, according to the affidavit, cause of this petition had already been served thus this petition should be quashed. Whereas the Punjab Urban Development Authority submitted that notification had been issued without considering the objections by the authorities.

The High Court was of the view that issue raised by Punjab Urban Development Authority and submission of respondent both were beyond the scope of this Public Interest Litigation. Amicus curiae brought to light the fact that consideration for auction was not fully paid and no allotment order in their favour has been issued. The Court stated that if any legal right was violated they can take recourse accordingly and for this Public Interest Litigation the proceedings were closed and the matter was disposed. [Subhash Kapoor v. State of Punjab, 2018 SCC OnLine P&H 1517, decided on 01-10-2018]