Allahabad High CourtNominal Index Abbas Ansari v. State Of U.P. Thru. Prin. Secy. Home Lko 2022 LiveLaw (AB) 397 Bhagwan Shri Krishna Virajman And Another v. U.P Sunni Central Waqf Board And 3 Others 2022 LiveLaw (AB) 398 Kanta v. State of U.P. 2022 LiveLaw (AB) 399 Deepak @ Deep Prakash @ Deepu v. State Of U.P., Through Secretary Home Govt. Of U.P 2022 LiveLaw...
Allahabad High Court
Nominal Index
Abbas Ansari v. State Of U.P. Thru. Prin. Secy. Home Lko 2022 LiveLaw (AB) 397
Bhagwan Shri Krishna Virajman And Another v. U.P Sunni Central Waqf Board And 3 Others 2022 LiveLaw (AB) 398
Kanta v. State of U.P. 2022 LiveLaw (AB) 399
Deepak @ Deep Prakash @ Deepu v. State Of U.P., Through Secretary Home Govt. Of U.P 2022 LiveLaw (AB) 400
Rajdhari Yadav v. State of U.P. and Another 2022 LiveLaw (AB) 401
Gabbar Patel @ Dharmendra v. State 2022 LiveLaw (AB) 402
Dr. Vijay Arora v. King George Medical University Thru. Registrar Lko And Others 2022 LiveLaw (AB) 403
Pramod Kumar Singh And 5 Others v. State Of U.P. And 11 Others along with a connected plea 2022 LiveLaw (AB) 404
Mohd. Saif Ali v. State of U.P 2022 LiveLaw (AB) 405
Gufran Shaikh @ Gani Munawwar v. State of U.P. and Another 2022 LiveLaw (AB) 406
Annu Tandon and three others v. State Through Railway Protection Force 2022 LiveLaw (AB) 407
Eklavya Kumar v. State Of U.P. Thru. Addl.Chief Secy./Prin.Secy.P.W.D. And Anr. 2022 LiveLaw (AB) 408
Peeyush Kumar Jain v. Union of India 2022 LiveLaw (AB) 409
Satakshi Mishra v. State Of U.P. Thru. Prin. Secy. Secondary Edu. Dept. Lucknow And 4 Others 2022 LiveLaw (AB) 410
Kuldeep Sharma @ Kuldeep Hindu v. State Of U.P. Thru. Prin. Secy. Home Lko. 2022 LiveLaw (AB) 411
Dr. B.R. Ambedker Granthalaya Evam Jan Kalyan v. State of U.P. and others 2022 LiveLaw (AB) 412
Amitabh Thakur v. State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. 2022 LiveLaw (AB) 413
Mohd. Sarfaraz v. Mohd. Abid And 3 Others 2022 LiveLaw (AB) 414
Sri Bal Ganesh Pooja Mahotsav Samiti Thru. President Laxmi Niwas Tiwari v. State Of U.P. Thru. Prin. Secy. Home Lko. And 4 Others 2022 LiveLaw (AB) 415
JUDGMENTS/ORDERS OF THE WEEK
Case title - Abbas Ansari v. State Of U.P. Thru. Prin. Secy. Home Lko [Criminal Misc, Anticipatory Bail Application U/S 438 Cr.P.C. No. - 1396 of 2022]
Case Citation: 2022 LiveLaw (AB) 397
The Allahabad High Court (Lucknow bench) last week denied anticipatory bail to Mau Sadar MLA Abbas Ansari, the son of jailed politician Mukhtar Ansari in connection with the Arms License case.
Denying him bail, the bench of Justice Dinesh Kumar Singh took into account the fact that Ansari had been avoiding the process of the Court, against whom proclamation had been issued by the Court.
"Considering the serious allegations that accused-applicant got registered his arm license fraudulently and obtained prohibited Barrels, weapons and cartridges in large numbers by taking ground of shooting; and he has purchased weapons and cartridges, which are prohibited in shooting practice and against the Notification dated 4.8.2014 of the Government of India, and also considering the fact that accused-applicant has been avoiding the process of the Court, against whom proclamation has been issued, this Court does not find any ground to grant anticipatory bail to the accused-applicant."
Case title - Bhagwan Shri Krishna Virajman And Another v. U.P Sunni Central Waqf Board And 3 Others
Case Citation: 2022 LiveLaw (AB) 398
The Allahabad High Court has directed the Mathura Court to decide on two applications pending before it, filed in connection with the Sri Krishna Janambhumi Dispute, within 4 months. The applications essentially seek a survey of the disputed site and the appointment of a court commissioner for the purpose of the survey.
The Bench of Justice Piyush Agrawal issued this order on a plea made by Bhagwan Shri Krishna Virajman And Another by observing thus:
"Considering the facts and circumstances of the case, without expressing any opinion on the merits of the issue, the present petition stands disposed of finally with a direction to the concerned court below to consider and decide application dated 13.5.2022 i.e. paper no. 35 Ga and 37 Ga u/s 26 CPC pending in aforesaid case in accordance with law expeditiously and preferably within a period of four months from the date of receipt of certified copy of this order, but certainly after giving opportunity to the parties concerned and without granting unnecessary adjournments to either of the parties, if there is no legal impediment."
Case title - Kanta v. State of U.P. [CRIMINAL APPEAL No. - 549 of 1983]
Case Citation: 2022 LiveLaw (AB) 399
The Allahabad High Court last week upheld the conviction of a man under Section 304 of the IPC who was sentenced to three years rigorous imprisonment under Section 304 (II) of the IPC for committing culpable homicide not amounting to murder in the year 1981.
Stressing that relationship is not a factor to affect credibility of a witnes, the bench of Justice Vikram D. Chauhan observed that mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible.
"Merely because the witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established...It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. There is no bar in law on examining family members as witness. Evidence of a related witness can be relied upon provided it is trustworthy," the Court further remarked.
Allahabad High Court Grants Bail To Slain Gangster Vikas Dubey's Brother In Cheating Case
Case title - Deepak @ Deep Prakash @ Deepu v. State Of U.P., Through Secretary Home Govt. Of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 54178 of 2021]
Case Citation: 2022 LiveLaw (AB) 400
The Allahabad High Court has granted bail to the slain gangster Vikas Dubey's brother Deepak Dubey in connection with a cheating case. The allegation against Dubey is that he was found using a sim card registered in someone else's name with the intention to commit crime.
However, keeping in view the nature of the offence, the argument advanced on behalf of the parties, evidence on record regarding the complicity of the accused, and the larger mandate of Article 21 of the Constitution of India, the bench of Justice Siddharth granted him bail.
Case title - Rajdhari Yadav v. State of U.P. and Another [CRIMINAL REVISION No. - 3607 of 2021]
Case Citation: 2022 LiveLaw (AB) 401
The Allahabad High Court has observed that the Magistrate/Special Judge, NDPS Act has the power to consider the application for the interim custody of the conveyance/ vehicle (seized under the NDPS Act) under the provision of Section 451 and 457 of Cr.P.C.
"A perusal of Section 36- C and 51 of the NDPS Act indicates that the provisions of Cr.PC. so far as, they are not in contradictions with the special Act NDPS Act, shall be applicable to the NDPS Act and as in the NDPS Act no procedure for interim custody of the vehicle is prescribed Sections 451 and 457 of Cr.P.C. specifically deal with the custody and disposal of property pending trial and the procedure to be followed by the police upon seizure of property," the bench of Justice Sadhna Rani (Thakur) remarked.
Case title - Gabbar Patel @ Dharmendra v. State [JAIL APPEAL No. - 5752 of 2007]
Case Citation: 2022 LiveLaw (AB) 402
The Allahabad High Court has observed that even if an accused pleads guilty in his statement recorded under Section 313 CrPC, even then the prosecution has to establish its case beyond so as to obtain an order of the court regarding the guilt of the accused.
"...mere stating of being guilty (by the accused) in the statement under Section 313 Cr.P.C. will end the issue and would lead the route only to the guilt of the accused without prosecution establishing its case beyond reasonable doubt against him through cogent, reliable and admissible evidence," the bench of Justice Samit Gopal remarked.
With this, the Court acquitted Accused/Gabbar Patel of charges under section 307 IPC by extending the benefit of the doubt.
Case title - Dr. Vijay Arora v. King George Medical University Thru. Registrar Lko And Others [WRIT - C No. - 2917 of 2020]
Case Citation: 2022 LiveLaw (AB) 403
The Allahabad High Court set aside a suspension order passed against a junior resident doctor who was restrained from taking up any medical work on the allegation that he had sexually abused the daughter of a patient
The Court noted that there was no allegation against the petitioner (a junior resident doctor) with regard to any misconduct of a sexual nature so as to warrant the punishment as had been awarded to him.With this, the bench of Justice Pankaj Bhatia allowed a writ plea moved by Dr. Vijay Arora challenging his suspension order passed by the management of the King George Medical University, Lucknow.
Case title - Pramod Kumar Singh And 5 Others v. State Of U.P. And 11 Others along with a connected plea [WRIT - A No. - 4225 of 2022]
Case Citation: 2022 LiveLaw (AB) 404
The Allahabad High Court dismissed two pleas challenging criteria of different yardsticks for physical efficiency tests for males and females for the U.P. Subordinate Service Selection Board Excise Constable recruitment exam.
The bench of Justice Saurabh Shyam Shamshery observed that the classification of men and women in physical efficiency is not arbitrary and therefore, the allegation of discrimination between men and women is baseless and cannot be accepted.
"In the present recruitment, females have succeeded in huge numbers and it appears that unsuccessful male candidates are not able to cope up with the fact that female have overnumbered them in merit. It is an example of 'male chauvinism' which is unacceptable in twenty first century," the Court further remarked.
Allahabad High Court Grants Bail To Man Accused Of Tweeting Offensive Comments Against Hindu Women
Case title - Mohd. Saif Ali v. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 31532 of 2022]
Case Citation: 2022 LiveLaw (AB) 405
The Allahabad High court has granted bail to one Mohd. Saif Ali, who has been accused of posting certain offensive tweets against the modesty of Hindu women. The Court observed that Said had made out a case of bail.
Essentially, the bench of Justice Deepak Verma ordered to release him bail in view of the entire facts and circumstances of the case, submissions of counsel for the parties and keeping in view the nature of offence, evidence, and complicity of the accused.
Case title - Gufran Shaikh @ Gani Munawwar v. State of U.P. and Another [APPLICATION U/S 482 No. - 10258 of 2021]
Case Citation: 2022 LiveLaw (AB) 406
The Allahabad High Court quashed an FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife (who was a minor at the time of the incident) were 'happily' living with each other as husband and wife.
The bench of Justice Gautam Chowdhary granted bail to one Gufran Shaikh who had been booked under Sections 363, 366, 376 I.P.C., Section 3/4 of Protection of Children from Sexual Offences Act, 2012, and Section 3(2)(v) SC/ST (Prevention of Atrocities Act), 1989.
Case title - Annu Tandon and three others v. State Through Railway Protection Force [CRIMINAL APPEAL No. - 638 of 2021]
Case Citation: 2022 LiveLaw (AB) 407
Stressing that in democracy under our Constitution, people have the right to protest against Government policies/action/inaction, provided the protest does not lead to the commission of an offence by the protesters, the Allahabad High Court today modified the sentence awarded to Ex-MP Annu Tandon and others in connection with a 'Rail Roko Protest' Case.
The bench of Justice Dinesh Kumar Singh observed that except for detaining the train for 15 minutes, there was no damage to private and public property by the protesters and by and large, it was a peaceful and symbolic protest.
Case title - Eklavya Kumar v. State Of U.P. Thru. Addl.Chief Secy./Prin.Secy.P.W.D. And Anr.
Citation: 2022 LiveLaw (AB) 408
The Allahabad High Court has clarified that after the retirement of a government servant, the state government is empowered under regulation Rule 351- A of the Civil Service Regulations to order the recovery from his/her pension, however, the same can be done only where it is established that some financial loss has been caused to the State.
With this, the bench of Justice Alok Mathur quashed an order of the UP Government holding the petitioner (retired Executive Engineer) guilty and awarding a punishment of deduction of 5% from his pension for a period of three years.
Case title - Peeyush Kumar Jain v. Union of India [CRIMINAL MISC. BAIL APPLICATION No. - 21223 of 2022]
Case Citation: 2022 LiveLaw (AB) 409
The Allahabad High Court granted bail to Kanpur-based Perfume businessman, Peeyush Jain in connection with a case registered against him for allegedly stashing cash amounting to Rs. 196.57 Crores. He has been directed to furnish a personal bond of Rs.10 Lakhs and two reliable sureties each of the like amount.
The bench of Justice Subhash Vidyarthi granted him bail as it noted that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so.
"The position of law regarding grant of bail which emerges from the judgments of the Supreme Court referred to above, is that the basic jurisprudence relating to bail in economic offences remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. It is not advisable to categorize all economic offences into one group and deny bail on that basis. One of the circumstances to consider the gravity of the offence is the term of sentence that is prescribed for the offence the accused is alleged to have committed," the Court remarked.
Case title - Satakshi Mishra v. State Of U.P. Thru. Prin. Secy. Secondary Edu. Dept. Lucknow And 4 Others [WRIT - A No. - 5114 of 2022]
Case Citation: 2022 LiveLaw (AB) 410
The Allahabad High Court has observed that the Maternity Benefits Act, 1961 Act does not contain any such stipulation regarding the time difference between the first and second child for the grant of maternity benefits. A
With this, the Court granted relief to an Inter College lecturer whose application for maternity leave had been rejected by placing reliance on Rule 153(1) of the Financial Handbook by contending that the same contains a restriction that the second maternity leave cannot be granted where there is a difference of less than two years between the end of the first maternity leave and grant of second maternity leave.
Case title - Kuldeep Sharma @ Kuldeep Hindu v. State Of U.P. Thru. Prin. Secy. Home Lko. [CRIMINAL MISC. BAIL APPLICATION No. - 9799 of 2022]
Case Citation: 2022 LiveLaw (AB) 411
The Allahabad High Court granted bail to a self-styled international Hindu Leader and Yogi Sena Pramukh, Kuldeep Sharma @ Kuldeep Hindu in a Gangster Act Case.
The prosecution under the Gangster Act had been launched against Sharma on the basis of a criminal case registered against him for allegedly misusing the popularity of the present Chief Minister of Uttar Pradesh, Yogi Adityanath, and fooling various persons to deposit money in bank accounts run by him.
Case title - Dr. B.R. Ambedker Granthalaya Evam Jan Kalyan v. State of U.P. and others [PUBLIC INTEREST LITIGATION (PIL) No. - 2129 of 2017]
Case Citation: 2022 LiveLaw (AB) 412
In a significant order, the Allahabad High Court has quashed the orders of the Uttar Pradesh Government recognizing or acknowledging 17 Other Backward Classes sub-castes as Scheduled Castes. The Court said that this exercise could have been undertaken only by way of parliamentary law.
"The provisions of Article 341 of the Constitution do not leave any scope for including any Caste or Group to the list of Scheduled Caste in a State provided by the Constitution (Scheduled Castes) Order, 1950, except by law made by Parliament," the Bench of Chief Justice Rajesh Bindal and Justice J. J. Munir held.
Case title - Amitabh Thakur v. State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. [APPLICATION U/S 482 No. - 5954 of 2022]
Case Citation: 2022 LiveLaw (AB) 413
The Allahabad High Court has observed that an accused cannot ask the trial Court for a direction to the prosecuting agency that a shred of particular evidence is collected which may be in his favor.
The bench of Justice Dinesh Kumar Singh dismissed a petition moved by Former IPS Officer Amitabh Thakur, who had sought the preservation of the Call Detail Records (CDR) of the then Additional Chief Secretary Home, DGP, ADG Women's Cell, Police Commissioner Lucknow along with other police officials.
Case title - Mohd. Sarfaraz v. Mohd. Abid And 3 Others [TRANSFER APPLICATION (CIVIL) No. - 528 of 2022]
Case Citation: 2022 LiveLaw (AB) 414
While dismissing a plea filed seeking transfer of a civil case to another court, the Allahabad High Court remarked that a mindset has developed among the general public to overawe Judges by complaining and maligning them on baseless allegations.
The petitioner, Mohd. Sarfaraz had sought the transfer of the case from the Court of Civil Judge (Jr. Division), Nagina, District - Bijnore to any other Court of competent jurisdiction in the Judgeship of Bijnore by leveling allegations against the Presiding Officer, Civil Judge (Jr. Division).
Case title - Sri Bal Ganesh Pooja Mahotsav Samiti Thru. President Laxmi Niwas Tiwari v. State Of U.P. Thru. Prin. Secy. Home Lko. And 4 Others [WRIT - C No. - 5854 of 2022]
Case Citation: 2022 LiveLaw (AB) 415
In a significant observation, the Allahabad High Court has said that the administrative authorities cannot absolve themselves of the responsibility for law and order and maintaining tranquility to ensure that the religious practices and rituals are observed freely and without any invasion of public tranquility.
The bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla further remarked that administrative authorities are required to blend their decision and not be indifferent to the people of faith.
With this, the Court disposed of a plea seeking a writ of mandamus to the Shravasti District Administration to allow the representation filed by the petitioner [Sri Bal Ganesh Pooja Mahotsav Samiti] seeking permission to celebrate Ganesh Chaturthi between August 31 to September 6 and to allow idol immersion.
Other updates of the Week
Hathras Rape And Murder Case: Allahabad High Court Seeks Trial Progress Report From The CBI
Case title - Suo-Moto Inre Right To Decent And Dignified Last Rites/Cremat v. State Of U.P. Thru Additional Chief Secretary Home And Ors.
The Allahabad High Court on Tuesday sought a trial progress report in the Hathras Gang Rape and Murder case from the CBI. A status report has also been requisitioned from the Trial Court through the District Judge, Hathras as to the status of Sessions before the next date [September 20, 2022].
The bench of Justice Rajan Roy and Justice Jaspreet Singh gave the direction to CBI counsel Anurag Kumar Singh.
Case title - Rani Sonkar And 10 Others v. State Of U.P. And 3 Others [WRIT - C No. - 24481 of 2022]
The Allahabad High Court has observed that the State Government, having complete control and regulation to manufacture and sale of liquor, is prima facie liable to pay compensation to the kin of deceased who die due to the consumption of Poisonous liquor.
The bench of Justice Surya Prakash Kesarwani and Justice Saurabh Srivastava observed that under the U.P. Excise Act, 1910 and Rules framed, the State Government has complete control and regulation to manufacture and sale of liquor, and thus, prima facie, they are also liable to pay a specified amount to the sufferer or successors of the deceased under the provisions of "Mukhya Mantri Kisan Evam Sarvhit Bima Yojna" which provides for compensation on account of death or permanent disability due to poison etc.
The Allahabad High Court has granted short-term bail to Lakhimpur Kheri Violence Accused Ankit Das on medical grounds. The bench of Justice Dinesh Kumar Singh ordered for his release on interim bail for 15 days on his filing a personal bond and two sureties each in the like amount to the satisfaction of the Court/Magistrate concerned.
Das is among the 13 men who have been accused of killing four farmers and a journalist in Lakhimpur Kheri on October 3. Das, who is the nephew of the former Union minister Akhilesh Das, and the SUV which was behind the Thar that knocked down the four farmers is said to be owned by him.
Andhra Pradesh High Court
Case Title: M/s. Mangalore Minerals Pvt. Ltd. Vs. State of Andhra Pradesh and Ors.
Citation :2022 LiveLaw (AP) 118
Andhra Pradesh High Court dismissed a writ petition filed by Mangalore Minerals Private Limited for a declaration that the action of the State Government in insisting for payment of dead rent for the period 2013-20, even though the quarry was not in operation for want of environmental clearance, as violative of Articles 14, 19 and 300A of the Constitution of India.
The Court observed,
"It would be an implied condition of the lease that the responsibility of obtaining necessary clearances for carrying on mining activity would be on the lessee. In such a situation, it would not be permissible for a lessee to avoid payment of dead rent on the ground of lack of clearances for carrying on mining activity."
Citation :2022 LiveLaw (AP) 119
The Andhra Pradesh High Court has made it clear that Municipal Corporation or Municipalities cannot grant any permission for installation of any statute or construction of any structure in public roads, pavements, sideways and other public utility places.
A single judge bench of Justice Ravi Nath Tilhari further held that even if any permission was granted previously pursuant to which any statute is being installed now that can also not be done contrary to the specific order of the Hon'ble Supreme Court dated 18.02.2013.
Case Title :Ram Chandra Reddy v. Industrial Tribunal-cum-Labour Court Ananthapur & Anr.
Citation :2022 LiveLaw (AP) 120
However, the order of acquittal will not be determinative where (i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) where the delinquent officer was charged with something more than the subject matter of the criminal case and. or covered by a decision of civil court.
Bombay High Court
Nominal Index [Citations 310-316]
Nizar Noorali Rangara and Anr. v. State of Maharashtra and Ors. 2022 LiveLaw (Bom) 310
USP Studios Pvt. Ltd. v. Ganpati Enterprises & Ors. 2022 LiveLaw (Bom) 311
Relcon Infroprojects Ltd. & Anr. v. Ridhi Sidhi Sadan, Unit of Shree Ridhi Co. Op. Housing Society Ltd. & Ors. 2022 LiveLaw (Bom) 312
Jagdish Lahu Badhe & Ors. v. State of Maharashtra & Ors. Citation: 2022 LiveLaw (Bom) 313
Unichem Laboratories Limited versus Union of India and Ors. Citation: 2022 LiveLaw (Bom) 314
Sunil Vishnu Mukane & Ors. v. State of Maharashtra 2022 LiveLaw (Bom) 315
Jalgaon Janta Sahakari Bank Ltd. & Anr. v. Joint Commissioner of Sales Tax & Anr. with 11 connected matters 2022 LiveLaw (Bom) 316
Reports/Judgments
Case Title: Nizar Noorali Rangara and Anr. v. State of Maharashtra and Ors.
Citation: 2022 LiveLaw (Bom) 310
Bombay High Court held that to determine whether a complaint under section 138 can be entertained when the company is in the process of winding up, the fact and circumstance of each case have to be considered. The question cannot be considered without the facts especially to "insulate a company and its ex-directors from the rigors of law where it appears that they profess to take advantage of their own wrong".
Justice N. J. Jamadar further observed that a winding up order due to settlement terms is not on the same pedestal as winding up order passed on merits
Case Title: USP Studios Pvt. Ltd. v. Ganpati Enterprises & Ors.
Citation: 2022 LiveLaw (Bom) 311
The Bombay High Court held that impliedly admitted liability cannot prevent reference of dispute to arbitration. Justice N. J. Jamadar further held that judicial authority must make a reference to arbitration if even a semblance of dispute exists between two parties who have an arbitration agreement.
Case title: Relcon Infroprojects Ltd. & Anr. v. Ridhi Sidhi Sadan, Unit of Shree Ridhi Co. Op. Housing Society Ltd. & Ors.
Citation: 2022 LiveLaw (Bom) 312
The Bombay High Court ruled that merely because a notice under Section 21 of the Arbitration and Conciliation Act, 1996 (A&C Act) to refer the disputes to arbitration is issued by a party, the Court is not barred from exercising jurisdiction under Section 9 of the A&C Act for interim measures. The Court added that it is not constrained to refer the parties to arbitration and convert the proceedings under Section 9 into an application under Section 17 of the A&C Act, to be adjudicated by the arbitral tribunal.
Justice G.S. Kulkarni reiterated that when an application under Section 9 has already been taken up for consideration, the question of examining whether the remedy under Section 17 is efficacious or not would not arise.
Case title – Jagdish Lahu Badhe & Ors. v. State of Maharashtra & Ors.
Citation: 2022 LiveLaw (Bom) 313
The Aurangabad bench of Bombay High Court on Tuesday set aside an order removing 14 members of elected managing committee of the Jalgaon Zilla Dudh Utpadak Sangh Ltd.
"DDR has passed the impugned order not only in the absence of any ground or by resorting to any enquiry by following the principles of natural justice but even has passed it mala fide with an ulterior motive to oblige the Government", the court observed.
Case Title: Unichem Laboratories Limited versus Union of India and Ors.
Citation: 2022 LiveLaw (Bom) 314
The Bombay High Court has directed the Central Board of Indirect Taxes and Customs (CBIC) to issue a clarification in relation to the distribution/ reporting of the ISD credit.
The Bench of Justices K.R. Shriram and Gauri Godse was dealing with a batch of writ petitions, highlighting the difficulties faced by the petitioners in the distribution/ reporting of the ISD credit.
Case title: Sunil Vishnu Mukane & Ors. v. State of Maharashtra
Citation: 2022 LiveLaw (Bom) 315
The Bombay High Court overturned conviction of four accused in a dacoity case observing that the prosecution's evidence was unreliable due to irregularities in arranging the test identification parade.
Justice Sarang V. Kotwal held "In this particular case in view of these infirmities, benefit of doubt must go to the accused. There are no other incriminating circumstances against the appellants".
The court noted the strong possibility that the prosecution witnesses had an opportunity to see the accused before the test identification parade. The prosecution has to rule out that possibility, which was not done. Further the prosecution didn't prove that the witnesses didn't see the dummies brought by the police for the identification. "If the witnesses had an opportunity to see the dummies before the test identification parade; then it was very easy to identity the accused", the court observed.
The court further observed that sixteen dummies were asked to take part in one single identification parade for four accused. Proper procedure stipulates six dummies per accused and no more than two accused in a single identification parade.
Case Title: Jalgaon Janta Sahakari Bank Ltd. & Anr. v. Joint Commissioner of Sales Tax & Anr. with 11 connected matters
Citation: 2022 LiveLaw (Bom) 316
The Bombay High Court held that the dues of a secured creditor would rank superior to the dues of a state government department on sale of secured asset.
A full bench consisting of Chief Justice Dipankar Datta, Justice M. S. Karnik and Justice N. J. Jamadar answered seven questions of law related to the SARFAESI Act, 2002 and Recovery of Debts and Bankruptcy Act, 1993 (RDDB Act).
The court further held that Chapter IV-A of SARFAESI Act is prospective and will apply from the date it was brought into force, i.e., 24th January 2020.
The court held that a secured creditor cannot invoke section 31B of the RDDB Act to claim priority if it is disabled from obtaining 'priority' under section 26E of the SARFAESI Act for want of CERSAI registration.
The court overruled para 21 of division bench decision in ASREC (India) Limited v. State of Maharashtra. ASREC and paragraph 35 of the division bench decision in SBI v. State of Maharashtra
The court held that the priority under RDDB Act and SARFAESI Act wouldn't apply if the immovable property of the defaulter is attached and proclamation issued in accordance with law before Chapter IV-A of the SARFAESI Act or section 31B of the RDDB Act were enforced.
Calcutta High Court
Case title - Suresh Tirkey v. The State
Case Citation:2022 LiveLaw (Cal) 297
The Calcutta High Court recently deliberated over the role of consent (or its absence) to constitute the offence of Rape as defined under Section 375 of IPC and punishable under Section 376 of IPC.
Stressing that the predominance of "consent" (or its absence) is the defining feature of the offence of rape in section 375, the bench of Justice Moushumi Bhattacharya and Justice Ajoy Kumar Mukherjee observed that the 7 circumstances laid down under Section 375 deconstruct 'consent' more as a "pushed to the wall" consent, rather than an informed expression of free will.
Case title - SUNIL DEBSHARMA v. THE STATE OF WEST BENGAL AND OTHERS
Case Citation:2022 LiveLaw (Cal) 298
The Calcutta High Court has observed that when a stepfather fulfills the same responsibilities as the biological father, a stepson cannot deny his obligation to maintain him. Similarly, the Court held that a biological mother, who has contracted the second marriage, has always a right to claim maintenance from her son.
The bench of Justice Kausik Chanda held thus as it stressed that the legal liability to pay maintenance to parents under Section 125 of the Code of Criminal Procedure, 1973, arises out of the moral obligation of children.
3. Arbitral Award With Contradictory Findings Is Liable To Be Set Aside: Calcutta High Court
Case Title: State of West Bengal v. Tapas Kumar Hazra, AP 1036 of 2011
Citation:2022 LiveLaw (Cal) 299
The High Court of Calcutta has held that an arbitral award wherein the arbitrator has given contradictory findings is liable to be set aside.
The Bench of Justice Krishna Rao reiterated that an arbitral award wherein no reasons are given for arriving at a particular finding is also liable to be set aside.
Case Title: Aaryan Projects Pvt. Ltd. v. Klowin Infrastructure Pvt. Ltd. G.A. No. 3 of 2021 in C.S. No. 205 of 2017
Case Citation: 2022 LiveLaw (Cal) 300The Calcutta High Court has held that an ex-parte decree which is obtained by suppression of the fact of non-service on the defendant would be vitiated by fraud.
The Bench of Justice Shekhar B. Saraf set aside an ex-parte decree under Order IX Rule 13 CPC on the ground that the defendant could not be served with a notice of original plaint, the amended plaint, and the writ of summons of the amended plaint as it was not present in the address mentioned in the plaint and the service.
Chhattisgarh High Court
Case Title: Ku. Veena Pal v Sri Sankara Education Society
Citation : 2022 LiveLaw (Chh) 56
The Chhattisgarh High Court recently chastised a private school while exercising its writ jurisdiction under Article 226 of the Constitution for withholding the annual increment and benefit of 6th Pay Commission of its Assistant Teacher, merely on the ground that she had sued the school's headmistress.
Justice Arvind Singh Chandel observed:
"The Petitioner has been denied the above benefits only on the ground that she had preferred a civil suit against the Head Mistress of the school and even after being asked she did not withdraw the said civil suit. This only reason for withholding the annual increment and the benefit of 6th Pay Commission is arbitrary."
Case Title: Shri Gaushala Pinjarapol v. Ashok Kumar Kochar and Anr
Citation : 2022 LiveLaw (Chh) 57
The Chhattisgarh High Court recently observed that 'bonafide requirement' of suit premises is not a statutory stipulation for eviction under Section 12(2) Schedule-2 Clause 11(h) of the Chhattisgarh Rent Control Act, 2011.
The provision only requires that 6 months notice to the tenant in writing would be necessary, however on the condition that the accommodation will not be leased out at a higher rent for atleast 12 months thereafter.
Delhi High Court
NOMINAL INDEX
Citations 2022 LiveLaw (Del) 806 TO 2022 LiveLaw (Del) 838
HANZLA IQBAL v. THE STATE & ANR. 2022 LiveLaw (Del) 806
VISHV MOHAN v. DEPARTMENT OF PERSONNEL AND TRAINING AND ORS. 2022 LiveLaw (Del) 807
RAJINDER SINGH BHATIA v. MANJU BHATIA 2022 LiveLaw (Del) 808
SMT. SHIPALI SHARMA v. State & Anr. 2022 LiveLaw (Del) 809
VED PRAKASH MANCHANDA v. DELHI URBAN SHELTER IMPROVEMENTBOARD & ORS. 2022 LiveLaw (Del) 810
SHRI B K PARCHURE v. STATE 2022 LiveLaw (Del) 811
ANTRIX CORPORATION LTD. v. DEVAS MULTIMEDIA PRIVATE LIMITED 2022 LiveLaw (Del) 812
SGT. NAVNEET KUMAR SINGH (977823-F) v. UNION OF INDIA & ORS. 2022 LiveLaw (Del) 813
OM PRAKASH v. THE DELHI PINJRAPOLE SOCIETY (REGO.) 2022 LiveLaw (Del) 814
BHARTI SAHANI v. STATE (GOVT. OFNCT OF DELHI) 2022 LiveLaw (Del) 815
Rithala Education Society Versus Union Of India 2022 LiveLaw (Del) 816
PVR Ltd. Versus Commissioner Of Income Tax 2022 LiveLaw (Del) 817
Babuddin v. State 2022 LiveLaw (Del) 818
Royal Orchids versus Kulbir Singh Kohli & Anr. 2022 LiveLaw (Del) 819
ANIL KUMAR & ORS. v. THE STATE & ANR. 2022 LiveLaw (Del) 820
SANJAY SARIN v. THE AUTHORISED OFFICER, CANARA BANK & ORS. 2022 LiveLaw (Del) 821
NEETU SINGH & ANR. v. TELEGRAM FZ LLC & ORS. 2022 LiveLaw (Del) 822
Sun Pharmaceuticals Ltd v. Hetero Healthcare Ltd. & Anr. 2022 LiveLaw (Del) 823
BOLT Technology OU v. Ujoy Technology Pvt. Ltd. 2022 LiveLaw (Del) 824
MS HNUNPUII v. MUNICIPAL CORPORATION OF DELHI & ANR. 2022 LiveLaw (Del) 825
BOLT TECHNOLOGY OU v. UJOY TECHNOLOGY PRIVATE LIMITED & ANR 2022 LiveLaw (Del) 826
SIKANDER SONI AND ANR v. STATE 2022 LiveLaw (Del) 827
TATA SIA AIRLINES LIMITED v. SHENZHEN COLOURSPLENDOUR GIFT CO LTD & ANR. 2022 LiveLaw (Del) 828
Puri Constructions Ltd v. Shailesh Gupta & Ors. 2022 LiveLaw (Del) 829
SIDDHAST INTELLECTUAL PROPERTY INNOVATIONS PVT. LTD. v. CONTROLLER GENERAL OF PATENTS, DESIGNS AND TRADEMARKS AND ANR. 2022 LiveLaw (Del) 830
Kapri International Pvt. Ltd. Vs CIT 2022 LiveLaw (Del) 831
KEI INDUSTRIES LIMITED Vs. THE REGISTRAR OF TRADE MARKS 2022 LiveLaw (Del) 832
SHARAFAT SHEIKH @ MD. AYUB v. UNION OF INDIA & ANR. 2022 LiveLaw (Del) 833
BIRPAL SINGH v. NUTAN MARATHI SENIOR SECONDARY SCHOOL & ORS 2022 LiveLaw (Del) 834
SARVESH MATHUR v. STATE OF NCT DELHI & ORS. 2022 LiveLaw (Del) 835
RATTAN MEHTA & ANR. v. GAYATRI SHAH & ORS. 2022 LiveLaw (Del) 836
Nirmal Kumar Mahaveer Kumar Versus Commissioner of CGST 2022 LiveLaw (Del) 837
Geeta Poddar v. Satya Developers Pvt. Ltd. 2022 LiveLaw (Del) 838
1. Person Having Consensual Physical Relationship Not Required To Judicially Scrutinse Other Person's Date Of Birth: Delhi High Court
Title: HANZLA IQBAL v. THE STATE & ANR.
Citation: 2022 LiveLaw (Del) 806
"The person, who is in a consensual physical relationship with another person, is not required to judicially scrutinise the date of birth of the other person," the Delhi High Court has observed.
Justice Jasmeet Singh made the observation while granting bail to a man accused in a rape case. The complainant had alleged that after becoming friends, in September 2019, the petitioner called her to a hotel and established a physical relationship with her and also made her video, thereby blackmailing her.
The complainant further alleged that the petitioner forced her to have physical relationships with different people under the threat of releasing the video.
It was also alleged that around August, 2021, the complainant managed to escape from the petitioner's house where she was held captive, after which she met an advocate who helped her lodging the FIR.
On the other hand, it was the petitioner's case that the date of incident as alleged was September, 2019, whereas the FIR was filed after three years in 2022.
2. Welfare State Expected To Create Conducive Conditions For Disabled Citizens, Provide Avenues For Public Employment: Delhi High Court
Case Title: VISHV MOHAN v. DEPARTMENT OF PERSONNEL AND TRAINING AND ORS.
Citation: 2022 LiveLaw (Del) 807
The Delhi High Court has observed that a welfare State is expected to create conditions which are conducive to citizens with disabilities by providing them avenues for public employment.
A division bench comprising of Justices Sanjeev Sachdeva and Tushar Rao Gedela was of the view that under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the State is enjoined to create conditions and opportunities for the welfare and betterment of the citizens with disabilities and those who are differently abled.
"The Central Government had enacted the said Act to ensure that the citizens falling in this category are not deprived of their rightful means of livelihood in respect of public employment. It is with a view to give impetus to the beneficial provisions of the said Act, that the Central Government and the State Governments created various avenues for public employment of such differently abled citizens," the Court said.
3. Plaintiff Cannot Value Suit Differently For Purpose Of Jurisdiction & For Payment Of Court Fees: Delhi High Court
Case Title: RAJINDER SINGH BHATIA v. MANJU BHATIA
Citation: 2022 LiveLaw (Del) 808
The Delhi High Court has observed that a plaintiff cannot adopt a dual policy of valuing the suit at a certain value for the purpose of jurisdiction and payment of court fees.
Justice Neena Bansal Krishna further added that though it is in the discretion of the plaintiff to value his suit as per his bona fide belief and discretion, but once the suit has been valued in terms of sec. 8 of the Suit Valuation Act, the court fee shall become payable on the same amount in terms of sec. 7 of the Court Fees Act.
The Court made the observation while dealing with an application under Order VII Rule 11 of CPC filed on behalf of defendant in the suit for rejection of the plaint on account of payment of deficient court fees.
4. S.227 CrPC | Judge Cannot Act As Mouthpiece Of Prosecution While Deciding Discharge Application, Must Consider Broad Probabilities Of Case: Delhi HC
Case Title: SMT. SHIPALI SHARMA v. State & Anr.
Citation: 2022 LiveLaw (Del) 809
The Delhi High Court has observed that a judge, in exercise of jurisdiction under Section 227 of CrPC, cannot merely act as the post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before it.
Justice Purushaindra Kumar Kaurav added that the Judge should not make a roving inquiry into the pros and cons of the matter or weigh the evidence as if he was conducting a trial.
Section 227 of the Code provides for discharge of an accused. It states that upon consideration of the record of the case, documents submitted and after hearing the submissions of the accused and the prosecution, if the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused.
5. Mere Possession Of Tehbazari Right Does Not Entitle Occupant To Usurp Govt Land, Raise 'Pucca' Construction: Delhi High Court
Case Title: VED PRAKASH MANCHANDA v. DELHI URBAN SHELTER IMPROVEMENTBOARD & ORS.
Citation: 2022 LiveLaw (Del) 810
The Delhi High Court has observed that mere possession of a Tehbazari right does not entitle the occupant to usurp the Government land or to raise 'pucca' construction over it.
Justice Gaurang Kanth was dealing with a plea filed by one Ved Prakash Manchanda seeking directions on the authorities to regularise his long and continuous occupation in his favour in respect of premises of a property in city's Madangir, by way of executing a Lease Deed or other document.
It was the petitioner's case that since 1990-91 he was enjoying this site as a Tehbazari site and the Respondents authorities used to collect License Fee, damages and penalty from time to time. The petitioner also claimed that electricity connection was sanctioned in his favour based on the 'No Objection Certificate' issued by the authorities.
6. Sanction For Prosecution U/S 197 CrPC Can Be Postponed To Later Stage Unless Acts Complained Of Intricately Connected To Official Function: Delhi HC
Case Title: SHRI B K PARCHURE v. STATE
Citation: 2022 LiveLaw (Del) 811
The Delhi High Court has observed that there is no legal bar to always postpone the requirement of sanction at a later stage of proceedings. If the acts complained of have a connection with the official duty, provision of Section 197 CrPC is attracted for obtaining sanction immediately at the time of taking cognizance.
Justice Purushaindra Kumar Kaurav observed:
"….there is no doubt that a question of sanction can arise at any stage of proceedings but the same gets attracted immediately at the time of taking cognizance, if the facts of the case or act of the accused, are so intricately connected to his official function that it cannot be segregated. There is no legal bar to always postpone the requirement of sanction at a later stage...If Section 197 of Cr.P.C. is construed too narrowly it can never be applied, to any of the acts committed by a public servant as no public servant can be allowed to commit an offence in the discharge of his official duty. The entire legislative intent would be frustrated."
7. Delhi High Court Sets Aside Arbitral Award Requiring ISRO's Commercial Arm 'Antrix' To Pay Over 560 Million USD To Devas Multimedia
Case Title: ANTRIX CORPORATION LTD. v. DEVAS MULTIMEDIA PRIVATE LIMITED
Citation: 2022 LiveLaw (Del) 812
The Delhi High Court has set aside a 2015 arbitral award directing Antrix Corporation Limited, commercial and marketing arm of ISRO, to pay US$ 562.2 million to Devas Multimedia Private Limited over wrongful repudiation of contract.
Justice Sanjeev Sachdeva held that the arbitral award dated September 14, 2015 suffered from patent illegalities and fraud and was also in conflict with the Public Policy of India.
The Court thus allowed the plea filed by Antrix under Section 34 of the Arbitration and Conciliation Act, 1996.
8. Transfer Orders In Armed Forces A Necessary Exigency Of Service, Can't Be Interfered With Unless Arbitrary/ Malafide: Delhi High Court
Case Title: SGT. NAVNEET KUMAR SINGH (977823-F) v. UNION OF INDIA & ORS.
Citation: 2022 LiveLaw (Del) 813
The Delhi High Court has observed that issuance of Posting Order resulting in transfer, especially for all those pertaining to Armed Forces, is a necessary exigency of service which should not be interfered by a Court as the Armed Forces are the best judges to exercise their own discretion.
"Posting Order resulting in transfer, which is in the absence of a violation of any statutory requirements, rules, regulations or like or which is unless vitiated by some sort of bias or malafide or vindictiveness further do not call for any interference from Courts," a division bench comprising of Justice Suresh Kumar Kait and Justice Saurabh Banerjee added.
9. No Bar On Trial Courts In Deciding Issues Having No Precedent, Previously Undecided By Any Superior Court: Delhi High Court
Case Title: OM PRAKASH v. THE DELHI PINJRAPOLE SOCIETY (REGO.)
Citation: 2022 LiveLaw (Del) 814
The Delhi High Court has observed that the Trial Courts are wholly competent to decide the questions of fact and law which may arise before them, many of which may be res integra and previously undecided by any superior court.
Justice C Hari Shankar added that the a Trial Court is well within its authority to decide all such issues and can even be the first judicial authority to take a view on a subject.
The Court also has stressed upon expeditious disposal of proceedings before the District Courts observing that the same has become a pressing necessity in today's day and age.
10. Not Mandatory To Grant Anticipatory Bail Merely Because Interim Protection Was Granted At Initial Stage Of Proceedings: Delhi High Court
Case Title: BHARTI SAHANI v. STATE (GOVT. OFNCT OF DELHI)
Citation: 2022 LiveLaw (Del) 815
The Delhi High Court has observed that mere enjoyment of the interim benefit granted by it does not, in any manner, lessen the allegations which need to be considered on merits.
Justice Anoop Kumar Mendiratta added that the Court is required to consider the nature of accusations, supporting evidence, reasonable apprehension of tampering with witnesses or apprehension of threat to complainants and prima facie satisfaction in support of charge.
11. Re-assessment Order Passed Without Considering Detailed Reply Of The Assessee: Delhi High Court
Case Title: Rithala Education Society Versus Union Of India
Citation: 2022 LiveLaw (Del) 816
The Delhi High Court held that the significance of issuing a show cause notice prior to issuing a re-assessment notice has been lost because the order under Section 148A(d) of the Income Tax Act was made without taking into account the detailed reply filed by the assessee.
The division bench of Justice Manmohan and Justice Manmeet Pritam Singh has observed that the department has not examined the petitioner's plea that the petitioner-society has included all the transactions carried out by the Citizen Model School in its books of accounts.
12. Delhi High Court Allows Deduction To PVR On Difference Between Market Price & Issue Price Of ESOP
Case Title: PVR Ltd. Versus Commissioner Of Income Tax
Citation: 2022 LiveLaw (Del) 817
The Delhi High Court has allowed the appeal of PVR Ltd. and allowed the deduction on the difference between the price at which stock options were offered to employees of the appellant company under ESOP and ESPS and the prevailing market price of the stock.
The division bench of Justice Manmohan and Justice Manmeet Pritam Singh Arora has relied on the decision of the Karnataka High Court in the case of Commissioner of Income Tax vs. Biocon Ltd. and has observed that an assessee is entitled to claim a deduction under Section 37(1) if the expenditure has been incurred. The expression "expenditure" will also include a loss, and therefore, the issuance of shares at a discount where the assessee absorbs the difference between the price at which they are issued and the market value of the shares would also be expenditure incurred for the purposes of Section 37(1).
13. "Not Seen Instigating The Crowd": Delhi High Court Grants Bail To Another Accused In Jahangirpuri Riots Case
Case Title: Babuddin v. State
Citation: 2022 LiveLaw (Del) 818
The Delhi High Court today granted bail to one Babuddin, an accused in relation to the clashes that broke out in April in city's Jahangirpuri area during a Hanuman Jayanti procession.
Noting that Babuddin was in custody since April 27, a single judge bench comprising of Justice Yogesh Khanna granted bail after observing that he was no more required for further investigation.
The Court also noted that chargesheet qua the accused has already been filed and that a co-accused was also recently granted bail in the FIR in question.
14. MOU Between Private Parties Cannot Be Specifically Enforced; Party Not Entitled To Interim Relief Under Section 9 Of A&C Act: Delhi High Court
Case Title: Royal Orchids versus Kulbir Singh Kohli & Anr.
Citation: 2022 LiveLaw (Del) 819
The Delhi High Court has ruled that a MOU which is in the nature of a commercial transaction between two private parties is by its very nature determinable and hence, the said MOU can be terminated even in the absence of any termination clause contained in it.
The Single Bench of Justice Mini Pushkarna held that since the MOU was not capable of specific performance due to the statutory bar contained in Section 14 (d) of the Specific Relief Act, 1963, the party was not entitled to any interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act).
15. Urgent Need To Prevent Depleting Green Cover: Delhi High Court Orders Parties To Deposit 25K Cost Towards Green Highways Fund
Case Title: ANIL KUMAR & ORS. v. THE STATE & ANR.
Citation: 2022 LiveLaw (Del) 820
The Delhi High Court has quashed a cheating FIR of 2017 following a settlement between the parties and imposed a cost of Rs. 25,000 on the accused persons as well as the complainant to be utilized for plantation of trees along the national highways.
Justice Swarana Kanta Sharma directed that the cost be deposited in the Green Highways Fund which is formed pursuant to a project for Greening (Plantation & Its Maintenance) of National Highways, launched by the Ministry of Road Transport & Highways.
16. Sanction Of Resolution Plan U/S 31 IBC Does Not Discharge Liability Of Guarantor Towards Loan Agreement: Delhi High Court
Case Title: SANJAY SARIN v. THE AUTHORISED OFFICER, CANARA BANK & ORS.
Citation: 2022 LiveLaw (Del) 821
The Delhi High Court has recently reiterated that where proceedings are initiated under the SARFAESI Act and the borrower is aggrieved by any of the actions of the bank for which it has remedy under the Act, no writ petition should be entertained.
Justice Sanjeev Narula further observed that the extent of liability of a personal guarantor would have to be determined in light of the agreement between the borrower, i.e., the corporate debtor and the personal guarantor, for which the appropriate forum would be the Debt Recovery Tribunal and not the High Court.
17. Indian Courts Can Direct 'Telegram' To Disclose Info Of Copyright Infringers Using Its Platform, Server Being In Singapore No Defence: Delhi HC
Case Title: NEETU SINGH & ANR. v. TELEGRAM FZ LLC & ORS.
Citation: 2022 LiveLaw (Del) 822
The Delhi High Court has observed that copyright infringers cannot be permitted to seek shelter under messaging platform Telegram's policies merely on the ground that its physical server is in Singapore.
Justice Pratibha M Singh added that Indian Courts would be perfectly justified in directing Telegram, which runs its massive operations in India, to adhere to Indian law and orders passed by them for disclosure of relevant information relating to infringers.
The bench further observed that the disclosure of personal data for the purpose of any proceedings, which would include proceedings related to infringement of copyright, would be a recognized exception to data privacy under Personal Data Protection Act, 2012 of Singapore.
18. Manufacturer Can't Claim Exclusivity Over Trade Mark When It Is Derived From Principal Ingredient Of Drug: Delhi HC Dismisses Sun Pharma's Appeal
Case Title: Sun Pharmaceuticals Ltd v. Hetero Healthcare Ltd. & Anr.
Citation: 2022 LiveLaw (Del) 823
The Delhi High Court recently rejected an appeal by Sun Pharma, claiming that Hetero Healthcare's drug used to treat advanced breast cancer had infringed its trademark.
A Division Bench of Justices Vibhu Bakhru and Amit Mahajan upheld the decision of the Commercial Court. It held that it was apparent that the mark adopted by Sun was nothing but the first six letters of the ingredient, 'Letrozole,' which is the international non-proprietary name (INN) of a salt.
The appellant, Sun Pharmaceutical Laboratories Ltd., challenged an order by the Commercial Court dismissing its application under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 and filed a suit, alleging infringement of its trademark 'LETROZ' and passing off and seeking a decree of permanent injunction restraining the respondent from using the brand 'LETERO,' in respect of the pharmaceutical product in question. It is claimed that since 2001 Sun has been using the trademark 'LETROZ' for a generic drug for second-line treatment of advanced breast cancer.
19. Refusal Of The Defendant To Amicably Settle The Dispute Satisfies The Requirement Of Pre-Litigation Mediation Under Commercial Courts Act: Delhi High Court
Case Title: BOLT Technology OU v. Ujoy Technology Pvt. Ltd.
Citation: 2022 LiveLaw (Del) 824
The High Court of Delhi has held that when the plaintiff makes an offer to the defendant to amicably settle the dispute and the defendant refuses the offer then in that circumstance, the requirement of pre-litigation meditation stands satisfied.
The Bench of Justice Prathiba M. Singh while reiterating that pre-litigation mediation as provided under Section 12-A of the CCA is a mandatory provision, held that the conduct of the defendant in refusing to amicably settle the dispute violates the spirit of Section 12A of CCA, therefore, he cannot turn around and object on the ground of non-compliance with the requirement.
The Court further reiterated that where the plaintiff is seeking an urgent relief, the requirement of pre-litigation mediation would not be a bar to the maintainability of the suit.
20. Demolition Action Cannot Be Taken Against Allegedly Unauthorised Property Unless Owner/ Resident Is Given Adequate Opportunity Of Hearing: Delhi HC
Case Title: MS HNUNPUII v. MUNICIPAL CORPORATION OF DELHI & ANR.
Citation: 2022 LiveLaw (Del) 825
The Delhi High Court has observed that a property cannot be demolished on the ground that it is unauthorized, unless the owner or resident is given an adequate opportunity of hearing.
Justice C Hari Shankar added that it is no answer to compliance with the principles of natural justice to contend that if an opportunity was granted, the persons affecting would not have had any defense to offer.
"To my mind, there can be no question of demolishing any property on the ground that it is unauthorized, until and unless the person owning the property and/or in possession of/residing in the property, are given an adequate opportunity of hearing and due principles of natural justice are complied with," the Court observed.
21. Urgent Interim Relief In IPR Cases Extremely Important To Protect Interest Of Parties As Well As Consumers: Delhi High Court
Case Title: BOLT TECHNOLOGY OU v. UJOY TECHNOLOGY PRIVATE LIMITED & ANR
Citation: 2022 LiveLaw (Del) 826
The Delhi High Court has observed that urgent interim relief including at ex-parte and ad-interim stage is extremely important in intellectual property rights cases as they not only involve interest of parties to the case but also the consumers of products and services in question.
Justice Pratibha M Singh further added that such reliefs are granted by Courts not merely for protection of statutory and common law rights, but also in order to avoid confusion, deception, unfair and fraudulent practices in the marketplace.
"Intellectual property cases relate to a wide gamut of businesses such as - medicines, FMCG, food products, financial services, technology, creative works such as books, films, music, etc. Recent trends also point towards large scale misuse on the internet. In some cases, due to misuse of known marks and brands, the consumers are being duped into parting with large sums of money. The rights of the parties are affected almost on a daily basis as there is continuous manufacturing, selling, and offering of services or goods to the customers," the Court added.
22. "Shows Depraved Evil Mentality": Delhi HC Upholds Gang-Rape & Murder Conviction, Modifies Sentence To Rigorous LI Without Remission
Case Title: SIKANDER SONI AND ANR v. STATE
Citation: 2022 LiveLaw (Del) 827
In connection with the gang rape and murder of a woman in 2012 whose body was found in semi-naked condition, the Delhi High Court today modified sentence of two convicts to rigorous imprisonment for life not less than 20 years without remission.
The Court also upheld the Trial Court's sentence of rigorous imprisonment for life for gang rape and rigorous imprisonment for a period of three years for the offence of causing disappearance of evidence and giving false information.
A young female's dead body (aged 24-26 years) was found lying in a semi naked condition, blood oozing out from the mouth, nose and ears of the body and injury marks all around the face. Upon arrest, the two accused had pointed out the place of incident near city's Nehru Stadium where they had gang raped the woman in a car.
On the basis of the disclosure of one of the convicts, the police team went to his village and recovered two small rings and a car. The TIP of the recovered case property was conducted where the husband of the deceased identified her purse and slippers and confirmed it during his testimony before the Trial Court.
23. Delhi High Court Imposes ₹20 Lakhs Cost On Chinese Online Seller For Infringing Vistara Airlines' Trademark By Sale Of Identical Baggage Tags
Case Title: TATA SIA AIRLINES LIMITED v. SHENZHEN COLOURSPLENDOUR GIFT CO LTD & ANR.
Citation: 2022 LiveLaw (Del) 828
The Delhi High Court has awarded Rs. 20 lakhs in favour of Vistara Airlines in its trademark infringement suit filed against a company selling identical keychains and baggage tags, in the same aubergine and gold colour combination, on a Chinese e-commerce platform AliExpress.
It was Vistara's case that despite the e-commerce platform being based mostly in China, the website contained several listings by the seller baggage tags and keychains bearing the 'VISTARA Marks' in the identical color combination without its authorisation which were also eligible for shipping to India.
24. CPC | Amendment To Class Action Consumer Complaint Can't Be Allowed Without Following Order 1 Rule 8(4): Delhi High Court
Case Title: Puri Constructions Ltd v. Shailesh Gupta & Ors.
Citation: 2022 LiveLaw (Del) 829
The Delhi High Court has recently held that in the case of a Class action Consumer Complaint, the amendments in the complaint cannot be allowed without following the mandate under Order 1 Rule 8(4) of CPC.
Allowing the petition against an order of the National Consumer Disputes Redressal Commission (NCDRC), Justice C. Hari Shankar observed:
"If at a later point of time, the complainant/complainants desires to abandon any part of the claim, Order I Rule 8(4) permits such abandonment provided, prior thereto, the Court issues notice, once again, to all persons so interested, i.e. all persons whose interest the original complaints purported to espouse, in the same manner as envisaged by Order I Rule 8 (2) i.e. either individually or, if that were not possible, by public advertisement."
25. Delhi High Court: Petition Under Article 227 Is Not Maintainable Against An Interim Order Passed By The Arbitrator If It Can Be Challenged U/S 34 Of The A&C Act
Title: SIDDHAST INTELLECTUAL PROPERTY INNOVATIONS PVT. LTD. v. CONTROLLER GENERAL OF PATENTS, DESIGNS AND TRADEMARKS AND AN
Citation: 2022 LiveLaw (Del) 830
In a domestic arbitration between Siddhast Intellectual Property Innovations Pvt. Ltd. (Siddhast) and Controller General of Patents, Designs & Trademarks, (CGPDT), while filing its Statement of Defence, CGPDT had also filed its Statement of Counter-claims against Respondent No. 1 - Siddhast along with an application under Order 1 Rule 10 CPC to implead a French company Questel SAS as Respondent No. 2 in its Counter-Claims only on the basis of a "Consortium Agreement" between Siddhast and Questel SAS though there was no written agreement between Questel SAS and CGPDT. Ld.
Sole Arbitrator allowed the application; hence, the petitioner filed the present petition under Article 227 of the Constitution of India which was dismissed for not being maintainable as the impugned interim order passed by the Arbitrator could be challenged u/s 34 of the A&C Act, 1996 after passing of the award.
26. Attempt By CIT To Exclude Genuine Disputes Under The VSV Act Is Extremely Hyper-Technical: Delhi High Court
Case Title: Kapri International Pvt. Ltd. Vs CIT
Citation: 2022 LiveLaw (Del) 831
The Delhi High Court has held that the attempt by the CIT to exclude genuine disputants of tax liability from the possibility of settlement under the Direct Tax Vivad Se Vishwas Act (VSV) is extremely hyper-technical.
The division bench of Justice Mukta Gupta and Justice Anish Dayal has observed that any proceeding challenging a decision by the department in respect of tax, interest, penalty, fee, etc. would come within the purview of a "dispute", which would enable a party to approach the department for a resolution under the VSV Act.
27. Registrar Should Consider 'Special Circumstances' U/S 12 Trade Marks Act Before Declining Applications For Registration: Delhi High Court
CASE TITLE: KEI INDUSTRIES LIMITED Vs. THE REGISTRAR OF TRADE MARKS
Citation: 2022 LiveLaw (Del) 832
The Delhi High Court has observed that the Registrar of Trademarks should consider 'special circumstances' mentioned under Section 12 of the Trade Marks Act, 1999 before rejecting the applications filed with it seeking registration of marks.
Section 12 permits registration of identical or similar trademarks in respect of the same or similar goods or services, by more than one proprietor, in case of "honest concurrent use" or in "other special circumstances" which in the opinion of the Registrar, make it proper so to do.
28. Article 22(5) | Detenu Signing In English Does Not Mean He Has Working Knowledge Of The Language Or Understands Preventive Detention Order: Delhi HC
Case Title: SHARAFAT SHEIKH @ MD. AYUB v. UNION OF INDIA & ANR.
Citation: 2022 LiveLaw (Del) 833
The Delhi High Court has held that simply putting signatures in English language does not "by any stretch of imagination" show that the detenue understands English language and as a consequence understood the grounds of detention and the documents relied upon.
A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar observed:
"…the mere signing of documents in English does not automatically translate to the detenue having a working knowledge of English so as to fulfill the mandate of Article 22(5)."
29. Article 30 | Minority Aided Institutions Free To Appoint Qualified Principal From Minority Community, Courts Can't Interfere: Delhi HC
Case Title: BIRPAL SINGH v. NUTAN MARATHI SENIOR SECONDARY SCHOOL & ORS
Citation: 2022 LiveLaw (Del) 834
The Delhi High Court today observed that once the management of a Minority Educational Institution makes a "conscious choice" of appointing a qualified person from the "Minority community" to lead the said institution either as a Vice Principal or Principal, then the Court cannot go into merits of such a choice or rationality or propriety of the process of choice.
Adding that the right under Article 30(1) of the Constitution of India is absolute in this regard, Justice Chandra Dhari Singh further observed:
"Every linguistic minority may have its own social, economic and cultural limitations. It has a constitutional right to conserve such culture and language. Thus, it would also have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being influenced by the fact of their religion and community and the same can be done by the process defined by the school management."
30. Delhi High Court Dismisses Ex-CFO's Plea Against PwC Ltd Seeking Action For Criminal Defamation
Case Title: SARVESH MATHUR v. STATE OF NCT DELHI & ORS.
Citation: 2022 LiveLaw (Del) 835
The Delhi High Court has observed that criminal liability cannot be fastened on the basis of a person holding a position in any company, with nothing more to specify the role played by such a person in the commission of a crime.
Justice Asha Menon made the observation while dismissing a plea filed by a former Chief Finance Officer (CFO) of M/s Pricewaterhousecoopers Private Limited, who had sued the company and its Chairperson for defamation, after he was labelled as a "disgruntled ex-employee" by a company Spokesperson in articles published in the Economic Times and Outlook Magazine in 2017-18.
31. Person Answering Interrogatories Has To Be Truthful, Giving False Answers Can Be Visited With Perjury: Delhi High Court
Case Title: RATTAN MEHTA & ANR. v. GAYATRI SHAH & ORS.
Citation: 2022 LiveLaw (Del) 836
The Delhi High Court has observed that it is incumbent upon a person answering the interrogatories to be truthful in the answers and if the person is eventually found to have given false answers, they can be visited with consequences like perjury, since the answer given in response to interrogatory can be used in evidence.
"Under Order 11, Rule 22 CPC, the answer given in response to an interrogatory can be used in evidence, and therefore, its correctness and veracity will be established only at trial," Justice Manoj Kumar Ohri observed.
32. Intention To Evade Tax Is Absent, Taxpayer Needs To Be Given Another Chance: Delhi High Court
Case Title: Nirmal Kumar Mahaveer Kumar Versus Commissioner of CGST
Citation: 2022 LiveLaw (Del) 837
The Delhi High Court has held that the petitioner/taxpayer needs to be given another chance to establish why the subject goods did not reach their designated designation before the expiry of the e-way bill.
The division bench of Justice Rajeev Shakdher and Justice Tara Vitasta Ganju has remanded the matter to the respondent to take a fresh decision on the matter, after giving the petitioner due opportunity to produce relevant material and evidence to establish its case.
33. Award Passed By A Unilaterally Appointed Arbitrator Is Non-Est, It Cannot Be A Bar To The Maintainability Of Petition Under Section 11 Of The A&C Act: Delhi High Court Reiterates
Case Title: Geeta Poddar v. Satya Developers Pvt. Ltd.
Citation: 2022 LiveLaw (Del) 838
The High Court of Delhi has held that an award passed by a unilaterally appointed arbitrator is non-est, therefore, it cannot be a bar to the maintainability of a petition under Section 11 of the A&C Ac.
The bench of Justice Sanjeev Narula held that passing of an award would not give sanctity to the non-est proceedings and the mere fact that the petitioner did not challenge the unilateral appointment under Section 14 of the Act cannot deprive it of the right to approach the court for appointment of independent arbitrator.
Gauhati High Court
Case Title: JAMIR AHMED CHOUDHURY VERSUS THE STATE OF ASSAM
Citation: 2022 LiveLaw (Gau) 58
The Gauhati High Court recently granted anticipatory bail to an Assam based professor, accused of promoting Islamic system of education and making derogatory remarks against State's Education Minister as well as the Chief Minister.
Jamir Ahmed Choudhary, working as an Associate Professor with SS College booked under Sections 166 (Public servant disobeying law), 153(A) (Promoting enmity between different groups on grounds of religion, etc.), 153(B) (Imputations, assertions prejudicial to national-integration), 120(B) (Criminal conspiracy) and 505 (Statements conducing to public mischief) of IPC.
2. Gauhati High Court Refuses To Stay Mobile Internet Restrictions During State Recruitment Exams
Case Title : RAJU PROSAD SARMA Vs. STATE OF ASSAM
Citation :2022 LiveLaw (Gau) 59
The Gauhati High Court rejected the prayer for interim orders in a plea challenging notification dated 18.08.2022 temporarily suspending mobile internet connectivity during State recruitment examination.
The impugned order was issued by the Principal Secretary to the Government of Assam, Home and Political Department, invoking the power conferred under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 read with Section 5(2) of the Indian Telegraph Act, 1885. It had mandated that, on 21.08.2022 and 28.08.2022, mobile internet services will remain suspended for 4 hours in 24 districts which had centres of written examination for filling up approximately 30,000 posts for Grade-III and Grade-IV services in different departments in the State. The measure was claimed to have been adopted to facilitate a free, fair and transparent conduct of the examination by curbing mobile phone-enabled cheating.
Case Title: ANIL SINGH and ANR VERSUS THE STATE OF ASSAM AND 4 ORS
Citation :2022 LiveLaw (Gau) 60
The Gauhati High Court was recently called upon to decide the issue with respect to distribution of gratuity amount among legal heirs of a deceased employee of Assam Power Distribution Company Limited, including his illegitimate children.
A single judge bench constituting of Justice Manish Choudhary directed the employer to decide the claims by adhering to the provisions contained in Section 4 of the Payment of Gratuity Act, 1972, Section 16 of the Hindu Marriage Act, 1955 and Section 8, Section 9 and Section 10 r/w Section 3 [1][f] of the Hindu Succession Act, 1956.
Gujarat High Court
Nominal Index
State Of Gujarat v/s Thakore Chamanji Motiji & 3 other(s) 2022 LiveLaw (Guj) 355
Patel Bhaveshkumar Chandrakantbhai V/S State Of Gujarat 2022 LiveLaw (Guj) 356
Dhansukhlal Rambhai Patel & 1 Other(S) V/S Dhansukhlal Nagindas Kapadia 2022 LiveLaw (Guj) 357
Jayrajsinh Madhubha Gadhvi v/s State Of Gujarat 2022 LiveLaw (Guj) 358
Rajesh Sukamaran Nambiar V/S The Central Bank Of India Through The Chief Manager 2022 LiveLaw (Guj) 359
Vimalaben Prabhunath Misra V/S Ketan Chandravadan Soni 2022 LiveLaw (Guj) 360
Bank Of Baroda V/S Harshadgiri Chanchalgiri Goswami 2022 LiveLaw (Guj) 361
Ramesh Babubhai Patel Versus State Of Gujarat 2022 LiveLaw (Guj) 362
Oriental Insurance Co. Ltd. V/s Meraman Dana Harijan & 6 other(s) 2022 LiveLaw (Guj) 363
Mohbatsinh Balusinh Zala V/S State Of Gujarat 2022 LiveLaw (Guj) 364
Brijeshkumar Dasharathlal Patel v/s Chairman & 31 others 2022 LiveLaw (Guj) 365
Dolly Surendra Pandey Versus State Of Gujarat 2022 LiveLaw (Guj) 366
Kul Hind Jamiat-Al Quresh Action Committee Gujarat Represented By Danish Qureshi And Mr Razaiwala Mohammed Hammad Hussain V/S Ahmedabad Municipal Corporation And State Of Gujarat 2022 LiveLaw (Guj) 367
JUDGMENTS/ORDERS OF THE WEEK
Case Title: State Of Gujarat v/s Thakore Chamanji Motiji & 3 other(s)
Citation: 2022 LiveLaw (Guj) 355
The Gujarat High Court has upheld an order acquitting four persons accused in a Murder case on the ground that there are several material contradictions in the versions presented by the main witnesses and the weapon recovered did not have blood stains to establish the commission of the offence.
A bench of Justices SH Vora and Rajendra Sareen further noted that all witnesses were related to each other and could not deemed as 'independent witnesses.' They had prior enmity with the Accused and were interested in getting them convicted. Thus, it was concluded:
"The evidence of all the main witnesses is contradictory to each other, which is rightly disbelieved by the learned Sessions Judge. As a result, the judgement delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgement."
Case Title: Patel Bhaveshkumar Chandrakantbhai V/S State Of Gujarat
Citation: 2022 LiveLaw (Guj) 356
The Gujarat High Court has held that commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain an accused.
The Bench comprising Justices SH Vora and Rajendra Sareen held:
"No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the the detaining authority has not applied its mind to the vital question whether it was necessary to make an order of preventive detention."
Case Title: Dhansukhlal Rambhai Patel & 1 Other(S) V/S Dhansukhlal Nagindas Kapadia
Citation: 2022 LiveLaw (Guj) 357
The Gujarat High Court has held that the relief of specific performance under Section 20 of the Specific Reliefs Act is no longer discretionary, with notification of the 2018 Amendment Act.
Whereas the unamended Section 20 stipulated that the specific relief "may" be granted at the discretion of the court, the amending Act substitutes Section 20 and renders the specific relief as regular statutory remedy.
Case Title: Jayrajsinh Madhubha Gadhvi v/s State Of Gujarat
Citation: 2022 LiveLaw (Guj) 358
The Gujarat High Court has clarified that offences under Sections 218 and 219 of the IPC which pertain to a public servant framing incorrect records for saving a person from punishment and making reports in a corrupt manner, cannot be invoked without initiation of inquiry or in absence of any evidence.
In the event that these provisions are wrongly invoked such that they would adversely affect and prejudice the career of the public servant, the High Court can expunge the relevant parts from the judicial order of the Magistrate.
Case Title: Rajesh Sukamaran Nambiar V/S The Central Bank Of India Through The Chief Manager
Citation: 2022 LiveLaw (Guj) 359
The Gujarat High Court, while declining to exercise its writ jurisdiction at the stage of issuance of notice under Section 13(2) of the SARFAESI Act, has held that adjudication of matter would have to wait till the stage of Section 13(4) was reached. Thereafter, the aggrieved person can file a securitisation appeal under Section 17 of the SARFAESI Act before the Debt Recovery Tribunal.
Section 13(2) of the Act refers to the issuance of notice to the borrower for discharging his liabilities within 60 days in case of default in payment of debt. While Section 13(4) pertains to declaring the accounts of the borrower as an NPA and thereafter, taking possession of secured assets and appointing a person to manage such assets.
Case Title: Vimalaben Prabhunath Misra V/S Ketan Chandravadan Soni
Citation: 2022 LiveLaw (Guj) 360
The Gujarat High Court refused to initiate contempt proceedings against a party to property dispute, said to have wilfully disobeyed court's status quo order by making an application for before the concerned Revenue Authority for mutation of the entry in the revenue record, on the basis of the registered Sale Deed.
The Bench comprising Justice Vipul Pancholi and Justice AP Thaker was of the view that such an application does not breach status quo with regard to the title and the encumbrance of the suit property, in any manner. It said,
"Opponent has neither got the Suit property transferred nor is there any encumbrance created...Just because the opponent made an application for entering her name in the revenue record, it cannot be said that there is willful and intentional disobedience of the order of this Court."
Case Title: Bank Of Baroda V/S Harshadgiri Chanchalgiri Goswami
Citation: 2022 LiveLaw (Guj) 361
The Gujarat High Court has affirmed that a 'permanent part-time' employee is entitled to grant of pension in terms of Dena Bank (Employees') Pension Regulations, 1995.
The Bench comprising Justice AJ Desai and Justice Mauna Bhatt thus upheld the single bench order directing grant of pension to a part-time cleaner, who had voluntarily retired from service.
Case Title: Ramesh Babubhai Patel Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 362
The Gujarat High Court has clarified in respect of Section 306 of IPC that a word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot amount to 'instigation.'
Therefore, if in the instant case, the Accused/Applicant had uttered 'you may do whatever you like and if you want to die, you may die', then it would not constitute instigation as u/s 306.
These observations were made in connection with a Section 482 application challenging the FIR against the Accused for offences u/s 306 and 114 of IPC.
Case Title: Oriental Insurance Co. Ltd. V/s Meraman Dana Harijan & 6 other(s)
Citation: 2022 LiveLaw (Guj) 363
The Gujarat High Court has held that liability cannot be fastened upon the insurance company under Section 147 of the Motor Vehicles Act, 1988 if the motor accident victim was travelling in a goods vehicle and such accident took place prior to the 1994 Amendment Act. Justice Hemant Pracchak explained:
"…the present appellant insurance company is exonerated from the liability fasten upon it as the deceased was travelling in goods vehicle and it is clearly breach of the policy and therefore, the insurance company is not held liable…Considering the ratio laid down by Hon'ble Apex Court and considering the fact that the date of accident is of 9.1.1994 i.e. prior to the date of amendment in Section 147 of the Motor Vehicles Act which has come into force in November 1994 and therefore, the present appeal deserves to be allowed."
Case Title: Mohbatsinh Balusinh Zala V/S State Of Gujarat
Citation: 2022 LiveLaw (Guj) 364
The Gujarat High Court has held that an order of 'premature retirement' become stigmatic if such order contains statements indicating misconduct or lack of integrity.
"Where orders have been passed which indicate blemish, disgrace, disrespute etc., and in that context if an order of termination or of compulsory retirement is seen, the same would amount to stigma by virtue of a statement made in the order."
B.Ed. Not "Bachelor Degree" Of Graduation: Gujarat High Court
Case Title: Brijeshkumar Dasharathlal Patel v/s Chairman & 31 others
Citation: 2022 LiveLaw (Guj) 365
The Gujarat High Court has held that a B.Ed. Degree, i.e., Bachelor of Education, is not a Bachelor Degree of graduation since the said course, like 3-yrs-LLB course, can be perused only after one has graduated in any of the branches of arts or science.
In the same breath, the Court held that persons possessing a B.Ed. degree are over-qualified for positions having minimum prescribed qualification of Graduation and thus, rejection of their candidature for having more qualifications cannot be held to be bad in law.
Case Title: Dolly Surendra Pandey Versus State Of Gujarat
Citation: 2022 LiveLaw (Guj) 366
The Gujarat High Court has recently granted bail to a 70 years old woman, having a two month old infant, for commission of offences u/s 406, 420, 114, 467, 471 and 120-B of IPC and Sections 66(C), 66(D) of the Information Technology Act and Sections 14, 14(A)(b) of the Foreigners Act.
The primary allegations against the Applicant as per the FIR and the charge sheet was that she had introduced herself as a Customs Officer and had asked the Complainant to deposit INR 3.87 lacs in the bank account of another person, so as to aid the main accused. Thereafter, the Applicant had withdrawn the said amount and handed it over to the main accused. In lieu, she received INR 50,000. The APP opposed grant of bail basis the gravity of the offence.
Case title - Kul Hind Jamiat-Al Quresh Action Committee Gujarat Represented By Danish Qureshi And Mr Razaiwala Mohammed Hammad Hussain V/S Ahmedabad Municipal Corporation And State Of Gujarat
Case Citation: 2022 LiveLaw (Guj) 367
The Gujarat High Court dismissed a plea challenging the decision of the Ahmedabad Municipal Corporation (AMC) to close down its sole slaughterhouse in the city on the occasion of a Jain festival.
The bench of Justice Sandeep Bhatt observed that the order of the AMC was applicable only for two days and that it was a reasonable restriction and did not violate the fundamental rights of the citizens under Articles 14, 19(1)(g) and 21 of the Constitution and therefore, the matter being meritless, was liable to be dismissed.
Other updates of the Week
Case Title: Nirbhaysinh Vijaysinh Raulji V/S State Of Gujarat
The Gujarat High Court, while admitting that Courts must exercise restraint in matters involving correctness of answer keys, has concluded that in the event of ambiguity in questions/ multiple correct answers in a time-bound examination, the Court can interfere and provide relief.
"These petitioners apparently prima-facie appear to be the victims of framing of questions which appeared to be ambiguous or confusing. In the case of Kanpur University through Vice Chancellor and others v. Samir Gupta and others 1983 4 SCC 309, which has been followed by the decisions while warning of judicial restraint, the Court has recommended that there must be a system of avoiding ambiguity in questions. This is one case where the two questions appear to be ambiguous," the Bench comprising Justice Biren Vaishnav observed.
Himachal Pradesh High Court
Case Title : SH. SUBHASH CHAND v LAND ACQUISITION COLLECTOR & Ors.
Citation : 2022 LiveLaw (HP) 27The Himachal Pradesh High Court recently stated that the Reference Court under Land Acquisition Act holds an independent inquiry so as to arrive at a just compensation payable to the person seeking enhancement before it.
Justice Satyen Vaidya observed:
"The Reference Court does not sit as a Court of appeal over the award passed by the Land Acquisition Collector. In Ashok Kumar and another vs. State of Haryana (2016) 4 SCC 544, it has been held by the Hon'ble Supreme Court that it is the duty of the Court to award just and fair compensation taking into consideration the true market value and other relevant factors, irrespective of the claim made by the land owner and there is no cap on maximum rate of compensation that can be awarded by the Court and the Courts are not restricted to awarding only that amount as has been claimed by the land owners/applicants in their application before it."
Case Title : SHRI KANTU RAM v SHRI BEER SINGH
Citation : 2022 LiveLaw (HP) 28
The Himachal Pradesh High Court recently observed that a Court, while exercising powers under Section 147 of the Negotiable Instruments Act, can proceed to compound the offences even after recording of conviction by the courts below.
The observation came from Justice Sandeep Sharma in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court, had agreed to pay the amount due and settle the matter.
Jammu & Kashmir High Court
Rishi Sharma Director Haustus Biotech Vs Drug Inspector 2022 LiveLaw (JKL) 122
Union of India Vs M/S D. Khosla Co & Ors 2022 LiveLaw (JKL) 123
National Highway Authority of India Vs Ali Mohammad Dar & 2022 LiveLaw (JKL) 124
Waqar Ahmad Dar Vs UT of J&K 2022 LiveLaw (JKL) 125
M/S JK Stationers Vs State of J&K 2022 LiveLaw (JKL) 126
Farooq Ahmad Bhat Vs Syed Basharat Saleem 2022 LiveLaw (JKL) 127
Altaf Ahmad Zargar Vs Mst Sana & Ors 2022 LiveLaw (JKL) 128
New India Assurance Co Vs Mehra Begum 2022 LiveLaw (JKL) 129
Muzamil Ahmad Dar V/s High Court of J&K & Ors 2022 LiveLaw (JKL) 130
Bashir Ahmad Wani v J&K Grameen Bank and Another 2022 LiveLaw (JKL) 131
Aijaz Ahmad Sofi v. UT of J&K 2022 LiveLaw (JKL) 132
Liaqat Ali Vs UT of J&K 2022 LiveLaw (JKL) 133
Mst Hameeda Vs State of J&K 2022 LiveLaw (JKL) 134
Naseer Ahmad Sheikh Vs Mohammad Sultan Bhat 2022 LiveLaw (JKL) 135
Mushtaq Ahmad Peer v/s State of J&K 2022 LiveLaw (JKL) 136
Judgements/Orders :
Case Title :Rishi Sharma Director Haustus Biotech Vs Drug Inspector
Citation : 2022 LiveLaw (JKL) 122
The Jammu and Kashmir and Ladakh High Court held that under the section 32-A of Drugs and Cosmetics Act 1940 it is only after trial has commenced and the evidence has been led, power to implead manufacturer or any other person who appears to be involved in the offence can be exercised and prior to that, no such power can be exercised.
"One of the differences between Section 319 of the Code and Section 20-A of the Act is that, while in the former even if it appears to the court from the evidence (either during inquiry or trial of the offence), that another person is to be tried along with the already arraigned accused, then the court can proceed against that other person, while in the latter the satisfaction of the court that such manufacturer (distributor or dealer) is also concerned with that offence must be gathered from "the evidence adduced before it during the trial". In other words, the power under Section 20-A cannot be invoked until the trial begins and after the trial ends." Justice Sanjay Dhar observed.
Arbitrator Is A Creature Of Contract & Hence Cannot Supercede It By Any Means : J&K&L High Court
Case Title :Union of India Vs M/S D. Khosla Co & Ors.
Citation : 2022 LiveLaw (JKL) 123
The Jammu and Kashmir and Ladakh High Court ruled that an arbitrator is creature of the contract between the parties and, therefore, if he ignores the specific terms of the contract, it would be a question of jurisdictional error, which could be corrected by the Court under Section 30 of J&K Arbitration Act, 2002 and for that limited purpose the agreement is required to be looked into.
"The award can be interfered with by the Court, if it is found that the arbitrator has travelled beyond his jurisdiction and has awarded claims which would be beyond the scope of submission. The award will also be bad, if the arbitrator, who himself is a creature of the contract agreement travels beyond the terms and conditions of the contract and awards claims on the excepted items. Such award would be invalid and can very well be interfered with by the Court", Justice Sanjeev Kumar observed.
Case Title :National Highway Authority of India Vs Ali Mohammad Dar & Ors.
Citation : 2022 LiveLaw (JKL) 124
The Jammu and Kashmir and Ladakh High Court recently ruled that in the event of enhancement of compensation for land acquisition by the reference court, if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court only after obtaining leave of the court as prescribed u/s 50(2) of the Land Acquisition Act.
Case Title : Waqar Ahmad Dar Vs UT of J&K
Citation : 2022 LiveLaw (JKL) 125
The Jammu and Kashmir and Ladakh High Court ruled that the expression "possession" used in the provisions contained in Section 20 and 22 of the NDPS Act clearly specify that the standard of conscious possession would be different in case of public transport as opposed to a private vehicle with few persons known to one another.
"The term "conscious possession" is not capable of precise and complete logical definition of universal application in the context of all the statute and the knowledge of possession of contraband has to be ascertained from the fact and circumstances of the case", Justice Sanjay Dhar observed.
Case Title :M/S JK Stationers Vs State of J&K
Citation : 2022 LiveLaw (JKL) 126
The Jammu and Kashmir and Ladakh High Court ruled that only the material collected by the court during the course of inquiry or trial and not the material collected by the investigating agency during the investigation of the case can be used, while arraigning an additional accused under Section 319 CrPC.
Of course, the evidence would also include the evidence led during the trial of the case after framing of charges. The Supreme Court has, while answering the aforequoted question framed by it, laid down that besides the evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 of the Cr. P. C", Justice Sanjay Dhar recorded.
Case Title :Farooq Ahmad Bhat Vs Syed Basharat Saleem
Citation : 2022 LiveLaw (JKL) 127
The Jammu and Kashmir and Ladakh High Court ruled that before prosecuting medical professionals for the offence of criminal negligence, a Criminal Court should obtain opinion of the medical expert and if from such opinion, a prima facie case of criminal negligence is made out against a medical professional, only then the machinery of criminal law should be set into motion.
Case Title :Altaf Ahmad Zargar Vs Mst Sana & Ors
Citation : 2022 LiveLaw (JKL) 128
The Jammu and Kashmir and Ladakh High Court ruled that the proceedings under Section 12 of the Domestic Violence Act cannot be equated with lodging of a criminal complaint or initiation of prosecution and therefore a Magistrate, after obtaining the response from the husband and his relatives etc. is well within his jurisdiction to revoke his order of issuing summons to them or he can even drop the proceedings.
Case Title :New India Assurance Co Vs Mehra Begum
Citation : 2022 LiveLaw (JKL) 129
The Jammu and Kashmir and Ladakh High Court ruled that In a claim with regard to death or disability of a person travelling by a goods vehicle /goods carriage, as gratuitous or non-gratuitous does not, by the application of statutory provisions of Motor Vehicles Act, fasten the liability on the insurer, except an owner of the load /goods travelling in the vehicle having such load /goods.
Case Title : Muzamil Ahmad Dar V/s High Court of J&K & Ors.
Citation : 2022 LiveLaw (JKL) 130
The Jammu and Kashmir and Ladakh High Court observed that unless a recruitment advertisement specifically mentions that the experience gained in a skill/ trade should be after the candidate has obtained a Diploma in that course, the prior experience can be considered for the purpose of selection and appointment.
Case Title :Bashir Ahmad Wani v J&K Grameen Bank and Another
Citation : 2022 LiveLaw (JKL) 131
The Jammu and Kashmir and Ladakh High Court observed that an employee who is removed from service for misconduct is not at par with those who retire on superannuation.
Case Title :Aijaz Ahmad Sofi v. UT of J&K
Citation : 2022 LiveLaw (JKL) 132
The Jammu and Kashmir and Ladakh High Court observed that non-consideration by the detaining authority, a detenu's representation against an order for his preventive detention, violates such detenu's rights under Article 22 of the Constitution.
"I am of the considered view that the impugned order of detention does not sustain in the eye of law, in that, the representation made on his behalf by his mother has not been considered by the respondents. Right of the detenue to make a representation and to have the same considered by the competent authority is a fundamental right guaranteed to a person under detention under Article 22 of the Constitution and the infraction of such a right renders the detention illegal and unconstitutional." the court recorded.
Case Title :Liaqat Ali Vs UT of J&K.
Citation : 2022 LiveLaw (JKL) 133
The bench of Justice Rajnesh Oswal and Justice Mohan Lal observed that in rape cases, the victim loses her face, and her value as a person. The Court further emphasized that in our conservative society, a woman and more so a young unmarried woman will not put her reputation in peril by falsely alleging forcible sexual assault.
Case Title : Mst Hameeda Vs State of J&K.
Citation : 2022 LiveLaw (JKL) 134
The Jammu and Kashmir and Ladakh High Court made it clear that a person exercising his or her rights that are ordained by the law cannot be said to have deterred the official duty of a public servant, who under a mistaken belief, tried to stop such exercise of rights.
Justice Sanjay Dhar observed:
"It can never be the duty of a public official to prevent a person from exercising his/her right which is sanctioned by law.
NI Act | Joint Petition In Respect Of Different Causes Of Action Not Maintainable: J&K&L High Court
Case Title : Naseer Ahmad Sheikh Vs Mohammad Sultan Bhat.
Citation : 2022 LiveLaw (JKL) 135
The Jammu and Kashmir and Ladakh High Court observed that a joint petition in respect of different causes of action is not maintainable.
"The instant petition is not otherwise maintainable as through the medium of instant petition, the petitioner has challenged as many as four complaints and four separate orders directing issuance of process against him by the trial court. A joint petition in respect of different causes of action is not maintainable. On this ground also, the petition deserves to be dismissed." Justice Sanjay Dhar observed.
Case Title :Mushtaq Ahmad Peer v/s State of J&K
Citation : 2022 LiveLaw (JKL) 136
The Jammu and Kashmir High Court made it clear an appeal against conviction by Sessions Court would lie before a Division Bench of the High Court, where the sentence of imprisonment awarded exceeds 10 years. However, the appeal would be heard and decided by a Single Judge, if the sentence is less than 10 years.
Jharkhand High Court
Case Title: Bluestar Malleable Pvt. Ltd. Versus The State of Jharkhand
Citation :2022 LiveLaw (Jha) 82
The Jharkhand High Court has held that if any assessee disputes the liability of interest under Section 50 of the CGST Act, then the department has to follow the specific procedure as stipulated under Section 73 or 74 of the CGST Act.
The division bench of Justice Aparesh Kumar Singh and Justice Deepak Roshan has observed that the department failed to follow the procedure as enshrined in Section 73 or 74 of the JGST Act.
Case Title : Hari Shankar Agarwal v State of Jharkhand
Citation :2022 LiveLaw (Jha) 83
The Jharkhand High Court has made it clear that non-compliance with statutory requirements with respect to prescribing limit for storage of goods, cannot attract criminal liability.
The observation was made while quashing multiple FIRs registered under Section 7 of the Essential Commodities Act against the Petitioners, over storing pulses in excess of the limit prescribed under Clause 18 of the Bihar Trade Articles (Licences Unification) Order, 1984.
Case Title: M/s. Om Prakash Store Versus The State of Jharkhand
Citation :2022 LiveLaw (Jha) 84
The Jharkhand High Court has quashed the adjudication order and held that the notice issued under notice under Section 73 of the CGST Act, in the column of date, time and venue of personal hearing, was indicated by the respondents as "NA", which means not applicable.
Karnataka High Court
Nominal Index:
ROSHAN KUMAR MISHRA v. THE STATE OF KARNATAKA. 2022 LiveLaw (kar) 340
MURTHY v. THE STATE OF KARNATAKA. 2022 LiveLaw (Kar) 341
HARSHAVARDHANA RAO K v. UNION OF INDIA. 2022 LiveLaw (Kar) 342
THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD V TAHASEENTAJ W/O SHAMIULLA @ GULLAB, & Others. 2022 LiveLaw (Kar) 343
MAHANTESH KOUJALAGI v STATE OF KARNATAKA. 2022 LiveLaw (Kar) 344
The State of Karnataka v. S.B. Shivashankar. 2022 LiveLaw (Kar) 345
S.C. MAHESH v. THE STATE OF KARNATAKA. 2022 LiveLaw (Kar) 346
M.PRAKASH v. THE SUPERINTENDENT OF POLICE. 2022 LiveLaw (Kar) 347
Judgment/Orders.
Case Title: ROSHAN KUMAR MISHRA v. THE STATE OF KARNATAKA
Case No: CRIMINAL PETITION NO.6611 OF 2022
Citation: 2022 LiveLaw (kar) 340
The Karnataka High Court has granted bail to a man accused of possessing Bhang, holding that Bhang is not covered under the Narcotics Drugs and Psychotropic Substances Act (NDPS).
Case Title: MURTHY v. THE STATE OF KARNATAKA
Case No: WRIT PETITION NO. 14860 OF 2022
Citation: 2022 LiveLaw (Kar) 341
The Karnataka High Court has directed the State government to ensure that if transfers are made after the period of general transfers, no request for transfers should be entertained or orders made unless there is a vacant place.
Case Title: HARSHAVARDHANA RAO K v. UNION OF INDIA
Case No: WRIT PETITION No.12185 OF 2022
Citation: 2022 LiveLaw (Kar) 342
The Karnataka High Court has held that no notice ought to be issued to the subject of the Look out circular prior to its issuance. A single judge bench of Justice M Nagaprasanna however added, "Right to travel being curtailed against the subject of the LOC, he would at least become entitled to a copy of the LOC, not at any time prior to his being stopped from travelling abroad, but only at the time when he is stopped from travelling out the shores of this nation."
Case title: THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD V TAHASEENTAJ W/O SHAMIULLA @ GULLAB, & Others
Case No: M.F.A.No.23205/2011 c/w M.F.A.No.23206/2011
Citation: 2022 LiveLaw (Kar) 343
The Karnataka High Court has reiterated that the insurer is very much liable to pay compensation in respect of a spare driver under Section 147 of Motor Vehicles Act, if there is only one claim under the policy.
Case Title: MAHANTESH KOUJALAGI v STATE OF KARNATAKA
Case No: CRIMINAL PETITION No.5528/2022
Citation: 2022 LiveLaw (Kar) 344
The Karnataka High Court has said that offence under Section 127-A of the Representation of People Act (Restrictions on the printing of pamphlets, posters, etc) is a non-cognizable offence and hence, permission for police investigation must be granted by Magistrate in terms of Section 155 of CrPC.
Case Title: The State of Karnataka v. S.B. Shivashankar
Case No: CRIMINAL REVISION PETITION NO.775 OF 2018
Citation: 2022 LiveLaw (Kar) 345
The Karnataka High Court has upheld a trial court order imposing a sentence less than the minimum punishment prescribed under Section 27(d) of the Drugs and Cosmetics Act, 1940, noting that the accused had entered into a plea bargain under Section 265-B of CrPC and had accepted his guilt.
Case Title: S.C. MAHESH v. THE STATE OF KARNATAKA
Case No: WRIT PETITION NO.16625 OF 2022
Citation: 2022 LiveLaw (Kar) 346
The Karnataka High Court has observed that Article 350 of the Constitution of India mandates that where a citizen raises a grievance before jurisdictional authorities, it cannot be kept unconsidered indefinitely.
Case Title: M.PRAKASH v. THE SUPERINTENDENT OF POLICE
Case No: WRIT PETITION NO.15624 OF 2022
Citation: 2022 LiveLaw (Kar) 347
The Karnataka High Court has said that issuance of multiple notices by the investigating agency to a person while carrying out preliminary enquiry into a case cannot be a ground for faltering the enquiry.
Other reports
Case Title: TWITTER, INC v. UNION OF INDIA
Case No: WP 13710/2022
The Central government has opposed the petition filed by US-based microblogging platform Twitter questioning several 'take down' orders issued by the Ministry of Electronic & IT, to pull down content including accounts regarding farmers' protest, alleged mismanagement of Covid-19.
Case no: WP 103290 of 2022.
The Karnataka High Court on Tuesday night refused to stay the permission granted by the Dharwad Municipal Commissioner to certain Hindu organizations for performing Ganesh Chaturthi rituals at Idgah ground at Hubbali-Dharwad.
Kerala High Court
Nominal Index [Citation 2022 LiveLaw (Ker) 456-472]
Rubber Wood India Pvt Ltd & Ors v. Manojkumar P.S. & Ors. and Rubber Board v. Manojkumar P.S. & Ors. 2022 LiveLaw (Ker) 456
James Robert Edward Peirce & Ors. v. Anna Mathew & Ors. 2022 LiveLaw(Ker) 457
Usha Rajan v. Tripunithura Municipality & Ors. and S. Umesh Shenoy v. Tripunithura Municipality & Ors. 2022 LiveLaw(Ker) 458
Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors. 2022 LiveLaw (Ker) 459
Fathima Thazkiya O v. National Medical Commission and Connected Cases 2022 LiveLaw(Ker)460
Dr. C.S. Rajan v. The Registrar, Sree Sankaracharya University of Sanskrit & Ors. 2022 LiveLaw (Ker) 461
State Tax Officer & Anr Vs. Baiju A.A 2022 LiveLaw(Ker) 462
xxxx v. xxxx 2022 LiveLaw (Ker) 463
S. Krishnakumar v. State of Kerala 2022 LiveLaw(Ker) 464
Sudheer Ram S. & Ors. v. KSRTC & Ors. 2022 LiveLaw (Ker) 465
Howe Engineering Projects (I) Pvt. Ltd. & Ors. v. State of Kerala & Ors. and M/S Adani Vizhinjam Port Pvt Ltd & Ors v. State of Kerala & Ors. 2022 LiveLaw Ker 466
Jahir Hussain v. State of Kerala & Anr. 2022 LiveLaw(Ker) 467
Manager, Malankara Syrian Catholic Colleges & Ors v. Dr Reshmi P.R. & Ors and other connected cases 2022 LiveLaw (Ker) 468
A. Krishnan v. The Kerala State Co-operative Marking Federation Ltd 2022 LiveLaw(Ker) 469
Shaju@Shaju v. State of Kerala & Anr. 2022 LiveLaw (Ker) 470
General Convenor, Kerala State School Kalolsavam, 2017-2018 & Anr v. Arundhathi Krishna J. & Anr., and connected cases 2022 LiveLaw (Ker) 471
K. M Basheer v. Rajani K.T & Ors and Connected cases 2022 LiveLaw(Ker) 472
Judgments/Orders This Week
Case Title: Rubber Wood India Pvt Ltd & Ors v. Manojkumar P.S. & Ors. and Rubber Board v. Manojkumar P.S. & Ors.
Citation: 2022 LiveLaw (Ker) 456
The Kerala High Court has made it clear that the shareholder of a company cannot be made an independent party in a dispute between the company and its workmen.
The observation was made in connection with a dispute between Rubber Wood India Pvt Ltd and its workmen, whereby the Rubber Board, being a shareholder of the company, was arrayed as a party Respondent by the workmen.
The Court held that the company, established under Central legislation namely Rubber Act, 1947, is an instrumentality of the Central Government, and accordingly the dispute falls under Section 10(2A)(1)(d) of the Industrial Disputes Act, 1947. It added that since the Rubber Board was only a shareholder in the said company, it could not be impleaded as a party in adjudication of a dispute between the workmen and their employers in relation to management of the Company.
Justice Amit Rawal, while disposing the two writ petitions that were filed on common questions of fact and law, further observed that where an Interim Resolution Professional has been appointed, if proceedings before the Tribunal were not midway, the workmen could file their claims before the former who then, ought to adjudicate their claims strictly as per the Regulations.
Case Title: James Robert Edward Peirce & Ors. v. Anna Mathew & Ors.
Citation: 2022 LiveLaw(Ker) 457
The Kerala High Court recently held that an application with respect to the guardianship of a minor has to be made to the District Court having jurisdiction in the place where the "minor ordinarily resides".
A Division Bench consisting of Justice A Muhamed Mustaque and Justice Sophy Thomas observed that citizenship or domicile of the father of a child, or the fact that rightly or wrongly the child had acquired a foreign passport, will have no bearing in determining the jurisdiction.
Case Title: Usha Rajan v. Tripunithura Municipality & Ors. and S. Umesh Shenoy v. Tripunithura Municipality & Ors.
Citation: 2022 LiveLaw(Ker) 458
The Kerala High Court recently, while disposing of two Writ Petitions, held that an Occupancy Certificate cannot be denied on the ground that the land where the building is constructed is a paddy land or wetland in respect of a building which was constructed as per a valid building permit issued prior to the coming into force of the amended provisions of the Kerala Conservation of Paddy Land and Wetland 2008 Act (30.12.2017).
Justice N. Nagaresh observed that when an application for an Occupancy Certificate in respect of a building which was constructed as per a valid building permit issued prior to 30.12.2017 is made, the Authorities cannot take umbrage under Section 14 to deny an Occupancy Certificate to the building on the ground that the land where the construction was made is a paddy land or wetland.
Case Title: Pathanapuram Taluk Samajam & Ors. v. K.K. Surendran & Ors.
Citation: 2022 LiveLaw (Ker) 459
Recently, the Kerala High Court expressed its doubt as to the validity of an earlier Single Judge decision in Sree Gurudeva Charitable and Educational Trust, Kayamkulam & Others v. K. Gopalakrishnan & Others, which had held that it was only the Principal District Judge which had the jurisdiction to grant leave for institution of a suit under Section 92 of the Code of Civil Procedure (CPC).
On noting that the above decision does not lay down the correct position of law, Justice C.S. Dias was of the considered view that the question regarding whether the Court of the Subordinate Judge is competent to grant leave to institute a suit and, thereafter, to try and dispose of the suit under Section 92 of the Code of Civil Procedure 1908, was to be decided by a Bench of two or more Judges, and thus, directed the Registry to place the same before the Chief Justice who may take the appropriate decision in this regard if deemed necessary.
Case Title: Fathima Thazkiya O v. National Medical Commission and Connected Cases
Citation:2022 LiveLaw(Ker)460
The Kerala High Court recently held that the direction issued by the National Medical Commission(NMC) that the fee in 50% of seats in Private Medical Colleges and Deemed Universities should be at par with the fees in Government medical colleges will not apply in the State of Kerala.
The Court held so taking note of the fact that there is no concept of "Government Quota" or "Management Quota" in private medical colleges in Kerala and that the fees of private medical colleges are fixed by a statutory body, Admission and Fee Regulatory Committee(AFRC).
Experience Cannot Substitute Duration Of Service Required By UGC Norms: Kerala High Court
Case Title: Dr. C.S. Rajan v. The Registrar, Sree Sankaracharya University of Sanskrit & Ors.
Citation: 2022 LiveLaw (Ker) 461
The Kerala High Court on Tuesday observed that when the UGC norms mandate 8 years of continuous service in the post of 'Reader' in order to be eligible for promotion as 'Professor', then the experience gained by a person in a post which had been gained by him pursuant to an appointment which had hitherto been declared as 'illegal' by the Court would not be sufficient to act as substitute in order to make the person eligible.
The Division Bench comprising of Justice P.B. Suresh Kumar and Justice Mary Joseph, in the review petition before it, observed that when there are norms stipulating the qualifications which have been laid down by the UGC and which are unambiguous, the Court could not substitute the same with its own interpretation to benefit a person.
No Legislative Competence To Amend KVAT Act After Introduction Of GST Act: Kerala High Court
Case Title: State Tax Officer & Anr Vs. Baiju A.A
Citation: 2022 LiveLaw(Ker) 462
The Kerala High Court has held that legislative competence to amend the Kerala Value Added Tax (KVAT) Act after the introduction of the GST Act is impermissible.
The division bench of S.V.Bhatti and Justice Basant Balaji has observed that the amendment made by the Finance Act of 2018 to the provisions of the erstwhile KVAT Act to enable the department to initiate assessment proceedings in respect of assessments pending as of March 31, 2018 was illegal because the KVAT Act has already been repealed.
Youngsters Avoiding Marriage To "Enjoy Free Life", Live-In Relationships On Rise : Kerala High Court
Case Title: xxxx v. xxxx
Citation: 2022 LiveLaw (Ker) 463
In a recent judgment, the Kerala High Court expressed concerns that the consumerist culture of 'use and throw' has affected matrimonial relationships. The Court lamented that the younger generation is seeing marraige as an "evil", which has to be avoided to "enjoy free life" and that live-in relationships are on the rise.
Remarking upon the sanctity that the institution of marriage has been attributed with, the Division Bench composed of Justice A. Muhammed Mustaque and Justice Sophy Thomas, observed as follows
"Kerala, known as God's own Country, was once famous for its well knit family bondage. But the present trend it seems to break the nuptial tie on flimsy or selfish reasons, or for extra-marital relationships, even unmindful of their children. The wails and screams coming out of disturbed and destroyed families are liable to shake the conscience of the society as a whole. When warring couples, deserted children and desperate divorcees occupy the majority of our population, no doubt it will adversely affect the tranquility of our social life, and our society will have a stunted growth".
Case Title: S. Krishnakumar v. State of Kerala
Citation: 2022 LiveLaw(Ker) 464
The Kerala High Court on Thursday dismissed the plea moved by the Principal District and Sessions Judge, Kozhikode, challenging his transfer order to the post of Presiding Officer, Labour Court, Kollam. The transfer was made after the judge made the controversial "sexually provocative dress" remark in the order granting bail to Civic Chandran in a sexual harasssment case.
The bench of Justice Anu Sivaraman observed that the petitioner, who is a member of higher judicial service, cannot be said to be prejudiced in any manner for his posting as Presiding Officer of Labour Court, which is a post born from the cadre of District Judge.
Case Title: Sudheer Ram S. & Ors. v. KSRTC & Ors.
Citation: 2022 LiveLaw (Ker) 465
The Kerala High Court recently observed that where there is an anomaly between the pay scale drawn by a senior and a junior in service, particularly when both had been promoted to the same post, albeit from different levels, the competent authority would have to engage its mind as to the circumstances up to the same.
Justice Devan Ramachandran made the observation while dealing with a case in which KSRTC employees who had been promoted to the post of Superintendent from that of Upper Division Clerk (Selection Grade) were drawing less salary when compared to another employee who had been promoted to the same post from the post of Special Assistant/Senior Assistant.
Case Title: Howe Engineering Projects (I) Pvt. Ltd. & 3 Ors. v. State of Kerala & 27 Ors. and M/S Adani Vizhinjam Port Pvt Ltd & 2 Ors v. State of Kerala & 27 Ors.
Citation: 2022 LiveLaw Ker 466
The Kerala High Court on Thursday allowed the petition for police protection to the employees and workmen of M/S Adani Vizhinjam Port Pvt Ltd., and its contracting company, Howe Engineering Construction, and also for free ingress and egress to the construction site.
Justice Anu Sivaraman while allowing the petition, observed that there is
"no doubt in my mind that the right to agitate or protest against any matter including the apathy or neglect of the Government cannot confer any right either on respondents 11 to 25 or any of the protesters to contend that they have a right to obstruct the activities which have due permissions or to trespass into the project site and cause damage to public property".
Case Title: Jahir Hussain v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 467
The Kerala High Court recently, while acquitting a murder convict and reversing the order of the trial court, highlighted the need for a speedy trial and proper assistance to prisoners for filing appeals to avoid the long periods of incarceration.
Division Bench consisting of Justice K. Vinod Chandran and Justice C Jayachandran, pointing out the distressing aspect of the continued incarceration of under-trial prisoners and the delay occasioned in conducting trials, opined that High Court could issue directions to Trial Courts to take up matter based on the date of incarceration of convicts.
Case Title: Manager, Malankara Syrian Catholic Colleges & Ors v. Dr Reshmi P.R. & Ors and other connected cases
Citation: 2022 LiveLaw (Ker) 468
The Kerala High Court recently observed that where reasonable likelihood of 'bias' in a selection process is alleged on the ground of relationship, the degree of closeness or 'nearness' of the relationship between the parties ought to be 'so great' as to give a reasonable apprehension of bias.
The Division Bench composed of Justice P.B. Suresh Kumar and Justice C.S. Sudha while observing so, held that in the instant case, a mere relationship between the candidate selected (9th respondent) and a member of the Selection Committee (8th respondent), would not be sufficient to assume bias.
State Expected To Adhere To Rule Of Law: Kerala High Court Quashes Appointment Of Marketfed MD
Case Title: A. Krishnan v. The Kerala State Co-operative Marking Federation Ltd
Citation: 2022 LiveLaw(Ker) 469
The Kerala High Court on Thursday quashed the appointment of S. K Sanil as the Managing Director of MARKETFED (Kerala State Co-operative Marketing Federation Limited).
A Division Bench consisting of Justice A. K. Jayashankaran Nambiar and Justice Mohammed Nias C.P. found Sanil to be ineligible and unqualified to hold the post, citing that he was not an officer in the IAS cadre in the senior time-scale at the relevant point in time.
Case Title: Shaju@Shaju v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 470
While reiterating the settled law on conviction based on sole testimony of prosecutrix in a rape case, the Kerala High Court on Thursday observed, that in the conservative, tradition bound, non-permissive society like that of ours, none would make a false accusation of rape; braving ostracism, loss of face, social stigma and shame.
The remarks were made while contrasting the Indian law relating to sexual assault trials as against the laws and practices prevalent in the UK.
Case Title: Shaju@Shaju v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 470
The Kerala High Court on Thursday while setting aside the conviction under the POCSO Act of a father who had repeatedly committed rape on his daughter, observed that the certificate issued by the school Headmistress could not be regarded as sufficient evidence in order to establish the age of the victim.
The Division Bench comprising of Justice K. Vinod Chandran and Justice C. Jayachandran thus observed,
"The register maintained in the school is not a public document and the certificate issued by the Headmistress cannot be considered to be a secondary evidence. We hence find that there is no proof of age as established by the prosecution".
Case Title: General Convenor, Kerala State School Kalolsavam, 2017-2018 & Anr v. Arundhathi Krishna J. & Anr., and connected cases
Citation: 2022 LiveLaw (Ker) 471
The Kerala High Court recently held that any question as to whether the Lok Ayukta or Upa Lok Ayukta can entertain any complaint regarding any grievance or allegation, would have to be ascertained according to the factual circumstances, and on a case to case basis and no law can be laid down by the Court in this regard.
The Division Bench comprising of Justice S. Manikumar and Justice Shaji P. Chaly further directed the authorities under various statues such as Upa Lok Ayukta, Human Rights Commission, Juvenile Justice Board, Civil Courts etc., to take note of and abide by the directions issued by the same court in another case W. P. (C) No. 18950 of 2018, while dealing with any complaints as to grievance or allegation in respect of the participation of students in cultural or other events at District or State Levels.
Case Title: K. M Basheer v. Rajani K.T & Ors and Connected cases
Citation: 2022 LiveLaw(Ker) 472
The Kerala High Court on Friday held that in cases of alleged offences under the SC/ST Act, an application for anticipatory bail can be filed only before the Special Court or the Exclusive Special Court constituted under the Act and not before the High Court.
Justice Bechu Kurian Thomas further clarified that High Court has neither concurrent jurisdiction under section 438 CrPC nor original jurisdiction under section 482 Cr.P.C. for grating bail for offences under SC/ST Act and can only exercise appellate jurisdiction under Section 14A.
Other Significant Development
Vizhinjam Port: Kerala High Court Asks Whether Protesting Fishermen Can Halt Construction Work
Case Title: M/S Adani Vizhinjam Port Pvt Ltd & 2 Ors v. State of Kerala & 27 Ors. and Howe Engineering Projects (I) Pvt. Ltd. & 3 Ors. v. State of Kerala & 27 Ors.
The Kerala High Court on Monday questioned if the fishermen, protesting against construction of Vizhinjam International Seaport by the Adani group, can halt a Project which had all the requisite permissions.
While considering the petitions filed by M/S Adani Vizhinjam Port Pvt Ltd and its contracting company Howe Engineering Projects, seeking protection for their employees and property, Justice Anu Sivaraman orally remarked, that protests cannot be quelled; it can happen. But can it hold up the work is the only question.
Case Title: V. Mohanlal v. State of Kerala & Ors.
The Kerala High Court on Monday, before posting the case for hearing again after the Court vacation, observed that the petitioner in this case, actor Mohanlal, had no locus standi before the Court.
Justice Mary Joseph, observed that under under the CrPC, no such power for withdrawal of proceedings had been granted to the accused.
"If the State appears, and had filed the application, the Court could have considered. But the accused cannot do so. If the Court decides otherwise that the accused has such a right, so many accused would appear before the Court for withdrawal", it was orally observed.
Case Title: S. Krishnakumar v. State of Kerala
Principle District and Sessions Judge, Kozhikode, S. Krishnakumar, who was recently transferred to the post of Presiding Officer, Labour Court, Kollam, subsequently after passing the 'Provocative Dress' remark in the Civic Chandran's Case, has approached the Kerala High Court challenging his transfer order.
In the petition moved through Advocates Dinesh Mathew J. Muricken, Ahammad Sachin K, Nayana Varghese and Vinod S. Pillai, the Petitioner challenges the transfer from the post over a controversial remark about the dressing of a sexual assault survivor in a judicial order alleging that the transfer is illegal, arbitrary and violative of Article 14 of the Constitution.
Case Title: Muralikrishnan v. State of Kerala & connected matters
The Kerala High Court on Monday directed the Government to look into the criminal cases registered against the citizens who opposed laying of survey stones for the K-Rail Project.
Justice Devan Ramachandran observed that even the Government has realised that a project of this nature cannot be executed without the support and help of the citizenry as a whole which is evident from their subsequent orders directing the SIA to be complete only electronically or via geotagging.
Case Title: S. Krishnakumar v. State of Kerala
The Kerala High Court on Tuesday reserved order in the plea moved by the Principle District and Sessions Judge, Kozhikode, challenging his transfer order to the post of Presiding Officer, Labour Court, Kollam, subsequently after passing the 'Provocative Dress' remark in the Civic Chandran's Case.
Justice Anu Sivaraman observed that the transfer is not a deputation as it is well within the cadre of the Principle District Judge.
Kerala Govt Has No Obligation To Pay KSRTC Salaries: State's Appeal In High Court
Case Title: State of Kerala v. R. Baji
The Kerala Government has approached the High Court challenging the order directing it to release requisite funds to KSRTC to clear salary dues of its employees for the months of July and August, along with the bonus eligible to those below the managerial cadre on or before the 1st September.
In the Writ Appeal moved through Special Government Pleader Advocate P. Santhosh Kumar, the State challenged the order passed by the Court on 24th August 2022, contending that the State Government has no obligation to pay salary and other allowance to the employees of the KSRTC.
Case Title: Indian Professional Nurses Association v. State of Kerala & Ors.
The Kerala High Court has sought a reply from the State regarding the salary and working conditions of nurses working in private hospitals. This comes in the plea moved by the Indian Professional Nurses Association seeking implementation of Prof. Jagadish Prasad Committee Report.
Justice P. V. Kuhnikrishnan admitted the PIL and sought reply from the Kerala Government.
The plea moved through Advocates Jose Abraham, N Ragesg, Adithyan Ezhapilly and R. Muraleedharan submits that subsequent to the Supreme Court decision, the Central Government had constituted an Expert Committee to make recommendations for the improvement of the working conditions and salaries of nurses working in private hospitals and nursing homes.
Kerala High Court Stays Single Judge Bench Direction To State Govt To Release Funds To KSRTC
Case Title: State of Kerala v. R. Baji
The Kerala High Court on Wednesday stayed an order passed by the single judge bench of the Kerala High Court directing the State directing it to release requisite funds to KSRTC to clear salary dues of its employees for the months of July and August, along with the bonus eligible to those below the managerial cadre on or before the 1st September.
The Division Bench consisting of Justice A K Jayasankaran Nambiar and Justice Mohammed Nias CP, while admitting the Writ Appeal f, has passed the stay order in the Appeal moved by the Kerala Government challenging the impugned order.
Case Title: Nirmal Infopark(India) Ltd. v. State of Kerala & Ors.
The Kerala High Court on Tuesday directed the Mahatma Gandhi University at Kottayam to ensure that it offers and conducts B.Voc. courses only on the strength of required statutory clearances, including those from the University Grants Commission and All India Council For Technical Education.
The direction was made while admitting a plea seeking detailed enquiry regarding the activities of 5 institutions in offering B.Voc. courses and courses affiliated with foreign universities to students in the State.
Case Title: Kerala Infrastructure Investment Fund Board (KIIFB) v. Director, Directorate of Enforcement
The Kerala Infrastructure Investment Fund Board (KIIFB) on Friday submitted before the High Court that the protracted investigation against it initiated by the Enforcement Directorate had detrimentally affected its borrowing plans, which would not only jeopardize the Board's functioning but would also have the effect of stalling various developmental projects in the State.
Justice V. G. Arun has adjourned to 23rd September the two petitions challenging the summons issued by ED in connection with the probe into the financial transaction of KIIFB.
Case Title: Amal Nasim M. & Ors. v. Kerala University of Health Science & Ors.
The Kerala High Court on Friday admitted a petition filed by a group of students pursuing MBBS course in various colleges under the Kerala University of Health Sciences (KUHS), challenging the amendment to the Regulations on Graduate Medical Education,1997 by the National Medical Commission
The Amendment notified on 04.11.2019 had restricted the maximum number of attempts to clear the first Professional University examination to four. The petitioners contended that as per the earlier guidelines of the Medical Commission of India ( replaced by NMC from 2019), the course could be completed within 10 years.
Kerala High Court Refuses To Stay Proceedings In Assembly Ruckus Case
The Kerala High Court on Friday refused to stay the proceedings in the Kerala Legislative Assembly Ruckus Case.
Justice Ziyad Rahman A.A., while refusing to stay the proceedings further rejected the prayer of the accused political leaders to exempt their personal appearance in trial court.
The case involves ruckus which had happened in the Kerala Assembly in March 2015, while the CPI(M) members were protesting against the then UDF government over the bar bribery allegations against the then Finance Minister KM Mani, who was trying to present the budget speech.
Case Title: Sayeeda K. A. v. Union of India & Ors.
The Kerala High Court, on Thursday, directed the National Disaster Management Authority to formulate policy or guidelines for identifying cases of death due to the after-effect of Covid-19 vaccination and for compensating the dependants of the victims within three months.
Justice V. G. Arun observed that there are instances where persons are suspected of having succumbed to the after-effects of immunization; in such circumstances, the National Disaster Management Authority and the Ministry of Health and Family Welfare are bound to formulate a policy for identifying such cases and compensating the dependents of the victim.
Madras High Court
Citations: 2022 LiveLaw (Mad) 374 To 2022 LiveLaw (Mad) 383
NOMINAL INDEX
Kiruthika Jayaraj and others v. State, 2022 LiveLaw (Mad) 374
M/s Gupta Hair Products (P) Ltd. Versus The Deputy Director General of Foreign Trade, 2022 LiveLaw (Mad) 375
V Kannan v State, 2022 LiveLaw (Mad) 376
Woodlands Theatres v. State of Tamil Nadu, 2022 LiveLaw (Mad) 377
Dr. P R Subaschandran v. State and others, 2022 LiveLaw (Mad) 378
E Palaniswamy v. O Paneerselvam, 2022 LiveLaw (Mad) 379
K. Samad & Anr. versus Reliance Capital Limited, 2022 LiveLaw (Mad) 280
S. Annapoorni v. K Vijay, 2022 LiveLaw (Mad) 281
The Assistant Commissioner of GST & Central Excise Versus M/s.Ganges International Private Limited, 2022 LiveLaw (Mad) 382
M/s. Sunwin Papers versus M/s. Sivadarshini Papers Pvt. Ltd., 2022 LiveLaw (Mad) 383
REPORT
Case Title: Kiruthika Jayaraj and others v. State
Citation: 2022 LiveLaw (Mad) 374
The Madras High Court recently granted bail to two teachers, school principal, school management correspondent and secretary in connection with the death of a XIIth standard student in Kallakurichi.
Justice GK Ilanthiraiyan observed that there was no evidence to show that the girl had been tortured before her death. Even going by the suicide note, there was no evidence to implicate the teachers as they had merely asked the student to study well.
Regretting the recent events, the court also opined that teachers asking the students to study well and directing them to tell the equations was part and parcel of teaching and would not amount to abetment to suicide.
Case Title: M/s Gupta Hair Products (P) Ltd. Versus The Deputy Director General of Foreign Trade
Citation: 2022 LiveLaw (Mad) 375
The Madras High Court has held that due to technical error or lacunae in the electronic system, the petitioner/exporter cannot be deprived of its benefit/incentive under the Merchandise Export from India Scheme (MEIS).
The single bench of Justice Abdul Quddhose has directed the department to consider the petitioner's representation seeking to get the benefit under the MEIS for the subject shipping bill and pass orders within a period of six weeks.
Case Title: V Kannan v State
Citation: 2022 LiveLaw (Mad) 376
The Madras High Court on Thursday granted conditional bail to Hindu Munnani office bearer and stunt master Kanal Kannan for his remarks seeking to demolish the statur of Periyar outside Srirangam temple. The court while granting bail, however, criticised the recent trend of making such remarks. The court stated that it had become a fashion to make such comments.
Justice GK Ilanthiraiyan granted him bail on condition that he shall file an affidavit before the Egmore Court guaranteeing that he will not make any such statements in the future. He has also been directed to appear before the police two times for a period of four weeks.
4. TN Govt Prescribed "Very Low" Parking Fees In Cinema Theaters: High Court Quashes GO
Case Title: Woodlands Theatres v. State of Tamil Nadu
Citation: 2022 LiveLaw (Mad) 377
The Madras High Court recently found that the charges fixed by Tamil Nadu government for parking in cinema theaters is "very low" and directed the State to re-fix the same, keeping in view the fees levied by Municipal Corporations and Railway authorities.
Rule 91(B) of Tamil Nadu Cinemas Regulation Rules 1957 to empower states to fix parking charges for the vehicles parked in the cinema theatres in the state. The petitioner theatre had challenged the fee fixation claiming that parking rates for all other places except cinema theatre was higher.
Case Title: Dr. P R Subaschandran v. State and others
Citation: 2022 LiveLaw (Mad) 378
While disposing of a petition seeking to frame a set of guidelines for proper instruction of physical education in public and private schools, the Madras High Court stressed on the need for physical education in schools.
The court directed the state to constitute a committee to monitor and ensure that physical education is given due importance and requisite infrastructure in all schools is made available.
The committee shall be constituted by the Government within one month and shall be headed by the Secretary to the Government, School Education Department. The committee shall identify the schools not having requisite infrastructure for imparting physical education and ensure physical education is given necessary importance.
6. Madras High Court Sets Aside Single Judge Order Restoring Status Quo Ante As On 23rd June In AIADMK
Case Title: E Palaniswamy v. O Paneerselvam
Citation: 2022 LiveLaw (Mad) 379
The Madras High Court on Friday set aside the order of a single judge restoring the status quo ante in the AIADMK party as on 23rd June, 2022.
The bench of Justice M Duraiswamy and Justice Sunder Mohan passed the orders allowing an appeal preferred by Edappadi Palaniswamy.
Further, the court held that when majority of the General Council members, who were elected by the primary members, were in favour of convening a general council meeting on 11th July and had also supported the resolutions made on 23rd June, the balance of convenience was in favour of the appellants.
7. Section 8 Of A&C Act Falls Outside The Scope Of Section 42: Madras High Court Reiterates
Case Title: K. Samad & Anr. versus Reliance Capital Limited
Citation: 2022 LiveLaw (Mad) 280
The Madras High Court has reiterated that Section 8 of the Arbitration and Conciliation Act, 1996 (A&C Act) is an exception to Section 42 of the A&C Act. The Court added that if Section 8 is also brought within the ambit of Section 42, it would defeat the sublime philosophy underlining arbitration i.e., party autonomy.
The Single Bench of Justice M. Sundar ruled that a party has no choice of jurisdiction while filing a Section 8 application, and that it is a Hobson's choice for it since it is constrained to file an application under Section 8 in the Civil Court where the civil suit has been filed by the opposite party.
Case Title: S. Annapoorni v. K Vijay
Citation: 2022 LiveLaw (Mad) 281
The Madras High Court on Friday ruled in favour of original jurisdiction of High Court for hearing child custody and guardianship cases in a 3:2 majority decision.
Justice R Mahadevan, Justice M Sunder and Justice AA Nakkiran delivered the majority judgment and held that the jurisdiction of the High Court on original side is not ousted in view of explanation (g) to Section 7(1) of the Family Courts Act. They further observed that the judgement in Mary Thomas continued to be a good law.
Justice PN Prakash and Justice Anand Venkatesh however ruled against original jurisdiction of High Court and held that Mary Thomas was not a good law.
Case Title: The Assistant Commissioner of GST & Central Excise Versus M/s.Ganges International Private Limited
Citation: 2022 LiveLaw (Mad) 382
The Madras High Court, consisting of Justice R. Ramdevan and Justice Mohammed Shaffiq, has held that the assessee is entitled to avail cenvat credit of the service tax already paid but the assessee was unable to claim due to a transitional provision that has come into effect from 01.07.2017.
The court directed the appellant to consider the application of the assessee under section 142(3) of the CGST Act, 2017, based on the available materials on merits and after affording an opportunity of hearing to the assessee, within a period of six weeks.
Case Title: M/s. Sunwin Papers versus M/s. Sivadarshini Papers Pvt. Ltd.
Citation: 2022 LiveLaw (Mad) 383
The Madras High Court has ruled that if an order passed by the Arbitral Tribunal under Section 16 of the Arbitration and Conciliation Act, 1996 (A&C Act), of ruling on its own jurisdiction, has the effect of concluding the arbitral proceedings, the same would be challengeable under Section 34 of the A&C Act.
The Single Bench of Justice M. Sundar held that since registration under the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) is not compulsory, the order passed by the Arbitral Tribunal accepting the plea of lack of jurisdiction due to the non-registration of the claimant under the MSMED Act, is patently illegal and in conflict with the public policy of India.
OTHER DEVELOPMENTS
When the Madras High Court registry put forward a query as to whether appeals whose value was less than one lakh rupees could be entertained in view of the amendment brought in by the Motor Vehicles Amendment Act 2019, Justice PT Asha observed that the right to appeal accrued on the date of filing the claim petitions and therefore the amendment was not applicable to claims filed prior to the amendment.
2. Litigant Moves Madras HC Seeking Removal Of Former CM Karunanidhi's Photos From Govt Websites, Ads
A litigant, S Venkatesh has recently moved the Madras High Court seeking to declare display of photos of former CM Karunanidhi on government websites, advertisements, posters and banners as illegal.
When the matter came up for hearing today, the bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala adjourned the proceedings while directing the petitioner to submit translated copies of the documents annexed.
He has contended that displaying of the photo of a former CM in the Government websites and web portals of Government Department institutions, which are owned by Government, is against the spirit of constitutional democracy.
Youtuber Savukku Shankar on Thursday appeared before the Madras High Court (Madurai Bench) in the contempt case against him and said that he stood by his statement that the entire judiciary is riddled with corruption. He made the submission before a bench of Justice GR Swaminathan and Justice B Pugalendhi.
The case has been adjourned to September 8 after Shankar sought time to file counter.
4. TN Bar Council Suspends Practice Of Six Lawyers For Various Offences
The Bar Council of Tamilnadu and Puducherry recently suspended the practice of six lawyers considering their involvement in various offences.
The notification dated 1st September 2022 issued a prohibitory order against the advocates from practicing in any court, tribunals, or any other authorities.
Of the six advocates, three have criminal cases pending against them with one also being prosecuted under the POCSO Act. One advocate had suppressed the fact that he was working as a Government School teacher in Kohima at the time of enrollment. The other two lawyer had threatened certain individuals to grant recognition to their lnhabitants Puducherry Advocates' Welfare Association.
The Madras High Court recently emphasised that media should show some sense of responsibility while publishing the news, especially with regard to children. The remarks were made by Justice N Satish Kumar while considering the progress made by the investigation team in the Kallakurichi student death and the consequent violence.
The court also highlighted that freedom of speech should not be used to spread falsity and instead, social media should be conscious of its duty to the citizens and should share only genuine news.
The Tamil nadu government on Friday informed the Madras High Court that the policy for protection of rights of transgender persons is at its final stage and that all steps will be taken to implement the policies at the earliest.
The bench of Justice Anand Venkatesh has thus granted a further 12 weeks' time to the State notify the Transgender Persons (Protection of Rights) Rules.
Meghalaya High Court
1. Solitary Instance Of Prostitution In A Place Does Not Make It A "Brothel": Meghalaya High Court
Case Title: Shri Sunil Kumar Singha Vs. State of Meghalaya & Ors
Citation :2022 LiveLaw (Meg) 29
The Meghalaya High Court recently observed that the presence of one girl with a man, allegedly indulging in prostitution, will not denote the place to be a "brothel".
The observation came from Justice W. Diengdoh while relying on the case of Suseela v. State, 1982 CRI. L. J. 702:
"When the prosecution proved the presence of only one girl in the premises and a single instance of prostitution, the premises cannot be held to be "used for brothel". Solitary instance of prostitution in a place does not make the place a "brothel"."
2. POCSO | Issue Regarding Determination Of Victim's Age Can Be Raised At Any Stage, Even Before Appellate Forum: Meghalaya High Court
Case Title : Shri Anwar Hussain Sheikh Vs. State of Meghalaya & Anr.
Citation :2022 LiveLaw (Meg) 30
The observation came from Justice W. Diengdoh:
"An offence against a child has to be tried by the Special Court. However, it is incumbent upon the Court to be certain right from the inception of a case that the case before it involves a child by the definition found in the said POCSO Act. In this context, the age determination is very vital before further proceedings are initiated."
3. Pension & Other Retiral Benefit Rules Have To Be Interpreted Liberally: Meghalaya High Court
Case Title: Shri. Anwarul Kadir Vs. State of Meghalaya & Ors.
Citation :2022 LiveLaw (Meg) 31
The Meghalaya High Court recently observed that rules with regard to pension and other retiral benefits are beneficial in nature and have to be interpreted liberally.
The observation came from Justice H. S. Thangkhiew:
"In the scheme of things, especially in matters of pension and grant of terminal benefits, it has to be kept in mind that, provisions or rules with regard to pension, which are beneficial in nature have to be interpreted liberally. In the instant case, the petitioner had taken Voluntary Retirement (in 2005), after serving the requisite number of years to entitle him to pension and other terminal benefits. As such, to give a interpretation that he is not entitled to DCRG, as the Notification amending the provision was issued only on 06.04.2015, cannot be taken to be a justifiable ground to deny the DCRG to the petitioner. I find force in the submission of the learned counsel for the petitioner on his contention that, the notification is an amendment which is more clarificatory in nature, and if the legislative intent was to exclude Voluntary Retirement, the same would have been made clear in the rules itself."
Case Title: Shri. Adelbert Marbaniang & Anr. Vs. State of Meghalaya & Ors.
Citation :2022 LiveLaw (Meg) 32
The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner, reiterated that rigors of the Act may not be applied to break down a happy family relationship. Such cases must be decided by taking a sympathetic view towards the accused, who is in a consensual relationship with the minor, in the instant case almost 18 years of age.
The observation came from Justice W. Diengdoh while disposing of the plea preferred by the POCSO accused and his child-bearing minor partner. The couple had been living together like husband and wife.
Case Title: Shri. Jeffrey Diengdoh & Anr. v. State of Meghalaya & Ors.
Citation :2022 LiveLaw (Meg) 33
The Meghalaya High Court has quashed charges under the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') against a husband for having 'consensual' sexual relationship with his minor wife. A Single Bench of Justice W. Diengdoh observed,
"Notwithstanding the fact that a proper criminal proceeding cannot be cut short without very strong and compelling circumstances which strikes at the very root of personal liberty, particularly that of the accused, the peculiar facts and circumstances has to bear testimony to move the hand of the court especially in exercise of its inherent powers."
Case Title: Shri Bremingstar Mylliem Vs. State of Meghalaya
Citation :2022 LiveLaw (Meg) 34
The Meghalaya High Court recently expressed its displeasure over incompetency of District Council Court which have been authorised by the Governor to take up heinous offences involving tribals and attracting harsh punishment.
A bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh remarked that the State would do well to consider the quality and ability of Judges manning District Council Courts before conferring authority on them to deal with serious matters.
Case Title : Smti. Bernadeth Marwein Vs. Smti. Cynthia Khongwet
Citation :2022 LiveLaw (Meg) 35
The Meghalaya High Court recently observed that Article 137 of the Limitation Act applies to applications made under Section 383 of the Indian Succession Act which for revocation of a succession certificate.
Justice H. S. Thangkhiew observed:
"Article 137 of the Limitation Act, provides for 3(three) years as a period of limitation, on an application for which no period of limitation is provided elsewhere in the division. As the Succession Act, does not prescribe a specific period of limitation in such matters, it would thus imply that Article 137 be applied."
Orissa High Court
Case Title: Narayan Muduli v. State of Odisha & Ors.
Citation :2022 LiveLaw (Ori) 129
The Orissa High Court has declined to entertain a Public Interest Litigation (PIL) filed by a sculptor against alleged police actions in preventing him from making and selling certain types of idols of Lord Ganesha.
A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash, while backing police actions, apprehended a law-and-order situation if such idols are permitted to be made and sold.
2. S. 172(3) CrPC | Accused Has No Right To Access Case Diary: Orissa High Court
Case Title: Shakti Singh v. State of Odisha
Citation :2022 LiveLaw (Ori) 130
The Orissa High Court has ruled that an accused has no right to access 'case diary', as there is a strict bar under Section 172(3) of the Code of Criminal Procedure ('Cr.P.C.'). A Single Judge Bench of Justice Sashikanta Mishra observed,
"The matter therefore needs to be viewed with all seriousness by all concerned, not only by the concerned courts but also the office of the Court Sub-Inspector and the concerned Investigating Officer under whose custody the case diary is supposed to be kept. While the Code of Criminal Procedure provides that the accused is entitled to a fair trial, the same does not mean that the accused can be given an unfair advantage contrary to the provisions of the Code."
Case Title: Pramod Jena & Anr. v. State of Odisha & Ors.
Citation :2022 LiveLaw (Ori) 131
The Orissa High Court, on Friday, directed the Superintendent of Police, Khurda to provide necessary security/escort to a lawyer who was allegedly obstructed by Bar members of Tangi from approaching the Magistrate for submitting the bail bonds of his clients. While expressing concern over the matter, a Division Bench of Justice S. Talapatra and Justice M.S. Sahoo observed,
"No right-thinking person can but express serious concern as regards such situation, whatever the reason, there may be behind such action. Liberty is most precious under our constitutional frame work and under the Rule of law, no person whatever mighty he may be, cannot be allowed to meddle with the liberty of individual. We hope good sense prevail."
Patna High Court
Case Title : Ramayan Prasad v The State Of Bihar & Ors.
Citation :2022 LiveLaw (Pat) 26
The Patna High Court has made it clear that in order to challenge the proposed promotions, the person so aggrieved must first challenge the final seniority list. Otherwise, no fault can be found with the promotions which are based on such seniority list.
The observation came from a division bench of Justices P. B. Bajanthri & Rajiv Roy:
"As long as ranking assigned in the final seniority list of the feeder cadre is not challenged by the appellant, he is not entitled to challenge administrative decision relating to proposed promotion list. Such a proposed promotional list is based on the final gradation list or existing gradation list of Graduate Teachers..."
Case Title: Jagdish Prasad Khandelwal v. Vikash Agrawal
Citation :2022 LiveLaw (Pat) 27
The Patna High Court recently observed that the payment of salami by a tenant is not relevant for deciding the real issue of landlord's personal necessity in a suit for eviction.
The observation came from Justice Anil Kumar Sinha:
"It was evident that admittedly the suit was for eviction on the ground of personal necessity. The payment of salami of Rs. 80,000/- and Rs. 10,000/- for repair of the ceiling of the tenanted premises given by the petitioner-defendant was not relevant for deciding the real issue of personal necessity in the suit."
Case Title: The Bihar State Text Book Publishing Corporation Ltd. versus M/s Patna Offset Press
Citation :2022 LiveLaw (Pat) 28
The Patna High Court has ruled that the order passed by the High Court in a writ petition, recording the consent of the parties to appoint a specified Arbitrator while referring them to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996 (A&C Act), cannot be said to be an order appointing an Arbitrator.
The Single Bench of Chief Justice Sanjay Karol held that once the party has filed an application under Section 14 of the A&C Act, to decide on the termination of the mandate of the arbitrator, the only remedy available to the party was to assail the order passed on the said application and thus, the petition under Section 11(6) of the A&C Act seeking appointment of an arbitrator would be barred by res judicata.
Case Title : Ran Vijay Kumar Ors. v Sanjay Kumar son of Ganesh Prasad & Ors.
Citation :2022 LiveLaw (Pat) 29
The Patna High Court recently observed that the principle that there cannot be a "partial partition" is not an absolute one.
Justice Sunil Dutta Mishra observed:
"Ordinarily a suit for partial partition does not lie. But, a suit for partial partition will lie when the portion omitted is not in possession of Coparceners and may consequently be deemed not to be really available for partition."
Punjab & Haryana High Court
Sanju v. State of Punjab 2022 LiveLaw (PH) 236
Amit Kumar (Deceased) through his LR's mother Smt. Sushila Devi v. State of Haryana and another 2022 LiveLaw (PH) 237
Kiran Kaur Versus State of Punjab 2022 LiveLaw (PH) 238
Shri Ram v. State of Punjab 2022 LiveLaw (PH) 239
Sukhpal Singh Khaira v. State of Punjab and Another 2022 LiveLaw (PH) 240
Raman Kumar v. State of Haryana and Another 2022 LiveLaw (PH) 241
Chaman Lal Chimnu v. State of Haryana [CRA-D-700-DB-2010] 2022 LiveLaw (PH) 242
Other Important Judgements/Updates
Mukadar Lal And Ors. Vs State Of Punjab And Others
NCPCR Moves Supreme Court Challenging HC Judgment Holding That 16-Year-Old Muslim Girl Can Enter Into Valid Marriage
Nominal Index
Case Title : Sanju v. State of Punjab
Citation: 2022 LiveLaw (PH) 236
Punjab and Haryana High Court while dealing with a case registered under Section 18 of NDPS Act, held that the crime motorcycle impounded or seized should be released on superdari to the petitioner.
Case Title: Amit Kumar (Deceased) through his LR's mother Smt. Sushila Devi v. State of Haryana and another
Citation: 2022 LiveLaw (PH) 237
Punjab and Haryana High Court recently held that Section 389 of CrPC and Section 148 of the Negotiable Instruments Act are independent of each other. Whereas Section 389 is meant for protecting the personal liberty of the convict, Section 148 is auxiliary or supplemental to the mandate carried in Section 389.
Case Title: Kiran Kaur Versus State of Punjab
Citation:2022 LiveLaw (PH) 238
Punjab and Haryana High Court recently acquitted a woman convicted by the trial court for slapping her husband and asking him to die anywhere, thereby abetting his suicide.
Case title : Shri Ram v. State of Punjab
Citation:2022 LiveLaw (PH) 239
Taking into consideration the "agony of trial" faced by the petitioner, who was convicted in a rash and negligent driving case, the Punjab and Haryana High Court has reduced the sentence of 1 year to the period of detention already undergone, i.e., 6 months.
Case Title : Sukhpal Singh Khaira v. State of Punjab and Another
Citation:2022 LiveLaw (PH) 240
The Punjab and Haryana High Court has made it clear that delay on part of investigating agency in filing the charge sheet does not attract Section 468 CrPC, which prescribes bar on taking cognizance after lapse of the period of limitation.
Case Title : Raman Kumar v. State of Haryana and Another
Citation:2022 LiveLaw (PH) 241
The Punjab and Haryana High Court has made it clear that Section 311 CrPC, which makes provision for recall of material witnesses, is not meant to "cure defects" in the defence and thus, the defence counsel must remain "completely awakened" during cross-examination of witnesses.
Case title - Chaman Lal Chimnu v. State of Haryana [CRA-D-700-DB-2010]
Citation:2022 LiveLaw (PH) 242
The Punjab and Haryana High Court on Wednesday upheld the life sentence awarded to a man who had raped his own 12-year-old niece in the year 2008. Noting that the accused was the real uncle of the victim, the Court remarked thus:
"The factual matrix of this appeal is unfortunately related to a sordid and obnoxious incident, where the appellant, who is the real uncle of the victim, raped his niece, a girl child of the tender age of 12 years. The result was that the sacred relationship of uncle and niece was besmirched. Such offenders are a menace to the civilised society and have to be dealt with strictly as per law. It is an act, which is not only a blow to her supreme honour and offends her self-esteem and dignity, it degrades and humiliates the victim and where the victim is a helpless child or a minor, it leaves behind a traumatic experience. Such crime is not only a crime against a minor innocent child, rather it is a crime against the entire society."
Other Important Judgements/Updates
Mukadar Lal And Ors. Vs State Of Punjab And Others
Six elected Municipal Councillors (independent) from Alawalpur ward in Jalandhar have moved the Punjab and Haryana High Court against the Sub Divisional Magistrate, alleging that despite winning the municipal elections, the authority has not administered them oath for more than 1 year and 6 months.
The National Commission for the Protection of Child Rights (NCPCR) has filed a petition before the Supreme Court challenging a recent judgement of the Punjab and Haryana High Court which held that a 16-year-old Muslim girl can enter into a valid marriage.
Rajasthan High Court
Case Title: Ratna Ram v. State of Rajasthan & Anr.
Citation: 2022 LiveLaw (Raj) 226
The Rajasthan High Court has recently allowed a plea seeking directions to the state Police to refund an amount of Rs. 1,30,913 charged from the petitioner on account of salary, allowance and training expenses alongwith interest.
The petitioner was asked to deposit aforesaid amount spent on his training and remuneration, in order to grant relieving letter / NOC
Essentially, after a protracted litigation which led petitioner to remain unemployed for three years, he was initially granted an appointment letter for the post of constable general under the MBC Category. In the meantime, in order to provide support to his family, he again started preparing for other exams and subsequently cleared the REET 2021 exam for the post of Teacher Grad– II (Level 1).
Case Title: Sunil Bhati v. State of Rajasthan & Ors.
Citation: 2022 LiveLaw (Raj) 227
The Rajasthan High Court has recently directed the trial court to immediately permit a husband-petitioner, charged with causing dowry death of his wife, to voluntarily undergo Narco Analysis Test in support of his defence and thereby enter the same into evidence.
Dr. Justice Pushpendra Singh Bhati observed,
"Even if the Narco Analysis test may not have an absolute binding impact upon the result of the trial, it is certainly is a scientific technique recognized by law, and is being utilized in the course of investigation, by prosecution agencies as well as by the Courts, to support and corroborate the main evidence. And thus, denying the petitioner an opportunity to render such defence evidence at the appropriate stage, as is statutorily provided to him, would not only be detrimental to the cause of justice, but shall also be a clear violation of his statutory right envisaged under Section 233 Cr.P.C."
Telangana High Court
Case title - Y. S. Jagan Mohan Reddy, vs Central Bureau Of Investigation
Case Citation: 2022 LiveLaw (Tel) 84
In a relief to Andhra Pradesh Chief Minister YS Jagan Mohan Reddy, the Telangana High Court has exempted him from personal appearance before the Court in a series of corruption cases filed against him by the CBI in the year 2013.
However, he has been directed to appear before the Court on such dates of the hearing where the CBI court decides that his presence is required in accordance with subsection (2) of Section 205 of the CrPC.
Case Title: M/s. Srico Projects Pvt. Ltd. Versus Telangana State Authority for Advance Ruling,W.P.No.26145 Of 2022
Citation : 2022 LiveLaw (Tel) 85
The Telangana High Court has held that the investigation post-filing of the application would not debar the applicant from seeking an advance ruling.
Tripura High Court
1. S.311 CrPC | No Party In A Trial Can Be Foreclosed From Correcting Errors, Benefit Of Lacunae In Prosecution Case Must Go To Accused: Tripura HC
Case Title :The State of Tripura v Sri Sumit Banik & Ors.
Citation : 2022 LiveLaw (Tri) 37
The Tripura High Court recently observed that the Court can allow an application filed by accused under Section 311 CrPC and exercise its power of re-summoning any witness, in order to meet the ends of justice.
Justice Amarnath Goud observed: "Lacuna in prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any in-adventure, the Court should be magnanimous in permitting such mistakes to be rectified, more so, when the rights conferred by Constitution of India upon a citizen."