Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal, New Delhi (NCLAT): The Coram of Justice Ashok Bhushan (Chairperson) and Dr Alok Srivastava (Technical Member) observed that, provisions of the Limitation Act are applicable to proceedings under IBC.

An appeal was filed against the order passed by the National Company Law Tribunal, Mumbai, by which the application filed by the appellant had been rejected as barred by time.

Contentions

Appellant’s counsel submitted that both the parties were maintaining a running account and there have been transactions inter se which was reflected from the ledger account filed by the respondent.

Further, in the facts of the present case, Article 1 of the Limitation Act was attracted as per which the limitation period of 3 years began to run from the close of the year in which the last item admitted or proved was entered into the amount.

Analysis, Law and Decision

Tribunal expressed that in the application under Section 9 IBC, the appellant had claimed payment of outstanding dues on the basis of different invoices issued in the year 2015-16.

The Adjudicating Authority after perusing the date of all the invoices returned a finding that Application under Section 9 having been filed on 24th October, 2019 even the last invoices dated 29.09.2016 and 10.10.2016 were more than three years prior to filing of Section 9 Application hence the Application having been not filed within limitation, the same is rejected.

Coram observed that the Limitation Act is applicable in IBC Proceedings and IBC does not exclude the application of Sections 6 to 14 or 18 and any provision of the Limitation Act.

Whether appellant can take benefit of Article 1 of the Limitation Act, 1963?

Supreme Court in B.K Educational Services (P) Ltd. v. Parag Gupta, (2019) 11 SCC 633 after considering the provisions of IBC and the Limitation Act had laid down that for filing application under Sections 7 and 9, it is Article 137 which is attracted.

Supreme Court in Babulal Vardharji Gurjar v. Veer Gurjar Aluminium Industries (P) Ltd., (2020) 15 SCC 1 has reiterated the applicability of the Limitation Act and it was again reiterated that period for limitation is governed by Article 137 of the Limitation Act.

It was noted that Article 1 is in Part-I of the Schedule of the Limitation Act dealing with suits, under the “suit relating to accounts”. The application filed under Section 9 of the appellant cannot be said to be a suit relating to accounts.

Tribunal concluded stating that, limitation as per Article 137 will begin to run from the date when the right to apply accrues and the application filed on the basis of invoices were prior to much before three years period from filing of Section 9 application, NCLT had rightly rejected the application.

Therefore, the appeal was dismissed. [S.M. Ghogbhai v. Schedulers Logistics India (P) Ltd., Company Appeal (AT) Insolvency No. 281 of 2022, decided on 23-5-2022]


Advocates before the Tribunal:

For Appellant: Advocate Ekta Mehta

For Respondent: Advocate Kayomars K. Kerawalla, Advocate Kunal Mehta and Advocate Robin Fernades.

Case BriefsHigh Courts

Kerala High Court: Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek.

Appellant challenged the interim order wherein the Single Judge had issued a direction against the appellant ‘not to publish/broadcast/ telecast any item concerning or relating to the petitioner herein while reporting about Crime No.6/2022 of Crime Branch Police Station and S.C.No.118/2018 of Additional Special Sessions Court (SPE/CBI) III, Ernakulam except the order of the Court for a period of three weeks from today’. 

The contention of the appellant was that the above amounted to a complete ban and operates as a violation of the well-recognized principles of the freedom of the Press, to report and publish the truth.

Analysis and Decision

High Court stated that, it will address the issue: Parameters which are to be kept in mind when a News Media reports on an ongoing Criminal Trial or investigation.

For the above-stated issue, Court stated that its path was illuminated by the holdings of the Supreme Court in Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603, wherein, the Hon’ble Court has unambiguously declared that orders postponing reporting of certain phases of Criminal Trial (including identity of the victim or the witness or the complainant) can be applied for a short duration and solely in cases of “real and substantial risk of prejudice” to the proper administration of justice or to the fairness of Trial.

Bench expressed that, the various High Courts and the Supreme Court have repeatedly been engaged qua the contours of the tenuous balance between reporting of facts relating to a crime and the unexpendable requirements to be maintained for a Fair Trial; but there can be little doubt that the Press have a duty to inform the public truthfully about the crimes and the facts relating to investigation, arrest and such other.

Expressing in a more elaborate manner, with respect to the above, Court added that the press certainly cannot be allowed to run amok and will have to be imposed with reasonable restrictions, so as to make sure that every trial and investigation is conducted fairly, openly and above board.

“Press has a duty to inform the public, the publication of lurid details and other sensitive investigative inputs, which are within the sole jurisdiction of the courts to decide upon, certainly require to be put on a tight leash.”

Coming to the impugned order, Bench stated that though it does not want to speak in detail on the merits of the rival factual contentions but there is no doubt that direction not to publish/broadcast/ telecast ‘any item’ concerning or relating to the appellant’, certainly travels beyond the reasonableness of the restrictions sanctioned by the Supreme Court. 

The term ‘any item’ is not merely very vague but would also cause an unfair fetter on the Press to make a fair reporting within the parameters of law, and therefore, we (Court) feel it necessary to modify the same, though to a very limited extent.

 Bench deemed it apposite to dispose of the writ appeal, vacating the impugned order to the extent to which it had restrained the appellant from reporting ‘any item’ relating to the first respondent but clarifying that they shall not engage in sensationalism, or pursue any line of reportage intended to forge an impression against the first respondent or any other accused or witness with respect to their involvement or otherwise in the crime; and without in any manner, commenting about the ‘in camera’ proceedings.

Further, the Court stated that, when the Investigating Officers have already been restrained by the aforesaid order against the State Police Chief, the apprehension of the first respondent stands allayed fully; and resultantly, an absolute ban for publication of ‘any item’ relating to the writ petitioner would perhaps be not relevant any further.[Indo-Asian News Channel (P) Ltd. v. T.N. Suraj, WA No. 566 of 2022, decided on 6-5-2022]


Advocates before the Court:

For the appellant:

BY ADVS. SRI.KALEESWARAM RAJ

           C.P. UDAYABHANU

           THULASI K. RAJ

           SHILPA SOMAN

For the Respondents:

BY SR.ADV.SRI.GEORGE POONTHOTTAM

SRI.NAVANEETH KRISHNAN

BY SR. GOVT. PLEADER SRI.BIJOY CHANDRAN

Case BriefsHigh Courts

Calcutta High Court: Md. Nizamuddin, J. allowed a petition which was filed challenging the impugned assessment order under Section 147 read with Section 144B of the Income Tax Act, 1961 relating to assessment year 2013-2014 on the ground of violation of principle of natural justice by not providing the petitioner with an opportunity to file reply to the show-cause-notice.

The show cause notice asked the petitioner to give his reply/show-cause-notice to the proposed draft assesment through Department’s Register e-filing account by 23:17:59 hours IST of 30-03-2022, on the ground that before expiry of such time granted to file such reply/objection to the aforesaid showcause- notice/draft assessment. Respondent/Assessing Officer passed the impugned assessment order on 30-03-2022 at 15:17:08 IST and it is the specific case of the petitioner that the petitioner could not file reply or objection to the aforesaid show-cause-notice due to technical glitches in the portal of the Department.

The Court was of the view that the impugned assessment order which had been passed before the expiry of the time granted by the Assessing Officer to the petitioner to file reply to the aforesasid show- cause-notice relating to the draft assessment in question and further in view of the technical glitches in the portal of the Department by which petitioner could not file his aforesaid objection.

The Court found that the impugned assessment order is not sustainable in law and the same was set aside and the case was remanded back to the Assessing Officer concerned to pass a fresh assessment order in accordance with law after giving an opportunity to the petitioner to file reply to the aforesaid show-cause-notice which shall be filed by the petitioner within seven days from date and shall pass a reasoned and speaking order and by observing principle of natural justice.[Bhadrish Jayantilal Sheth v. Income Tax Officer, WPA 8232 of 2022, decided on 17-05-2022]


Mr Avra Majumder, Sk. Md. Bilwal Hossain : For the Petitioner.

Mr Om Narayan Rai :  For the Respondents


Suchita Shukla, Editorial Assistant has reported this brief.

Appointments & TransfersNews

The Supreme Court Collegium has approved the proposal for the appointment of the following Additional Judges of the Allahabad High Court as Permanent Judges of that High Court:

1. Shri Justice Sanjay Kumar Pachori,

2. Shri Justice Subhash Chandra Sharma,

3. Shri Justice Subhash Chand, (Presently working in Jharkhand High Court on Transfer)

4. Smt. Justice Saroj Yadav,

5. Shri Justice Mohd. Aslam,

6. Shri Justice Anil Kumar Ojha,

7. Smt. Justice Sadhna Rani (Thakur),

8. Shri Justice Syed Aftab Husain Rizvi,

9. Shri Justice Ajai Tyagi, and

10. Shri Justice Ajai Kumar Srivastava-I.


Supreme Court Collegium

[Collegium Statement dt. 21-5-2022]

Case BriefsHigh Courts

Delhi High Court: Stating that mere writing of a letter of representation cannot furnish an adequate explanation for the delay, Jyoti Singh, J., expressed that, it is a settled principle of law that in writ jurisdiction, the Court would not ordinarily assist those who are lethargic and indolent.

In the present matter, petitioner sought a writ of Certiorari quashing the advertisement with respect to an application in Class 5 filed by Midas Hygiene Industries (P) Ltd./respondent 3 for registration of trademark LAXMAN REKHA (label) and a further direction to the Registrar of Trade Marks to re-advertise the application.

Respondent 3 filed an application for registration of trademark LAXMAN REKHA (label) and a suit for perpetual injunction, infringement of copyright, passing off, delivery etc. against the petitioner was also filed in respect of trademark LAXAMN REKHA.

Injunction against the petitioner was granted against the petitioner. The said order was vacated before the Division Bench, however, Supreme Court set aside the order of the Division Bench and restored the order granting injunction. The suit was transferred to the District Courts on account of pecuniary jurisdiction.

Respondent 3 preferred an application before the Trial Court seeking amendment of the plaint and application filed copy of the registration certificate, whereby respondent 3’s trademark LAXMAN REKHA was registered in Class 5.

It was undisputed that the impugned advertisement was published in the Mega Journal in 2003 and trademark of respondent 3 was registered in 2005. As per the counter-affidavit of respondent 1 and 2, the mark was renewed in 2007 for 10 years. Petitioner averred that he learnt of the registration of the mark in 2006, when the Registration Certificate was filed by Respondent 3 along with an application for amendment in a suit pending in the District Courts, between the same parties.

In Court’s opinion, the statutory remedy available to the petitioner was to seek cancellation of the registered trademark and rectification of the Register under Section 57 of the Act. Though the petitioner failed to take recourse to the appropriate remedy available under the Statute and instead filed the present petition for the reasons best known to him.

Bench stated that it was evident that the petitioner was completely aware of the remedy available to any person aggrieved to seek cancellation of the mark and rectification of the Register under Section 57 of the Act, way back in the year 2006, but chose to remain silent and took no steps to seek cancellation of the mark and rectification of the Register, with respect to the trademark in question.

Hence, the Court expressed that,

This Court cannot, by entertaining the present writ petition, create an alternate mechanism to challenge the registration of a trademark, though indirectly, against the legislative intent.

If there is a delay on the part of the  Petitioner ,which is not satisfactorily explained, the High Court may decline to exercise the writ jurisdiction.

Lastly, the Bench held that in the present matter, the petitioner took no action, except to correspond with the Registrar and admittedly in the meantime, statutory rights were accrued in favour of respondent 3, hence the Court was not persuaded to exercise the writ jurisdiction in favour of the petitioner.[Sudhir Bhatia Trading As V. Bhatia International v. Central Government of India, WP(C)-IPD 37 of 2021, decided on 19-5-2022]


Advocates before the Court:

For the Petitioner:

Mr. Shailen Bhatia, Ms. Zeba Khan and Ms. Muskaan Arora, Advocates.

For the Respondents:

Mr. Harish V. Shankar, Central Government Standing Counsel with Ms. S. Bushra Kazim and Mr. Srish Kumar Mishra, Advocates for UOI/R-1 & R-2.

Mr. Sanjeev Sindhwani, Senior Advocate with Mr. Sanjay Dua, Advocate for R-3.

Appointments & TransfersNews

President appoints Justice Sabina, senior-most Judge of the Himachal Pradesh High Court, to perform the duties of the office of the Chief Justice of that High Court, with effect from 25.05.2022 consequent upon the retirement of Shri Justice Mohammad Rafiq, Chief Justice, Himachal Pradesh High Court.


Ministry of Law and Justice

[Notification dt. 23-5-2022]

Case BriefsHigh Courts

Chhattisgarh High Court: In a matter pertaining to mental cruelty, the Division Bench of Goutam Bhaduri and N.K. Chandravanshi, JJ., expressed that, if a spouse by her own conduct, without caring about the future of the daughter, parts with ornaments which were meant for the marriage, it will be within the ambit of mental cruelty done by the wife.

Factual Background


In the present matter, the decision of the Family Court was challenged whereby the application filed by the appellant/husband for grant of decree of divorce on the ground of cruelty and desertion was rejected.

The appellant/husband pleaded that he was married to the respondent/wife. The husband was engaged in the job of railway guard, and it was stated that before filing the divorce petition, the wife deserted the husband without any lawful cause.

Further, it was alleged that the wife had availed different loans to the extent of Rs 10-12 lakhs, without the knowledge of the husband even by placing the ornaments which were meant for the marriage of their daughter as a pledge to different creditors.

Additionally, the allegation which was also levelled against the husband that he was having illicit relations outside marriage, damaged the reputation of the husband in society, amounting to cruelty and therefore the divorce was claimed.

Analysis, Law and Decision


High Court noted that reading the statements of the appellant, son, daughter and creditor together would lead to show that the wife in absence of knowledge of the husband had availed the loan from a third party.

“In a normal household of the Indian society, the narrative made by the son and daughter that the ornaments were purchased for the ensuing marriage of the daughter appears to be more logical.”

Further, the Bench expressed that during the marriage ceremony in the Indian household, the presentation of the ornament is normally done for which the parents start the effort, from an early date.

Bench stated that, in the present matter, the conduct of the wife which had been projected and incidentally the children, who have supported such fact against the mother that wife without the knowledge of the husband had done away with the security of the marriage of the daughter and had obtained amount from the creditor by pledging the ornaments meant for the marriage of the daughter would certainly cause apprehension and fear and create financial pressure on the mind of the father as the hard reality cannot be forgotten which exists in the society to present a girl during the marriage with ornaments.

Illicit Relation

Regarding the extramarital affair, Court stated that no reliable evidence was found as the wife’s statement was itself inconsistent.

Further, the Bench stated that, it was obvious that to suffer an allegation pertaining to once character of having an extramarital affair is quite torturous for a person and whereas inconsistently in the statement and only allegation of extra marital affair is raised by the wife casually against the husband certainly which always has a bad impact on the image of a person qua the society, therefore would amount to mental cruelty.

High Court in view of the above discussion, asserted that parting away from the ornaments by pledging without knowledge of husband, which were meant for marriage of daughter and further the unsubstantiated allegations levelled by wife, assassinating the character of the spouse/husband would amount to mental cruelty to the husband.

Hence, the marriage deserved to be dissolved by a decree of divorce.

Permanent Alimony

The Court granted an amount of Rs 15,000 per month to the wife as permanent alimony, which in turn would be adjustable to any amount paid under Section 125 CrPC.

In view of the above observations, the appeal was allowed. [S. Raju v. R. Rani, FAM No. 145 of 2017, decided on 8-4-2022]


Advocates before the Court:

For Appellant:- Mr. Shailendra Bajpai, Advocate

For Respondent: – Mr. Palash Rajani with Mr. Pankaj Bhaskar, Advocate on behalf of Dr. Shailesh Ahuja, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal, Mumbai (SAT): While lifting the restriction of buying or selling any securities, laid down by SEBI on employees of Infosys for allegedly violating the insider trading regulations, the Coram of Justice Tarun Agarwala (Presiding Officer) and Justice M.T. Joshi (Judicial Member) reiterated the settled law that burden of proof is always upon the prosecution, SEBI to prove that he had access to UPSI.

Instant appeal had been filed questioning the confirmatory order confirming the ex-parte ad-interim order whereby the appellant was restrained from buying or selling any securities, either directly or indirectly, till further orders.

Factual Background


SEBI had conducted an examination in respect of the trading activities of two partnership firm – M/s Capital One Partners and M/s Tesora Capital in the scrip of M/s Infosys Ltd.

Prima Facie it was observed that corporate announcement of audited financial results was made by Infosys on 15th July, 2020. The information relating to the financial results was an Unpublished Price Sensitive Information (UPSI) which came into existence on 29-6-2020 and came to an end on 15-7-2020 when the results were announced.

Further, it was found that the appellant was a Senior Corporate Counsel of Infosys and, being an officer/employee of Infosys, was reasonably expected to have access to the UPSI and, on a preponderance of probability basis, the appellant was in possession of UPSI and thus, was an insider under Regulation 2(1)(g) of the PIT Regulations.

On pre-liminary examination it was revealed that the appellant was in close connection with another employee Mr Venkata Subramaniam who was a Senior Principal and was designated person who was reasonably expected to and be in possession of UPSI and therefore, Mr Venkata was also an insider.

The appellant was closely connected to Mr Amit Bhutra, who was a partner in Capital One partner and Tesora Capital and passed on the UPSI to his cousin who in turn traded in the scrip of the Company prior to the announcement of the financial results. The examination further revealed that the two partnership firms through their trading had generated proceeds of Rs 279.51 lakhs in Capital Once Partners and Rs 26.82 lakhs in Tesora Capital.

Hence, an ex-parte ad-interim order was passed against the appellant.

Analysis and Decision


The WTM prima facie concluded that the appellant was an insider and since he was working as a Senior Corporate Counsel, he was expected to have access to UPSI or expected to be in possession of UPSI, being a connected person.

In Coram’s opinion, the impugned order confirming the ex-parte ad-interim order could not be sustained for the following reasons:

  • Under Regulation 3(5) of the PIT Regulations, 2015 all listed companies are mandated to maintain SD database containing details of all the persons with whom UPSI is exchanged alongwith the date and time stamping and verifiable audit trails. A specific finding has been given by the WTM that the SD data base which captures details of only those designated persons who had direct access to UPSI does not include the name of the appellant or of the designated person Mr. Venkata Subramaniam. Therefore, prima facie appellant 1 and other noticee Mr Venkata apparently did not have direct access to UPSI.
  • WTM further notes that there were 600 odd employees in Infosys who were classified as designated persons and further found that such classification as designated persons itself does not mean per se that such designated persons ipso facto were in possession of UPSI coupled with the fact that Mr. Venkata’s name was not found in the SD data base and, therefore, he had no direct access to UPSI.
  • Further, the telephonic conversation between the appellant and Mr. Venkata alognwith proof of certain emails exchanged between them indicates that the telephone calls were relating to some official matters regarding their respective domain of responsibilities in the Company. The telephone call discussions were relating to maternity benefits through Employees‟ State Insurance Corporation rather than through Infosys and, consequently, the initial burden upon the appellant stood discharged, namely, that he was not having any UPSI nor UPSI was passed on from Mr. Venkata to appellant in this telephonic conversation.
  • Burden of proof was wrongly placed upon the appellant that he did not pass on UPSI to Mr Amit Bhutra. It is settled law that the burden of proof is always upon the prosecution, namely, SEBI to prove that he had access to UPSI or that he was an insider.
  • In any case, the onus had been successfully discharged and continuation of the interim order on prima facie suspicion or preponderance of probability or reasonably expected to have access to UPSI appears to be farfetched only on the strength that the appellant was an employee in the Company and expected to have inside information.

Hence, in absence of evidence, the continuation of the interim order was unjustified especially when the appellant did not trade in the scrip and there was not any finding that he was a party to unlawful gain.

Therefore, debarring a person from accessing the securities market was not justified. The confirmatory order, as well as the interim order, cannot be sustained or quashed. [Pranshu Bhutra v. SEBI, Appeal No. 689 of 2021, decided on 25-4-2022]


Advocates before the Tribunal:

Mr. Mustafa Doctor, Senior Advocate with Mr. Anirudh Hariani, Mr. Anil Choudhary, Mr. Rahul Das and Ms. Sudarshana Basu, Advocates i/b. Finsec Law Advisors for the Appellant.

Mr. Shiraz Rustomjee, Senior Advocate with Ms. Nidhi Singh, Ms. Deepti Mohan, Ms. Binjal Samani, Ms. Aditi Palnitkar and Ms. Moksha Kothari, Advocates i/b. Vidhii Partners for the Respondent.

Appeal No. 689 of 2021:

Mr. Pramod Nair, Senior Advocate with Ms. Aakansha Luhach and Ms. Payal Saraogi, Advocates for the Appellant.

Mr. Shiraz Rustomjee, Senior Advocate with Ms. Nidhi Singh, Ms. Deepti Mohan, Ms. Binjal Samani, Ms. Aditi Palnitkar and Ms. Moksha Kothari, Advocates i/b. Vidhii Partners for the Respondent.

Op EdsOP. ED.

Background


The right to free speech and expression has always been regarded as a basic human right emanating from personal liberty and a necessary corollary to this right is the “right to know”. In a democratic setup like ours, this right assumes an even greater significance as “knowledge will forever govern the ignorance and people who mean to be their own Governors must arm themselves with the power which knowledge gives”.[1] The fundamental rights in the Indian Constitution[2] are largely reflections of the human rights recognised in the Universal Declaration of Human Rights, 1948, Article 19[3] of which reads as under:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

On the international front, the International Covenant on Civil and Political Rights, 1966 recognised the right to information in Article 19, the relevant portion of which is reproduced below:

  • Everyone shall have the right to hold opinions without interference.
  • Everyone shall have a right to freedom of expression; this right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice….

Similarly, The Commonwealth Expert Group Meeting on “Right to Know and the Promotion of Democracy and Development”, Marlborough House, London dated 1-3-1999 submitted the following principles and guidelines to the Commonwealth Heads of Government at their summit in South Africa held from 12-11-1999 to 15-11-1999 for their consideration and adoption:

The principles suggested that:

  • Freedom of information should be guaranteed as a legal and enforceable right permitting every individual to obtain records and information held by the executive, the legislative and the judicial arms of the State, as well as any Government-owned corporation and any other body carrying out public functions.
  • The legislation should contain a presumption in favour of maximum disclosure.
  • The right of access may be subject to only such exemptions, which are narrowly drawn, permitting Government to withhold information only when disclosure would harm essential interests such as national defence and security, law enforcement, individual privacy or commercial confidentiality: provided that withholding the information is not against public interest.
  • Decisions under the legislation should be subject to independent review capable of ensuring compliance.

The guidelines suggested that:

  • Governments should enact freedom of information legislation containing appropriate administrative measures for its implementation.
  • Governments should permit any individual to obtain information promptly and at low or no cost.
  • Legislation should provide for an independent review of decisions capable of providing an effective remedy in any case of delay or denial.
  • Governments should maintain and preserve records.
  • Governments should promote a culture of openness, publicly disseminating information relating to the exercise of their functions and the information held by them.

Whereas, in India, the Report of National Commission to Review the Working of the Constitution (NCRWC) under the Chairmanship of Justice M.N. Venkatachaliah, dated 31-3-2002[4] in Para 6.10.1 stated that major assumption behind new style of governance is the citizen’s access to information. Much of the common man’s distress and helplessness could be traced to his lack of access to information and lack of knowledge of decision-making processes…. Right to information should be guaranteed and needs to be given real substance. It went on to suggest that Article 19(1)(a) of the Constitution of India may be amended as:

All citizens shall have the right—

(a) to freedom of speech and expression which shall include the freedom of press and other media, the freedom to hold opinions and to seek, receive and impart information and ideas.[5]

On the judicial front the Supreme Court of India in State of U.P. v. Raj Narain[6], held as under:

  1. In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know very public act, everything that is done in a public way, by their functionaries. They are entitled to know the particulars of every public transaction and all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security….

In S.P. Gupta v. Union of India[7], it was held that the citizens’ right to know the facts, the true facts, about the administration of the country, is, thus, one of the pillars of a democratic State. And that is why the demand for openness in the Government is increasingly growing in different parts of the world.

Also, in Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal[8], the Supreme Court held as under:

  1. … True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce when medium of information is monopolised either by a partisan central authority or by private individuals or oligarchy organisations….

Therefore, it is safe to say that the early foundations of the right to information act were laid down by the above judicial pronouncements in line with the international conventions. Even though States such as Rajasthan, Tamil Nadu, Goa, Karnataka, Assam and Delhi had enacted legislations furthering the objects of right to information, it was not before the long battles fought by citizen groups lead by the Mazdoor Kisan Shakti Sangathan that a nationwide demand for a law guaranteeing right to information was agitated. The movement catered huge support from social activists, professionals and persons in autocracy, politics and media who were committed to the aim of a transparent and accountable governance.

Finally, in 2002, the Government of India enacted the Freedom of Information Act, 2002[9]. However, with the passage of time, it was found that the said legislation could not serve the requirements of the nation and in order to ensure greater efficiency and more effective access to information, it was thought that the said Act must be made progressive and realistic. The Central Government constituted the National Advisory Committee and on the recommendations of the Committee, it was decided that a new legislation shall be enacted incorporating the recommendations and the existing one be repealed. Thus, the Right to Information Act, 2005[10] came to be enacted on 12-10-2005.

Introduction


The Right to Information Act, 2005 is segregated into six chapters and two Schedules. Chapter I lays down the short title, extent, commencement, and definition clauses, Chapter II deals with the right to information framework, Chapters III and IV lay down the mechanics of the Information Commissions, Chapter V deals with the powers and functions of the Information Commissions and provides provisions for appeals, and penalties, Chapter VI incorporates miscellaneous provisions. The First Schedule prescribes the form of oath or affirmation to be made by Chief Information Commissioner (CIC), State Information Commissioner (SIC), and other Information Commissioners (ICs). The Second Schedule contains the Intelligence and Security Organisations established by the Central Government which are beyond the jurisdiction of the Act.

The Preamble to the Act lays down its object. It aims at setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commission and for the matters connected therewith or incidental thereto.

In ICAI v. Shaunak H. Satya[11], it was held as under:

  1. … object of the RTI Act is to harmonise the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand….

Section 2(h) of the Act[12] lays down the definition of “public authorities” under the Act. In Thalappalam Service Coop. Bank Ltd. v. State of Kerala[13], the Supreme Court held as under:

  1. The legislature, in its wisdom, while defining the expression “public authority” under Section 2(h), intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires. Section 2(h) has used the expressions “means” and “includes”. When a word is defined to “mean” something, the definition is prima facie restrictive and where the word is defined to “include” some other thing, the definition is prima facie extensive. But when both the expressions “means” and “includes” are used, the categories mentioned there would exhaust themselves. The meanings of the expressions “means” and “includes” have been explained by this Court in DDA v. Bhola Nath Sharma[14]. When such expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions.

Right to information, subject to the other provisions of the Act has been recognised as a statutory right under Section 3[15], and to achieve this object, the Act lays a complete code under Sections 4[16], 5[17], 6[18], and 7[19]. On the other hand, in order to strike a balance between public interest and other individual or State interests, the Act prescribes certain categories of exemptions under Sections 8[20], 9[21], 10[22], and 11[23].

In order to seek effective enforcement of the right to information and to provide redressal machinery, the Act, under Sections 12[24] and 15[25] establishes the Central Information Commission and the State Information Commissions. These Information Commissions are quasi-judicial bodies having the trappings of courts and derive their authority from Sections 18[26], 19[27], and 20[28] of the Act. Under Section 18, the Information Commissions are duty-bound to receive and inquire into complaints made on any of the grounds stated in clauses (a) to (f) of sub-section (1) of Section 18.

The appellate mechanism


Section 19(1) of the Act, provides a right of appeal to an officer senior in rank to the Public Information Officer (PIO) against whose decision or inaction the appeal is being preferred. The said appeal may be preferred within thirty days of receipt of the decision of the Central Public Information Officer (CPIO) or on account of non-receipt of decision from the CPIO within the period prescribed under sub-section (1) or clause (a) of sub-section (3) of Section 7. In cases where the appellant is prevented from making an appeal due to sufficient cause, the first appellate authority concerned may condone the delay upon satisfaction in exercise of powers under the proviso to Section 19(1).

Sub-section (3) of Section 19, entails a right of second appeal to the Information Commissions against the decision of the first appellate authority. The said appeal is said to lie within ninety days from the date on which the decision was received or ought to have been made, however, on sufficient cause being shown towards the satisfaction of the Information Commission concerned, the Information Commission in exercise of power under the proviso of Section 19(3) of the Act may condone the delay and admit the appeal even after expiry of the said statutory period.

The Act, in order to achieve the objects of transparency and equity, creates a reverse burden of proof on the PIO. According to Section 19(5), the burden of proving that denial of a request was justified shall be on the PIO concerned.

In order to provide an effective and expeditious remedy and encourage access to information and free flow of the same, the Act under Section 19(6) mandates that appeal preferred under sub-section (1) or sub-section (2) of Section 19 shall be disposed of within thirty days of the receipt of the appeal or for reasons to be recorded in writing within an extended period not exceeding 45 days from the date of filing of the appeal.

The drawbacks


Even though the Act, attempts to act as a complete code not only to recognise right to information as a statutory right but also to ensure its effective realisation by establishing a redressal system, we see that the absence of an outer time-limit for the disposal of complaints under Section 18 and second appeals under Section 19 have reduced the efficacy of the said mechanism.

The Central Information Commission in reply dated 17-9-2021 in RTI No. CICOM/R/E/21/00794, has stated that as of date, cases registered in May 2019 (some left out cases)/January-February 2020 were being listed for hearing.

The RTI Act was enacted to ensure free availability and easy access to information with a speedy redressal to the general public. However, it is evident from the above RTI reply that, like any other, judicial institution or quasi-judicial body, pendency has started to mount on the Central Information Commission. This very fact, goes to the extent of hitting at the root of the aim and object of enacting such legislation in the first place.

The right of expeditious disposal of first appeal under the Act clearly shows the intent of the legislature to establish an effective and time-bound remedy and not leave the RTI applicants in long battles of litigation. This touch of speedy redressal is lost during second appeals and complaints under the Act. Another displeasing side of this is that the Information Commissions after scrutiny admit the complaint or second appeals but the files are not given any listing dates for long.

The High Courts have stepped up to the occasion and have given their interpretations for expeditious disposals of second appeals and remedy the difficulty faced by the appellants. The High Court of Calcutta in Akhil Kumar Roy v. W.B. Information Commission[29] has held as under:

A second appeal arises from a decision in a first appeal under Section 19(1), and a first appeal arises from a decision or a failure to give a decision under  Section 7. The sparkle of a strong strand of speed woven though the sections of the Act is abruptly lost in the second appeal that has been allowed to run wild. This open-ended second appeal scheme is bound to make the Section 6 request go totally adrift generating a multitier avoidable and unwarranted offshoot court proceedings as this case.

In my opinion, keeping in mind the respective maximum periods fixed for deciding a first appeal under Section 19(1) and disposal of a request for obtaining information under Section 7, the second appellate authority should have decided the second appeal within 45 days from the date of filing thereof. In view of the scheme of the statute, I think this period should be considered the reasonable period for deciding a second appeal.

The High Court of Karnataka in Jayaprakash Reddy v. Central Information Commission[30] has held as under:

  1. It is indeed to be noticed that no time-limit is prescribed to decide a second appeal. Therefore, it would have to be interpreted that when no time is prescribed, it would follow that it ought to be decided within a reasonable time. Since there is a time-limit prescribed for deciding a first appeal, it would be safe to conclude that a similar period would apply insofar as deciding the second appeal, for otherwise, it would lead to a situation where the object of the Act is not achieved if the authority should indefinitely postpone the hearing and decision of a second appeal.
  2. Consequently, it would be deemed that the second appeal would also have to be decided within a period of 45 days if not earlier, from the date of filing.

The High Court of Judicature at Allahabad in Mukul Agrawal v. State of U.P.[31], held as under:

  1. Under the statute, appellate authorities are supposed to decide the matter expeditiously, but it appears that authorities themselves are fixing dates of several months which is not the intention of legislature since the statute has been framed for public welfare and encouraging transparency. Therefore, authorities under Right to Information Act, 2005 (hereinafter referred to as “the Act, 2005”) must decide the matters expeditiously.

Similarly, the High Court in Skand Bajpai v. Central Information Commission[32] directed the Commission to decide the second appeal of the petitioner within ninety days of producing a copy of the said order since the appeal was pending for a year.

Though, the interference by the High Courts as mentioned above was much warranted, the same could not become a regular practice, for it shall be extremely detrimental to the RTI applicants for being engaging in multiple legal pursuits and this shall also increase the burden on the already burdened Indian judiciary. This practice shall also defeat Parliament’s intent behind creating the RTI Act in the first place.

Failure to provide a decision within the statutory period by the PIO or the first appellate authority is itself a ground to pursue an appeal, as such it is evident that the legislature intended swift remedy. Thus, failure to dispose of second appeals and complaints within a reasonable time by the Information Commissions and mounting of huge backlogs is clearly against the purpose for creating these Commissions. This runs contrary to the recommendations of the National Advisory Council, based on which the 2002 Act was repealed and 2005 Act was enacted.

The Supreme Court of India in Kusum Ingots & Alloys Ltd. v. Union of India[33] held as under:

…an order, whether interim or final, passed on a writ petition, keeping in view Art. 226(2)[34], will have effect throughout the territory of India, subject of course to applicability of the Act.

Since the RTI Act is applicable to the whole of India, the judgments rendered by the  High Courts as stated above must apply nationwide, and hence, the second appellate authorities must dispose of the appeals within a reasonable time in line with the letter and spirit of the Act, failing which there may occur a situation whereby the time a second appeal reached its conclusion, the information may no longer be required. This if adopted as a defence mechanism, though unethical, shall render the Act a mere paper legislation.


*Final year student, BA LLB, New Law College, Bharati Vidyapeeth Deemed to be University, Pune. Author can be reached at bajpaiskand@gmail.com.

[1]Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

[2]Constitution of India.

[3]Universal Declaration of Human Rights, 1948, Art. 19.

[4]Report of the National Commission to Review the Working of the Constitution.

[5]Report of the National Commission to Review the Working of the Constitution, Para 3.8.1.

[6](1975) 4 SCC 428, 453.

[7]1981 Supp SCC 87.

[8](1995) 2 SCC 161, 229.

[9]Freedom of Information Act, 2002.

[10]Right to Information Act, 2005.

[11](2011) 8 SCC781, 797.

[12]Right to Information Act, 2005, S. 2(h).

[13](2013) 16 SCC 82, 103.

[14](2011) 2 SCC 54.

[15]Right to Information Act, 2005, S. 3.

[16]Right to Information Act, 2005, S. 4.

[17]Right to Information Act, 2005, S. 5.

[18]Right to Information Act, 2005, S. 6.

[19]Right to Information Act, 2005, S. 7.

[20]Right to Information Act, 2005, S. 8.

[21]Right to Information Act, 2005, S. 9.

[22]Right to Information Act, 2005, S. 10.

[23]Right to Information Act, 2005, S. 11.

[24]Right to Information Act, 2005, S. 12.

[25]Right to Information Act, 2005, S. 15.

[26]Right to Information Act, 2005, S. 18.

[27]Right to Information Act, 2005, S. 19.

[28]Right to Information Act,2005, S. 20.

[29] 2010 SCC OnLine Cal 2688.

[30] 2015 SCC OnLine Kar 9684.

[31]2018 SCC OnLine All 6112.

[32]2022 SCC OnLine All 306.

[33](2004) 6 SCC 254, 261, para 22.

[34]Constitution of India, Art. 226(2).

Case BriefsHigh Courts

Madras High Court: Teekaa Raman, J., observed that there is no mandatory provision under the Negotiable Instruments Act that both the signature and thumb impression has to be obtained for a pro-note and the lower Appellate Judge has totally misguided and misused the provision of the Negotiable Instruments Act, regarding the burden of proof and not even followed basic rudimentary of Section 20 of the Negotiable instruments Act.

Plaintiff filed a suit against the respondent for recovery of money of Rs 1,00,000 each, borrowed by him and executed promissory notes in favour of the plaintiff for consideration.

Resisting the suit, the defendant filed a written statement admitting the execution of the suit promissory notes. However, the defendant raised the plea that the promissory notes had been executed towards security for the loan borrowed and that the loan due was settled by way of execution of a sale deed in the name of the plaintiff’s wife.

Further, it was alleged that the suit promissory notes were not supported by consideration and the blank promissory notes were filled up for the purpose of filing the suit.

Trial Court considered the statutory presumption under Section 118 of the Negotiable Instruments Act and the authority of the holder in due course to fill up the promissory notes under Section 20 of the Act, decreed the suit by the judgment and decree.

First Appellate Authority had erroneously allowed the appeal and observed that the thumb impression of the defendant was not obtained and that the signature in each promissory note was different from each other on comparison by a naked eye. Accordingly, the trial Court’s decision was reversed.

On being aggrieved with the above, the plaintiff approached this, Court.

Analysis, Law and Decision


Questions for Consideration:

  1. Whether the first Appellate Court erred in law in not considering the scope of Section 118 of the NI Act and the legal presumptions arising under it before dismissing the suit by reversing the well-considered reasonings of the trial Court?
  2. Whether the first Appellate Court erred in law in rejecting the plaintiff’s right to fill up the suit promissory notes under Section 20 of the Negotiable Instruments Act whereupon the holder is authorized to fill up the blanks and to negotiate the instrument for a certain amount?
  3. Whether the first Appellate Court is correct in dismissing the suit on the basis of a comparison by naked eye particularly when the defendant has categorically admitted the “execution” and “issuance” in his written statement and in evidence before the Court?

High Court observed that the trial Court had rightly invoked the presumption under the Negotiable Instruments Act and called upon the defendant to rebut the presumption. However, in Court’s opinion, the Appellate Court had not even considered the presumption under the NI Act and not followed even the burden of proof or onus of proof as stated in the Indian Evidence Act.

The Bench stated that once the signature found in the suit documents has been admitted, there is no need or necessity for the plaintiff to give an explanation for not obtaining the thumb impression in the suit promissory note.

Additionally, the High Court noted that it is trite law that in the case of mandatory presumption, the burden of proof on the defendant in such a case would not be as light.

When there is a statutory presumption in favour of the plaintiff, it has to be rebutted by proof and not by a bare explanation. Unless the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.

Once statutory presumption is raised, onus of proving absence of consideration is on the executant.

The Bench added that the lower Appellate Court could not understand the facts of the case and had applied wrong preposition of the burden of the proof forgetting the presumption under NI Act and it was the onus of the proof by the defendant to discharge the burden.

Therefore, lower Appellate Court erred in law on rejecting the plaintiff’s right to fill up the suit promissory notes under Section 20 of the NI Act, whereupon the holder is authorized to fill up the blanks and to negotiate the instrument for a certain amount and the “execution” of cheque and “issuance” of cheque in his written statement and in his evidence before the Court, the lower Appellate Court is not right in raising suspicion with regard to the execution merely on the ground that the thumb impression was not obtained.

In view of the above discussion, the second appeal was allowed. [R. Barathbran v. R. Nallathambi, SA Nos. 142 of 2012, decided on 2-3-2022]


Advocates before the Court:

For Appellants: Mr. N. Manokaran

 For Respondent: Mr. C. Prakasam

Case BriefsHigh Courts

Kerala High Court: In a case wherein, due to low CIBIL Score education loan was denied, N. Nagaresh, J., directed for reconsideration of loan applications, disregarding the low Credit Score of the co-obligants.

Petitioners were aggrieved by the denial of the education loan in the present case. The 2nd respondent had rejected the application for an education loan for the reason that the CIBIL Score of the co-applicant was not up to the mark.

On being aggrieved with the above, the petitioner approached the Court.

Petitioner cited the decision of this Court in Pranav S.R. v. SBI, [2020 KHC 4695], wherein it was held that unsatisfactory credit scores of the parents of the petitioner cannot be a ground to reject an educational loan application because the repayment capacity of the petitioner after his education should be the deciding factor. Therefore, the respondents are compellable to sanction and disburse the educational loan applied for by the petitioners.

Analysis and Decision

High Court expressed that, in the exercise of the powers conferred by Sections 21 and 35A read with Section 56 of the Banking Regulation Act, 1949, the Reserve Bank of India, in public interest, has issued Reserve Bank of India (Priority Sector Lending- Targets and Classification) Directions, 2020. Direction 4 contained therein categorises Education as a priority sector. Direction 11 states that Loans to individuals for educational purposes, including vocational courses, not exceeding ₹20 lakhs will be considered as eligible for priority sector classification.

Bench stated that, this Court in the decision of Pranav S.R. v. SBI, [2020 KHC 4695], has held that for educational loans, the repayment possibilities are to be decided not on the financial position of the parents but solely on the projected future earnings of the students on employment after education.

Hence, in the present matter, Court found no reason to take any different view and allowed the petitions.

Lastly, the High Court directed the respondents to reconsider the loan applications, disregarding the low Credit Score of the co-obligants, if any, and sanction and disburse the eligible loan amount.[Kiran David v. SBI, WP(C) No. 3646 of 2022, decided on 2-3-2022]


Advocates before the Court:

For the Petitioner:

MANOJ RAMASWAMY

         JOLIMA GEORGE

         JISHA SASI

         C.B. SABEELA

         APARNA G.

         CHINNU ROSE MARY THOMAS

For the Respondents:

JAWAHAR JOSE

         CISSY MATHEWS

         EDWIN JOSEPH

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Mukta Gupta and Neena Bansal Krishna, JJ., observed that Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances.

The petitioner had filed the writ petition for issuance of direction or order to not deprive and violate the fundamental right of the petitioner, to live with dignity and mental peace and not to disrupt the supply of basic needs and essential services and for uninterrupted ingress and egress to his residence in the society complex, and further maintain rule of law.

Factual Background

The petitioner was residing in the co-operative Group Housing Society having 120 members. The said members were allotted dwelling apartments and the Society was managed by respondent 2.

The claim of the petition was that he had an abode in the Society and was suffering from constant deprivation and gross infringement of his right to enjoy the property. Further, he had been deprived of basic services and a dedicated car parking inside the Society as part of the Group Housing Scheme under the DCS Act.

The petitioner approached the appropriate legal forum, and an award was passed directing respondent 2 to provide one dedicated earmarked car parking for each member of the Society and also to remove illegal occupants from the parking area under the stilt of the building.

Analysis and Decision

One of the grievances of the petitioner was that his demarcated car parking had been occupied by the unauthorized occupants and despite the Award, the earmarked car parking was not being restored to him. However, it was his own assertion that he had applied for execution of the Award in which necessary direction had been issued.

The Bench expressed that, this Court cannot assume the duties of the Administrator or the Executive Committee to address the day-to-day grievances of the petitioner.

Further, it was claimed by the petitioner that he was not getting free access to the lift and enjoyment of the common facilities and amenities.

High Court stated that, the allegations made were general, vague and lacked specific details.

Lastly, the Bench concluded that the grievances of the petitioner were general and essentially about the efficiency of services which had to be agitated by the petitioner within the mechanism as provided under the Delhi Cooperative Societies Act, 2003.

There was no merit in the present petition. [D S Kundu v. Registrar, Co-op Societies Delhi Old Court Building; WP(C) No. 8771 of 2020, decided on 20-5-2022]


Advocates before the Court:

For the Petitioner: Petitioner-in-person

For the Respondents: Ms Sanjana Nangia Advocate for Mr Sameer Vashisht, Additional Standing Counsel for GNCTD.

Case BriefsTribunals/Commissions/Regulatory Bodies

First Appellate Authority, Insolvency and Bankruptcy Board of India (IBBI): Santosh Kumar Shukla, First Appellate Authority, observed that the name and designation of Officers of IBBI as requested is exempted under Section 8(1)(j) of the RTI Act.

The appellant had filed the present appeal challenging the communication of the respondent regarding his RTI Application filed under the Right to Information Act, 2005 (RTI Act).

On perusal of the RTI Application, the appellant had requested certain information regarding the NCLT Order, Mumbai.

Further, the respondent had provided information on certain points and claimed exemption under Section 8(1)(j) of the RTI Act on points (b), (d) and (e). Aggrieved by the same, the appellant had filed the present appeal challenging the exemption taken by the respondent.

Analysis and Decision

The Bench stated that if the public authority holds any information in the form of data, statistics, abstracts, etc. an applicant can have access to the same under the RTI Act subject to exemptions under Section 8.

It was noted that the respondent did not give any reason or justification for invoking Section 8(1)(j) of the RTI Act.

Section 8(1)(j) exempts information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless a larger public interest justifies the disclosure of such information.

Further, the Appellate Authority expressed that it deems it fit to deal with the request on merits in the interests of the right to information and scope of information disclosures under the RTI Act.

Appellant’s first contention was that the disclosure of the name and designation of the person who uploaded the order/Form A was not exempted under Section 8(1)(j).

With regard to the above, Authority observed that, if the information sought for is personal and has no relationship with any public activity or interest or it will not sub-serve larger public interest, the respondent is not legally obliged to provide that information.

Bench held that the name and designation of Officers of IBBI as requested is exempted under Section 8(1)(j) of the RTI Act. Further, the appellate authority was not satisfied with how a larger public interest was involved.

In the opinion of the Appellate Authority, the respondent was not bound to respond to such inquisitions under the RTI Act.

With respect to the above, the decision which was referred was, Dr D.V. Rao v. Yashwant Singh, wherein it was observed that:

“the RTI Act does not cast on the public authority any obligation to answer queries in which a petitioner attempts to elicit answers to his questions with prefixes, such as, ‘why’, ‘what’, ‘when’ and ‘whether’. The petitioner’s right extends only to seeking information as defined in section 2 (f) either by pinpointing the file, document, paper or record, etc., or by mentioning the type of information as may be available with the specified public authority.”

In view of the above, the appeal was disposed of. [Ishrat Ali v. CPIO, IBBI; decided on 17-5-2022]

 

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.S. Shinde and Revati Mohite Dere, JJ., observed that the daughter-in-law cannot be directed by the  Maintenance and Welfare of Parents and Senior Citizens’ Tribunal to pay maintenance to her in-laws.

The present writ petition was filed under Article 226 of the Constitution of India thereby taking an exception to the order passed by respondent 1 –Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens’ Tribunal.

During the pendency of this petition, the Division Bench of this Court by order 18-2-2019, directed thus:

“5.(c) Since it is stated that the Petitioner may be dispossessed tomorrow and by using force, we direct that until further orders of this Court, the operative direction No.3 which directs the Petitioner to hand over vacant and peaceful possession of the premises to her in-laws be not acted upon or implemented.” 

Factual Matrix

Respondent 1 /non-applicant had passed the order (impugned in the present petition) in the proceedings instituted by respondent 2—Nalini Shah and her husband—Mahendra Shah. During the pendency of the present petition, the husband of respondent 2 died, with permission of the Court his name was deleted.

Further, respondent-4—Devang Shah was the husband of the petitioner and also the son of respondent 2 and present petitioner – Sheetal Shah was the daughter-in-law of respondent 2.

It was alleged that Sheetal Shah and her husband had made the life of Nalini Shah and Mahendra Shah miserable and there was continuous physical and mental torture/harassment to them in their old age and that too in their own house.

Respondent 1 –Tribunal had allowed the application filed by Nalini Shah and her husband and directed their son and daughter-in-law to pay maintenance, also they were directed to hand over the possession of the entire residential premises.

On being aggrieved with the above order, the present writ petition was filed.

Analysis, Law and Decision

High Court expressed that, while exercising writ jurisdiction, it is not desirable to undertake exercise of disputed questions of fact, and more particularly, when Court finds that the observations/findings recorded by the Tribunal, while answering the issue that Sheetal Shah and Devang Shah in the said application were causing mental and physical harassment to Nalini Shah and Mahendra Shah, were made keeping in view the material placed on record.

The Bench stated that it has reservations with the direction to Sheetal Shah to pay the maintenance amount to Nalini Shah.

Section 2(a) of the Act mentions, ‘children’ include son, daughter, grandson and granddaughter and there was no reference to the daughter-in-law. Court did not find a single document showing the earnings of Sheetal Shah.

Hence, the impugned order to the extent that it directed Sheetal Shah to pay Rs 25,000 along with her husband to her in-laws could not be legally sustained. However, the direction given to Devang Shah to pay the said maintenance amount Nalini Shah was legally sustainable.

Bench confirmed the order of the Tribunal except for the direction to Sheetal Shah to pay jointly with Devang Shah maintenance of Rs 25,000.

In view of the above observations, the petition was dismissed. [Sheetal Devang Shah v. Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens, WP No. 3323 of 2019, decided on 6-5-2022]


Advocates before the Court:

Ms. Yasmin Tavaria a/w. Mr. Anand Poojary, Ms. Nikita Pawar and Mr.Bhushan Kanchan i/b. S. I. Joshi & Company for the Petitioner.

Mrs. Jyoti Chavan, AGP for Respondent No.1-State.

Mr. Vivek Kantawala a/w. Mr. Amey Patil i/b. Vivek Kantawala & Co. for Respondent No.2.

Mr. P. R. Yadav for Respondent No.4.

Mr. Umesh Birari, Sub-Divisional Officer, Mumbai Western Suburbs.

Case BriefsHigh Courts

Kerala High Court: Expressing that, as much as this Court does not desire to control the management of the drains or the flood mitigating systems of the city on regular basis, it is forced to do so because of the large-scale inundation witnessed, Devan Ramachandran, J., held that it is necessary that citizens understand their duty to ensure that canals are fenced and maintained well and kept free of debris, which otherwise would challenge the lives of many other affected by the flooding.

It was stated that on account of the various orders passed by this Court, various steps were taken to mitigate the situation, which bore fruit in the years 2020 and 2021, when the city was spared large-scale flooding.

Court further added that, flood mitigation steps under the name ‘Operation Breakthrough’ completed two of its phases and this Court was under the impression that the systems would operate efficiently in future as well, but the third phase could not be completed due to various circumstances and reasons.

The Bench noted that the State received heavy rainfall in the last one or two days and the situation turned out to be distressing as, many areas and roads went underwater.

High Court asserted that the present case was listed on an emergent basis, and it will require further inputs, as also the assistance of the Amicus Curiae – Sunil Jacob Jose.

The matter was adjourned to be called on 23-5-2022, within which time, the Court directed the Corporation and the head of the ‘Operation Breakthrough’ team to file reports along with statements, enumerating the steps taken and to be taken with respect to the situation that Court witnessed.

Court added that the reports shall be comprehensive, so that this Court can issue effective orders to ensure that such events are, averted during the monsoon season, which is at doorstep already.

Cleaning of Canals

With regard to the cleaning of canals and prevention of dumping waste and plastic into it was concerned, the Secretary of Corporation was put on notice that every necessary and effective measure shall be initiated and ensured on a war footing.

“Persons who violate the directions of the Corporation, as mandated by law, against the deposit of garbage into the canals, shall be taken to task under the fullest warrant of law, to make it deterrent against others who may be under the wrong impression that such activities will still be tolerated.” 

The Court further elaborated by stating that, it is necessary to remind that steps like fencing the canals would be of no effect unless the citizens understand that it is their duty to ensure that such facilities are maintained well and kept free of debris.

Therefore, it will be in the interest of all stakeholders that the Corporation gives necessary advertisements and publicity through all methods available so that citizens would be able to live without fear.[Treasa K.J. v. State of Kerala, WP(C) 23911 of 2018, decided on 19-5-2022]

Case BriefsHigh Courts

Allahabad High Court: Brij Raj Singh, J., while addressing a maintenance case, observed that if a wife proves that she is unable to maintain herself, she will be entitled to maintenance.

A revision petition was preferred to quash the judgment and order passed by the Family Court so far as it related to the rejection of the application under Section 125 of the Criminal Procedure Code in respect of revisionist 1 and also enhance the amount of maintenance awarded to revisionist 2.

 The wife and daughter filed an application under Section 125 CrPC.

The husband argued that as per Muslim Personal Law revisionist 1 was divorced Muslim wife, therefore, she had to pursue the maintenance case before the Muslim Women (Protection of Rights on Divorce) Act, 1986. Further, he argued that after divorce she was not entitled to maintenance.

The High Court stated that the OP 2’s argument that the revisionist was entitled to seek remedy as provided in Act, 1986 was not sustainable in the eyes of law.

In Court’s opinion, the proceeding under Section 125 CrPC is available to revisionist once she had taken resort to proceed under Section 125 CrPC.

It is true that the wife was divorced but as per the Supreme Court decision in Shayara Bano v. Union of India, (2017) 9 SCC 1, wherein it had been pronounced that if the divorce is declared in one go and the Fatava is issued, the same cannot be legal divorce and it has no legal force.

Bench stated that since the divorce given by OP 2 was not in accordance with the Quoran, hence the divorce given by OP 2 was not in accordance with law. In view of the judgment of the Supreme Court passed in the case of Iqbal Bano v. State of U.P., (2007) 6 SCC 785, it was not in accordance with law and the opposite party 2 could not prove the divorce as per law.

The High Court added that Section 125 CrPC is to be read in harmonious construction, but only on the basis of Section 125(4) CrPC the lower court came to the conclusion that revisionist 1 was deserted because she could not produce the evidence of physical assault and cruelty.

where the wife states that she has great hardships in maintaining herself and daughters, while her husband’s economic condition is quite good, wife would be entitled to maintenance.

High Court opined that revisionist 1 was entitled to maintenance under Section 125 CrPC.

The application for maintenance filed by revisionist 1 was allowed and it was observed that she would be entitled to Rs 7,000/- per month as maintenance. [Arshiya Rizvi v. State of U.P., Criminal Revision No. 763 of 2018, decided on 13-5-2022]


Advocates before the Court:

Counsel for Revisionist:- Nadeem Murtaza, Mohd. Mohsin

Counsel for Opposite Party:- Govt. Advocate, Purnendu Chakravarty

Case BriefsHigh Courts

Madras High Court: Expressing that, the right of worship guaranteed under the Constitution to be respected by all concerned and devotees cannot be denied their right to worship under any circumstances, S.M. Subramaniam, J., held that every devotee has got a right to enter into the temple and worship Lord Sri Varadaraja Perumal in the way he likes without affecting the rights of other devotees/worshippers and temple activities.

A petition was filed questioning the validity of the notice issued by the 3rd respondent/Assistant Commissioner/Executive Trustee proceedings.

The dispute relates to the chanting of Srisaila Dayapathram (initial recital) by the Thengalai Sect and the chanting of Sri Ramanuja Dayapathram (initial recital) by the Vadagalai Sect. Due to the dispute between Thengalai Sect and Vadagalai Sect, the ordinary devotees were unable to have a peaceful Darshan in the subject Temple namely Sri Varadaraja Perumal Temple.

In order to regulate the Temple activities including observance of poojas and rituals, the third respondent issued a Circular.

Petitioner contended that the said Circular impugned violated the fundamental right of worship by Vadagalai Sect and performance of their recitals in the temple.

Analysis and Decision

It was not disputed that the Thengalai Sect enjoyed primacy over chanting of their initial recitals namely Srisaila Dayapathram and Prabandhams. The right of the Vadagalai equally to worship their Guru and God alone is to be considered.

“The religious rite guaranteed under the Constitution must be provided to all concerned and discrimination or denial of religious practices, at no circumstances, be allowed by the Courts.”

High Court expressed that, a religion may not only lay down a code of ethical rules for its followers to accept, but may also prescribe rituals and observations, ceremonies and modes of worship, which were regarded as an integral part of the religion.

Therefore, the constitutional guarantee of freedom of religion enshrined in Article 25(1) extends even to rites and ceremonies associated with a religion.

In the instant case, prohibition of Thengalai Sect from chanting their initial recital namely Srisaila Dayapathram and Prabandham is in dispute.

Bench added that the third respondent was empowered to regulate the affairs of the temple and to maintain decorum in all respects and at all ties including while performing the rituals, poojas, etc., equally the protection given under Articles 25 and 26 extends to a guarantee for rituals and observances, ceremonies and modes of worship, which are integral part of religion or religious practice and it has to be decided by the Court with reference to the doctrine of a particular religion or practices regarded as parts of religion.

Hence, the sentiments of both Vadagali and Thengalai Sects are to be respected and mutual respect between them is also of paramount importance.

“Tolerance is the hall mark principle in Hinduism.”

The Court elaborated that the mutual understanding and respect and glorify the Lord alone will preserve the sanctity of the temple activities and therefore, both the sects were expected to do services to Lord Sri Varadaraja Perumal instead of fighting on trivial issues, as the rights and duties are corresponding, and every fundamental right is subject to restrictions so as to maintain public order in Temple administration and its activities.

“Every religious right is subject to public order. Persons violating the provisions of the Act and Rules are liable to be prosecuted.”

Adding to the above observations, Court stated that third respondent is empowered to regulate the Temple activities and the due observance of religious rites and ceremonies performed in the temple.

In Court’s opinion, the impugned order was in consonance with the provisions of the Statutes.

“…religious rights of devotees, worshipers, are to be protected. The guarantee under Articles 25 and 26 for the rituals and observance, ceremonies and modes of worship, which all are integral part of religious practices, are also to be taken into consideration by the Courts.”

The Court observed that, the right of primacy to chant initial recital and Prabandham by the Thengalai sect was not disputed by the Vadagalai sect. The Vadagalai sect were ready and willing to co-operate for peaceful observance of rituals without affecting the rights of Thengalai Sect.

Following interim order was passed:

(1) The Thengalai sect shall be permitted to sit in first two or three rows inside the Temple and behind them, the Vadagalai sect and ordinary devotees shall be permitted to sit in the remaining available space inside the Temple. The seating arrangements shall be regulated by the 3rd respondent/ Assistant Commissioner / Executive Trustee in such a manner without affecting discipline and decorum of the rituals and pooja activities.

(2) The Thengalai sect shall be permitted to commence their initial recital namely Srisaila Dayapathram and thereafter, Vadagalai sect shall be permitted to chant initial recital namely Sri Ramanuja Dayapathram within 10 to 12 seconds each and thereafter, both the Thengalai sect, Vadagalai sect and ordinary devotees shall be permitted to jointly chant Naalayira Divya Prabandham in a uniformed manner without disrupting the rituals and poojas and without causing any inconvenience or nuisance to the other devotees and worshippers, who all are present in the Temple.

(3) On completion of chanting of Naalayira Divya Prabandham by Vadagalai sect, Thengalai sect and ordinary devotees, jointly the final ritual namely Vazhithirunamam may be firstly chanted by Thengalai sect i.e., “Manavalamamunigal Vaazhithirunamam” and thereafter, the Vadagalai sect shall be allowed to recite their concluding Mantra i.e., “Desikan Vazhi Thirunamam” and accordingly, the entire process of rituals shall be concluded.

(4) The third respondent / the Assistant Commissioner / Executive Trustee is directed to Monitor the observance of rituals both by the Thengalai sect and Vadagalai sect and in the event of any violations of discipline and decorum, initiate all appropriate action in the manner known to law including penal actions.

(5) The third respondent / the Assistant Commissioner/ Executive Trustee is directed to make the above arrangements with immediate effect and videograph the events and produce the same before this Court during the next hearing, on 25.05.2022.

(6) The third respondent / the Assistant Commissioner/ Executive Trustee is directed to file a Compliance Report on 25.05.2022.

In view of the above, the registry was directed to list the matter for reporting compliance in 25-5-2022. [S. Narayanan v. State of T.N., WMP No. 12434 of 2022, decided on 17-5-2022]


Advocates before the Court:

For Petitioner : Mr G.Rajagopalan, Senior Advocate

 For Mr Abhinav Parthasarathy

Mr Satish Parasaran, Senior Advocate

Mr S.Parthasarathy  Senior Advocate

Mr V. Raghavachari

For: Respondents

For R1 & R2: Mr.R.Shanmuga Sundaram, Advocate General Assisted by M/s.V.Yamuna Devi

Special Government Pleader

For R3: Mr R.Bharanidharan

For R4: Mr P.Wilson, Senior Advocate

Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Monga, J., held that the Maintenance Tribunal has no jurisdiction under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 if a person is aged below 58 years old.

Instant petition was for issuance of a writ of certiorari to set aside the impugned order passed by respondent 1 whereby application filed by respondent 2 under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 was allowed and petitioner was directed to vacate the property of respondent 2 within 30 days of the order passed.

Decision

Respondent 2 on her own volition stated her age to be less than 58 years as on the date of instituting proceedings before the Maintenance Tribunal.

High Court held that, Tribunal could not have invoked the jurisdiction of the Maintenance Tribunal under the Act, as respondent 2 was less than 58 years not a senior citizen on the relevant date.

Further, the impugned order dated 1-6-2021 passed by respondent 1 was quashed for lack of jurisdiction, hence writ petition was allowed. [Rani v. Additional District Magistrate, CWP-15922-2021, decided on 16-5-2022]


Advocates before the Court:

Mr Manav Bajaj, Advocate, For the petitioner

Mr Pankaj Middha, Additional Advocate General, Haryana.

Mr Sahil Goel, Advocate, For respondent 2.

Case BriefsDistrict Court

Karkardooma Courts, Delhi: In a matter regarding providing maintenance to wife and children, Ramesh Kumar-1, Principal District & Sessions Judge, expressed that certain, factors such as husband’s liabilities, his standard of living, inflation rates, etc. are to be taken note of when Court decides the quantum of maintenance.

An appeal was filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against the impugned decision passed by the Metropolitan Magistrate whereby the maintenance of Rs 40,000 was awarded in favour of the respondent from the month and the year of filing of the petition before the trial court, and further awarded compensation of Rs 1,00,000 in favour of the respondent.

Factual Background

It was stated that the respondent was treated with love and care, at her matrimonial home, however, she was not happy with the marriage. Further, it was stated that, it was the second marriage of the respondent and the appellant had asked several times for the decree of divorce from her previous husband, but, the respondent never showed the same to him.

Additionally, it was stated that when the appellant tried to stop the respondent from frequently visiting her parental home, the respondent used to abuse and manhandle the appellant and would threaten the appellant to implicate him and his family in false criminal cases or to face the dire consequences.

It was added that the husband tolerated all the cruelties at the hands of the wife to save the matrimonial life.

In the year 2015, the respondent filed a case under Section 12 of the Protection of Women from Domestic Violence Act against the appellant and his family. Trial Court passed an order for interim maintenance in favour of the respondent and her minor son.

Appellant submitted that due to the prevailing circumstances, he used to remain under depression and could not perform his job obligations and due to his poor performance, he was terminated by his employer.

Analysis, Law and Decision

Court expressed that, it is a well-settled principle of law that,

“…it is the legal duty of every able bodied person to maintain his wife and children and provide them with the basic amenities of the life, as per his financial status.”

 Adding to the above, it was stated that while deciding the quantum of maintenance, the Court should take into account the earnings of the husband as well as his other liabilities and the due regard to be given to the standard of living of the husband as well as the inflation rates and high costs of living.

Bench stated that even if the appellant’s plea that he was terminated from service by his employer was accepted, the fact remained that the appellant was a qualified person and capable of earning. Hence, the trial Court had rightly assumed the appellant’s salary to be Rs 80,000.

“Appellant being the husband of the respondent, and father of minor child, has social as well as moral duty to provide maintenance to respondent.”

Settled Law

The appellant being the husband of the respondent, cannot escape from his moral duty of providing maintenance to his wife as well as a minor child.

Hence, the trial Court had rightly observed that the aspect of financial deprivation of woman, is included in the category of economic abuse.

“…an aggrieved woman needs economic support, in view of the domestic violence, perpetrated upon her, by a person, who is in domestic relation with her.”

Settled Law

Every able-bodied person is bound to maintain his wife and children and cannot run away from this responsibility.

 In view of the above, Court held that there was no infirmity or illegality in the impugned decision. [Pawan Sharma v. Aarti Sharma, Criminal Appeal No. 13 of 2021, decided on 10-5-2022]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath, Presiding Member, held that the complainant was not investing money in the share market exclusively for earning his livelihood, hence the same was he did not fall under the definition of Consumer.

Instant revision was filed by the petitioner under Section 21(b) of the Consumer Protection Act, 1986 against the order passed by the State Consumer Disputes Redressal Commission.

The revision petition was filed with a delay of 116 days.

Factual Background

The complainant/petitioner had purchased 2000 equity shares of Aravinda Remedies and 200 equity shares of Reliance Power Ltd. by making payments of Rs 13,700 and Rs 49,400 respectively. The OP delivered 1000 shares of Aravinda remedies instead 2000 shares amounting to Rs 6,850 leaving a refundable amount of Rs 6,850.

Further, OP delivered 200 shares of Reliance amounting to Rs 47,400 leaving a refundable amount of Rs 1,960. When the complainant enquired about his Demat Account, he came to know that 200 shares of Reliance Power Ltd. were transferred to the account of Ureka Stock and Share Broking Services without intimation to the complainant.

The OP also did not make a payment of Rs 27,480 being the differential price of the share which were credited to the Demat account of the complainant.

Aggrieved by the non-refunding of the aforesaid amount by the OP, the complainant filed the consumer complaint.

Complaint was partly allowed before the District Forum and on being aggrieved with the same, the complainant approached the State Commission, wherein the matter was remanded to District Forum and the forum dismissed the complaint as barred by limitation.

Further, the State Commission also dismissed the appeal since the transactions involved were commercial in nature.

Analysis, Law and Decision

Maintainability

State Commission had dismissed the complaint with the observation that the complainant was not a “consumer” as he was dealing in the share market.

As per Section 2(1)(d) of the Consumer Protection Act, 1986, a consumer is a person who buys goods or hires or avails services for consideration. The said section, however, carves out an exception by providing that the person who purchases goods or hires/avails services for the commercial purposes shall not be included in the definition of consumer.

Though Explanation to Section 2(1)(d) provides that if such services are availed exclusively for earning livelihood, he will be considered as a “Consumer”.

State Commission relied on the Judgment of this Commission in Steel City Securities Ltd. v. G.P. Ramesh, Revision Petition No. 3060 of 2011 and dismissed the complaint with the observation that the transaction was commercial in nature and the complainant was not a “consumer”.

Supreme Court’s decision in Morgan Stanley Mutual Funds v. Kartick Das, (1994) 4 SCC 224 was also cited, and the law laid down by the Supreme Court still holds good.

“33. Certainly, clauses (iii) and (iv) of Section 2(1)(c) of the Act do not arise in this case. Therefore, what requires to be examined is, whether any unfair trade practice has been adopted. The expression ‘unfair trade practice’ as per rules shall have the same meaning as defined under Section 36-A of Monopolies and Restrictive Trade Practices Act, 1969. That again cannot apply because the company is not trading in shares. The share means a share in the capital. The object of issuing the same is for building up capital. To raise capital, means making arrangements for carrying on the trade. It is not a practice relating to the carrying of any trade. Creation of share capital without allotment of shares does not bring shares into existence. Therefore, our answer is that a prospective investor like the respondent or the association is not a consumer under the Act. Q. 2: Whether the appellant company trades in shares?”

Hence, the complainant was not a consumer and the state commission had passed a well-reasoned order. [Baidyanath Mondal v. Kanahaya Lal Rathi, Revision Petition No. 3286 of 2016, decided on 29-4-2022]


Advocates before the Commission:

For the Petitioner: Mr Sahej Uban, Advocate with Petitioner in Person

For the Respondent: Mr Kanhaiya Lal Rathi (Respondent No.3 in person and

AR for Respondents Nos. 1 & 2)