Case BriefsHigh Courts

Delhi High Court:  While dismissing the challenge to Rakesh Asthana’s appointment as Commissioner of Delhi Police, Division Bench of D.N. Patel, CJ and Jyoti Singh, J., expressed that,

It ought to be kept in mind that Delhi, being the Capital of India, has a unique, special and specific requirement. It has witnessed several untoward incidences and extremely challenging law and order situations/riots/crimes, which have an international implication, which in the wisdom of the Central Government necessitated appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force apart from other factors.

In the present matter, petitioner was aggrieved by the impugned order whereby Inter-Cadre deputation was granted to respondent 2 – Rakesh Asthana from Gujarat Cadre to AGMUT Cadre as also an extension of his service, initially for a period of one year beyond the date of his superannuation or until further orders, whichever is earlier and his appointment as Commissioner of Police, Delhi.

Challenge to the Order with regard to approval being granted by Appointments Committee of Cabinet for Inter-Cadre Deputation of Respondent 2 as well as the extension of his service beyond the age of superannuation was also laid.

Factual Background

Respondent 2 an IPS Officer of Gujarat Cadre with an experience of approximately 37 years was appointed as Commissioner of Police, Delhi.

The petition was filed on the following grounds:

i) Violation of Guidelines issued by the Supreme Court in Prakash Singh’s Case (I) and (II)

ii) Violation of mandate of provisions of FR-56(d).

iii) Central Government has no power under Rule 3 of Rules, 1960 to relax Rule 16(1) of Rules, 1958.

iv) Violation of provisions of DoPT O.M. dated 08.11.2004, pertaining to Inter-Cadre deputation of officers belonging to the All-India Services.

Analysis, Law and Decision

High Court while reading the directions issued by the Supreme Court in Prakash Singh’s Case (I) and (II) made it clear that the directions given by the Supreme Court and the principles culled out therein were in effect applicable for appointment to the post of ‘DGP of a State’ to be selected by State Government, from amongst the three senior most officers of the Department.

The said Judgment has no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT Cadre.

Further, the Court stated that the Supreme Court’s decision in Prakash Singh’s Case (I) indicates that direction 2 under the heading “Selection and Minimum Tenure of DGP” are clearly meant to apply for selection to the post of DGP of a State and accordingly the procedure for selection can only be relevant and applied in that context and can have no relevance or application to the appointment of Commissioner of Police, Delhi.

Court agreed with respondent 1 that State Cadres have to be treated differently from the AGMUT Cadre due to the unavailability of sufficient number of officers in the pool in respect of various segments of AGMUT Cadre.

From the perspective of service jurisprudence and good administration, it is no doubt a healthy practice to ensure that senior officers are not superseded on account of mere technicalities.

Bench expressed that Delhi, being the Capital of India, has its own characteristics, peculiar factors, complexities and sensitivities, which are far lesser in any other Commissionerate.

Any untoward incident in the National Capital or a law and order situation will have far reaching consequences, impact, repercussions and implications not only in India but across the International borders. Thus, it is imperative that “free movement of joints” is given to the Central Government for appointment of Commissioner of Police, Delhi, keeping in mind the complexities obtaining in the Capital.

Respondent 2’s appointment as Commissioner of Police, Delhi was made by following the statutory procedure prescribed under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993.

Settled Law

Where a contemporaneous and practical interpretation or practice has stood unchallenged for a considerable length of time, it would be a useful guide for proper construction/interpretation of the provisions of s Statute or Executive Instructions.

Therefore, applying the principle of contemporanea expositio, if a procedure has been followed by the Central Government since 2006, with the clear understanding as aforesaid and appointments of as many as 8 Commissioners of Police, Delhi have been made following the statutory regime under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993, which has withstood the test of time, without any demur/objection/challenge in any Court or Forum of law, the same gains weightage.

In view of the above stated, Court sees no reason to direct respondent 1 to deviate from the long practice and procedure followed for appointment of Commissioner of Police, Delhi given the reasons and complexities of the National Capital and the AGMUT Cadre.

Various Supreme Court decisions have explained the principle of contemporanea exposition.

As per the decision of Supreme Court in Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501, matters pertaining to Public Order, Police and Land lie outside the ambit of the legislative powers of the Assembly and hence are outside the Executive functions of the GNCTD.

In the present matter, a statutory provision being Section 6 of the Delhi Police Act, 1978 empowers the Lieutenant Governor to make a proposal for appointment of Commissioner of Police, Delhi and thus no illegality was found in the appointment.

Violation of Provisions of the DoPT O.M. dated 8-11-2004 regarding the Inter-Cadre Deputation of Respondent 2

Contention was that respondent 2 was not eligible for Inter-Cadre deputation as he had reached the Super Time Scale in 2002 and Inter-Cadre deputation was permissible only before reaching the Super Time Scale in the Home Cadre. 

Court expressed those provisions of Clause (a) of O.M. dated 28-6-2018 grant power of relaxation of any of the provisions of the Guidelines stipulated in O.M. dated 8-11-2004.

Further, Court added that there is a power vested in the Central Government to grant relaxation, which would include relaxation of the provisions of Clause (b) of the DoPT O.M. dated 28-6-2018 and Clause 2(i) of DoPT O.M. dated 8-11-2004.

The relaxation power has been exercised in the present case in granting Inter-Cadre deputation to Respondent 2 and in the absence of lack of power and jurisdiction, this Court cannot find any illegality in the impugned action.

Counsels for Petitioner/Intervener could not make out a case calling for interference in the decision of the Government or even remotely demonstrated that there was any blot in the service career of respondent 2 making him unsuitable for the post in question.

Office Memorandums are Guidelines, to effectively regulate the services of the employees and bring uniformity therein. In changing conditions or peculiar circumstances, Government may require to deviate from a certain condition and it is for this reason that provisions for relaxation of the Guidelines are incorporated in the Rules and Executive Instructions.

 Respondent 1 has violated FR-56(d) and Rule 16(1) of Rules, 1958

 As per Rule 3 of Rules, 1960, Central Government has the power to relax any Rule framed under the All India Services Act, 1951 and any Regulation made under any such Rule, if it is satisfied that the operation of any Rule/Regulation, causes undue hardship in any particular case.

Hence, in Court’s opinion Rule 3 of Rules, 1960 certainly empowers the Central Government to relax the provisions of Rules 16(1) of Rules, 1958 to give extension of service to respondent 2.

Bench remarked that,

 “It is not open for this Court, sitting in a judicial review, to substitute its own decision and wisdom for that of the Central Government as it is really the domain and prerogative of the Government to take a decision for grant of relaxation or otherwise, on the basis of its subjective satisfaction premised on objective considerations.”

 While FR 56(d) deals with the extension of service of a Government Servant, in general, Rule 16(1) of Rules, 1958, in particular, deals with a Member of the All India Services.

Therefore, in the present matter, respondent 2 is an IPS officer and Member of the All India Services, the service conditions are more aptly governed by Rules, 1958 and the provisions of Rule 3 of Rules, 1960 would apply for relaxation of the provisions of Rule 16(1) of Rules, 1958. Hence, it would be irrelevant to deal with the issue of alleged violation of FR-56(d) once the Central Government has relaxed Rule 16(1) by invoking Rule 3 of Rules, 1960.

Concluding the matter, High Court added a note of caution to the petitioner while noting that Solicitor General and Prashant Bhushan had strenuously argued that the pleadings in the present petition are a “cut, copy, paste” of the petition filed by the Intervener before the Supreme Court and that such a practice must be discouraged and strictures be passed against the Petitioner, Court observed that such a practice is certainly unhealthy and deserves to be deprecated and the petitioner shall be well advised to refrain from indulging in such exercise, in future.

In view of the above petition was dismissed. [Sadre Alam v. Union of India, WP (C) 8654 of 2021, decided on 12-10-2021]


Advocates before the Court:

For Petitioner:

B.S. Bagga, Advocate

For Respondents:

Mr. Tushar Mehta, Solicitor General of India with Chetan Sharma, Additional Solicitor General, Mr. Amit Mahajan, Central Government Standing Counsel, Mr. Amit Gupta, Mr. Vinay Yadav, Mr. Akshay Gadeock and Mr. Sahaj Garg, Advocates for Respondent No.1.

Mr. Mukul Rohatgi, Senior Advocate, Mr. Maninder Singh, Senior Advocate with Ms. Diksha Rai, Ms. Devanshi Singh, Mr. Ankit Agarwal, Mr. Prabhas Bajaj and Ms. Palak Mahajan, Advocates for Respondent No.2.

Mr. Prashant Bhushan, Ms. Neha Rathi and Mr. Jatin Bhardwaj, Advocates for Intervener.

High Court Round UpLegal RoundUp

Monthly Roundup


Here’s a quick run-through of all the latest and interesting updates from the High Court’s section.

Go ahead and check out the September Updates below.


Allahabad High Court


Cow Slaughter Act

  • Is Magistrate empowered to pass order for disposal of property under CrPC when vehicle is seized under U.P. Prevention of Cow Slaughter Act? All HC examines

Dr Yogendra Kumar Srivastava, J., held that the Magistrate is denuded of his power to pass any order under Sections 451, 452 and 457 CrPC for release of a vehicle seized for alleged violation of provisions of the U.P. Prevention of Cow Slaughter Act.

Read more…


Andhra Pradesh High Court


GST

  • Can Commissioner of Central Tax GST Commissionerate withhold the SVLDRS Discharge certificate for transition of disputes credits to GST?

Availing of transitional credit by the petitioner under the GST Act on the Cenvat credit for GTA and C&F Agency services under the Central Excise Act is a subsequent and separate transaction from the declaration made by him under the Scheme and the adjudication of such claim cannot be said to be barred in law or without jurisdiction.

Read more…

Maintenance

  • Daughter turning major, will not be entitled to maintenance from father? Andhra Pradesh HC explains the law

While explaining the law on whether father is obligated to provide maintenance to his daughter irrespective of the fact that she has turned major,Joymalya Bagchi, J., refused to interfere with the decision of lower court.

Read more…

Minimum Wages

  • Whether Minimum Wages Act, 1948 will be applicable to a ‘Math’? In what circumstances can State be permitted to interfere? AP HC explains

Temple and Math are both religious institutions, but the purposes for which they are established and the manner in which they function are clearly specified in Section 2(17) of  A.P. Charitable and Hindu Religious Institutions & Endowments Act, 1987 Act.

Read more…


Bombay High Court


Right of Inheritance

  • Widow’s right of inheritance after re-marriage: Will mother of deceased be fully entitled to claim dues of deceased son or does wife who re-marries will also have share? Bom HC delves to answer

Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband,S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Read more…

Supply of Water

  • Two hours, Twice a month, water supply – Even after 75 years of independence, Bom HC addresses request for regular water supply || State Govt. depriving people of their fundamental right

State Government by providing water to its citizens only twice a month, and that too for a mere two hours, is not only depriving its people of their fundamental right, but in doing so is inviting criticism and tarnishing its image, especially when such is the scenario after 75 years of independence.

Read more…

Rehabilitation

  • Negligent approach of Govt & a cascading effect: Mere right of rehabilitation will be equivalent to right of ownership? Detailed report on how slum dwellers encroached public land and claimed their right

“It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect.”

Read more…

Misery of Parents

  • “Daughters are daughters forever and sons are sons till they are married”: Bom HC orders son to vacate flat of 90 yrs old parents

Noting the misery of parents aged 90 years,G.S. Kulkarni, J., observed that,

 “Daughters are daughters forever and sons are sons till they are married” albeit there would surely be exemplary exceptions.

Read more…

Sexual Harassment

  • Fear of stigma, not being believed and being blamed: 17-year-old girl leaving a note to her mother explaining ill deeds of her uncle who sexually harassed her, ended her life | Bom HC delves to know what happened

Unfortunately, we have not been able to create an atmosphere in the Society where parents, teachers and adults in company of the child can identify signs of abuse and make sure children received care and protection.

Read more…

Rape on False Promise of Marriage

  • ‘Astrological Incompatibility’ as reason to refuse marriage: Bom HC refuses to discharge man accused of rape on false promise of marriage

While noting a case of false promise to marry Sandeep K. Shinde, J., refused to allow application wherein a man claimed the reason of astrological incompatibility valid for refusing marriage.

Read more…

Contractual Employees

  • To exercise rights, can contractual employees approach a permanent employer? Bom HC verdict determines

Contractual employees are engaged through contractors, their service conditions are governed by the contracts between them, hence in case of any grievance, they shall approach the contractor and not a principal employer.

Read more…

Conviction under Section 304 Part I Penal Code, 1860

  • “Necessary to read mind of offender and not consider offence devoid of emotions”: Bom HC acquits accused of offence under S. 302 IPC rather convicts under S. 304 Part I IPC

Convicting a person under Section 304 Part I of Penal Code, 1860 Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., held that,

On finding that there was no hope that his beloved wife would return to matrimonial abode, accused got enraged an lost self-control and assaulted his wife with whatever available just nearby.

Read more…

Cheating

  • Tendency of guaranteeing decision to come in favour of one party or other, amounts to maligning a particular Judge and at large, institution itself by giving an impression that justice can be bought

It is not uncommon feature that when the matter is pending before the particular Court, the parties indulge into transaction under the guise of ‘settlement’ and sometimes it so happens, even without the knowledge of counsel on record, who may prefer to argue the case on its merit. This tendency of guaranteeing the decision to come in favour of one party or the other, amounts to maligning a particular Judge and at large, the institution itself by giving an impression that justice can be bought and the Prosecutors and Judges can be sold.

Read more…

POSH Judgments

  • POSH Judgments and Order to be delivered only in Chambers or in-camera, media disclosure forbidden: G.S. Patel, J. issues detailed guidelines

While addressing an issue revolving around the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 and  Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Rules, 2013,  G.S. Patel, J., laid down guidelines with an endeavour to anonymize the identities of the parties.

Read more…


Calcutta High Court


Bengal Post Poll Violence

  • Retired Chief Justice of Calcutta HC Manjula Chellur to monitor SIT in the Poll violence cases

The Full Bench of Rajesh Bindal, ACJ and I.P. Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar, JJ., in furtherance to the order passed on 19-08-2021 which had directed the constitution of SIT to monitor the investigation of specific categories of cases monitored by a retired Hon’ble Supreme Court Judge, appointed a retired Chief Justice of a High Court stating non-availability of a retired

Read more…

Illegal Allotment of Plot

  • Did Sourav Ganguly play with the ‘System’? Cal HC pens down its decision in illegal allotment of plot to cricketer against State’s land allotment policy

“It is a fact that Sourav Ganguly has brought laurels for the country in Cricket. But when it comes to law, our Constitutional Scheme is that all are equal and no one can claim to be exclusive, above the law and seek benefits from the State, especially when question arises for allotment of plots for commercial venues.”

Read more…

Domestic Violence Act

  • Is it proper to invoke S. 482 CrPC for quashing Magistrate’s order in a proceeding under S. 12 r/w S. 23 of Domestic Violence Act on the point of maintainability? Cal HC determines

 Bibek Chaudhari, J., considered the question as to whether Section 482 CrPC is applicable in relation to an application under Section 12 of the Protection of Women from Domestic Violence Act.

Read more…


Chhattisgarh High Court


No work No pay

  • The principle of ‘No Work No Pay’ would not be applicable where the rule expressly direct otherwise; Matter remitted back to consider grant of full pay and allowances

 No Work No Pay’ principle has been laid down keeping in view public interest that a Government servant who does not discharge his duty is not allowed pay and arrears at the cost of public exchequer.

Read more…

Extortion

  • When prima facie ingredients of S. 383 IPC is not made out, then the offence under S. 388 IPC cannot be made out

“…what is necessary for constituting an offence of ‘extortion’ is that the prosecution must prove that on account of being put in fear of injury; the victim was voluntarily delivered any particular property to the man putting him into fear. If there was no delivery of property, then the most important ingredient for constituting the offence of ‘extortion’ would not be available. Further, if a person voluntarily delivers any property without there being any fear of injury, an offence of ‘extortion’ cannot be said to have been committed.”

Read more…

Prevention of Corruption Act

  • Interdicting a criminal proceeding midcourse on ground of invalidity of the sanction order not appropriate unless failure of justice has occasioned as per S. 19(3) PC Act

“…previous sanction for prosecution is required in respect of a public servant who is employed and is not removable from his office save by or with the sanction of the State Government.”

Read more…


Delhi High Court


Trademark Infringement

  • Will the rights of a prior user override those of a subsequent user even though it had been accorded registration of its trademark? All-Inclusive Report on Trademark Infringement of ‘Rajdhani’

The rights of a prior user will normally override those of the subsequent user even though it had been accorded registration of its trademark.

Read more…

Properties Mortgaged to Banks

  • If Banks have to survive, borrowers must exist and not mere borrowers but productive borrowers: Del HC on whether borrowers have protection against arbitrary disposal of properties mortgaged to banks at low prices? [In-depth Report]

The Banks seek collaterals and security to prevent losses to themselves. It is, but reasonable, to expect the Banks such as the respondent, to also respect the right of the borrowers to maximize their profits from the sale of collaterals/securities by the banks.

Read more…

 Advocates Representation in Labour Courts

  • Representation by Advocates before Labour Courts: Del HC reiterates there is no absolute bar

Judicial decisions on the question of consent, including implied consent, have primarily turned on the facts of each case.

Read more… 

Indian Army

  • Under Indian Army, can mere acceptance of a resignation create a vacancy for being filled up from cadet in waiting? Read what Del HC says

 “Mere acceptance of resignation may not be sufficient to consider creation of a vacancy for being filled up from the cadet in the waiting.” 

Read more…

Eviction Order

  • What are the essential ingredients that a landlord is required to show for purpose of getting an eviction order for bonafide needs? Del HC elaborates

 Jayant Nath, J., while addressing a matter noted the essential ingredients that a landlord is required to show for the purpose of getting an eviction order for bonafide needs.

Read more…

Custodial Violence

  • Remedial action to be taken so that unscrupulous officers at Jail do not take advantage of knowledge of non-working of CCTVs & get away by doing any illegal act

Walls of prison, howsoever high they may be, the foundation of a prison is laid on the Rule of Law ensuring the rights to its inmates enshrined in the Constitution of India.

 Read more…

 Voluntary Retirement

  • Under Pension Rules, if a Government Servant seeks voluntary retirement, he must have completed service of 20 years and may serve notice of 3 months

 Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

Read more…

 Testimony of Child victim

  • Can testimony of child victim be trustworthy? HC reiterates law on finding child witness competent

 Under Section 29 of the POCSO Act, there is also a presumption regarding the guilt of an accused. As a result, the prosecution has to lay down and prove the fundamental facts regarding the guilt of the accused but the burden of proof on the prosecution is not of ‘beyond reasonable doubt’. Once the facts are proved, the onus is on the accused to lead evidence to rebut the presumption raised under Section 29 of the POCSO Act.

Read more…

 Territorial Jurisdiction

  • Will the place mentioned on invoice decide the jurisdiction of a Court on filing of a suit against it? Del HC explains

 Section 20 clearly provides that a Court within whose local limits the cause of action, “wholly or in part”, arises, would have territorial jurisdiction to try the suit.

Read more…

 Settlement

  • Person accused under S. 307 IPC if entered into a compromise with victim, can Court quash criminal proceedings in light of settlement? Delhi HC unravels

 “…an offence under Section 307 IPC will fall under the category of heinous offence, and therefore, has to be treated as a crime against the society and not against the individual alone and the proceedings under Section 307 IPC cannot be quashed only on the ground that the parties have resolved the entire disputes amongst themselves.”

Read more…

 Compulsory Retirement

  • On what basis is an employee compulsory retired? An account of Compulsory Retired, IRS Officer | Read Del HC’s opinion stressing on ‘compulsory retirement, a subjective satisfaction’

 Fundamental source of compulsorily retiring an employee of the Government is derived from “Doctrine of Pleasure” which springs from Article 310 of the Constitution of India.

Read more…

Arbitration

  • ICADR Rules regarding procedure come into play only after arbitration commences before appropriate jurisdiction of law: Del HC summarises law on seat, venue of arbitration

 While observing that the role of ICADR Rules shall come into play with regard to the procedure to be followed, only after the arbitration commences before the appropriate jurisdiction of law, Suresh Kumar Kait, J., reiterated the observation of BGS SGS SOMA JV v. NHPC(2020) 4 SCC 234, wherein it was stated that if the arbitration agreement provides that arbitration proceedings “shall be held” at a particular venue, then that indicates arbitration proceedings would be anchored at such venue, and therefore, the choice of venue is also a choice of the seat of arbitration. 

Read more…


 Gujarat High Court


 Gazettes

  • E-publishing of old gazettes to be done within six months; Court directs State to submit compliance report

 “…brought into notice of the Court that as far as the past or old Notifications issued earlier were concerned, such old Gazettes as prayed in prayer (b), the process was underway and the same will be over within a short period.”

Read more…

Detention

  • Detaining authority fell in error in interpreting “dangerous person”; Court allows petition against detention

 Paresh Upadhyay, J., allowed a petition which was filed against the order passed by the Commissioner of Police, Surat whereby the petitioner is detained under the Gujarat Prevention of Anti Social Activities Act, 1985.

Read more…

Joint family Property

  • Whether permission is required to sell undivided share of minor in joint family property or not? Succinct report on Gujarat HC’s decision

“…interest of the minor son is to be taken care of, while his share of joint family property is being sold.”

Read more…

 Compensation

  • Discretion not to be exercised in blanket form which may otherwise lead to improper exercise of such power and will frustrate object of grant of compensation under Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2020

 R Mohapatra J. allowed the appeals and directed to disburse the awarded amount by liquidating the fixed deposits, if any, to the claimants on proper identification, as expeditiously as possible. 

Read more…


 Himachal Pradesh High Court


Gallantry Medal

  • “Dispatching the gallantry medal directly to the writ petitioner through courier amount to breach of protocol”; Such awards must be given only in ceremonial functions of Independence Day/ Republic Day

Court observed that while promoting acts of bravery and courage, gallantry awards are made for ensuring the spirit of bravery the recipients of awards must be honored in ceremonial functions of Republic Day or Independence Day. It was also observed that delay in the conferment of gallantry awards should be deprecated.

 Read more…

Maintenance

  • “Granting interim maintenance is similar to giving first aid”; Maintenance granted to wife under S. 125 CrPC; Solemnization of marriage under challenge is subject to proof

 Anoop Chitkara J. remarked, “There is neither any illegality nor the maintenance beyond the petitioner’s means; as such, there are no merits in the present petition.” 

Read more…


 J&K and Ladakh High Court


Freedom of Press v. Breach of Peace and Defamation

  • J&K and Ladakh HC | Freedom of Press v. Breach of Peace and Defamation of authority; HC holds no fetters can be placed on the press by registering FIR

“No fetters can be placed on the freedom of press by registering the FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source.”

Read more…

Right to go Abroad

  • Right to go abroad to pursue studies cannot be denied only on the ground of involvement in a criminal case; HC waives conditional bail order

“The petitioner cannot be denied the right to go abroad to pursue studies only on the ground that he is involved in a criminal case. Looking to the gravity of charge and the young age of the petitioner and his quest to acquire quality education, the request made appears to be genuine.”

Read more…

Right to protect Property

  • Husband is not a stranger; has every right to protect property of his wife; HC dismisses petition challenging husband’s locus standi

“…the husband of the purchaser of the property has every right to look after and protect the property of his wife”

Read more…

Arbitration and Conciliation Act

  • Interim Award v/s Interim Order; HC clarifies prerequisites of S. 31 (6) and S. 17 (1)(ii)(e) of the Arbitration and Conciliation Act, 1996

“While passing an order under Section 17 (1)(ii)(e) of the Act of 1996, an arbitral Tribunal would be justified in considering the prima facie case, the balance of convenience and similar other factors at the time of passing such an order, while making an interim award under Section 31 (6) of the Act, the arbitral Tribunal has to be satisfied that there is an admission or acknowledgment of liability on the part of the party against which the award is proposed to be made.”

Read more…

Rumourous Tweet

  • Will a rumourous tweet make one legally liable even when one deletes it on coming to know it to be untrue? HC decides

“A perusal of the petitioner’s tweet would reveal that it begins with words “JUST HEARD”, meaning thereby that what was uploaded by him was just heard by him and he had no personal knowledge of the same respondents and this subsequent conduct of the petitioner also makes it ample clear that the said tweet was uploaded in a good faith without any criminal intention to generate the consequences as provided by section 505 RPC.”

Read more…

Appeal

  • Appeal filed without annexing decree sheet passes admission stage due to lapse on the part of Court Registry; Will the appeal survive? HC decides

“If the Appeal has passed through the stage of admission through oversight of the office, then, the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should procure the certified copy of the decree as soon as it is supplied to him.”

Read more…


Jharkhand High Court


Non-Appearance of Counsel

  • Can a criminal case be decided ex-parte? What is the resort in cases of non-appearance of counsel of the accused? HC answers

Anubha Rawat Choudhary, J., set aside the order of conviction under Section 304A of IPC passed without hearing the accused. The Bench stated that in case of non-appearance of counsel for the accused it is the duty of the Court to appoint another counsel as amicus curiae to defend the accused.

Read more…

Railway Ticket

  • Mere holding ticket for passenger train will not suffice purpose to declare deceased not a bonafide passenger under S. 2 (29) in a benevolent legislation like Railways Act, 1989; Contrary evidence must

“…once the ticket number has been brought on record which indicates that it was from Asansol to Madhupur, the railway ought to have brought on record any material to show that this ticket was never sold by the railway or this ticket was never issued for the express train and only on the argument, that deceased was holding ticket for passenger train will not suffice the purpose to declare the deceased not a bonafide passenger under Section 2 (29) of the Act in a benevolent legislation like Railways Act, 1989.”

Read more…

Protection of Fauna and Flora

  • “Duty of Forest Guards is to guard not only forest but also animals”; HC emphasises on need to protect fauna along with flora

Reprehending the conduct of the forest staffs, the Bench stated,

“The duty of the Forest Guards as also the Range Officers is to guard not only the forest but also the animals for which the staffing pattern to that effect has been made but even though the elephant calf reported to have died 3-4 days ago, nobody was aware about the death which suggests about the functioning of the employees/officers of the Forest Department…”

Read more…

Departmental Proceedings

  • Conclusion of Departmental proceeding on the ground of conviction by Trial Court; will subsequent acquittal by High Court affect the outcome of departmental proceeding?

 “It is well known that the High Court while acquitting the petitioner has decided the criminal case only and the authority concerned has to consider the reinstatement of the petitioner in service while passing a reasoned order.”

Read more…


Karnataka High Court


Maternity Leave

  • Kar HC granted maternity leave to senior resident doctor employed on contract basis who was denied the same by Joint Director, ESIC Medical College & Hospital, Kalaburagi

Court observed that the Office Memorandum dated 11-01-2018 discloses that in respect of Teaching and Non-Teaching Staff they are entitled to 26 weeks of Maternity Leave, subject to the condition that such person must have rendered at least 80days of service in the past 12 months preceding the date of expected delivery, as envisaged in the Maternal Benefit (Amendment) Act, 2017.

Read more…

Criminal Trial

  • “Chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court” Application of judicious mind sine qua non for setting criminal trial in motion

Section 503 IPC, which defines ‘criminal intimidation’ would direct that whoever threatens another person with any injury to his person, reputation or property by an act, he is not legally bound to do and executes certain threats, commits criminal intimidation.

Read more…

Right to Life

  • Freezing of Bank accounts by investigating authorities would adversely affect right to life under Art. 21 of the Constitution of India

Mohammad Nawaz J. allowed the petition and defreezes the bank accounts subject to a bank guarantee.

Read more…

Perjury

  • “Act of perjury is treated as a heinous offence in all civilized societies”; Delay in consideration of such complaints can pollute the fountain of justice

Krishna S Dixit, J., allowed the petition and set aside the impugned order highlighting the importance of perjury applications to be considered at the earliest.

Read more…

Textbooks in braille

  • Kar HC directs State Government to provide text books in Braille for all special children (visual disabilities) positively within a period of 15 days from the date of order

A Division Bench of Satish Chandra Sharma, CJ. and Sachin Shankar Magadum J. directed the State Government to provide textbooks in Braille for all specially abled children having visual disabilities within a period of 15 days.

Read more…


Kerala High Court


Mental Health

  • “Good Samaritans are absent”; HC issues detailed directions for handling cases of mentally ill prisoners where family/friends shows reluctance to take their custody

“The powerless, voiceless mentally ill prisoners languishing in prisons and mental health centres for years together, embroiled in legal quagmire and abandoned by family and friends. The system and the society presume them to be devoid of knowledge and feeling, thereby turning them into stone.”

Read more…

Criminal Antecedents

  • What sort of reasoning is this? HC slams Authorization Committee for rejecting Kidney donation application because the donor has criminal antecedents

“I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient.”

Read more…

Public Servants

  • No prosecution against public servants without prior approval of government; HC dismisses CBI’s revision petition

Narayana Pisharadi, J., dismissed the revision petition filed by CBI due to its failure to obtain prior sanction of government before prosecuting public servants.

Read more…

Post Poll Murder

  • Rejection of bail would result in protraction of trial and indefinite detention; HC grants bail to Communist Party activists in post-poll murder case

Haripal, J., granted bail to the accused involved in post poll murder case of a Muslim League member. The Bench opined,

“No doubt, the allegations against the accused are very grave. Still, so long as the final report is laid, it is not in the interest of justice, unless overwhelming reasons are made out, to keep the suspects in custody.”

Read more…

Violence against Doctors

  • “Attacks on Doctors cannot be condoned”; HC directs State to give publicity to penal consequences of such attacks and increase awareness

Finding it shocking and unbelievable that were 278 attacks against Doctors, Nurses and Healthcare Workers in the State of Kerala, the Division Bench of Devan Ramachandran and Kauser Edappagath, JJ., stated that,

“The attacks on Health Care Workers or an attempt to intimidate or threaten them, for whatever be the reason can never be condoned or tolerated.”

Read more…

Legitimacy of a Child

  • Can DNA test be conducted to determine legitimacy of a child in a divorce petition without the child being on the party array? HC answers

The illegitimacy or paternity of the child is only incidental to the claim for dissolution of marriage on the ground of adultery or infidelity. The child’s presence is not necessary to adjudicate the relief claimed.”

Read more…

Amendment

  • A case of wanton negligence and callousness of petitioner; HC rejects application for amendment making inconsistent and alternative pleadings in written statement

V.G. Arun, J., held that no amendment can be allowed in written statement where it seeks to change former admissions.  The Bench stated,

“Even the most liberal approach towards amendment of written statements will not justify the approval of such an application.”

Read more…

Fake Lawyer

  • “If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole judicial system”; HC dismisses bail application of infamous fake lawyer

“The illegal activities adopted by her that too before the court of law has to be dealt with an iron hand. If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole Judicial system and would shake the confidence of the public in judicial system.”

Read more…

Sexual Assault

  • Priest of Temple commits penetrative sexual assault on young girl: Ker HC observes which God would accept obeisance and offerings of such Priest or make him a medium?

“We wonder which God would accept the obeisance and offerings of such. Priest or make him a medium?”

Read more…

Rape Victim

  • Can the fact that minor rape victim attained majority and married the rapist lead to quashment of criminal proceedings? HC answers

“When it (rape) is towards a child the gravity is all the more severe and excruciating as it may even low self-esteem, self confidence and dignity of the child and that the psychic effect and impact would cause a devastating effect on the minor and result in far-reaching consequences.”

Read more…

Talaq

  • Mere use of word ‘irrevocably’ does not render pronouncement of talaq illegal if intention of the husband shows otherwise; HC states

“Notwithstanding the use of the word ‘irrevocably’ in the talaqnama, the respondent must be seen as having pronounced a talaq ahsan, that became irrevocable only on the expiry of the period of three lunar months immediately following the single pronouncement of the talaq…”

Read more…


Madras High Court


Currency Notes

  • There are many known heroes and unsung heroes. Whether printing the photo of National Leader Netaji Subash Chandra Bose on Indian Currency is possible or not? Detailed Report

If every claim is started to be entertained, there will not be any end.

What is the use of printing images of Great Leaders, who fought for our Independence without following their principles, in currency notes?; merely because the portrait of Mahatma Gandhi is appearing in the currency, does it mean that the currency is used only for legal purposes. Whether the currency should have the portrait of a particular leader or otherwise is the policy of the Government.

 Read more…

Supreme Court Benches 

  • Madras HC on setting up Benches of Supreme Court: An Indian, from a far-flung corner, has been unable to approach great Citadel of Justice, hailed as the ‘sentinel on the qui vive’

“Litigants are compelled to accept the wrong orders in view of inaccessibility to New Delhi and the exorbitant expenses towards engaging a counsel.”

Read more…

Bumper to Bumper Insurance Policy

  • Mandating coverage of bumper to bumper insurance policy: Not logistically and economically feasible? Has Madras HC modified its earlier decision? Read full report

Vaidyanathan, J., cancelled the bumper-to-bumper policy which was made mandatory by this Court’s order for new vehicles for a period of 5 years.

Read more…

IT Rules, 2021

  • ‘Oversight mechanism to control media by Govt. may rob media of its independence’: Madras HC’s prima facie observation

The Division Bench of Sanjib Banerjee, CJ and P.D. Audikesavalu, J., prima facie observed that an oversight mechanism to control the media by the government may rob the media of its independence and fourth pillar, so to say, of democracy may not at all be there. The High Court was hearing a challenge to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Read more…

Illegal encroachment

  • Are Courts bound to protect the interests of the “deity” in temple? Madras HC’s ruling on “Deity” in temple a “Minor”

When the trustee or the Executive Officer or the custodian of the idol, temple and its properties, leave the same in lurch, any person interested in respect of such temple or worshipping deity can certainly be clothed with an adhoc power of representation to the protect its interest.

Read more…


Madhya Pradesh High Court


Flag Code

  • Flag Code is not “law” under Art. 13 of Constitution, but mere compendium of executive instructions; flying of National Flag between sunset and sunrise not contemptuous

S.A. Dharmadhikari, J., allowed a petition which was filed invoking inherent powers of this Court under Section 482 of the CrPC seeking quashment of FIR registered alleging offence punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971.

Read more…

Bail

  • Much to be done in the field of Forensic Sciences and its use in Administration of Justice and Legal Education; Court draws attention towards pendency of matters

Anand Pathak, J., while hearing a matter related to Section 439 CrPC for grant of bail which was his fourth application, highlighted some major issues related to advancement of Forensic Sciences and its use in Administration of Justice and Legal Education.

 Read more…

Transfer

  • Transfer of the only teacher in school stayed until State’s reply; Court holds order as illegal, without application of mind and contrary to the public policy

Sanjay Dwivedi, J., decided in the matter of a petition which was filed challenging an order whereby the petitioner had been transferred from Government Middle School Sewara-Sewari to Government Middle School, Batyawada.

Read more…

Elections

  • Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission; Court dismisses PIL

The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., dismissed a PIL which was filed by the Nagrik Upbhokta Margdarshak Manch with a prayer that the Election Commission of India may be directed not to conduct bye-elections of Parliamentary Constituency of Khandwa and Assembly Constituencies of Prathvipur, Jobat and Rajgarh in the State of Madhya Pradesh and direct the respondents to conduct the bye-elections only after assessing the ground situation of coronavirus in the State.

Read more…


Meghalaya High Court


COVID-19 Vaccination

  • State not to insist on production of Aadhaar Card as the only proof of identity for vaccination

The Division Bench of Biswanath Somadder, CJ. and H.S. Thangkhiew, J. heard a PIL which was filed with two primary issues. The first issue was with regard to the mandatory vaccination which was dealt by the order dated 23-06-2021. The other issue was with regard to the method of implementation of the Government Welfare Schemes meant for the marginalized section of the society in the State of Meghalaya.

Read more…

Meghalaya Resident Safety and Security Act

  • Constitutional validity of Meghalaya Resident Safety and Security Act, 2016 challenged; Court directs State to explain purpose of facilitation centres

The Division Bench of Biswanath Somadder, CJ. and H. S. Thangkhiew, J., dealt with a PIL which was filed challenging the constitutional validity of Meghalaya Resident Safety and Security Act (MRSSA), 2016.

Read more…


Orissa High Court


POCSO Act

  • “India will be free when the women feel safe to walk in the streets of India in the midnight”; Conviction upheld under S. 341 IPC and S. 4 of POCSO Act

“Court observed that the act of the appellant in coming in front of the victim and her sister and catching hold of the handle of the bi-cycle to stop their movement which led them to fall on the ground…”

Read more…


Patna High Court


Right to Appeal

  • Victim’s Right to appeal; Is there a right conferred on victim to appeal for enhancement of sentence? HC answers

The Division Bench of Ashwani Kumar Singh and Arvind Srivastava, JJ., reiterated that a victim has no right to maintain an appeal under the proviso to Section 372 of the CrPC on the ground of inadequate sentence.

Read more…


Punjab and Haryana High Court


NDPS Act

  • Huge recovery of contraband drug, failure to register FIR under NDPS Act; HC senses attempt to protect the offender by the authority; hands over the case to CBI

“This is a serious lapse and inaction on the part of the Punjab Police as well as the Drug Controller and this clearly reveals that everything is not normal with the investigation of the NDPS cases in the State of Punjab.”

Read more…

 Motor Vehicles Act 

  • Difficult to fathom Corpn. was oblivious of Statutory requirements; HC comes down heavily on Patna Municipal Corpn. for failure to get its vehicles registered under MV Act

 “It is difficult to fathom that Patna Municipal Corporation, a municipal body originally established in 1922, was oblivious of the factum of the requirement of getting 925 vehicles (Approx.) registered under the provisions of the Motor Vehicles Act, 1988.”

Read more…

  • Driving license and income tax record suggest contradictory age details; HC resolves the age controversy in an accident claim case

 Anil Kshetarpal, J., denied interfering with the decision of the Motor Accident Claims Tribunal with regard to age assessed by the Tribunal wherein two contradictory evidences were placed to prove the age of the deceased. The Bench stated,

No doubt, there is a difference between the date of birth in the driving license as well as the income-tax record of the deceased-late Sh. Ravinder Kumar, however, neither of them is a document to prove his age. 

Read more…

 Proof of Age

  • Is Aadhaar Card a firm proof of age? HC answers while granting protection to a couple who married against wishes of family

 Amol Rattan Singh, J., directed protection to couple who were facing threats after getting married against the wishes of their family.

Read more…

Illegal Migrants

  • Make people aware of mechanism for identification and deportation of persons suspected to be illegal migrants; HC directs Bihar government

 The Division Bench of Sanjay Karol, CJ and S. Kumar, J., asked the State government to sensitize people regarding the consequences of illegal migration, how to identify them and requirement to inform the officers concerned of the presence of illegal migrants in the State.

Read more here…

 Live-in Relationship

  • No offence by married person being in live-in; HC differs with Allahabad High Court’s decision

Amol Rattan Singh, J., held that since adultery is not an offence, no offence would be committed by a married person by him/her being in live-in even when his/her divorce petition is pending before the Court.

Read more… 

Honour Killing

  • “Culpable failure to supervise investigation”; HC slams police for laxity in investigation, issues detailed directions for effective dealing of Honour Killing cases

 Arun Kumar Tyagi, J., while addressing bail application of accused in a case pertaining to Honour Killing, stated it to be a,

“Glaring example how the directions given by Supreme Court are flouted, how the necessity of protection to the couple marrying against the wishes of their family members is ignored.” 

Read more…

 Child Marriage

  • Where minor wife fails to obtain decree of nullity before attaining age of majority, the marriage becomes a valid one; HC interprets

 The Division Bench of Ritu Bahri and Arun Monga, JJ., held that in case of child marriage, the marriage is voidable not void and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.

Read more…


Rajasthan High Court


Vaccination of Transgenders

  • Court directs State to abide by the guidelines framed by the Centre for vaccination of the Transgenders

The Division Bench of Sangeet Lodha and Vinit Kumar Mathur, JJ., disposed off a petition with directions which was filed seeking directions to the respondents to facilitate COVID-19 vaccination for transgenders of the State of Rajasthan.

Read more…

 Law of Precedence

  • According to Law of Precedence, judgment passed by Coordinate Bench binding, whereas judgment of other High Court has persuasive value; transfer order once executed cannot be cancelled, altered or modified 

Read more…


Tripura High Court


Bail Application

  • Custodial interrogation necessary to book associates to the offence; Court denies bail application of accused under S. 409, IPC

 The essential parameters for consideration of bail are the nature of offence, the punishment thereto, possibility of his tempering with the prosecution evidence in case of his release on bail, likelihood of his fleeing away from the jurisdiction of the court etc. 

Read more…

Reimbursement of Medical Bills

  • To determine emergent and immediate exigencies, authorities concerned must be rationale; Court allows petition of reimbursement of medical bills of judicial officer and wife

Arindam Lodh, J., allowed a petition which was filed against the rejection of his application for reimbursement of medical bills by the State Finance Department and the Treasury Officer.

Read more…

Live-in relationship

  • Constitutional Morality to override societal morality; Directs live in partners where the lady is married to another man to make representation before the Station House Officer and necessary orders may be passed

 It is well- settled that it is not in the Court’s domain to intrude upon an individual’s privacy. Any scrutiny or remark upon the so-called morality of an individual’s relationship and blanket statements of condemnation especially in matters where it is not called into question, to begin with, would simply bolster an intrusion upon one’s right to choice and condone acts of unwarranted moral policing by the society at large.

Read more…


Uttaranchal High Court


  • State directed to ensure that land owner who donated the land for establishment of sugar mill, their future generation should not be left starving

 Lok Pal Singh, J., allowed a petition which was filed mainly seeking a writ, order or direction directing the respondents to provide employment to the petitioner in terms of the agreement executed between their forefather and sugar factory. 

Read more…

Appointments & TransfersNews

Elevation of 4 Judicial Officers as Judges in Bombay High Court


Supreme Court Collegium has approved the proposal for elevation of the following Judicial Officers as Judges in the Bombay High Court:

1. Shri A.L. Pansare,

2. Shri S.C. More,

3. Smt. U.S. Joshi-Phalke, and

4. Shri B.P. Deshpande.


Supreme Court of India

[Collegium Statement dt. 29-9-2021]

Appointments & TransfersNews

Elevation of 7 Advocates as Judges in Gujarat High Court


Supreme Court Collegium has approved the proposal for elevation of the following Advocates as Judges in the Gujarat High Court:

1. Mrs. Mauna Manish Bhatt,

2. Shri Samir J. Dave,

3. Shri Hemant M. Prachchhak,

4. Shri Sandeep N. Bhatt,

5. Shri Aniruddha Pradyumna Mayee,

6. Shri Niral Rashmikant Mehta, and

7. Ms. Nisha Mahendrabhai Thakore.


Supreme Court of India

[Collegium Statement dt. 21-9-2021]

Legal RoundUpWeekly Rewind

SCC online Weekly Rewind | Episode 29th with Devika Sharma


SCC Online Weekly Rewind Episode 29th ft. Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.


Most Important Stories


Federal Court of Australia

 How DABUS, an Artificial Intelligence System, was given the status of an “Inventor”?

In a very interesting issue, Federal Court of Australia became the first judicial authority to recognize AI machines as inventors of patents. The decision centered around the question whether Artificial Intelligence Systems can be an inventor for the purposes of the Patent Act, to which the Court asked that:

If the output of an artificial intelligence system is said to be the invention, who is the inventor? And if a human is required, who? The programmer? The owner? The operator? The trainer? The person who provided input data? All of these? None of these?

Court expressed that, in some cases it may be none of these. In some cases, the better analysis,  is to say that the system itself is the inventor. That would reflect the reality. And you would avoid otherwise uncertainty. And indeed that may be the case if the unit embodying the artificial intelligence has its own autonomy. What if it is free to trawl the internet to obtain its own input or training data? What about a robot operating independently in a public space, having its own senses, learning from the environment, and making its own decisions? And what about the more exotic, such as a mobile unit on Mars left to its own devices and not seeking instructions from Earth?

Justice Beach in light of these observations, stated that “we are both created and create. Why cannot our own creations also create?

Thus, in this remarkable decision Court while noting that the name of the inventor can be non-human, held that DABUS, an AI, can be an inventor.

https://bit.ly/3u8X73C


NCDRC

Model loses assignment because of wrong haircut, negligent medical treatment at ITC Maurya salon: NCDRC’s striking decision on ITC’s liability

Have you ever gone to a salon and something unfortunate like a haircut you wished for went all wrong accompanying a bad hair treatment leading to a burnt scalp?

Well, a salon at ITC Maurya became responsible for causing this to a model who came in for the haircut right before a week of her interview. In its striking decision, the National Consumer Forum while expressing that “Women are emotionally attached to their hair”, granted Rs 2 crores compensation as she was not only given wrong haircut but in fact was also subjected to medical negligence. 

https://bit.ly/3kDQhzT


Supreme Court

Imprisonment for life is equivalent to rigorous imprisonment for life: Supreme Court

In a case where a man was convicted for killing his wife on the suspicion of her infidelity and was sentenced to undergo rigorous imprisonment for life, Supreme Court has refused to go into the question of propriety of specifying rigorous imprisonment while imposing life sentence and has held that imprisonment for life is equivalent to rigorous imprisonment for life.

https://bit.ly/2Y0rYDL

Will long possession of a property by a caretaker/servant entitle him to acquire an interest in property? SC decides

In an interesting case, the Supreme Court has succinctly declared that a caretaker/servant can never acquire interest in the property irrespective of his long possession and the caretaker/servant has to give possession forthwith on demand.

https://bit.ly/3kCzPzS


Kerala High Court

Can DNA test be conducted to determine legitimacy of a child in a divorce petition without the child being on the party array?

Can DNA test be conducted to determine legitimacy of a child in a divorce petition?

The Kerala High Court answered this question when it recently held that it would be permissible for a court to direct the holding of a DNA examination, to determine the veracity of the allegations constituting the grounds for divorce if a strong prima facie case is made out.

https://bit.ly/3uazyHD

Priest of Temple commits penetrative sexual assault on young girl: Ker HC observes which God would accept obeisance and offerings of such Priest or make him a medium?

Observing that “When a man abandons his wife and children, roving vultures wait to prey on not only the abandoned woman, but also the helpless children”, the Kerala High Court noted horrendous act of a temple priest who took an abandoned woman and her three children under his wing and repeatedly molested the elder girl child in the presence of her siblings. Expressing anguish, the Court said “We wonder which God would accept the obeisance and offerings of such Priest or make him a medium?”. Upholding his conviction for rape, the High Court awarded the maximum sentence of life imprisonment to the priest.

https://bit.ly/2XXmgT5


Competition Commission of India

 By now you must have come across the decision centered around the dispute with regard to Maruti Suzuki v. It’s dealers. And in case you have not, I have got you covered:

The Competition Commission of India has imposed a penalty of Rs 200 crores on Maruti Suzuki India limited, on finding that Maruti Suzuki used to impose penalties on its dealers for violating its ‘Discount Control Policy’. The CCI held that Maruti Suzuki India Limited was not a third-party in the enforcement of the Discount Control Mechanism, as claimed by it. When a significant player such as MSIL imposes minimum selling price restrictions in the form of maximum discount that can be offered by the dealers, Resale Price Management can decrease the pricing pressure on competing manufacturers. 

The backdrop of this case was that the dealers were discouraged from giving extra discounts, freebies, etc. to consumers beyond what was permitted by MSIL. If found to be violating the Discount Control Policy, the dealers were threatened with imposition of penalty, not only upon the dealership, but also upon its individual persons, including Direct Sales Executive, Regional Manager, Showroom Manager, Team Leader, etc., and stopping of supplies.

https://bit.ly/2WdNt3g


Bombay High Court

Fear of stigma, not being believed and being blamed: 17-year-old girl leaving a note to her mother explaining ill deeds of her uncle who sexually harassed her, ended her life

Sexual violence knows no boundaries, it occurs in every country, across all parts of society. The Bombay High Court while noting a case of sexual harassment caused to a child aged 17 years due to which she took the step of ending her life, rejected the bail of the accused.

In this horrendous incident, the miserable fact was that this young girl was hesitant to disclose the ill intentions of the accused who was her own uncle. In a note scribed by the deceased, she had opened her mind to her mother wherein she spoke about her uncle’s ill deed and also offered an explanation as to why she concealed it from her mother. She expressed her helplessness. She suffered the consequences mutely for a year.

Hearing this harrowing incident, the High Court penned down that a child may be subjected to sexual abuse or exploitation at home too. Unfortunately, we have not been able to create an atmosphere in the society where parents, teachers and adults in company of the child can identify signs of abuse and make sure children received care and protection.

https://bit.ly/3i3MpGR

To exercise rights, can contractual employees approach a permanent employer? Bom HC verdict determines

Reiterating the well-settled position that contractual employees are not the employees of the principal employer, the Bombay High Court held that

Contractual employees are engaged through contractors, their service conditions are governed by the contracts between them, hence in case of any grievance, they shall approach the contractor and not a principal employer.

Court also observed that these employees work with the principal employer through contractor, only during the contract period. After the contract period is over, their contractor may enter into a contract with another establishment and shift them to work there. From that view of the matter also, they cannot be treated like permanent employees of the principal employer, and therefore, they cannot claim voting rights at par with the permanent employees.

https://bit.ly/39zx9wD


Delhi High Court

Person accused under S. 307 IPC if entered into a compromise with victim, can Court quash criminal proceedings in light of settlement?

Emphasizing on the gravity of seriousness of Section 307 of the Penal Code, the Delhi High Court observed that:

“…an offence under Section 307 IPC will fall under the category of heinous offence, and therefore, has to be treated as a crime against the society and not against the individual alone and the proceedings under Section 307 IPC cannot be quashed only on the ground that the parties have resolved the entire disputes amongst themselves.”

Since in this case, the victim was stabbed with a dangerous weapon i.e. a knife and the injuries caused were of such nature that they would have caused death in ordinary circumstances, the High Court declined to quash the criminal proceedings.

https://bit.ly/3CGthGM

On what basis is an employee compulsory retired? An account of Compulsory Retired, IRS Officer 

Opining that an order of compulsory retirement is not a punishment, nor it attaches any stigma to an employee, the Delhi High Court expressed that:

Fundamental source of compulsorily retiring an employee of the Government is derived from “Doctrine of Pleasure” which springs from Article 310 of the Constitution of India.

If any employee of the Union of India has succeeded in litigation(s), that does not mean that looking to the overall service record of the employee, after certain age as per rules, he cannot be retired by the Union of India. It ought to be kept in mind that compulsory retirement is a subjective satisfaction which has been formed on the basis of the entire service record.

In this case, the petitioner was an officer of the 1985 batch of the Indian Revenue Service. In exercise of powers under Rule 56(j) of Fundamental Rules, respondents had compulsorily retired the petitioner.

https://bit.ly/2W9dO2i


Madras High Court

Are Courts bound to protect the interests of the “deity” in temple? Madras HC’s ruling on “Deity” in temple a “Minor”

Asserting that “Deity” in the temple is a “minor” and the court should be astute to protect the interests of an idol in any litigation, the Madras High Court held that,

When the trustee or the Executive Officer or the custodian of the idol, temple and its properties, leave the same in lurch, any person interested in respect of such temple or worshipping deity can certainly be clothed with an ad hoc power of representation to protect its interest. 

https://bit.ly/3i4KotZ


Kerala High Court

 “If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole judicial system”; HC dismisses bail application of infamous fake lawyer

Kerala High Court dismissed the bail application of one Sessy Xavier, the infamous fake lawyer. The Bench stated,

“The illegal activities adopted by her that too before the court of law has to be dealt with an iron hand. If leniency is taken, just considering the fact that she is a young lady, it will be a shame for the whole Judicial system and would shake the confidence of the public in judicial system.”

Read here…


 United States District Court, North District of California

 Apple: A monopolist under Federal or State Law? A win for Epic or Apple?

 While issuing a permanent injunction, stating Apple could no longer prohibit developers linking to their own purchasing mechanisms, the United States District Court for the North District of California held that Epic Games failed to show how Apple Inc. was operating an illegal monopoly.

 Epic Games Inc. sued Apple Inc. alleging violations of federal and state antitrust laws and California’s unfair competition laws based upon Apple’s operation of its App Store. 

Trial did show that Apple was engaging in anti-competitive conduct under California’s competition laws. Further, the Court concluded that Apple’s anti-steering provisions hide critical information from consumers and illegally stifle consumer choice.

Since Apple has created an ecosystem with interlocking rules and regulations, it is difficult to evaluate any specific restriction in isolation or in a vacuum. Thus, looking at the combination of the challenged restrictions and Apple’s justifications, and the lack thereof, the Court found that common threads run through Apple’s practices which unreasonably restrains competition and harm consumers, namely the lack of information and transparency about policies that effect consumers’ ability to find cheaper prices, increased customer service, and options regarding their purchases.

Apple employs these policies so that it can extract supra-competitive commissions from this highly lucrative gaming industry.

Apple Inc. and its officers, agents, servants, employees, and any person in active concert or participation with them were permanently restrained and enjoined from prohibiting developers from

  • including in their apps and their metadata buttons, external links, or other calls to action that direct customers to purchasing mechanisms, in addition to In-App Purchasing and
  • communicating with customers through points of contact obtained voluntarily from customers through account registration within the app.

https://bit.ly/3m0aQ9l


Legislation Updates

Electronic Duty Credit Ledger Regulations, 2021, notified 

The Central Board of Indirect taxes and Customs has notified the Electronic Duty Credit Ledger Regulations, 2021. The Regulations provide for

  1. Issuance of duty credit in the scroll
  2. Creation of E-scrip 
  3. Registration and Validity of e-scrip
  4. Suspension or cancellation of duty credit

https://www.scconline.com/blog/post/2021/09/24/electronic-duty-credit-ledger-regulations-2021-notified/ 

Goa | Dues Recovery and Settlement Scheme 2020-21 extended till 31.10.2021 

The Government of Goa has extended the last date for clearing the dues on water charges for all Domestic & non-domestic water consumers under the Dues Recovery and Settlement Scheme 2020-21 till October 31, 2021, vide notification dated September 16, 2021.

The scheme applies:

  • To those water consumers who have defaulted on dues up to 31st October 2020,
  • The defaulting water consumers whose cases are referred to Revenue Recovery Court as on October 31, 2020
  • Those water Consumers whose installations are either temporarily or permanently disconnected as on October 31, 2020.

https://www.scconline.com/blog/post/2021/09/23/goa-dues-recovery-and-settlement-scheme-2020-21-extended-till-31-10-2021/ 

Medical Termination of Pregnancy (Amendment) Act, 2021 to come into force on September 24, 2021 

The Central Government notified September 24, 2021 as the date on which the provisions of the  Medical Termination of Pregnancy (Amendment) Act, 2021(8 of 2021) will come into force.

https://www.scconline.com/blog/post/2021/09/22/medical-termination-of-pregnancy-amendment-act-2021-to-come-into-force-on-september-24-2021/

IRDAI extends timelines for issuance of electronic policies and dispensing with physical signatures on the proposal forms 

The Insurance Regulatory and Development Authority of India (IRDAI) has issued extension of timelines for Issuance of Electronic Policies and dispensing with Physical Signatures till March 31, 2022.

https://www.scconline.com/blog/post/2021/09/21/irdai-extends-timelines-for-issuance-of-electronic-policies-and-dispensing-with-physical-signatures-on-the-proposal-forms/

No TDS under section 194A on interest payment to a member of scheduled tribe of specified areas under section 10(26) of IT Act

The Central Board of Direct Taxes (CBDT)  has issued a notification  that no deduction of tax shall be made on the following payment under section 194A of the Income-tax Act, 1961, which specifies, Interest other than “interest on securities”, made by a scheduled bank located in a specified area, to a member of Scheduled Tribe residing in any specified area, as referred to in clause (26) of section 10 of the Income-tax Act, 1961 subject to specified conditions.

https://www.scconline.com/blog/post/2021/09/21/no-tds-under-section-194a-on-interest-payment-to-a-member-of-scheduled-tribe-of-specified-areas-under-section-1026-of-it-act/

Case BriefsHigh Courts

Andhra Pradesh High Court: Opining that, a Math, which is a separate institution rendering certain religious and other functions pertaining to a particular denomination is different from a temple which is open to all for worship, D.V.S.S. Somayajulu, J., held that,

Minimum Wages Act, 1948 will not be applicable to the Math.

Instant petition was filed by the petitioner – Math to seek reliefs.

Senior Counsel, C.R. Sridharan, for the petitioner submitted that petition was a Math which is a specific religious denomination.

He added that the petition was filed because the respondent was attempting to interfere with the activities of the Math and directing the petitioner to pay minimum wages, etc. to the persons employed in the Math.

Respondent’s action was challenged.

Senior Counsel added that respondent-State does not have the right to interfere with the Management of the math and issue the directions contained in the impugned memos.

Petitioner’s counsel submitted that there is a fundamental distinction between a Math and a temple although both can be called a religious institution.

Government Pleader argued that coming to the issue of wages, the respondents are not insisting upon the payment of the wages, more so, under the Minimum Wages Act, but are essentially trying to ensure that the equal pay for equal work principle as enunciated in the case of State of Punjab v. Jagjit Singh, (2017) 1 SCC 148, is actually followed.

Analysis, Law and Decision

High Court noticed that it is a fact that a “Math” is distinct from a “Temple”.

Temple and Math are both religious institutions, but the purposes for which they are established and the manner in which they function are clearly specified in Section 2(17) of  A.P. Charitable and Hindu Religious Institutions & Endowments Act, 1987 Act.

 As per the above-stated Sections, Math is an institution headed by a person whose primary job is to engage himself in teaching, propagation of religious philosophy etc., and impart religious training etc.

On the other hand, Temple is a place, which is dedicated to and keep used as a place of public religious worship.

Hence in view of the above distinction between the two institutions is clear.

Under Section 6 of the Act also, the income or the change in income of the Math cannot lead to a change in the classification of the Math. It is only possible for the institutions and endowments under Section 6(a), 6(b) and 6 (c) of the Act, which are included in this section. If their income exceeds or falls below the stipulated limit, for the three years, their position can be changed, but this is clearly not applicable to a Math.

Whether Commissioner’s power extends to giving the direction to pay Minimum Wage of the Minimum Time Scale?

In Court’s opinion, the general power of superintendence given to the Commissioner does not extend to interfere in the secular activity and was limited in its scope.

Section 8 makes it clear that the superintendence and control includes the power to pass an order to ensure that institution is properly administered and the income is spent for the purpose for which they were found.

Section 8 (1) is to ensure that the funds are spent for the purposes for which they are intended only.

Section 8(2) which starts with a non-obstante clause also talks of exercise of powers ‘conferred’ on him or the functions ‘entitled’ to him by the Act.  

No statutory provision has been pointed out by which this particular power to give directions to pay minimum wages etc., is shown to the Court.

 Further, Court also added that on the issue that, if Section 8(1) and Section 49 of the Act are read together, the limited powers of the Commissioner become clear. They are limited to the fixing/spending/utilization of the “dittam‟ only. In case of disagreement, the matter has to be referred to a Court for decision (Section 49-Proviso). Similarly, the amendments to Sections 51-53 etc., where the Commissioner has been substituted by the “Dharmika Parishad” also makes it clear that the role of the Commissioner is very limited.

The Minimum Wages Act applies to certain employments (preamble) which are specified as “scheduled employments” Section 2(g). Employments specified in Part-I/II of the Schedule (Section 3). The schedule is silent about employment in a Math.

“…only in cases of misconduct or mismanagement of the properties by the Mahant, it would be permissible for the State to interfere under Section 51 of the Act.”

 While reaching the conclusion, Bench expressed that the autonomy given to a Math to maintain and administer its activities also supports the view that the respondents cannot interfere in every activity, in case respondents have such a power to interfere every activity it would run contrary to the constitutional and other guarantees given to the religious denominations to carry their own activities.

Therefore, in view of the above analysis, High Court held that the memos dated 04.07.2018; 05.12.2018 and the consequential memo dated 19.04.2021 will not be applicable to the petitioner – Math. [Sri Raghavendra Swamy Mutt v. State of Andhra Pradesh, 2021 SCC OnLine AP 2938, decided on 21-9-2021]


Advocates before the Court:

Counsel for the Petitioners: Sri C.R. Sridharan, Senior counsel rep. Sri G.V.S.Ganesh

Counsel for the Respondents: Government Pleader for Endowments

Case BriefsHigh Courts

Madras High Court: S. Vaidyanathan, J., cancelled the bumper-to-bumper policy which was made mandatory by this Court’s order for new vehicles for a period of 5 years.

Upon hearing the submissions made on behalf of Insurance Regulatory and Development Authority (IRDAI), General Insurance Council (GIC) representing the licensed General Insurance Companies and SIAM, as a non-profit entity that has been espousing the cause of the Automobile Industry for several years, it appeared that the order dated 04-08-2021, mandating the coverage of bumper to bumper policy may not be logistically and economically feasible for effective implementation in the present legal dispensation.

Further, it was submitted that the directions issued by the Court have an unintended impact causing severe repercussions on the society and therefore the said directions may be withdrawn.

It was also brought to the notice of this Court that the issue of long-term third-party insurance coverage had been mandated by the Supreme Court and the Regulating Body, viz., Insurance Regulatory and Development Authority (IRDAI) had been periodically monitoring over the changing scenario and hence, there was no need for issuance of such compulsory directions.

Analysis, Law and Decision

Considering the submissions of the parties, High Court stated that directions issued by this Court in its 4-8-2021 order may not be conducive and suitable for implementation in the current situation, hence the said direction is withdrawn.

Lastly, the Bench concluded saying that, it hopes and trusts that law makers will look into this aspect and examine the need for a suitable amendment in the Act, relating to the wide coverage of vehicles so as to protect the innocent victims.

Further, in view of the withdrawal of the direction regarding bumper-to-bumper policy, the Circular dated 31-08-2021 issued by the Joint Transport Commissioner, Chennai also stands cancelled.

High Court directed Registry to remove Paragraph No.13 from the earlier order of this Court dated 04-08-2021 and issue a fresh copy of the order to the parties. [New India Assurance Co. Ltd. v. K. Parvathi, CMA No. 1565 of 2020, decided on 13-09-2021]

Legal RoundUpWeekly Rewind

SCC online Weekly Rewind | Episode 26th with Devika Sharma


SCC Online Weekly Rewind Episode 26th ft. Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.



Supreme Court


  • Born in a district of Bihar that’s now a part of Jharkhand? Here’s where you can claim reservation 

In a very interesting decision, Supreme Court held that such persons whose place of origin/domicile on or before the appointed day i.e. 15th November, 2000 was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Bihar Reorganisation Act, 2000 can claim the benefit of reservation for participation in public employment in either of the successor State of Bihar or State of Jharkhand. Reservation can, however, not be claimed in both the States simultaneously.

Link: https://bit.ly/3BIw95k

  • Issue-wise analysis of why SC ordered demolition of illegal twin towers constructed by Supertech, prosecution of NOIDA and Supertech officials for collusion and possible statutory violations

‘The law must step in to protect legitimate concerns of residents whose quality of life is directly affected by the failure of the planning authority to enforce compliance of law.’

Upholding the Allahabad High Court’s decision with respect to ordering demolition of Tower 16 and 17 of Emerald Court constructed by Supertech Ltd. in Noida, Supreme Court found the construction illegal. The two towers were in violation of statutory regulations.

Supreme Court ordered Supertech to refund with interest the amounts invested by allottees of flats in these two towers. Supertech was also ordered to pay costs of Rs 2 crore to the Resident Welfare Association of Emerald Court Group Housing Society, which had initiated proceedings by filing a writ petition in the High Court.

Court further found that the case was replete with instances which highlight collusion between the officers of NOIDA with Supertech and its management. Therefore, the High Court’s direction for sanctioning prosecution against officials of Supertech and NOIDA was also upheld.

Lastly, the Court observed that

“Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation.”

  • Extend benefits of welfare schemes not only to children orphaned by Covid-19 but also to children orphaned during Covid-19: Supreme Court

 While addressing the plight of children orphaned during Covid-19 pandemic, and Lauding the steps taken by the Union and State governments to provide succour to the children in need, the Bench expressed,

“It is heart-wrenching to note that the survival of so many children is at stake. We are glad that the UOI and the State Governments / Union Territories have announced schemes to provide succour to the children in need. We have no doubt that the authorities concerned would leave no stone unturned to attend to the immediate basic needs of the crestfallen children.”

https://bit.ly/3DPjvmX

  • Judges speak through their judgments and orders: Supreme Court pens down it’s opinion on oral regimes

Judges speak through their judgments and orders.

Addressing a very significant matter, Supreme Court expressed that the element of judicial accountability is lost where oral regimes prevail. This would set a dangerous precedent and is unacceptable. Judges, as much as public officials over whose conduct they preside, are accountable for their actions.

https://bit.ly/3h0oozQ

  • Repeated inquiries for verification of caste certificates detrimental to members of SC/ST: Supreme Court states when reopening inquiry into caste certificate is permissible

 Supreme Court reversed a judgment of the Madras High Court delivered over a decade ago and held that the State Level Scrutiny Committee had no power to reopen the matter relating to the caste certificate that had been approved by the District Vigilance Committee, without an appeal being filed against such order. The Supreme Court declared that:

“Reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry.”

https://bit.ly/3kOi67A


Supreme Court of the United States


 

  • Texas Legislation imposing a “near complete ban on abortions” gets a green signal as SCOTUS declines to grant any relief on the matter

In a significant decision which can have major repercussions on a woman’s choice to abort in the United States, the full bench of SCOTUS, with a ratio of 5:4, declined to block the Texas law which imposes a near complete ban on abortions

https://bit.ly/3n3S1E7


High Courts


 Kerala High Court

Kerala High Court while addressing the instant suo motu case pertaining to the plight of mentally ill remand prisoners who had been left to languish in prisons due to them being abandoned by family and friends. Calling it blatant violation of basic human rights as well as of fundamental rights guaranteed by the Constitution, the Bench expressed,

“The powerless, voiceless mentally ill prisoners languishing in prisons and mental health centres for years together, embroiled in legal quagmire and abandoned by family and friends. The system and the society presume them to be devoid of knowledge and feeling, thereby turning them into stone.”


Jammu and Kashmir and Ladakh High Court

 While dealing with the intriguing question regarding criminal liability of a debtor of abetment of suicide where the creditor has committed suicide on being prompted by debtor’s refusal to repay the loan amount, Rajnesh Oswal, J., answered in negative. The Bench stated,

“Though the different persons may react or respond to a particular situation differently but this court is of the considered opinion that mere refusal to repay the loan cannot in any way can be considered to be an act of abetment to drive the deceased to commit suicide.” 

https://bit.ly/3jGlcuW


Delhi High Court

Bank Guarantee: Can these be encashed during their validity period? Read Del HC’s opinion on furnishing of bank guarantees

Can Bank Guarantee be encashed during their validity period?

Delhi High Court expressing that no judicial finding is there to state that a Bank Guarantee cannot be encashed during its validity further opined that Bank Guarantees are not furnished for being photo framed and kept in a drawing-room.

https://bit.ly/2WM45Q1


 Meghalaya High Court

State not to insist on production of Aadhaar Card as the only proof of identity for vaccination

 High Court of Meghalaya while observing that in respect of the vaccination policy presently adopted by the State of Meghalaya and particularly in remote villages, there were eligible persons who cannot be vaccinated simply because they do not possess any AADHAAR Card.

The Court thus requested the State not to insist on production of AADHAAR Card as the only proof of identity since there were other recognised options available to citizens of India to present their proofs of identity.

https://bit.ly/3BGgGTl


Tribunals/Commission/Regulatory Bodies


Central Administrative Tribunal

Can family pension be equated with a compassionate appointment? Can employer deny grant of one benefit because the other one was refused by beneficiary? Tribunal answers

Central Administrative Tribunal held that compassionate appointment cannot be equated with family pension. Slamming the respondents for their insensitive and inconsiderate attitude towards a person with 82% permanent disability, the Bench expressed,

“This correspondence between the 2nd and 3rd respondent indicates lack of any sensitivity and concern towards a physically handicapped person…the net result is that a physically handicapped person, whose parents have expired is being denied the family pension which is due to him as a matter of right in terms of extant rules and regulations.”

https://bit.ly/3tddgEP


Advance Rulings


 Maharashtra Authority for Advance Ruling

Whether reimbursement by Industry Partner to Third Party Aggregator of stipend paid to trainees, would attract GST?

 Industry partner that provides training to the trainees is required to pay stipend to the trainees. The said stipend is not directly paid to the trainees by the companies, rather the same are routed through the applicant. Adding to this, it was stated that the entire amounts received as stipend from the companies are paid to the trainees without any amount being retained and the same was not taxable at the hands of the Industry Partner.

https://bit.ly/3BJKBdh

 


Legislation Updates


  • Government introduces a new registration mark for new vehicles “Bharat series (BH-series)” to facilitate seamless transfer of vehicles 

The Minstry of Road Transport and Highways in order to facilitate seamless transfer of vehicles, has introduced a new registration mark for new vehicles  i.e. “Bharat series (BH-series)”.Avehicle bearing this registration mark shall not require assignment of a new registration mark when the owner of the vehicle shifts from one State to another. 

https://www.scconline.com/blog/post/2021/08/30/government-introduces-a-new-registration-mark-for-new-vehicles-bharat-series-bh-series-to-facilitate-seamless-transfer-of-vehicles/ 

  •   SEBI issues circular on disclosure of risk-o-meter of scheme, benchmark and portfolio details to the investors 

SEBI has issued a circular for disclosure of risk-o-meter of scheme, benchmark and portfolio details to the investors in order to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.  

A link will be provided to investors to their registered email to enable the investor to directly view/download only the portfolio of schemes subscribed by the said investor. 

https://www.scconline.com/blog/post/2021/09/01/sebi-issues-circular-on-disclosure-of-risk-o-meter-of-scheme-benchmark-and-portfolio-details-to-the-investors/ 

  •   Income Tax (25th Amendment) Rules, 2021 

The Central Board of Direct Taxes has passed Income Tax (25th Amendment) Rules, 2021. The Amendment inserts Rule 9D prescribing calculation of taxable interest relating to contribution in a provident fund, exceeding specified limit. Some points are required to be taken in to considerations for the calculation of taxable interest relating to provident fund which can be read in detail on SCC Blog. 

https://www.scconline.com/blog/post/2021/09/02/cbdt-calculation-of-taxable-interest-relating-to-provident-fund-transactions-prescribed-vide-income-tax-25th-amendment-rules-2021/ 

  •   USA – TEXAS | Heartbeat Act, 2021 

After the United States Supreme Court declined the request of urgent stay of Heartbeat Act, 2021, the New Abortion Law comes into force in Texas on September 1, 2021. 

The Act bans abortions if there is a fetal heartbeat that can be detected. It has been in controversy as it bans most abortions after about six weeks of pregnancy as per the medical experts (Act has not specified the weeks). 

https://www.scconline.com/blog/post/2021/09/03/usa-texas-heartbeat-act-2021-prohibits-abortion-if-heartbeat-of-unborn-child-detected-comes-into-effect-as-us-supreme-court-refuses-to-stay-the-law/ 

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Tribunal, NCLT Mumbai: Coram of Suchitra Kanuparthi, Judicial Member and Chandra Bhan Singh, Technical Member, observed that,

“…a Judicial authority ought not to pass Orders which would lead to further multiplicity of proceedings.”

The instant application was filed by the Operational Creditor who had earlier initiated the corporate insolvency resolution process against the Corporate Debtor−Rolta India Ltd. The applicant−Operation Creditor now sought withdrawal of his company petition admitted under Section 9 of the Insolvency and Bankruptcy Code, 2016.

The applicant worked as an employee of the Corporate Debtor from March 2013 to June 2019, when he was relieved from services without settlement of arrears of salary and other dues. Consequently, he filed a petition under Section 9 which was admitted by the National Company Law Tribunal, Mumbai (“NCLT”), in May 2021 and an Insolvency Resolution Professional was appointed for the Corporate Debtor.

Thereafter, further negotiations took place between the parties and they reached a settlement agreement. Consequently, the application requested the Insolvency Resolution Professional to file an application under Section 12-A (Withdrawal of application admitted under Section 7, 9 or 10). As the Insolvency Resolution Professional did not file the application immediately, the applicant preferred the Section 12-A application before the NCLT.

The withdrawal application was vehemently opposed by the Financial Creditors (a consortium of several Public Sector Banks) and some of the other ex-employees. Notably, over 75 other petitions under Sections 7 and 9 of  IBC were pending against the Corporate Debtor.

Analysis, Law and Decision

Instant application had been filed under Section 12-A of the IBC read with Rule 11 of the NCLT Rules, 2016 by an employee of the Corporate Debtor company in the capacity of Operational Creditor seeking withdrawal of the company petition in terms of Regulation 30-A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

Applicant mentioned that he had approached the Insolvency Resolution Professional for filing the Application in Form FA under Regulation 30-A(1)(a) to seek withdrawal of the admitted company petition. However, he stated that the Insolvency Resolution Professional did not cooperate and, therefore, the applicant was compelled to file the present application on their own motion under Rule 11 of the NCLT Rules seeking withdrawal of the admitted company petition.

The Insolvency Resolution Professional mentioned that she had received claims/intimation of claims of about Rs 5523.81 crores from financial creditors, operational creditors and workmen employees of Rolta India Limited.

Further, the Bench noted that even under Workmen and Employees’ claim there were 567 employees whose claims had been collated by the Insolvency Resolution Professional. However, the settlement entered into by the Corporate Debtor was only with 32 employees. It was also noted that even the settlement which was proposed by the promoter on behalf of the Corporate Debtor company kept aside majority of the workmen employees’ claim which had been brought out by the Insolvency Resolution Professional. Moreover, the proposed settlement with the employees under the Joint Settlement Agreement will be done only after they withdraw the petition. The Bench observed:

“…Corporate Debtor is willing to pay the major part of the dues to the employees only subsequent to withdrawal of petition through the settlement jointly and/or severally with the employees. The Bench feels that this provides an escape route to both the promoter as well as to the Corporate Debtor Company to conveniently wriggle out of the partial mini settlement at any point of time.”

Major Issue 

The Tribunal noted the major issue:

Whether it would be proper for the Bench to allow withdrawal of corporate insolvency resolution process (“CIRP”) under Section 12-A or to exercise, its discretion to reject the present application under Section 12-A?

The Bench was fully aware that after passing the “Admission Order” dated 13-05-2021 and after the commencement of CIRP, the proceeding are in rem and therefore, any decision regarding the continuation or otherwise of CIRP has to be decided in the interest of all stakeholders and not just a handful of employees. It was reiterated:

“…under Section 53 of IBC the debts of the workmen rank equally with the financial debt owed to the secure/ unsecured creditors.”

In view of the above, it was stated that it cannot be ignored that Tribunal has to take into account the interest of all stakeholders. Before taking the discussion further, the Bench relied upon some of the prominent judgments in respect of the scope and ambit of Section 12-A of IBC. Supreme Court in the decision of Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17, clearly directed that interest of all stakeholders have to be considered while accepting or disallowing an application for withdrawal.

Supreme Court recently in the matter of Indus Biotech (P) Ltd. v. Kotak India Venture (Offshore) Fund, 2021 SCC OnLine SC 268 has clearly observed that when a petition under Section 7 of IBC is admitted/triggered it becomes a proceeding in rem and even the creditor who has triggered the process would also lose control of the proceedings as corporate insolvency resolution process is required to be considered through the mechanism provided under IBC.

Further, the Tribunal noted that in the present matter, there were several Financial Creditors and total financial claim collated by the Insolvency Resolution Professional in the matter of Rolta India Ltd. was upward of Rs 5000 crore. Thus, this itself would be an enough ground to disallow the present application for withdrawal under Section 12-A. The Tribunal said:

“…even in the event of the original creditor [and] the Corporate Debtor settling their disputes prior to the constitution of the CoC, the Tribunal has sufficient jurisdiction to reject an application under Section 12-A of the IBC if the facts and circumstances of the case warrants such rejection.”

Tribunal in view of the above, expressed that, even if withdrawal was permitted, it is a fact that all the dues of all the employees of the Corporate Debtor company were not being settled. About more than 100 employees had lodged their claims against the Corporate Debtor. However, only some employees’ claims were being settled by the ex-management/promoter of the company. Therefore, the purported settlement lacked bona fide.

Moreover, the interest of the employees would be taken care of during the CIRP of the Corporate Debtor and they being operational creditors will be entitled to their rights as provided for under the IBC. Concluding, the Bench said that it had no doubt in its mind that considering that CIRP proceedings are in rem, the substantial claims of Financial Creditors cannot be disregarded or ignored in view of the purported settlement of certain employees of the Corporate Debtor.

In view of the above, the Bench dismissed the application filed under Section 12-A of the IBC and the CIRP against the Corporate Debtor company would continue. [Dinesh Gupta v. Rolta India Ltd., MA No. 1196 of 2021, decided on 6-08-2021]


Advocates before the Tribunal:

For the Promoter: Mr. Prateek Seksaria, Advocate.

For the IRP: Ms. Ranjana Roy Gawai, Mr. Pervinder, Mr. Vineet Kumar, Advocates a/w Ms. Vandana Garg, IRP.

For the Financial Creditor: Mr. Rohit Gupta, Mr. Nausher Kohli, Advocates.

For the Operational Creditor: Mr. Nausher Kohli and Mr. Rohit Gupta, Advocates

Tribunals/Regulatory Bodies/Commissions Monthly Roundup

Here’s a run-through of all the significant decisions covered in the month of July, 2021 under the Section of Tribunals/Commission/Regulatory Bodies.


Appellate Tribunal for Electricity

 

Solar Project

Whether there was bona fide delay in commissioning the solar power project?

“…allowed an appeal which was filed against the Order of Karnataka Electricity Regulatory Commission (Commission) whereby, the Commission has held that the Applicant/Appellant was not entitled to extension of time for commissioning of solar power project in terms of the Power Purchase Agreement and Supplementary power Purchase Agreement.”

Read more: https://bit.ly/3jbKtvP


Armed Forces Tribunal

War Injury Pension

Tribunal grants war injury pension to WW-2 soldier who suffered splinter wound injury in Italy

“…war injury pension to World War-2 veteran who suffered splinter wound injury in his right leg”

Read more: https://bit.ly/37cxXXi


Customs Excise & Service Tax Appellate Tribunal

Input Services

Whether distribution of credits on input services attributable to final product on a pro-rata basis proportionate to turnover of each unit between manufacturing plants? Tribunal answers

“…issue involved was that the appeals was whether Parle Biscuits was justified in distributing credits on input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle Biscuits and its contract manufacturing units, including Krishna Foods, under Rule 7(d) of the CENVAT Rules.”

Read more: https://bit.ly/2V5CYhG

Convenience Fee

“Convenience fee” charged by PVR for online booking of movie tickets under OIDAR category under S. 65(105) (zh) of Finance Act taxable or not? Tribunal explains

“Issue involved was related to to taxability of “convenience fee” charged by PVR Limited on its customers for online booking of movie tickets under the category of “online information and database access retrieval system” defined under section 65 (75) of the Finance Act and taxable under section 65 (105)(zh) of the Finance Act.” 

Read more: https://bit.ly/3rKRvvg

Principles of Natural Justice

Revenue has miserably failed to discharge its onus; Tribunal finds impugned order opposed to principles of natural justice

https://bit.ly/37a5uB8

CENVAT Credit

Admissibility of the Cenvat Credit in respect of outward GTA; Tribunal allows appeal

https://bit.ly/3xcJKzf


Central Information Commission

Right to Information Act

Can S. 8(1)(d), RTI Act be invoked to deny copy of thesis in view of commercial viability and to protect interests of scholar and his guide?

“…thesis publication of the research scholars cannot be reasonably even brought under any of the suo motu components of disclosure envisaged under Section 4 of the RTI Act, thereby reinforcing the proposition that the protection of Section 8 and 9 exemptions is very much available to the CPIO in the instant case.”

Read more: https://bit.ly/3fbpI23


Delhi State Consumer Disputes Redressal Commission

 

Deficiency of Service

Will Camera Manufacturer — Nikon be liable for deficiency of service caused to a consumer who lost all his photographs due to memory card getting corrupted?

“…Nikon was neither the manufacturer, dealer, importer, wholesaler of the Memory Card which got corrupted leading to the loss of the photos.”

Read more: https://bit.ly/3fbqg87

Builder-Buyer Dispute

Builder handing over possession of plot with incomplete development beyond agreed time. Is buyer entitled to refund of deposit with interest? Commission decides

“Possession of the plot land booked by the complainant was not handed over within the time agreed to despite the complainant has made the payment to the extent sought from time to time.”

Read more: https://bit.ly/2WJUV6d


National Consumer Disputes Redressal Commission

Medical Negligence

  • Can Wheelchair injuries be covered under the ambit of medical negligence?

“Wheelchairs are usually thought of a medical device that is meant to help those who are injured or have physical challenges; they can also be a source of injury when not properly used. Most wheelchair injuries that happen in a medical setting due to the negligence of medical staff and such could be easily prevented by a hospital or nursing home.”

Read more: https://bit.ly/3fimrOy

  • In case a medical practitioner chooses to follow one procedure instead of another, which turned out to be a failure, Can the said act be negligent?

“…The medical professional is often called upon to adopt a procedure that involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.”

Read more: https://bit.ly/3idk4hG


National Company Law Appellate Tribunal

 

Insolvency Proceedings

An Arroyo for OYO | While allowing it to work independently, closed insolvency proceedings; Disallowed external parties to impinge

“We are of the considered view that before Constitution of Committee of Creditors (CoC) mere filing of a ‘Claim’ does not constitute a default per se. It is only on the basis of the ‘Claims’ that the CoC is constituted. In a catena of Judgments, the Supreme Court has reiterated that the prime objective of the Court is not recovery, but revival”.

Read more: https://bit.ly/3rO12BU


National Company Law Tribunal

Personal Guarantor

Personal Guarantor not liable to be prosecuted under S. 95 IBC where corporate debtor concerned is not under corporate insolvency resolution process

https://bit.ly/2Vmxnn0


National Green Tribunal

No Odour control system required to prevent odour from Sewage Treatment Plant. Why? NGT imposes costs on Delhi Jal Board: Why DJB is shirking its responsibility?

Mere spraying of chemical solution and other superficial steps is not effective in installing an effective odour control unit.”

Read more: https://bit.ly/3rMxOTD


National Human Rights Commission

Fr. Stan Swamy | Medical Treatment

  • Ensure every possible medical treatment to imprisoned FR. Stan Swamy as part of life saving measure and protection of his basic human rights: NHRC

https://bit.ly/3yk7ov5

Manual Scavenging

  • Manual scavenging and hazardous cleaning still remain a stinking truth of our nation: NHRC

https://bit.ly/3yi3seb

Post-Poll Violence in West Bengal

  • NHRC refutes allegations in a section of media regarding leakage of report relating to post poll violence in West Bengal

https://bit.ly/3BZMT9h


Securities Exchange Board of India

Fraudulent Scheme

 Manipulation in prices, fraudulent scheme results in debarment-Global Infratech, Directors and 12 other entities ousted from the market

https://www.scconline.com/blog/post/2021/07/23/manipulation-in-prices/

Insider Trading

Financial Racket: Kundra, Shetty into murky waters again | Imposes fine for insider trading on Viaan Industries

https://bit.ly/2V0zFZq


 Securities Appellate Tribunal

 

Collective Investment Scheme

Unregistered Collective Investment Scheme violative of S. 12(1)(b) of SEBI Act and Regulations, order to pay 10% p.a. interest on refundable amount not vitiated

https://bit.ly/3j728EJ


Tribunals/Regulatory Bodies/Commissions Monthly Roundup | June 2021

Legal RoundUpWeekly Rewind

SCC Online Weekly Rewind Episode 20 ft. Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.


Supreme Court

Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC

In a major ruling this week, a 3-Judge Bench of the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B, is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies, for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories. Justice R.F. Nariman and Justice B.R. Gavai formed the majority. Whereas Justice K.M. Joseph penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability.

https://www.scconline.com/blog/post/2021/07/21/constitution-97th-amendment-act-2011/

Can Courts modify Arbitral Awards under S. 34 of Arbitration Act or is power limited? SC decides

Whether the power of a Court under Section 34 of the Arbitration and Conciliation Act, 1996 to ‘set aside’ an award of an arbitrator would include the power to modify such an award? Answering this interesting and important question in the negative, the Supreme Court said that:

“If one were to include the power to modify an award in Section 34, one would be crossing the Lakshman Rekha.”

While laying down this law, the Supreme Court reversed a Madras High Court judgment which had ruled that at least insofar as arbitral awards made under the National Highways Act, 1956 are concerned, Section 34 of the Arbitration Act must be so read as to permit modification of an arbitral award made under the National Highways Act so as to enhance compensation awarded by an Arbitrator.

https://www.scconline.com/blog/post/2021/07/22/arbitral-award-3/

Supreme Court closes suo motu case as U.P. Government expresses decision to postpone Kanwar Yatra to next year

In another case, while closing the suo motu case regarding “Kanwar Yatra during pandemic”; the Division Bench comprising of Justice R.F. Nariman and Justice B.R. Gavai directed the authorities to be cautious towards public health and safety. The Bench stated,

“We may only remind the authorities at all levels to have regard to Article 144 of the Constitution, and ensure that untoward incidents which directly affect the lives of the public will be looked upon sternly and prompt action taken immediately.” 

https://www.scconline.com/blog/post/2021/07/19/kanwar-yatra-2/

Will a subsequent purchaser stepping into shoes of original allottee in housing project have same rights as that of original allottee? SC explains

Giving a major relief to homebuyers, the Supreme Court held that rights of a subsequent purchaser are the same as that of an original allottee in a housing project. The Court said that in the event the subsequent purchaser claims refund, on an assessment that he too can (like the original allottee) no longer wait, and face intolerable burdens, the equities would have to be moulded.

https://www.scconline.com/blog/post/2021/07/23/will-a-subsequent-purchaser-who-steps-into-the-shoes-of-an-original-allottee-have-the-same-rights-as-that-of-the-original-allottee-sc-explains/


High Court

Delhi High Court

Whether a Chief Minister’s promise to its citizens is enforceable?

Whether a promise made by a Chief Minister to its citizens is enforceable?

Well, the Delhi High Court says yes it is! Justice Prathiba M. Singh pronounced a one of its kind ruling. The Court said that the Law has evolved the doctrines of  legitimate expectation and promissory estoppel to ensure that promises made by the Government, its officials and other authorities are not broken and are, in fact, judicially enforceable, subject to certain conditions.

The High Court expressed that,

A statement given in a consciously held press conference, in the background of the lockdown announced due to the pandemic and the mass exodus of migrant labourers, cannot be simply overlooked. Proper governance requires the Government to take a decision on the assurance given by the CM, and inaction on the same cannot be the answer.

In the backdrop of this decision, was a press conference held by the Chief Minister of Delhi during the ongoing Covid pandemic where he gave a solemn assurance that the Government would take care of the tenants who are unable to pay the rent due to poverty.

https://www.scconline.com/blog/post/2021/07/23/promise-by-chief-minister-in-press-conference-enforceable/


Andhra Pradesh High Court

AP HC | Is girlfriend or concubine a “relative” of husband, liable to be prosecuted for cruelty under S. 498-A IPC? Court decides

 Can a Girlfriend or concubine of husband be prosecuted for cruelty under the Penal Code, 1860?

Andhra Pradesh High Court held that a Girlfriend or concubine, being not connected by blood or marriage, is not a relative of the husband for the purpose of Section 498-A IPC.

https://www.scconline.com/blog/post/2021/07/20/cruelty-5/


Allahabad High Court

Man murdered wife and 4 minor daughters and burned them. Will this case fall under rarest of rare category? Allahabad HC decides

 The Allahabad High Court dealt with a case of an accused who committed murder in most brutal and barbaric manner of his wife and four minor daughter to pave way to marry another lady. Not only this, but he also chopped off various parts of their bodies and inflicted severe incised wounds. In such above background of the case, the High Court upheld the trial court’s decision of awarding death penalty to the accused. Court expressed that

The accused is a menace to the Society and, therefore, imposition of lesser sentence than that of death sentence, would not be adequate and appropriate.

https://www.scconline.com/blog/post/2021/07/19/rarest-of-rare-category/


Punjab and Haryana High Court

Maintaining elderly parents is not only a value based principle but a bounden duty under Maintenance and Welfare of Parents Act 

Recently, the Punjab and Haryana High Court addressed plight of a 72-year-old widowed mother who had been ousted from her house by her son and was given beatings. The Court observed that,

“It is often seen that after receiving property from their parents, children abandon them. In such situation, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is an enabling lifeline for such old, aged parents and senior citizens who are not looked after by their children and become neglected lots.”

Further, the Court held that the children are expected to look after their elderly parents properly which is not only a value based principle but a bounden duty as enshrined within the mandate of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

https://www.scconline.com/blog/post/2021/07/18/ph-hc-maintaining-elderly-parents-is-not-only-a-value-based-principle-but-a-bounden-duty-under-maintenance-and-welfare-of-parents-act/

“Nightmarish and traumatic”; HC denies bail in a case of sodomy committed to an 8-year-old child

 In a case with very disturbing accusations, the Punjab & Haryana High Court rejected the bail application of the applicant accused of committing an act of sodomy to an 8 year old child. The Bench stated that,

“Accused has spoiled the life of a young child by his hateful acts. The petitioner comes out to be a sex maniac, himself a teenager, indulging in perverse sexual acts. His conduct cannot be taken lightly, since if released on bail, he may victimize several other innocent children and is a grave threat to the society.”

It was alleged that accused had attempted to commit unnatural sex with a child of young age of 8 years, making him undergo nightmarish and traumatic experience, which may haunt him for the rest of his life.

https://www.scconline.com/blog/post/2021/07/21/sodomy/


Kerala High Court

Kerala High Court

Harassment, abuse and torture of wife within seven months of marriage; HC denies anticipatory bail to doctor

Expressing concern over violence against married women, the Kerala High Court rejected the bail application of a doctor and his family accused of dowry demand and cruelty against his wife within seven months of marriage. Calling ‘matrimonial homes the most dangerous place to live’ due to harassment, abuse and torture, the Bench remarked that the number of cases of attack towards married women in our country is alarming, though stringent laws are there and the same has to be stopped forever. The Court observed that:

“Harassment, abuse and torture both mental and physical towards married ladies are increasing day by day in our country to pressurize them to bring more wealth to the family of the bridegroom to improve their financial situation. Though so many cases are being registered against husbands and in laws there is no change in the attitude of the society towards married women and family members.”

https://www.scconline.com/blog/post/2021/07/21/anticipatory-bail-6/


 Gauhati High Court

“Not based on intelligible differentia”; HC stays Arunachal Pradesh Govt.’s order discriminating between vaccinated and non-vaccinated persons

 The Gauhati High Court stayed the order of the State Executive Committee of Arunachal Pradesh whereby non-vaccinated persons for Covid-19 were being discriminated for the purpose of permit to enter the State for developmental works in both public and private sector.

Additionally, the Court stated that,

“if the sole object of issuing the impugned order was for containment of the Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the classification sought to be made between vaccinated and unvaccinated persons was, prima facie, a classification not founded on intelligible differentia nor it was found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic.”

 https://www.scconline.com/blog/post/2021/07/22/covid-19-vaccination-4/


District Court

“Utterly shocked”; “No one allowed to ignite religious riots, blow hatred towards particular group or community”: Court rejects bail plea of accused booked over hate speech

Expressing shock over an incident of hate speech in a public gathering, the Court of Judicial Magistrate, Patuadi, Gurugram dismissed bail plea of Rambhagat Gopal who had allegedly delivered hate speech instigating abduction and killing of girls of a particular community. The Court observed that,

“If right of freedom of speech is allowed to be used to spread hatred amongst the people based on religion, caste, etc. then the very basic nature of the constitution and Indian Society will be shattered and the country will lose its true spirit and soul.”

Further, the Court stated that,

“Conscience of the Court is utterly shocked while seeing the actual incidents which took place at that time, in video recording. It seems that now a normal parent would tell stories to their children that there used to be a time when talks of hatred or the religious intolerance in our society used to be seen as a sign of diminishing social values.”

https://www.scconline.com/blog/post/2021/07/19/hate-speech/


International Court

European Court of Justice

Prohibiting Islamic headscarf and other religious signs at workplace isn’t discriminatory

In a significant ruling, the European Court of Justice held that prohibiting Islamic headscarf and any visible sign of political, ideological or religious beliefs does not constitute discrimination on the grounds of religion.

https://www.scconline.com/blog/post/2021/07/20/religious-neutrality-policy/

 


 Legislation updates 

Issuance and listing of securities by Start-ups, SMEs and SPAC notified via International Financial Services Centres Authority (Issuance and Listing of Securities) Regulations, 2021 

The International Financial Services Centres Authority has notified the International Financial Services Centres Authority (Issuance and Listing of Securities) Regulations, 2021 to ensure that capital markets in IFSCs support the financing of innovative business models and also, for the Issuance and listing of securities by Start-ups, Small Medium Enterprises and Special Purpose Acquisition Company.  

https://www.scconline.com/blog/post/2021/07/23/issuance-and-listing-of-securities-by-start-ups-smes-and-spac-notified-via-international-financial-services-centres-authority-issuance-and-listing-of-securities-regulations-2021/  

 

Rates of Dearness Allowance to Central Government employees revised 

The Ministry of Finance has issued a memorandum on the revision of Dearness Allowance to the Central Government employees. The dearness allowance has been enhanced from 17% to straight 28% of the basic pay for the employees with effect from July 01, 2021. 

https://www.scconline.com/blog/post/2021/07/23/rates-of-dearness-allowance-to-central-government-employees-revised/  

 

IBBI issues circular for filing of Form CIRP 8 under the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 

 IBBI has released Form CIRP 8 which as per Regulation 40B of CIRP Regulation, every resolution professional is required to file intimating details of his opinion and determination under regulation 35A, by 140th day of the insolvency  commencement date. The Form CIRP 8 is required to be filed for all corporate insolvency resolution processes ongoing or commencing on or after 14th July 2021. 

For the Format of FORM CIRP 8, read our story on SCC Online Blog 

https://www.scconline.com/blog/post/2021/07/22/ibbi-issues-circular-for-filing-of-form-cirp-8-under-the-ibbi-insolvency-resolution-process-for-corporate-persons-regulations-2016/  

SEBI issues Circular on “Block Mechanism in demat account of clients undertaking sale transactions” 

SEBI issues Circular on “Block Mechanism in demat account of clients undertaking sale transactions” after extensive consultations with Depositories, Clearing Corporations and Stock Exchanges to provide a mechanism of block in the demat account of clients undertaking sale transactions. 

https://www.scconline.com/blog/post/2021/07/19/sebi-issues-circular-on-block-mechanism-in-demat-account-of-clients-undertaking-sale-transactions/  

Legal RoundUpWeekly Rewind

Watch the latest episode of SCC Online Weekly Rewind Episode 17 featuring Devika Sharma, Senior Editorial Assistant (Legal).


Highlight of the Week

Allegations of cheating in Bitcoin transactions: Magistrate, Tis Hazari Courts directs Delhi Police to register FIR and investigate

The Magistrate, Tis Hazari Courts in Delhi, has directed the Delhi Police to register an FIR and investigate the allegations of the complainant who has alleged that he was cheated by the accused while making Bitcoin transactions. The Court found that offences under Sections 403, 411 and 420 of IPC are prima facie committed and the real culprits need to be identified.

 

 

https://www.scconline.com/blog/post/2021/07/02/crypto-currency/


Supreme Court 

  • No conviction under Section 364A IPC if kidnapper treats victim in “a good manner  

In an interesting ruling, the Supreme Court has laid down the essential ingredients required to be proved by prosecution to convict an accused under Section 364A IPC i.e. kidnapping for ransom. The Court has held that an accused cannot be convicted under Section 364A IPC if he or she treats the victim in “a good manner”NDMA to come up with uniform guidelines for ex gratia assistance on account of lives lost due to Covid-19  

The order came in a case where a 13-year-old boy who was kidnapped, recorded in his statement that the kidnapper had treated him in a good manner and that no threat to cause death or hurt was made.

  • NDMA to come up with uniform guidelines for ex gratia assistance on account of lives lost due to Covid-19  

After the Court was approached seeking direction to the Government to provide notified ex-gratia monitory compensation of Rs.4,00,000/- to the families of deceased who succumbed to COVID-19,the Court has issued directions asking the National Disaster Management Authority to make uniform guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19 within 6 weeks.

According to the official figure, the pandemic has caused more than 3,85,000 deaths, the same is likely to increase further. 

In such circumstances, the Court said that by not recommending any Guidelines so far, the National Authority has failed to perform its statutory duty cast under Section 12 of the Disaster Management Act.

  • ‘One Nation One Ration Card’ Scheme to be a reality in all States by July 31st! 

Issuing extensive directions to ensure the welfare of the migrant labourers who have been severely affected due to the outbreak of the COVID-19 pandemic, the Supreme Court has asked all the States to implement “One nation, One Ration card” Scheme by July 31st.

The Central Government has also been directed to develop the Portal in consultation with National Informatics Centre (NIC) for registration of the unorganized labourers/migrant workers. The registration process by all means has to commence by July 31st.

  • Persons with Disabilities have right to promotion under the 1995 PwD Act 

In an important development concerning the rights of the persons with disabilities, the Supreme Court has held that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 protects the right of promotion and enjoins the government to identify posts in promotional cadre that can be filled up with persons with disability.

Although the 2016 Act has now taken care of how to deal with the aspect of reservation in promotion, the law laid down, in this case, is important as a large number of cases may still arise in the context of the 1995 Act.


High Courts

Delhi High Court

Del HC | Stray Dogs have right to food and citizens have right to feed | Indispensable 22 Guidelines on Feeding of Stray Dogs

Animals breathe like us and have emotions.

In a significant ruling, Delhi High Court issued guidelines with regard to the feeding of stray dogs and observed that stray dogs have the right to feed and citizens have the right to feed community dogs but in exercising this right, care and caution should be taken to ensure that it does not impinge upon the rights of others or cause any harm, hinderance, harassment and nuisance to other individuals or members of the society.

https://www.scconline.com/blog/post/2021/07/02/stray-dogs/

Calcutta High Court

Is mere demand of money, property, etc. sufficient to penalise for demanding dowry? Court answers; says gifts exchanged out of love are not dowry

If a bride or bridegroom is presented gifts in a voluntary nature at or before a wedding, would that be covered under the ambit of ‘dowry’ under the Dowry Prohibition Act?

Calcutta High Court addressing this connected question while deciding a case, elaborated on the concept of dowry and observed that dowry as per Section 2 Of the Dowry Prohibition Act cannot be applied merely to the demand of money, property or valuable security made at or after the performance of marriage.

https://www.scconline.com/blog/post/2021/06/25/dowry-demand/

Bombay High Court

Whether adoption can be restricted only to children in conflict with law, or in need of care and protection, or who are orphaned, abandoned or surrendered under provisions of JJ Act and Adoption Regulations? Elaborate report 

Faced with the question of child welfare, the Bombay High Court held that on appreciation of the Juvenile Justice Act, 2015 read with Regulations of 2017, adoption of children cannot be restricted only to children in conflict with law or those in need of care and protection or only those children who are orphaned, abandoned or surrendered children.

The High Court opined against a restrictive interpretation of the JJ Act.

https://bit.ly/3yn 5XLT

Madhya Pradesh High Court

Bail denied to juvenile in Rape Case; Court questions lawmakers conscience, How many more Nirbhayas’ sacrifice would be required?

Anguished over lackadaisical approach of the State, Madhya Pradesh HC while denying bail to a Juvenile for committing rape of a minor girl observed that,

“The Legislature has still not learnt any lesson from the case of Nirbhaya, as the age of a child is still kept below 16 years in heinous offences under s.15 of the Act of 2015 giving a free hand to the delinquents under the age of 16 years to commit heinous offences. Thus, apparently, despite committing a heinous offence, the petitioner would be tried as a juvenile only, because he is less than 16 years old as provided under Section 15 Act of 2015. Apparently, the present law to deal with such cases is totally inadequate and ill equipped and this Court really wonders as to how many more Nirbhayas’ sacrifice would be required to shake the conscious of the lawmakers of this Country.”

https://www.scconline.com/blog/post/2021/06/29/rape-case/

Bombay High Court

Bom HC on Cruelty & Desertion | Wife wishing to stay abroad. Is that an act of selfishness? Can it be ground of divorce? Court answers

Can a wife wishing to stay abroad with her child in order to maintain her lifestyle be covered under the umbrella of cruelty and desertion?

Answering this question, the Bombay High Court expressed that such an act of the wife cannot be branded as an act of selfishness or unjustified. Hence, the Court held that wife did not treat the husband with cruelty nor did she desire to desert him.

https://www.scconline.com/blog/post/2021/06/29/cruelty-and-desertion/

Madras High Court

Ban Online Games or not? Read HC’s opinion on not entering into such matters. Is it a policy matter?

Mad HC while addressed concerns over menace of online gambling. It noted that children and young adults these days are addicted to their phones and their worlds appear to revolve around their mobile phones.

The Court also expressed it’s opinion on  whether online games can be banned and expressed that:

There is no doubt that when there is some illegal action or something which is detrimental to larger public interest, constitutional courts intervene; but in the matters of the present kind, especially when elected governments are in place, such matters of policy should be left to the wisdom of those representing the people and having their mandate instead of the Court issuing a diktat.

Uttaranchal High Court

Re-opening Char Dham Yatra would lead to inviting a calamity, Kumbh 2021 example of poor implementation of SOP; HC directs live streaming of ceremonies carried out at Shrines

Utt HC dealt with a very pivotal question of Whether Char dham Yatra should be re-opened or not?

High Court expressed that the

“…second wave struck the country like a tsunami. It not only killed about three lakh people in the country, but in its wake it has also left devastated families, and orphaned children.”

“The health care system began to crumble. It is common knowledge that as people began to die, there were insufficient spaces in our crematorium and burial grounds. People could not perform a decent cremation, or decent burial to our lost brethren.” 

The Court finally held that Char Dham Yatra should not be permitted even for a limited period and Government should make sure that the live streaming is done throughout the country, so that the devotees may not only witness the deity, but may also pray to the same.

https://www.scconline.com/blog/post/2021/06/30/char-dham-yatra/

Madras High Court

A person can be a silent carrier of COVID-19 on not taking vaccine: Can Right to Refuse Vaccine in such circumstances be exercised?

 Whether Right to Refuse Vaccine can be exercised in circumstances wherein a person can be as a silent carrier of COVID-19 on not being vaccinated?

Discussing this issue, the High Court expressed that

when a larger interest of public health comes into play, it is possible that a person who has not taken the vaccine may not reveal the symptoms but still be a silent carrier, it is doubtful whether in such circumstances the right to refuse vaccine can be exercised.

The Court then asked the State to try and persuade persons with awareness campaigns and scientific data to indicate the efficacy of the vaccines and the indispensable nature in dealing with the present pandemic

https://www.scconline.com/blog/post/2021/07/01/right-to-refuse-vaccine/

Competition Commission of India

Co-location facility of the National Stock Exchange is anti-competitive? Is the service an autocratic move against traders? Comprehensive Report

A complaint was filed with the Competition Commission of India CCI alleging that the National Stock Exchange contravened provisions of the Competition Act. Questions were raised over the co-locations facility which was launched by NSE in 2009.

The CCI rejected the allegations and stated that stopping the Co-location facility will be retrogade. It said that

A robust exchange acts as a backbone of the financial system and the provision of co-location facility by exchanges help increase volumes of trades manifold and provides liquidity to investors. This augurs well for the market, the companies and the economy.

https://www.scconline.com/blog/post/2021/06/30/national-stock-exchange/

Legislation Updates  

Tripura Government revises Variable Dearness Allowance (VDA) 

On June 21, 2021, the Labour Department of Tripura issued a notification on revision of Variable Dearness Allowance on the basis of 6-monthly average Consumer Price Index Numbers for the period of twelve months for different categories of workers engaged in the employment of shops and establishments in Tripura and shall be payable with effect from April 01, 2021.

Show this in table form in the video:

  • Skilled: Rs.7,618 Per Month
  • Semi-Skilled: Rs.6,812 Per Month
  • Unskilled: Rs.6,209 Per Month

https://www.scconline.com/blog/post/2021/06/29/tripura-government-revises-variable-dearness-allowance-vda/

Some of the important amendment which have taken place recently are  

Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021 in order to amend The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020

https://www.scconline.com/blog/post/2021/07/01/tribunal-appellate-tribunal-and-other-authorities-qualifications-experience-and-other-conditions-of-service-of-members-amendment-rules-2021/

Merchant Shipping (Maritime Labour) Amendment Rules, 2021 to amend the Merchant Shipping (Maritime Labour) Rules, 2016. They shall be deemed to have come into force on December 26, 2020.

https://www.scconline.com/blog/post/2021/06/30/merchant-shipping-maritime-labour-amendment-rules2021/


Books Released 

B.S. Murthy’s International Relations and Organisation

by V. Rajyalakshmi

The book deals with the fundamentals of International Relations and Organisation in a simple language and descriptive style. The book starts with an introduction by Prof. N.R. Madhava Menon. The book examines topics such as-the history of the evolution of world community, methods employed to study international relations in the past, participants involved in international decision-making, the settlement of disputes through different methods, etc.

This book is indispensable for students of five-year law courses and for anyone interested in reading about International Relations and Organisation.

https://www.ebcwebstore.com/product_info.php?products_id=441

EBC’s Master Guide To All India Bar Examination This 2021 Edition of the Guide for All India Bar Examination is a comprehensive book to study for the exam conducted by the Bar Council of India. This Guide has been updated and prepared based on the examination patterns over a period of time.

This Guide is indispensable for law graduates appearing for All India Bar Examination.

https://www.ebcwebstore.com/product_info.php?products_id=99096318


Features on SCC Online Web Edition

Let me also tell you about very handy features introduced on SCC Online. Now you can find all the important news about any reported case or legal developments along with the judgment text and authoritative digest notes, all at one place. You just need to select the Legal and Business News section on your dashboard.

Also, now you will save a lot of time and effort while citing cases. You can cite cases accurately with our new feature where you can directly copy citation and party names to your clipboard by a single click and then use it for your research or preparing drafts and other purposes.

Do try out these new features on SCC Online web edition.

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., in a very significant ruling issued guidelines with regard to the feeding of stray dogs and directions for their welfare.

In the present matter, plaintiff approached the Court to restrain defendant 1 from feeding the stray dogs near the entrance/exit of the suit property.

The above dispute was amicably settled between the parties.

Pragyan Sharma, Amicus Curiae, Manisha T. Karia, Counsel for Animal Welfare Board of India, Nandita Rao, Additional Standing Counsel for GNCTD and Counsels for both the parties urged before this Court to lay down the guidelines with respect to feeding of stray dogs.

Guidelines with respect to feeding of stray dogs

  • Animals have a right under law to be treated with compassion, respect and dignity. Animals are sentient creatures with an intrinsic value. Therefore, protection of such beings is the moral responsibility of each and every citizen including the governmental and non-governmental organisations.
  • Animals may be mute but we as a society have to speak on their behalf. No pain or agony should be caused to the animals. Cruelty to animals causes psychological pain to them. Animals breathe like us and have emotions. The animals require food, water, shelter, normal behaviour, medical care, self-determination.
  • Community dogs (stray/street dogs) have the right to food and citizens have the right to feed community dogs but in exercising this right, care and caution should be taken to ensure that it does not impinge upon the rights of others or cause any harm, hinderance, harassment and nuisance to other individuals or members of the society.
  • Feeding of the community dogs have to be done at areas designated by the AWBI in consultation with Resident Welfare Associations or Municipal Corporation. It is the duty of the AWBI and the RWAs to ensure and keep in mind the fact that community dogs live in „packs‘ and care should be taken by the AWBI and RWAs to see that each „pack‟ ideally has different designated areas for feeding even if that means designating multiple areas in a locality.
  • All Law enforcement authorities shall ensure that no harassment or hindrance is caused to the person feeding street dog at the designated feeding spot and to properly implement the AWBI Revised Guidelines on Pet dogs and street dogs dated 26th February, 2015.
  • It shall be the duty and obligation of every Resident Welfare Associations or Municipal Corporation (in case RWA is not available) to ensure that every community dog in every area has access to food and water in the absence of caregivers or community dog feeders in the said area.
  • Street dogs have to be fed and tended to at places within their territory which are not frequented, or less frequented, and sparingly used by the general public and residents.
  • Any person having compassion for stray dogs can feed the dogs at their private entrance/porch/driveway of their house or any other place not shared with other residents.
  • No person can restrict the other from feeding of dogs, until and unless it is causing harm or harassment to that other person.
  • Residents and the members of the RWA as well as the dog feeders have to act in harmony with each other and not in a manner which shall lead to unpleasant circumstances in the colony.
  • AWBI shall ensure that every Resident Welfare Association or Municipal Corporation (in case RWA is not available), shall have an Animal Welfare Committee, which shall be responsible for ensuring compliance of the provisions of the PCA Act and ensure harmony and ease of communication between caregivers, feeders or animal lovers and other residents.
  • Municipal Corporations at the request of the RWA and/or local authority or persons volunteering to take such responsibility shall be responsible for having the stray dogs registered/vaccinated/sterilised.
  • Vaccinated and sterilized dogs cannot be removed by the Municipality.
  • It shall be the duty of the SHO concerned to ensure peace and harmony is maintained amongst the residents of the area.
  • If any of the street/community dogs is injured or unwell, it shall be the duty of the RWA to secure treatment for such dog by the vets made available by the Municipal Corporation and / or privately from the funds of the RWA.
  • Street dogs perform the role of community scavengers and also control rodent population in the area thus preventing spread of diseases like Leptospirosis.
  • Street dogs provide companionship to those residents who feed them an act as their stress relievers
  • It is the responsibility of the community residents to get their dogs vaccinated against rabies every year to prevent the spread of rabies.
  • Every RWA should form Guard and Dog partnerships and in consultation with the Delhi Police Dog Squad, the dogs can be trained to make them effective as guard dogs and yet friendly to those who live in the colony.
  • The importance of street dogs‟ in our community is of great significance. Being territorial animals, they live in certain areas and play the role of guards by protecting the community from the entry of outsiders or unknown people. If these are removed from a certain area, the new stray dogs will take their place
  • If any of the street/community dog is injured or unwell, it shall be the duty of the RWA to secure treatment for such dog by the vets made available by the Municipal Corporation and/or privately from the funds of the RWA.
  • In order to check the overpopulation of street dogs in the community, it is also the responsibility of community to get their street dog population sterilized through an NGO engaged in Dog sterilization programme.

Succinct Conclusion

Duty and Responsibility 

  • RWA or Municipal Corporation and all Government authorities including enforcement authorities to provide all assistance and ensure that no hindrance is caused to the caregivers or feeders of community dogs. Jurisdictional SHO to ensure that peace and harmony is maintained amongst the residents, care-givers and community dog feeders and there is no harassment to any care-giver or community dog feeder from feeding community dogs in the manner specified.
  • RWA to ensure that every community dog in every area has access to food and water in the absence of caregivers or community dog feeders.
  • AWBI shall ensure that every RWA or Municipal Corporation, shall have an Animal Welfare Committee, which shall be responsible for ensuring compliance of the provisions of the PCA Act and ensure harmony and ease of communication between caregivers, feeders or animal lovers and other residents.
  • In case, any resident(s) or the RWA has any grievance with regard to any act of caregivers and feeders, in relation to feeding of community dogs, the said resident(s), shall, at the first instance seek redressal of their grievance through a process of dialogue and discussion through the Animal Welfare Committee failing which the said issue may be brought to the notice of the AWBI through the RWA.
  • Government of India (Ministry of Personal, Public Grievances and Pensions, Department of Personal and Training) by Office Memorandum dated 26th May, 2006 had notified that the Government servant who indulges in act of cruelty to animals will be making himself liable for action under Prevention of Cruelty to Animals Act. Besides, punishment under the Act, he would also make himself liable for action under CCS(Conduct) Rules for conduct unbecoming of a Government servant. The said Office Memorandum also added that while residents and Associations are free to address institutional agencies for redressal of their grievances, no resident/association will interfere with the freedom of other residents in tending animals etc.
  • Despite the clear position of law prohibiting cruelty to the animal including stray dogs, there is increasing tendency of the citizens to defy the same. Many times, the Government employees take up a position in complete violation of well settled law which has been dealt with in the Office Memorandum dated 26th May, 2006. Such act of defiance be noted down in the ACR file of Government employee. If any such complaint is received by AWBI, the same be sent to the concerned office for being placed in the ACR file of the Government employee for necessary action as per CCS Rules.
  • Need to spread awareness that even animals have a right to live with respect and dignity.
  • It would be appropriate to constitute a Committee to implement these Guidelines. Committee shall comprise of the following:

(i)  The Director, Animal Husbandry Department or his nominee.

(ii)  One Senior Officer to be nominated by all the Municipal Corporations.

(iii)  One Senior Officer to be nominated by Delhi Cantonment Board.

(iv)  One Senior Officer to be nominated by Animal Welfare Board of India.

(v)  Ms. Nandita Rao, Additional Standing Counsel, Govt. of NCT of Delhi as Convenor.

(vi)  Ms. Manisha T. Karia, Advocate for Animal Welfare Board of India.

(vii)  Mr. Pragyan Sharma, Advocate

The committee shall hold its first meeting within 4 weeks.

High Court directed that the above decision be sent to Delhi Judicial Academy to sensitize the judges about the directions laid down by this Court.[Dr Maya D. Chablani v. Radha Mittal, 2021 SCC OnLine Del 3599, decided on 24-06-2021]


Advocates before the Court:

For the Plaintiff: Abhishek Gusain and Sam C. Mathew, Advocates

For the Defendants: D.K. Pandey and Deepak Kumar, Advocates for defendants 1 and 3

Pragyan Sharma, Advocate as Amicus Curiae

Nandita Rao, ASC for GNCTD

Manisha T. Karia, Sukhda Kalra, Adarsh Kumar and Nidhi Nagpal, Advocates for Animal Welfare Board of India

Case BriefsHigh Courts

Madras High Court: P. Velmurugan, J., addressed a matter revolving around the offence under Section 138 of the Negotiable Instruments Act.

A complaint was filed for an alleged offence under Section 138 of the Negotiable Instruments Act, 1881. Judicial Magistrate found the respondent guilty of offence under Section 138 NI Act.

The appellate Judge while allowing the respondent’s appeal set aside the conviction and acquitted the respondent for the offence punishable under Section 138 NI Act, for which he was prosecuted before the trial court.

Appellant’s case was that the respondent had borrowed a sum of Rs 90,000 from the appellant and in order to discharge the debt issued a cheque which returned when presented to the bank with endorsement “drawers signatures differs”.

Analysis, Law and Decision

Bench noted that on statutory notice sent by appellant, respondent responded stating that he had denied the execution of the cheque.

Another significant fact was that the appellant did not prove that there was a transaction between the appellant and the respondent.

High Court remarked that,

When the cheque was returned for the reason that the signature differs, and the respondent/accused has taken a stand that the complainant is a stranger to the accused, it is for the appellant/complainant to establish the case and the appellant has not proved the same, and if once, execution of cheque is proved, the presumption under Sections 118 and 139 of the Negotiable Instruments Act can be drawn and the accused has to rebut the presumption that there is no legally enforceable debt and cheque has not been issued for legally enforceable debt.

 Hence, in the present matter, complainant could not establish the execution of the cheque and borrowal of money by the respondent.

Therefore, in Court’s opinion the appellate Court’s decision had no perversity and Bench found no compelled circumstances or reason to interfere with the Judgment of acquittal.

In view of the above-stated facts and circumstances, criminal appeal was dismissed. [S. Ashok Kumar v. S. Boopal,  2021 SCC OnLine Mad 2325, decided on 22-04-2021]


Advocates before the Court:

For Appellant : Mr. M. Marudhachalam

For Respondent: Mr. L.Mouli

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) addressed the allegations against the National Stock Exchange for alleged contravention of provisions of the Competition Act.

Present matter was filed against National Stock Exchange of India Limited for alleged contravention of Section 4, particularly Sections 4(2)(b)(ii) and 4(2)(c) of the Competition Act.

What were the allegations against NSE?

  • Indulged in practices of granting preferential market access to select brokers
  • Creating artificial information asymmetry
  • Market Manipulation in relation to co-location facilities
  • Uniform fee charged from all members towards co-location services, but allegedly uniform benefits have not been accorded to all trading members who had paid for the service.

Analysis, Law and Decision

While analysing the matter, Coram noted that the co-location facility was in vogue since 2009. Further, it was added that the choice of technology, which had been alleged to have created distortions, ceased to exist as far back as in 2016 and there seems to be confidence instilled in the system, with 188 members of the exchange availing the facility and the sectoral regulator specifying guidelines for adherence by the exchange for provision of such facility. As submitted by the Informant, even the charges payable for availing such facility have been considerably reduced.

Commission observed that

Mere pendency of matters in alternate forums does not axiomatically place any embargo on the Commission to halt its mandate in discharging its statutory obligations, in the face of any alleged anti-competitive conduct which is brought or comes to its notice.

Co-location facility creates a divide between two classes of trading members

NSE stated that the said facility was made available on a first come first serve basis and essentially there is no pick and choose. Further, it added that it is not the only exchange in India providing co-location facility, even other exchange like BSE is providing the same.

Coram stated that in the present case,  the consumers are the trading members who were looking for the co-locational facility for algorithmic trading.

Abuse of dominant position by NSE in provision of co-location facility?

Commission noted the submission of NSE that at the time of introducing co-location services, SEBI had not prescribed any specific technology to be used and that it had a choice between two technologies:

  • TCP/IP technology, and
  • MTBT

NSE, after studying practices of some leading international stock exchanges providing co-location services, came to a decision to have TCP technology as it provided market safety, reliability, integrity and accessibility.

Commission agreeing with the above submission that if there had been a bonafide choice of a particular technology, coupled with the fact that the sector regulator did not observe any instance of fraudulent conduct in violation of SEBI (PFUTP) Regulations, 2003 in the provision of the co-location facility which had been the mainstay of the allegations against NSE, then it ought not to be found in contravention of Section 4 of the Act.

Should the co-location facility be stalled as it is in itself anti-competitive?

A robust exchange acts as a backbone of the financial system and the provision of co-location facility by exchanges help increase volumes of trades manifold and provides liquidity to investors. This augurs well for the market, the companies and the economy.

Commission stated that to stop the co-location facility will be retrograde. Further noting that the Sectoral Regulator, SEBI did not stop the co-location facility in any manner since its introduction and had recognised the said service.

Hence, in view of the Commission, no prima facie case exists. [Manoj K Sheth v. National Stock Exchange, Case No. 35 of 2019, decided on 28-06-2021]


Advocates before the Commission:

For the Informant: Mr. Nithyaesh Natraj, Advocate Mr. Animesh Kumar, Advocate Mr. Anirudh, Advocate

For OP: Mr. Neeraj Kishan Kaul, Sr. Advocate, Mr. Somasekhar Sundaresan, Advocate, Mr. Naval Chopra, Advocate
Mr. Aman Singh Sethi, Advocate, Ms. Manika Brar, Advocate and Mr. M. Vasudev Rao, General Counsel 


Additional Information:

What are co-location facilities?

Co-location is the practice of renting space for servers and other computing hardware at a third-party provider’s data centre facility. Co-location helps in the faster movement of data. In the context of co-location services, NSE had on 31.08.2009, announced the launch of co-location services along with the guidelines/ procedure to be followed by members interested in availing co-location facility. Members availing co-location facility are allowed to take one or more leased lines to the co-location facility from different telecom service providers for the purpose of setting up or modifying parameters, trading related activities and hardware, software, network-related access, software download/upload and monitoring and data downloads.

Case BriefsHigh Courts

Madras High Court: M. Dhandapani, J., stated that the Court has noticed where the legal fraternity has indulged in some high-handed activity against the law enforcing agency.

It has been stated that amidst pandemic, health workers and uniformed services have been performing arduous duty with due diligence and with scant care for their health and well-being. Each and every common man throughout the country had recognized and applauded their efforts, yet a few miscreants, who, with scant respect to the work done by law enforcing agency, indulge in a tussle with police personnel.

Additionally, it was stated that some miscreants of the legal fraternity also do fall in the above-stated league.

Society has witnessed very many instances of the legal fraternity indulging in war of words as also scuffle with the police personnel, but most of the times, the members of the legal fraternity do keep themselves within the bounds of law.

No Mechanism for unruly behaviour of members of the legal fraternity?

For unruly and indiscipline behaviour, other persons, who work for one or other arm of the Government, mechanism of disciplinary action is contemplated under the relevant Acts and Rules governing the service, yet, when it comes to the legal fraternity, the initiative and control vests on the Bar Council of Tamil Nadu, to take appropriate action against such of those unruly advocates who involve themselves in these kinds of acts, which demeans the profession.

However, the mechanism that is in place to take action against such individuals, who involve themselves in indisciplined acts and misbehave with the officials on duty, are not clearly spelt out by the Bar Council of Tamil Nadu.

High Court directed the authorized officer of Bar Council of Tamil Nadu to file an appropriate status report before this Court as to the mechanism that is in place for taking action against the members of the legal fraternity as also the action that has been taken against such of those advocates, who have misbehaved in the public place with officials on duty.[Tanuja Rajan v. State,    2021 SCC OnLine Mad 2203, decided on 15-06-2021]


Advocates before the Court:

For Petitioner: Mr. Louisal Ramesh

For Respondent: Mr. A. Gopinath Government Advocate (Crl. side)

Hot Off The PressNews

Bar Council of India has notified the extension of date for registration of All India Bar Examination — XVI

Notification states as follows:

“The date for registration for AIBE-16 is extended till 15th July 2021, the rescheduled date for the AIBE 16 will be intimated soon. ” 


All India Bar Examination

Case BriefsHigh Courts

Delhi High Court: Sanjeev Narula, J., granted an injunction to the Law Firm ‘Singh & Singh’ in a case of trademark infringement.

I.A. 7143/2021 (under Order 39 Rule 1 and 2)

Plaintiffs filed the present application under Order 39 and Rule 1 and 2 CPC seeking protection of their mark/name ‘Singh & Singh’. The plaintiffs were aggrieved by the use of identical marks ‘Singh + Singh’; ‘Singh + Singh Lawyers LLP’ and other derivatives by defendant 1 to 5.

Founders of Law Firm ‘Singh & Singh’ coined the said term and the same has been in use since 1997.

Rajiv Nayar, Chander Lall and Sandeep Sethi, Senior Counsel for the plaintiffs submitted that in May, 2021, plaintiffs were surprised to find a post on social media using the name ‘Singh + Singh LLP’ and ‘Singh + Singh Lawyers LLP’.

With further research it was noted that the said name was being used by the husband of Defendant 3, Defendant 2 along with another partner Defendant 4 Defendant 3 used to work as an associate in plaintiff 1 firm.

Further adding to the submissions, Counsel stated that the name ‘Singh & Singh’ has been registered since 2005 in respect of legal services and has been in use since 1997. The name ‘Singh & Singh’ and ‘Singh + Singh’ are identical to each other and there is a clear case of infringement under Section 29(2)(c) of the Trademarks Act, 1999.

Analysis, Law and Decision

Bench prima facie opined that the facts conspicuously demonstrated that the infringing marks were identical and were being used for identical services and an identical class of customers/clients.

Plaintiff 1 has a global reputation and goodwill and is servicing clients across the globe. Court found merit in the plaintiff’s contention that nowadays legal services are being rendered across the globe through internet and electronic means and law firms such as plaintiff 1 would have a reputation not limited by geographical boundaries.

Hence, there could be a strong possibility of confusion amongst the foreign clients/law firms relating to the two marks which are predominantly identical.

“…strong likelihood that they would be led to believe that ‘Singh + Singh’ is another branch or an associate office of ‘Singh & Singh’

 Adding to its analysis, Court stated that the adoption of identical mark/name by the defendant in deceptively similar colour combination on online platforms for providing legal services was fraught with mischief and did not appear to be bonafide.

In Court’s opinion, plaintiffs established a prima facie case and a balance of convenience was established in favour of the plaintiffs and they were likely to suffer an irreparable loss in case the injunction was not granted.

Therefore, till the next date of hearing, defendants, their partners/promoters, associates, family members, employees and anyone acting for and on their behalf were restrained from using the impugned marks including the name/mark “Singh + Singh”, “Singh + Singh LLP”, “Singh + Singh Lawyers LLP”, singhllp.com, singhllp, @singhsinghllp, Singh-Singh-LLP, the Singh + Singh impugned logo, or any other trademark/trade name/service name/trading style or domain name or Twitter handle, LinkedIN profile, Facebook profile, logo, device, etc., which was either identical to or deceptively similar to the Plaintiffs’ mark(s) ‘Singh & Singh’, ‘Singh & Singh Law Firm LLP’, ‘Singh & Singh.com’, ‘Singh & Singh Advocates’ or any other derivatives thereof so as to result in infringement of trade mark(s), passing off, acts of unfair competition, dilution etc. for rendering legal services, consultancy services related to law, or any other cognate/allied services, at any place or in any form including in print or electronic media, online platforms etc.

Defendant 6 was also directed to suspend the domain name of ‘www.singhllp.com’ till the next date of hearing.

Matter to be listed before the Court on 23-09-2021. [Singh & Singh Law Firm LLP v. Singh + Singh Lawyers LLP, 2021 SCC OnLine Del 3059, decided on 02-06-2021]


Advocates before the Court:

For the Plaintiffs: Rajiv Nayar, Sandeep Sethi and Chander M Lall, Senior Advocates with Saurabh Seth and Tanmaya Mehta, Advocates.

For the Defendants: Divjyot Singh, Avsi Malik and Nipun Dwivedi, Advocates for D-1, 2 & 4.

Nimish Chib, Advocate for D-3 & 5.

Alipak Banerjee, Advocate for D-6 & 7.

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J., addressed a matter regarding passing off and granted interim relief.

Plaint alleged that defendant 1 was passing off its products as those of the plaintiffs by using the label which was confusingly and deceptively similar to that of the plaintiffs.

The product sold and manufactured by the plaintiff is “KESRI MARHAM” and the plaintiff claimed to have adopted the same in 1998.

Plaint asserted that the label of the plaintiffs reflected a unique trade dress with individual components being placed at specific locations.

Defendant is engaged in manufacturing and marketing of ayurvedic product including pain relief balms, dant manjan, creams etc. The said balm was sold under the name “Paharhi Garhwali Balm”.

Identical 

Prima facie on a bare glance of the labels of the defendant and plaintiffs, it was indicated that there had been a conscious effort to copy the plaintiff’s labels, to the extent that the colours used by the defendant, placing of various features on the label and the photographs representing the ailments which the balm was expected to alleviate are also identically placed.

Therefore, in view of the above discussion and finding, prima facie it appeared that defendant was passing off its products as those of the plaintiffs.

High Court opined that plaintiffs made out a good prima facie case for grant of ex-parte ad interim relief.

Bench also added that in case the relief was not granted and the market was permitted to be flooded with defendant’s product, prejudice to the plaintiffs would be irreparable.

Plaintiffs are directed to comply with the provision of Order XXXIX Rule 3 CPC within the time stipulated in that regard. [B C Hasaram and Sons Ayurvedic Pharmacy v. Pahari Garhwali Ayurvedic Pharmacy, 2021 SCC OnLine Del 3057, decided on 17-05-2021]


Advocates before the Court:

For the Plaintiffs: Ms. Tusha Malhotra & Ms. Yamini Jaiswal, Advs

Legal RoundUpWeekly Rewind

The 12th Episode of SCC Online Weekly Rewind featuring Devika Sharma, Senior Legal Editor bringing you the most important and interesting stories from the field of law is out now! Check out the written episode below.

TARUN TEJPAL CASE

22-pointer comprehensive analysis of Tarun Tejpal’s acquittal order

The most highlighted development of the week was the judgment of the Additional Sessions Court at Mapusa, Goa, which acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist. The court gave benefit of doubt to Tejpal, noting crucial lapses in investigation and major contradictions and improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during THiNK Fest, organised by Tehelka in Goa that year. Now, the State of Goa has appealed against this order before the Bombay High Court. We have studied the entire 527-pages judgment of the Sessions Court and prepared a 22-pointer comprehensive analysis.

https://www.scconline.com/blog/post/2021/05/28/rape-accused-tarun-tejpal/


SUPREME COURT

Courts need to be extra careful while dealing with Dowry Death cases; Guidelines issued

Now moving to the Supreme Court, In an important ruling, the Supreme Court has held that Courts need to be extra careful while conducting criminal trials relating to Section 304­B, IPC that deals with Dowry death.

The Court expressed grave concern on the fact that, often, Trial Courts record the statement of an accused under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. The Court said that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness.

The Court hence issued elaborate guidelines on trial of dowry death cases.

https://bit.ly/3fwnpHj

Apprehension of COVID-19 a ground for anticipatory bail: Supreme Court stays Allahabad High Court’s order

In another matter, A vacation bench of the Supreme Court stayed the Allahabad High Court’s order wherein it was held that apprehension of being infected with COVID-19 after coming into contact with authorities was a valid ground for anticipatory bail.

The High Court had granted anticipatory bail to one Prateek Jain “on account of special conditions and on special ground” and had also issued direction on grant of anticipatory bail on such special grounds.

The Supreme Court staying the said order, directed that the Courts shall not consider the said directions while considering applications for anticipatory bail and must decide each case on its merits.

https://www.scconline.com/blog/post/2021/05/25/apprehension-of-covid-19-a-ground-for-anticipatory-bail-supreme-court-stays-allahabad-high-courts-order-heres-all-you-need-to-know-about-the-case/ 


HIGH COURTS

Delhi High Court

Seizure by police of oxygen concentrators and Covid-related equipment sold at high-profit margins. Is it illegal?

In another matter, the Delhi High Court has confirmed that it is legal for the police to seize oxygen concentrators and other Covid-related equipment being sold at high profit margins in contravention of laws, rules and executive orders.

https://www.scconline.com/blog/post/2021/05/27/oxygen-concentrators/

 

Madras High Court

Malicious prosecution: What, how and who, discussed

Down south, The madras High Court has held that to succeed in a suit for malicious prosecution, the acquittal of the plaintiff alone is not sufficient. Rather, the plaintiff is obliged to prove (i) that the prosecution was without any reasonable and probable cause, and (ii) that it was instituted with a malicious intention, and (iii) that he suffered damage.

Apart from this, the Court also discussed, in detail, the duty of civil court in cases relating to malicious prosecution and also the burden of proof.

https://www.scconline.com/blog/post/2021/05/25/malicious-prosecution/

 Gujarat High Court

Compounding of offence under S. 138 NI Act after conviction can be allowed in exceptional circumstances 

In a ruling on Negotiable Instruments Act, the Gujarat High Court compounded an offence under Section 138 of the Negotiable Instruments Act and set aside the conviction and sentence of the accused, while observing at the same time that generally powers under Section 482 CrPC are not to be exercised when a statutory remedy is available under law but considering the fact that the parties have settled the dispute amicably, the compounding of the offence was permitted.

https://www.scconline.com/blog/post/2021/05/26/section-138-ni-act-4/

 Madhya Pradesh High Court

Directions issued to Police, Judicial Magistrates on arrests and bail

On bail jurisprudence, The Madhya Pradesh High Court has issued elaborate directions to Police and Judicial Magistrates in relation to arrests and bail after it noticed that District Judiciary is extremely tight-fisted when it comes to granting bail. 

The Court noticed that applications are being routinely dismissed on cyclostyled grounds that the offence alleged is serious or that the investigation is still in progress or that the accused may influence the witnesses. In such circumstances, huge burden of bail matters has been shifted to the High Court. Hence, the issuance of certain directions was necessary

https://www.scconline.com/blog/post/2021/05/28/mp-hc-district-judiciary-is-extremely-tight-fisted-when-it-comes-to-granting-bail-leads-to-burden-on-the-high-court-directions-on-arrest-and-bail-issued-to-police-judicial-magistrates/ 

 Jammu and Kashmir High Court

Bail cannot be granted on the ground of delay unless the matter was pending for 5 years or more

In another bail matter, the Jammu and Kashmir High Court held that bail cannot be granted on grounds of delay unless the matter was pending for 5 years or more.

In the case before the Court, though the applicant had been behind the bars for over 13 years, but the appeal against the order of conviction and sentence dated 23rd July 2020 was filed only in August 2020.

https://www.scconline.com/blog/post/2021/05/28/jk-hc-bail-cannot-be-granted-on-the-ground-of-delay-unless-the-matter-was-pending-for-5-years-or-more/

 Punjab and Haryana High Court

All-men SIT to investigate a rape case: Insensitive and deplorable 

In an important matter, a case where an all-men SIT was deployed to investigate a rape case, the Punjab and Haryana High Court said that it was rather intriguing that no lady police official was involved, which is even otherwise the requirement of law in cases of this kind.

The case pertains to 38-year-old widow giving into the sexual demands of CIA officials, after her 19-year-old son was picked up by them in broad day light while he was recovering from Covid-19 infection at his residence. The woman had also alleged that an FIR, allegedly a fake one, was registered against her son under NDPS Act by planting contraband on him so as to arm twist the petitioner.

Reacting to the allegations, the Court said that the same are so grisly and frightful, one can only hope, that the same are fictitious. 

https://bit.ly/2R7STKD


 LEGISLATION UPDATES 

Union Ministry of Health approves guidelines for ‘Near to Home COVID Vaccination Centres (NHCVC) for elderly & differently-abled citizens 

The Union Ministry of Health has accepted the recommendations by the National Expert Group on Vaccine Administration for Covid-19 on the proposed guidelines for Near to Home COVID Vaccination Centres for Elderly & Differently Abled Citizens.

The Technical Expert Committee’s recommendations are aimed to ensure vaccination of Senior Citizens and Differently Abled population having limited mobility due to their physical condition.

https://www.scconline.com/blog/post/2021/05/27/union-ministry-of-health-approves-guidelines-for-near-to-home-covid-vaccination-centres-nhcvc-for-elderly-differently-abled-citizens/

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified by the Ministry of Electronics and Information Technology in February, 2021. The Rules provided three-month timeline to social media intermediaries in order to comply with the New IT Rules by May 26, 2021.

https://www.scconline.com/blog/post/2021/05/26/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-2/