Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case where application was filed by Nokia under Order 39 Rule 10 of CPC, the Single Judge Bench of C. Hari Shankar, J. held that the FRAND Agreement between Nokia and Oppo was on a counter-licensing basis and did not indicate any admission by Oppo of any liability towards Nokia. Therefore, Oppo cannot be directed to pay royalty to Nokia.

Background

Plaintiff (Nokia) was the holder of various patents, and the present suit was related to its three patents: (a) System and Method for Providing AMR-WB DTX Synchronization; (b) Method Providing Multiplexing for Data Non-Associated Control Channel; and (c) Additional Modulation Information Signaling for High-Speed Downlink Packet Access. According to Nokia, the three suit patents were Standard Essential Patents (SEPs), which were necessary for the technology to work and for making cellular systems 2G, 3G, 4G and 5G compliant.

Nokia stated that defendant (Oppo) in its cellular handsets employed 2G, 3G, 4G and 5G technology and used the technology in Nokia’s three SEPs. To support the contention that Oppo was using Nokia’s suit patents, Nokia had filed ‘Claim Mapping Charts’, which mapped each element of the claim to sections of the third-generation partnership project (3GPP) technical specifications which formed the basis of wireless telecommunications standards developed within the framework of the European Telecommunications Standard Institute (ETSI). Moreover, for a patent, to qualify as a SEP, it must map onto a standard set by the ETSI. If the technology used by Oppo and the suit patents both map onto the same standard in the ETSI, it could lead to a legitimate inference that Oppo’s technology infringed Nokia’s patents.

In the present case, Nokia requested this Court to direct Oppo to deposit, with this Court, an amount which, according to Nokia, would represent the royalty, at Fair, Reasonable and Non-Discriminatory (FRAND) rates, on payment of which Oppo could be granted a license to use the suit patents of Nokia.

Submissions on behalf of the Plaintiff

Nokia contended that Oppo had obtained a license from Nokia for utilizing Nokia‘s SEPs, by paying royalty at FRAND rates and that license had expired in 2021. Oppo had neither renewed the license agreement nor had taken any fresh license from Nokia, therefore, Nokia stated that the continued use by Oppo of Nokia’s SEPs was infringing in nature. Therefore, Nokia filed an application under Order 39 Rule 10 and asserted that Oppo must be restrained from continuing to infringe the suit patents of Nokia or an alternative interlocutory arrangement be made. Further, Nokia had offered a license to Oppo to use the suit patents at royalty rates which were FRAND, but Oppo had failed to accept this offer.

Submissions on behalf of the Defendants

Oppo submitted that in cases involving SEPs, Nokia was required to demonstrate, assuming that it had been able to establish that the suit patents were indeed SEPs and that Oppo was using the said patents in its devices, that (i) the royalty rates at which license was being offered by Nokia was FRAND and (ii) Oppo was unwilling to take a license at such rates.

Any examination of whether the rates at which licenses were offered by Nokia were FRAND would require the Court to examine third party licensing agreements and since no such third-party licensing agreement were placed on record by Nokia, Oppo contended that the most basic parameters, which this Court would have to examine to assure itself that Nokia was offering the license to Oppo to exploit the suit patents were in fact FRAND, were absent in the present case. Besides this, Oppo submitted that FRAND rate determination was a complex exercise which requires consideration of expert evidence and a trial, among other factors.

Further, Oppo submitted that it had always been willing to take a FRAND license from Nokia representing the true value of its patent, but that value had never been established by Nokia either during pre-suit communications or even during the pendency of the present suit. Therefore, Oppo contended the validity and essentiality of the suit patents.

Analysis, Law, and Decision

The Court noted that in the present case, the following three issues arise for consideration, whether:

a. asserted suit patent was in fact a SEP;

b. technology used by Oppo infringed the SEP;

c. royalty rate at which Nokia was willing to license its SEP was FRAND;

d. Oppo was unwilling to take the license at the said FRAND rate.

Thus, unless all these four factors exist, this Court cannot direct Oppo to pay any amount as royalty to Nokia for obtaining a license from Nokia for exploiting the suit patents.

The Court opined that the entire application was fundamentally misconceived, and the FRAND Agreement was on counter-licensing basis and did not, indicate any admission, by Oppo, of any liability towards Nokia, and in the absence of a corresponding liability of Nokia towards Oppo, the Court cannot direct Oppo for interim payment under Order 39 Rule 10 of CPC. Moreover, the Court opined that Oppo had reserved its right to question the essentiality of the suit patents and the liability of Oppo to pay royalty to Nokia for the exploitation at any rate.

The Court dismissed the application filed by Nokia under Order 39 Rule 10 of the CPC.

[Nokia Technologies OY v. Guangdong Oppo Mobile Telecommunications Corpn. Ltd., 2022 SCC OnLine Del 4014, decided on 17-11-2022]


Advocates who appeared in this case :

For the Plaintiff(s): Senior Advocate Gourab Banerjee;

Advocate Pravin Anand;

Advocate Vaishali Mittal;

Advocate Siddhant Chamola;

Advocate Rohin Koolwal;

Advocate Pallavi Bhatnagar;

Advocate Shraddha Chauhan;

For the Defendant(s): Advocate Saikrishna Rajagopal;

Advocate Sidharth Chopra;

Advocate Julien George;

Advocate Anu Paarcha;

Advocate Arjun Gadhoke;

Advocate Vivek Ayyagari;

Advocate Avijit Kumar;

Advocate Aniruddh Bhatia;

Advocate Skanda Shekhar.

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: While hearing a challenge to the Government Notification dated 04/10/2022 changing the jurisdiction of Dept Recovery Tribunals in matters above ₹100 crores, the Division Bench of Sanjay A. Deshmukh and Ravindra V. Ghuge, JJ., held that divesting the Debts Recovery Tribunals of their pecuniary jurisdiction without any amendment to the Recovery of Debts and Bankruptcy Act 1993 (the RDB Act) is unsustainable in law.

The case of the petitioner was that the matters pertaining to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAESI Act) and the RDB Act, are within the jurisdiction of the Debts Recovery Tribunals established at various places in each State. He submitted that there are five Debts Recovery Appellate Tribunals (DRATs)—the DRAT Allahabad, DRAT Delhi, DRAT Mumbai, DRAT Chennai, and DRAT Kolkata. The DRAT is considered to be an appellate jurisdiction and depending upon the territorial jurisdiction, demarcated areas have been subjected to the jurisdiction of the different Debts Recovery Tribunals.

The petitioner contended that all the matters amenable to the jurisdiction of the Debts Recovery Tribunals are further amenable to the Appellate jurisdiction of the DRATs. By the impugned Notification dated 04/10/2022, all matters valued above Rs.100 Crores and which were amenable to the jurisdiction of the various Debts Recovery Tribunals under the Debts Recovery Appellate Tribunal, Chennai, have been transferred to the Debts Recovery Tribunal-1, Chennai. Similarly, the Debts Recovery Tribunals amenable to the Debts Recovery Appellate Tribunal, Delhi have been subjected to the same Notification, and matters valued above Rs.100 Crores have been shifted from all Debts Recovery Tribunals to the Debts Recovery Tribunal-1, Delhi. The same is applicable to the Debts Recovery Appellate Tribunal, Mumbai jurisdiction, and the matters above Rs.100 Crores are directed to be transferred from the Debts Recovery Tribunals to the Debts Recovery Tribunal-1, Mumbai.

Therefore, the petitioner asserted that if the notification dated 04/10/2022 is made applicable to the RDB Act, it would also be made applicable to the SARFAESI Act and the very purpose of establishing the Debts Recovery Tribunals at various locations in each State, would be defeated. Further, the petitioner alleged that the DRAT Kolkata and the DRAT Allahabad have been selectively kept outside the Notification dated 04/10/2022.

The Court noted that prima facie, the impugned notification would divest the jurisdiction of Debts Recovery Tribunals established at various locations on the ground of pecuniary limitation created by Notification, without any amendment to the RDB Act.

The Court further observed that if the matters are transferred from various Debts Recovery Tribunals to a particular Debts Recovery Tribunal as per the impugned Notification, and subsequently, if the Notification is held to be unsustainable, all the transferred matters, which could be in several thousand, will have to be transferred back to the Debts Recovery Tribunals, which originally had the jurisdiction. Hence, the Court stayed the impugned notification dated 04/10/2022.

Considering the seriousness of the issue and the urgency involved, the Court directed the Union government to file an affidavit at least 10 days prior to the returnable date and be ready on the returnable date for a final hearing at the admission stage. Accordingly, a notice returnable on 04-01-2023 was sent to the Union government.

[Ishwarlal Shankarlal Lalwani v. Union of India, Writ Petition No. 11164 of 2022, decided on 17-11-2022]


Advocates who appeared in this case :

Mr A.A. Yadkikar, Advocate for Petitioner;

Mr A.G. Talhar, DSGI for the Union of India.


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

Case BriefsSupreme Court

Supreme Court: In a significant case relating to an organized crime syndicate allegedly involved in funding underworld dons, the Division Bench of Dr Dhananjaya Y Chandrachud* and Surya Kant, JJ., upheld the impugned order of the Bombay High Court declining to quash FIRs against the accused persons.

The Court held that the stipulation under Section 18 of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) that only the confessions made to a police officer, not below the rank of Superintendent of Police (SP) are admissible in evidence will not make the confessions made to Addl. SP inadmissible. The Court said,

“The expression “rank” must be understood as a class or category which encompasses multiple posts and that the posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority.”

Mumbai Matka

The prosecution alleged that the appellants are members of an organized crime syndicate which has engaged in a systematic course of activities for cheating members of the public by conducting the ‘Mumbai Matka1‘. The prosecution case was that what appeared to be a case of gambling at the outset, was an organized crime syndicate involved in funding underworld dons/criminal gangs by the proceeds from the Matka business.

Invocation of MCOCA

The Assistant SP, Kolhapur and a team of police personnel raided a gambling den controlled by one Salim Mulla. Consequently, an FIR was filed for offences punishable under Sections 143, 147, 149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of the Penal Code 1860, Sections 4 and 5 of the Maharashtra Prevention of Gambling Act 1887, Section 65(e) of the Maharashtra Prohibition Act 1949 and Sections 37 and 135 of the Bombay Police Act 1951.

Later on, with the approval of the competent authority Sections 3(1)(ii), 3(2), 3(4), and 3(5) the MCOCA was added to the FIR as the Investigating Officer opinioned that the accused were members of an organized crime syndicate.

Aggrieved thereby, the appellants approached the Bombay High Court with a petition for quashing the FIR, which was dismissed by the Court.

Issues

Assailing the impugned order of the High Court, the appellants raised the following questions:

a. Whether a confession recorded by an Addl. SP admissible under Section 18 MCOCA; and

b. Whether the provisions of MCOCA have been validly invoked.

Analysis and Findings

a. Whether confession made before Addl. SP are valid under Section 18 MCOCA

Section 18 MCOCA stipulates that the confessions made to — a police officer not below the rank of Superintendent of Police are admissible in evidence. The Section begins with a non-obstante clause overriding the Evidence Act because Section 25 of the Evidence Act stipulates that no confession made to a police officer shall be proved as against a person accused of an offence.

Relying on para 25 (2) of the Police Manual, the appellants contended that Addl. SP is not in the same rank as the SP; therefore, the confession made before the Addl. SP would not be admissible.

The Court opined that the reliance on para 25(2) of the Police Manual was misconceived because MCOCA is a special Act enacted with an overriding provision in Section 25. The tenability of the submission that an Addl. SP does not fit the description of an officer not below the rank of SP cannot be determined by reading into the MCOCA provisions for authorization contained either in the Police Manual (para 25(2) as noticed above) or in another statute (Section 8(2) of the Police Act). The answer to the challenge must turn on the interpretation of the provisions of Section 18(1) MCOCA itself.

Observing that Section 18(1) MCOCA uses the expression “rank” which cannot be conflated or equated with a designation or post, the Court opined that the true question should be whether the rank of the SP comprehends within it an Addl. SP?

The Court noted that a DCP is competent to record confessions under the MCOCA. Observing that if an SP or Addl. SP is transferred to the area of a Commissionerate, he/she is posted as a DCP and is competent to record the confession under the MCOCA, the Court opined that there is therefore no basis to conclude that an Addl. SP does not fulfil the description specified in Section 18(1) MCOCA as being — a police officer not below the rank of the Superintendent of Police. The Court further remarked,

“The authority which attaches to the post of a DCP to record a confession under Section 18(1) is not diluted when the posting is in a district either as an Addl. SP or, as the case may be, as an SP.”

The Court referred to Nyadar Singh v. Union of India, (1988) 4 SCC 170, wherein the Supreme Court observed that the expression “rank” in “reduction in rank” for purposes of Article 311(2) has an obvious reference to the stratification of the posts or grades or categories in the official hierarchy. It does not refer to the mere seniority of the government servant in the same class or grade or category.

Hence, the Court held that the expression “rank” must be understood as a class or category which encompasses multiple posts and that the posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority. The Court clarified that every person within a particular rank will not be of the same seniority. Officers of the same rank may have been in service for a different number of years. At times, this may even bear on the post to which they are appointed but their rank remains undisturbed. A difference in the seniority of a particular officer is not the same as a difference in their ranks.

b. Conditions for invocation of the MCOCA

Approval Order under Section 23(1)(a) MCOCA

The appellants contended that the provisions of the MCOCA had not been validly invoked since some of the appellants had not been named in the FIR and/or in the order granting approval under Section 23(1)(a) MCOCA.

Considering that often, limited information is available to the investigating authorities at the time of recording information about the commission of an offence; and the involvement of persons other than those named initially might come to light during the course of investigation by the police, the Court said that the very purpose of an investigation is to determine whether a crime has been committed and if so, to shed light on the details of the crime including the identity of the perpetrators. The Court expressed,

Section 23(1)(a) MCOCA speaks of recording information about the commission of an offence of organized crime, and not of recording information about the offender.”

Therefore, the Court held that the approval order under Section 23(1)(a) MCOCA is with respect to the offence and not with respect to the offender and it need not name every accused person at the outset.

Whether Gambling an Organized Crime

Rejecting the contention of the appellants that gambling is punishable with a maximum sentence of 2 years and does not, therefore, fall within the scope of MCOCA (which requires the commission of a crime punishable with imprisonment of 3 years or more), hence the allegation of engaging in illegal gambling would not sustain invocation of the penal provisions of Section 3(2) MCOCA.

Section 2(1)(e) MCOCA indicates that persons are said to commit an organized crime when they are involved in continuing unlawful activity which means a prohibited activity which is a cognizable offence punishable with imprisonment of at least three years.

The Court noted that the accused of abetting the commission of organized crime need not themselves be charged with committing a cognizable offence punishable with imprisonment of at least three years. They need only be abetting those who are guilty of committing a cognizable offence punishable with imprisonment of at least three years, which offence amounts to an organized crime. The definition of “abet” in Section 2(1)(a) MCOCA would be applicable in such cases. The Court observed,

“Although gambling may not, by itself, constitute an organized crime, it may be the route through which the accused are abetting the commission of organized crime.”

Hence, the Court opined that the questions of whether the appellants were in fact abetting organized crime and whether offences under the IPC would attract MCOCA are to be determined at the stage of the trial.

Requirement of More than One Charge-sheet

Rejecting another contention of the appellants was that in the preceding ten years, more than one charge-sheet has not been filed in respect of each of them, the Court held that such submission did not hold water as it is settled law that more than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate. Rather, charge-sheets with respect to the organized crime syndicate are sufficient to fulfil the condition in Section 2(1)(d) MCOCA.

Conclusion

In the backdrop of above analysis, the Court held that the appeals were without any merit. Accordingly, the appeals were dismissed with the following directions that the appellants will be at liberty to approach the High Court for release on bail; and the evidentiary value of confessions alleged to have been made by the appellants shall be considered by the Trial Court and the mere validation of their being recorded by an officer in the rank of Superintendent of Police shall not be construed as the approval of the contents or voluntary nature of the alleged confessions by the Supreme Court.

[Zakir Abdul Mirajkar v. State of Maharashtra, 2022 SCC OnLine SC 1092, decided on 24-08-2022]

*Judgment by: Justice Dhananjaya Y Chandrachud


Advocates who appeared in this case :

Senior Counsels Amit Desai, Siddharth Luthra, Abad Ponda, V. Giri, Pradeep Rai, and ANS Nadkarni, Advocates, for the Appellants;

Senior Counsel Raja Thakare, Advocate, for the State.


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


1. Where those wishing to gamble bet on numbers/playing cards, at the end of the cycle, the results are to be declared based on a random draw of numbers/playing cards, and those who correctly guess the winning digits/playing cards win while the others lose.

Case BriefsHigh Courts

Calcutta High Court: Md. Nizamuddin, J. decided on a petition which was filed challenging the impugned order of the appellate commissioner confirming the original order passed by the adjudicating authority under section 129 of the West Bengal Goods and Services Act, 2017 for detention of the goods in question on the grounds that the e-way bill relating to the consignment in question had expired one day before, i.e. in the midnight of September 8, 2019, and that the goods was detained in the morning of September 9, 2019 on the grounds that the e-way bill has expired which is even less than one day and extension could not be made and petitioner submits that delay of few hours even less than a day of expiry of the validity of the tenure of the e-way bill was not deliberate and willful and was due to break down of the vehicle in question and there was no intention of any evasion of tax on the part of the petitioner.

Counsel for the petitioner relied on an unreported judgment of the Supreme Court in Assistant Commissioner (ST) v. M/s Satyam Shivam Papers Pvt. Ltd., Special Leave Appeal (C) No(s). 21132/2021, dated 12-01-2022.Advocate appearing for the respondent could not make out a case against the petitioner that the aforesaid violation was willful and deliberate or with a specific material that the intention of the petitioner was for evading tax.

The Court set aside the impugned order and held that the petitioner will be entitled to get the refund of the penalty and tax paid on protest subject to compliance with all legal formalities.[Ashok Kumar Sureka v. Assistant Commissioner, WPA No.11085 of 2021, decided on 01-03-2022]


For the petitioner:        Mr Ankit Kanodia

                                    Mr Himangshu Kumar Ray

For the respondent:     Mr A. Ray

                                    Md. T.M. Siddiqui

                                    Mr Debasish Ghosh


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: P.S. Dinesh Kumar J dismissed the petition being devoid of merits.

The facts of the case are such that the petitioner, Devas Employees’ Mauritius Pvt. Ltd., a Company incorporated under the laws of Republic of Mauritius filed the instant  petition with prayers to declare Section 272(1)(e) of Companies Act, 2013 (‘the Act’ for short) as ultra vires Constitution of India; and to declare that the second proviso to Section 272(3) of the Act, must be read to be applicable to the petitions presented by persons falling under Section 272(1)(e) of the Act; and to issue a writ of certiorari quashing sanction order dated January 18, 2021 and consequently to quash all proceedings before NCLT.

Counsel for the petitioners Mr. Rajiv Nayyar and Mr. C.K. Nanda Kumar submitted that both Registrar of Companies and a ‘person authorized by the Central Government’ stand on the same footing. In the case of Registrar, before according sanction, Central Government is required to give an opportunity to the Company and the same is missing in the case of a ‘person authorized by Central Government.

Counsel for respondents Mr. Venkatraman, Mr. Saji P John, Mr. M.B Naragund and M.N. Kumar  that there is a classic distinction between the Registrar of Companies and a person authorized by the Central Government because Registrar is a regulator and stands on a different footing.

The Court observed that the Registrar falls in a different category as the powers and duties of the Registrar of Companies enumerated in Sections 77, 77(2), 78, 81, 83, 93, 137, 157, 206, 208, 209 and 248 of the Companies Act.

The Court relied on judgment K.B. Nagur v. UOI, (2012)4 SCC 483 wherein it was observed

“20. It is also a settled and deeply-rooted canon of constitutional jurisprudence, that in the process of constitutional adjudication, the courts ought not to pass decisions on questions of constitutionality unless such adjudication is unavoidable. In this sense, the courts have followed a policy of strict necessity in disposing of a constitutional issue. In dealing with the issues of constitutionality, the courts are slow to embark upon an unnecessary, wide or general enquiry and should confine their decision as far as may be reasonably practicable, within the narrow limits required on the facts of a case.”

The Court further relied on judgment Government of Andhra Pradesh v. P. Laxmi Devi, (2008) 4 SCC 720 wherein it was observed

“46. ………….. But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto v. State of Kerala [(1979) 1 SCC 23 : AIR 1979 SC 83] SCC para 6 : AIR para 6. Also, it is none of the concern of the court whether the legislation I its opinion is wise or unwise.”

The Court observed that It is settled that when a provision of law is challenged, Courts are required to exercise restraint and be cautious in striking down a provision. It was further observed that one of the most profound tenets of Constitutionalism is presumption of Constitutionality assigned to each legislation enacted. Indubitably, Parliament has competence.

The Court held “The sanction accorded by the Central Government does not meet petitioner with any Civil consequence. Devas has not challenged the sanction order. Petitioner has failed to demonstrate infringement of any rights enshrined in Part-III of Constitution of India.”

The Court also held “Registrar and ‘a person authorized by the Central Government’ fall into different categories, it does not warrant reading down Section 272(3) of the Companies Act.”

In view of the above, petition was dismissed.

[Devas Employees Mauritius Private Limited v. Union of India, Writ Petition No.6191 OF 2021, decided on 28-04-2021]


Arunima Bose, Editorial Assistant has put this report together 

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. dismissed an appeal challenging election of a village mukhiya.

Appellant herein had filed an election petition assailing the election of Respondent 3 as mukhiya of a village on the ground of non-disclosure of his assets and liabilities as per the Bihar Panchayat Raj Act, 2006. This petition was dismissed and the writ petition challenging Election Commission’s order was also dismissed. Hence, the present appeal.

Counsel for the appellant contended that nomination paper of Respondent 3 was improperly accepted as he had not filled up details of his assets and liabilities. An affidavit was filed later declaring such assets and liabilities to supplement respondent’s nomination papers but the same was a manipulated document inasmuch as it had been manually stamped while other documents were stamped through a franking machine.

Learned counsel for the respondent objected to the maintainability of election petition for not being verified in accordance with Rule 108 of the Bihar Panchayat Raj Rules, 2006. Further, the sole ground raised in the petition was non-disclosure of assets; no challenge was raised in relation to the affidavit filed by the respondent. The subject affidavit was accepted with the nomination papers before the Assistant Returning Officer who scrutinized the same and thereafter declared Respondent 3’s nomination valid. The nomination could not have been declared to be valid in the absence of requisite declaration and therefore there was a valid presumption under the law regarding the existence of this fact.

The Court observed that the casual manner in which petition had been verified was a serious defect. Argument regarding the non-existence of affidavit could not have been appreciated without a petition being verified on the basis of records available. Further, once the defense of supplemental affidavit had been raised, then the burden lay on the election petitioner to dislodge the same by summoning the Assistant Returning Officer.  It was held that the acceptance of affidavit by the Returning Officer without any objection from the appellant or election petitioner provided a clear presumption of fact regarding the validity of nomination of Respondent 3. Lastly, since the issue regarding stamping of an affidavit was not pleaded or advanced either before the learned Single Judge or the Election Tribunal, therefore it could not be raised at this juncture.

In view of the above, the appeal was dismissed for being bereft of merits.[Ram Roop Devi v. State of Bihar, 2019 SCC OnLine Pat 44, Order dated 11-01-2019]

Case BriefsSupreme Court

Supreme Court: Interpreting the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (PMP Act), the Court said that the definition “Corporation” is wide enough to take within its sweep entities in private sector as well. Considering the nature of activity where entities in private sector are encouraged to participate, it would be incorrect to put any restricted meaning as regards the expression “Corporation”. This definition is designedly kept wide enough to include all such possibilities and there is no reason for giving any restricted meaning to such expression.

Regarding the contention that “Competent Authority” is given wide ranging powers under Section 5 of the PMP Act, the Court said that a person who occupies the position of Competent Authority under the PMP Act must evoke and enjoy public confidence. Neither the Act nor the Rules framed thereunder deal with the qualifications required of a person before his appointment as Competent Authority nor do they deal with any transparent process for such appointment. Stating that like the PMP Act, the Metro Railway (Construction of Works) Act, 1978 also confers power upon the Competent Authority therein to consider objections to the construction of the Metro Railway or any other work and to determine the amount payable for acquisition, the Court noticed that the Competent Authority under the provisions of the PMP Act must also be someone who is holding or has held a Judicial Office not lower in rank than that of a Subordinate Judge or is a trained legal mind as is the case under the Metro Act . If such requirement is not read into and not taken as an integral and essential qualification before appointment of any person as Competent Authority, the provisions in that behalf will not be consistent with the doctrine of fairness under Article 14 of the Constitution of India.

The Bench of V. Gopala Gowda and U.U. Lalit, JJ, however, clarified that the actions taken by the Competent Authority till now, will not in any way stand impaired or be invalidated purely on this count. But the Central Government should step in immediately and remedy the situation with appropriate measures. [Laljibhai Kadvabhai Savaliya v. State of Gujarat, 2016 SCC OnLine SC 1101, decided on 05.10.2016]

 

Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding upon the challenge to the appointment of 21 Parliamentary Secretaries by the Government of Punjab, the Division Bench of S.S. Saron and Ramendra Jain, JJ., quashed the appointments made by the State Government observing that the appointments had been made in contravention to the provisions of Article 164(1A) of the Constitution and therefore invalid.

The present petitions filed by two public spirited advocates, drew the attention of the Court towards the disputed appointments via the Punjab Parliamentary Secretaries and Chief Parliamentary Secretaries (Terms and Conditions of Appointment) Rules, 2006. The petitioners contended that the total strength of the Ministers including the CM, should not exceed the limit of 15% of the total numbers of MLAs of a State, as mandated by the Constitution (Ninety-first Amendment) Act, 2003. The petitioners contended that these Parliamentary Secretaries have become de-facto ministers and a burden over the State exchequer. On the contrary, the respondents contended that the post of Parliamentary Secretary is not a constitutional post; therefore an appointee to the same cannot be termed as a Minister and they are but mere a channel to connect the Administrative Secretary of the State Govt. and the Minister.

Perusing the rival contentions, the Court observed that the 91st Constitutional Amendment, 2003 was brought in to impose a ceiling on the number of Ministers in a House. The Court also observed that the validity of the appointments will have to be interpreted in the light of the Constitutional Amendment and in a way which does not negate the effect of the Amendment. The Court therefore stated that by appointing the Parliamentary Secretaries, the Govt. tried to ‘achieve indirectly what it could not achieve directly’ as their functions, perks and facilities were like that of any Minister, in other words, they were appointed as Junior Ministers. The Court further stated that the Governor of the State or the legislature has no competence or legislative sanction to frame rules regulating the conditions of appointment and services of Parliamentary Secretaries for their functioning within the House of the State Assembly. Such posts are not part of regular services of the State under the executive. The Court further pointed out that the appointments of Parliamentary Secretaries are contrary to the Constitutional intent of limiting the number of Ministers or the size of the Cabinet, in other words the State Govt. has sought to bypass the Constitutional mandate of the provisions of Article 164 (1A) of the Constitution. [Jagmohan Singh Bhatti v. Union of India, 2016 SCC OnLine P&H 638, decided on 12.08.2016]

 

Case BriefsHigh Courts

Madras High Court: While dismissing the petition challenging the validity of Section 7-A of the Hindu Marriage Act, 1955, the Division Bench of S.K. Kaul, C.J. and T.S. Sivagananam, J. relying on the decision of S.Nagalingam v. Sivagami, (2001) 7 SCC 487, upheld the validity of Section 7-A [as inserted by the Hindu Marriage (Tamil Nadu Amendment) Act, 1967] as the provision applies to any marriage between two Hindus solemnized in the presence of relatives, friends or other persons and that the presence of a Priest is not mandatory for the performance of a valid marriage.

In the present petition it was contended that Section 7-A is ultra vires the Section 7 (which mandates the Saptapadi) read with Section 3(a) of the Hindu Marriage Act and contrary to the tenets of Hinduism. The petitioner appearing for himself, also contended that the impugned provision violates Article 14 of the Constitution.

The Court however refused to entertain the arguments raised by the petitioner and observed that Section 7-A mainly provides for a particular type of marriage i.e. the Suyamariyathai marriages which has been in prevalence for over half a century and thus the impugned provision cannot be declared invalid on the ground of discrimination as it is the prerogative of the parties to enter into matrimony as according to the requisites of Section 7 or Section 7-A of the Hindu Marriage Act. The Court further stated that there is a presumption in favour of the constitutionality of an enactment and unless the petitioner proves that the enactment has transgressed any of the Constitutional principles. [A. Asuvathaman v. Union of India, 2015 SCC OnLine Mad 9765decided on 30.10.2015]