Delhi High Court Weekly Round-Up: December 19 To December 25, 2022

Citations [2022 LiveLaw (Del) 1192 TO 2022 LiveLaw (Del) 1215]

NOMINAL INDEX

INDIAN PILOTS GUILD & ANR v. DIRECTOR GENERAL OF CIVIL AVIATION & ANR 2022 LiveLaw (Del) 1192

Umesh v. State (and other connected matters) 2022 LiveLaw (Del) 1193

VIJAY AGRAWAL THROUGH PAROKAR v. DIRECTORATE OF ENFORCEMENT 2022 LiveLaw (Del) 1194

PRAVEEN GARG v. THE HIGH COURT OF DELHI AND ORS. 2022 LiveLaw (Del) 1195

AADESH KUMAR AND ORS. v. SH. AMIT SINGLA AND ANR. and other connected matters 2022 LiveLaw (Del) 1196

Gorang Gupta v. GOVT. OF NCT & ORS. 2022 LiveLaw (Del) 1197

RANAJIT ROY v. GOVT OF NCT OF DELHI & ANR 2022 LiveLaw (Del) 1198

SUCHITA SHRIVASTAVA v. RESERVE BANK OF INDIA 2022 LiveLaw (Del) 1199

GULAM MAHABUB v. GOVERNMENT OF NCT OF DELHI & ORS 2022 LiveLaw (Del) 1200

MAN MOHAN PATNAIK v. CISCO SYSTEMS CAPITAL INDIA PVT.LTD & ORS. 2022 LiveLaw (Del) 1201

D.S. CHEWING PRODUCT LLP & ORS. v. FOOD SAFETY OFFICER 2022 LiveLaw (Del) 1202

AB MAURI INDIA PRIVATE LIMITED v. VICKY AGGARWAL & ORS. 2022 LiveLaw (Del) 1203

HAMDARD NATIONAL FOUNDATION (INDIA) & ANR v. SADAR LABORATORIES PVT LTD 2022 LiveLaw (Del) 1204

Harsh Vibhore Singhal v. The Cabinet Secretary Government of India & Ors 2022 LiveLaw (Del) 1205

ReNew Hans Urja Pvt. Ltd. vs. Central Board of Indirect Taxes and Customs 2022 LiveLaw (Del) 1206

Rajinder Kumar Versus State 2022 LiveLaw (Del) 1207

M/s. Vallabh Textiles Versus Senior Intelligence Officer 2022 LiveLaw (Del) 1208

DLF Ltd. versus IL&FS Engineering and Construction Company 2022 LiveLaw (Del) 1209

Welspun One Logistics Parks Fund I versus Mohit Verma & Ors. 2022 LiveLaw (Del) 1210

STATE v. DENIS JAUREGUL MENDIZABAL 2022 LiveLaw (Del) 1211

National Highways Authority of India v. Lucknow Sitapur Expressway Ltd. 2022 LiveLaw (Del) 1212

ZYDUS WELLNESS PRODUCTS LTD. v. DABUR INDIA LIMITED 2022 LiveLaw (Del) 1213

YOGESH PARIHAR v. DELHI TECHNOLOGICAL UNIVERSITY & ORS. 2022 LiveLaw (Del) 1214

PCIT Versus Pawa Infrastructure (P) Ltd. 2022 LiveLaw (Del) 1215

Testing Of Aviation Personnel For Psychoactive Substances Essential, No Impediment In Implementing Civil Aviation Requirements: Delhi High Court

Title: INDIAN PILOTS GUILD & ANR v. DIRECTOR GENERAL OF CIVIL AVIATION & ANR

Citation: 2022 LiveLaw (Del) 1192

The Delhi High Court has observed that testing of aviation personnel, including pilots, cabin crews and Air Traffic Controllers (ATCs), for psychoactive substances is essential, considering the nature of services being rendered by them.

Justice Prathiba M Singh gave nod to the implementation of Civil Aviation Requirements (CAR) issued by the Ministry of Civil Aviation on January 31 for detecting any behavioural, cognitive and physiological changes due to use of such substances by aviation personnel.

"After perusing CAR as also after hearing parties and their counsels, it is clear that the testing of personnel for psychoactive substances is essential, considering the nature of services being rendered," the court said.

Limitation Period Won't Come In Way Of Moving Applications For Compensation To Victims Of Sexual Offences: Delhi High Court

Case Title: Umesh v. State (and other connected matters)

Citation: 2022 LiveLaw (Del) 1193

Directing Delhi State Legal Services Authority (DSLSA) to move applications on behalf of the victims of sexual offences for compensation in the cases registered between 2012 to 2017, the Delhi High Court has clarified that there will be no requirement to file a separate application for condonation of delay to seek compensation in such cases.

Observing that since no limitation for filing an application for compensation is provided under Section 357(A) of the Cr.PC or Section 33 of the POCSO Act, such a provision under the Part-II of the Delhi Victims' Compensation Scheme (DVCS)-2018 cannot be used or invoked in a hyper- technical manner to defeat the rights of the victim for whose assistance and support the entire Scheme has been formulated.

Interim Bail On Medical Grounds Shouldn't Be An Option Only When Prisoner Is On Deathbed: Delhi High Court

Title: VIJAY AGRAWAL THROUGH PAROKAR v. DIRECTORATE OF ENFORCEMENT

Citation: 2022 LiveLaw (Del) 1194

Observing that a prisoner suffering from serious health ailments should be given an opportunity to undergo adequate medical treatment, the Delhi High Court has said that the discretion of granting interim bail on medical grounds may not be exercised only at a stage when the person is breathing last or is in the position that he may not survive.

Justice Dinesh Kumar Sharma said howsoever serious the offence may be, the health condition of a human being is paramount. The court said the health concern of a person has to be taken care of by the State and keenly watched by the judiciary.

High Court Dismisses Plea Challenging Constitutional Validity Of Rule 9(2) Of Delhi Higher Judicial Service Rules

Title: PRAVEEN GARG v. THE HIGH COURT OF DELHI AND ORS.

Citation: 2022 LiveLaw (Del) 1195

The Delhi High Court has dismissed a plea challenging the constitutional validity of the recently-amended Rule 9(2) of the Delhi Higher Judicial Service Rules, 1970.

"In view of the decision of the Supreme Court in Dheeraj Mor v. Hon'ble High Court of Delhi, we are unable to accept that Rule 9(2) of the Rules, as set out above, falls foul of Article 233 of the Constitution of India. On the contrary, Rule 9(2) of the Rules is in conformity with the decision in the case of Deepak Aggarwal v. Keshav Kaushik & Ors," said the court.

Under the Rule 9 (2), a candidate "must have been continuously practising as an advocate for not less than seven years as on the last date of receipt of applications" for recruitment of judicial officers.

'Contributed To Society In Most Unprecedented Times Of COVID-19': High Court Directs Delhi Govt To Clear Dues Of Ad Hoc Auxiliary Nurse Midwives

Title: AADESH KUMAR AND ORS. v. SH. AMIT SINGLA AND ANR. and other connected matters

Citation: 2022 LiveLaw (Del) 1196

The High Court has directed the Delhi Government to pay salaries and other dues to the Auxiliary Nurse Midwives (ANMs), who were engaged for a short term last year for COVID vaccination centres in the national capital.

Justice Jyoti Singh ordered that the payments shall be released by the Delhi Government within a period of six weeks.

"It needs no overemphasis that discharging the functions of ANMs, Petitioners have contributed to a large extent to the society in the most testing and unprecedented times of COVID-19 and it would be travesty of justice if they were deprived of their emoluments for the period they served the Respondents and the society," the court said.

Not Court's Duty To Monitor Public Urination, Spitting: Delhi High Court Junks PIL Seeking Prohibition On Affixing Of Photos Of Deities On Walls

Title: Gorang Gupta v. GOVT. OF NCT & ORS.

Citation: 2022 LiveLaw (Del) 1197

The Delhi High Court has dismissed a public interest litigation moved by a lawyer against the practice of affixing sacred images of gods on walls as a measure to prevent public urination, spitting and throwing garbage.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that it is not the duty of a constitutional court to regulate and monitor the movement of each citizen to see whether one indulges in public urination, spitting and littering.

"The concern raised by the petitioner would be better addressed by civic bodies and not by this Court," it said.

'Long-Term Effects Of Childhood Sexual Harassment Insurmountable': Delhi High Court Upholds Dismissal Of Teacher Accused Of Molestation

Title: RANAJIT ROY v. GOVT OF NCT OF DELHI & ANR

Citation: 2022 LiveLaw (Del) 1198

While dealing with matters relating to sexual harassment of school going children, paramount consideration is to be given to the well-being of the child whose mental psyche is vulnerable, impressionable and in a developing stage, the Delhi High Court has observed.

The division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said long-term effects of childhood sexual harassment are at many times insurmountable.

"An act of sexual harassment, therefore, has the potential to cause mental trauma to the child and may dictate their thought process for the years to come. It can have the effect of hindering the normal social growth of the child and lead to various psychosocial problems which could require psychological intervention."

Delhi High Court Directs RBI To Reconsider Its Policy Of Excluding Pregnancy Complications Cases From Grant Of Advance Sick Leave

Title: SUCHITA SHRIVASTAVA v. RESERVE BANK OF INDIA

Citation: 2022 LiveLaw (Del) 1199

Hearing a plea moved by a female employee of Reserve Bank of India (RBI), the Delhi High Court has directed the regulatory body to reconsider its master circular which excludes the cases of medical complications arising due to pregnancy from grant of advance sick leave to the employees.

Justice Jyoti Singh was hearing a plea moved by an Assistant Manager of RBI seeking a direction that the issues or complications arising out of pregnancy be treated as covered under para 6.5 of the Master Circular issued by the regulatory body on July 1, 2020 01.07.2020.

The plea also sought direction for grant of advance sick leave to her as per para 6.5 with consequential benefits of salary and allowances after adjusting her absence for the period of her leave.

Govt Hospitals Have To Treat All Citizens Irrespective Of Place Of Residence, Can't Insist On Voter ID: Delhi High Court

Title: GULAM MAHABUB v. GOVERNMENT OF NCT OF DELHI & ORS

Citation: 2022 LiveLaw (Del) 1200

Hearing a Bihar resident's plea alleging that Lok Nayak Hospital (LNJP) was providing facility of free MRI test only to the residents of national capital, the Delhi High Court on Tuesday said that the government hospitals have to treat all the citizens, irrespective of their place of residence.

Emphasising that the hospitals cannot insist on voter IDs of citizens, Justice Prathiba M Singh observed that citizens, who come from outside, cannot be stopped from seeking treatment.

The court also noted that in one of its earlier judgments, it has been held that medical treatment has to be given to all citizens without any consideration to their place of residence.

Merely Being Signatory To A Cheque Does Not Make A Person Guilty Of Offence Under Section 138 NI Act: Delhi High Court

Title: MAN MOHAN PATNAIK v. CISCO SYSTEMS CAPITAL INDIA PVT.LTD & ORS.

Citation: 2022 LiveLaw (Del) 1201

The Delhi High Court has said that prima facie, merely being a signatory to a cheque does not, in itself, make a person guilty of the offence under Section 138 of the Negotiable Instruments Act.

Observing that the offence is triggered at the stage when a cheque is returned unpaid by the bank for insufficiency of funds, Justice Anup Jairam Bhambhani said:

"For guilt to be imputed to an officer of a company, at the very least, the officer should have been responsible for the business and affairs of the company and for honouring the cheque on the date that the cheque was returned unpaid."

Prosecution Cannot Be Initiated Under Food Safety and Standards Act For Lack Of Labelling On Chewing Tobacco Product By Manufacturer: Delhi High Court

Title: D.S. CHEWING PRODUCT LLP & ORS. v. FOOD SAFETY OFFICER

Citation: 2022 LiveLaw (Del) 1202

The Delhi High Court has observed that a prosecution cannot be initiated under Food Safety and Standard Act, 2006 for any lack on part of the manufacturer in labelling a chewing tobacco product.

Justice Swarana Kanta Sharma said that such a prosecution will have to be dealt as per the provisions of Cigarettes and other Tobacco Products (Packaging and Labelling) Rules, 2008 and section 20 of Cigarettes and Other Tobacco Products Act, 2003 or any other law applicable therein.

"Therefore, considering the facts and circumstances of the case and the settled position of law, when the product in question is admittedly chewing tobacco, application of FSSA, 2006 is ruled out," the court added.

Delhi High Court Initiates Criminal Contempt Proceedings After Vigilance Inquiry Finds IPAB Order Placed On Record Is Fake

Title: AB MAURI INDIA PRIVATE LIMITED v. VICKY AGGARWAL & ORS.

Citation: 2022 LiveLaw (Del) 1203

The Delhi High Court has initiated criminal contempt proceedings against defendants in a suit after the Registrar (Vigilance)'s inquiry revealed that they placed a fabricated Intellectual Property Appellate Board (IPAB) order on record as part of a compilation of documents handed over to the court during a hearing last month.

Justice Jyoti Singh said any person who takes recourse to deflect the course of judicial proceedings and interferes with administration of justice, must be dealt with a heavy hand. There is a wealth of judicial precedents that filing of forged and fabricated documents in a court to obtain relief is interference with administration of justice, said the court. 

'Rooh Afza' Trademark Has Acquired Immense Goodwill, Requires High Degree Of Protection: Delhi High Court In Suit Against 'Dil Afza' Sharbat

Title: HAMDARD NATIONAL FOUNDATION (INDIA) & ANR v. SADAR LABORATORIES PVT LTD

Citation: 2022 LiveLaw (Del) 1204

The Delhi High Court has observed that the mark "Rooh Afza" has acquired immense goodwill and has served as the "source identifier" for the sharbat being manufactured by Hamdard National Foundation (India) and Hamdard Dawakhana for over a century.

Observing that "Rooh Afza" mark requires a high degree of protection and it is essential to ensure that the competitors keep a safe distance from it, a division bench of Justice Vibhu Bakhru and Justice Amit Mahajan restrained Sadar Laboratories Private Limited from manufacturing and selling any product under the trademark "DIL AFZA" till the disposal of the trademark infringement suit filed by the former.

Delhi High Court Dismisses PIL Against Carrying Of Kirpans In Domestic Flights

Case Title: Harsh Vibhore Singhal v. The Cabinet Secretary Government of India & Ors

Citation: 2022 LiveLaw (Del) 1205

The Delhi High Court has dismissed a public interest litigation challenging notifications that allow Sikh passengers to carry Kirpans of specific measurements on person in domestic flights.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad noted that that Explanation I of Article 25 of the Constitution of India clarifies that wearing and carrying of Kirpans shall be deemed to be included in the profession of the Sikh religion.

" Keeping in view the dictum of the Apex Court, the Circular bearing No.14/2005 dated 15.04.2005 and the Impugned Notification dated 04.03.2022 which is under challenge in the instant PIL, and also keeping in mind the Explanation - I to Article 25 of the Constitution of India, this Court is of the opinion that the decision of giving exemption for carrying Kirpan to Sikh passengers vide the abovementioned Circular and Impugned Notification has been arrived at by the Government after due deliberations," the court observed. 

Delhi High Court Grants Interim Protection Against Retrospective Denial Of Concessional Rate Of Customs Duty To Solar Units

Case Title: ReNew Hans Urja Pvt. Ltd. vs. Central Board of Indirect Taxes and Customs

Citation: 2022 LiveLaw (Del) 1206

The Delhi High Court has granted interim protection against the retrospective denial of the vested right of the benefit of concessional rate of duty under project import regulations granted to solar power developers.

The Division Bench of Justice Rajiv Shakdher and Justice Tara Vitasta Ganju have directed the customs authorities to refrain from taking any precipitative steps at the time of import of goods pursuant to the registration of contracts under the Project Import Regulations, 1986.

Age At The Time Of Commission Of Offence Has To Be Taken And Not When The Proceedings Initiated: Delhi High Court

Case Title: Rajinder Kumar Versus State

Citation: 2022 LiveLaw (Del) 1207

The Delhi High Court upheld the prosecution for an undisclosed foreign bank account, observing that the age at the time of the offense must be taken into account, not when the proceedings were initiated.

The single judge bench of Justice Suresh Kumar Kait has relied on the decision of the Delhi High Court in the case of Pradip Burman vs. Income Tax Office, in which it was held that Circular/Instruction No. 5051 dated 07.02.1991 issued by the Central Board of Direct Taxes (CBDT) does not bar the initiation of prosecution for those who have attained the age of 70 years.

Tax deposited During Search Not Voluntary: Delhi High Court Directs GST Dept. To Return Rs.1.80 Crores With Interest

Case Title: M/s. Vallabh Textiles Versus Senior Intelligence Officer

Citation: 2022 LiveLaw (Del) 1208

The Delhi High Court has directed the GST department to return the amount of Rs. 1.80 crores along with 6% interest as the recovery of tax made during the search was not voluntary.

The division bench of Justice Rajiv Shakdher and Justice Tara Vitasta Ganju has observed that no recovery of tax should be made during search, inspection, or investigation unless it is voluntary.

The petitioner/assessee is in the business of trading in ready-made garments (RMG) and is also engaged in selling these very goods on behalf of third parties in the domestic market on a commission basis.

Moratorium Under Companies Act, 2013, Parties Cannot Be Referred To Arbitration: Delhi High Court

Case Title: DLF Ltd. versus IL&FS Engineering and Construction Company

Citation: 2022 LiveLaw (Del) 1209

The Delhi High Court has ruled that the moratorium granted by the National Company Law Appellate Tribunal (NCLAT), staying the institution of suits and proceedings against the Corporate Debtor, after the resolution process is initiated against it under Sections 241 and 242 of the Companies Act, 2013, is akin to an order of moratorium passed under Section 14 of the Insolvency and Bankruptcy Code, 2016 (IBC). Thus, in view of the moratorium issued by the NCLAT, the Corporate Debtor cannot be referred to arbitration.

The bench of Justice V. Kameswar Rao was dealing with an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act), seeking reference of the dispute to arbitration.

Dispute Between Parties Under A "Non-Binding Term Sheet" Can Be Referred To Arbitration: Delhi High Court

Case Title: Welspun One Logistics Parks Fund I versus Mohit Verma & Ors.

Citation: 2022 LiveLaw (Del) 1210

The Delhi High Court has ruled that the dispute between the parties under an agreement titled as a "Non-Binding Term Sheet", can be referred to arbitration, holding that the Arbitration Clause contained in the said agreement was binding between the parties.

The bench of Justice Navin Chawla observed that though the nomenclature of the agreement was "Non-Binding Term Sheet", the Arbitration Clause contained in the agreement was specifically made binding on the parties. It held that whether the other covenants of the Term Sheet were non-enforceable, is not to be considered by the Court at the stage of considering an application under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act).

NDPS Act | Accused's Refusal To Get A Search Conducted Under Section 50 Would Be Vitiated If He Misunderstands Questions Put To Him: Delhi HC

Title: STATE v. DENIS JAUREGUL MENDIZABAL

Citation: 2022 LiveLaw (Del) 1211

The Delhi High Court has observed that refusal by an accused to get a search conducted before a Gazetted Officer or a Magistrate under section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 would be vitiated if he misunderstands, misinterprets or even due to miscommunication of the questions put to him.

Justice Anish Dayal observed that the requirements of section 50 being mandatory in nature, are in consonance with the right of an accused to know of his legal rights.

"The compliance of such requirements should therefore, be complete and not left in doubt. A mandatory requirement by definition, has to be complied with in toto, in its full letter and spirit, and not as a halfway measure or in a patchy, perfunctory manner or deficient manner," the court said.

Order Rejecting Application For Impleading Third Party Is Not An Interim Arbitration Award: Delhi High Court

Case Title: National Highways Authority of India v. Lucknow Sitapur Expressway Ltd.

Citation: 2022 LiveLaw (Del) 1212

The Delhi High Court has held that an order of the tribunal rejecting the application for impleading a party to arbitration is not an interim award but merely a procedural order, therefore, the same cannot be challenged under Section 34 of the Act.

The bench of Justice Yashwant Varma held that an arbitral tribunal, during the continuance of arbitral proceedings, passes many orders and for an order to fall within the rubric of interim award it has to necessarily have certain features. The Court held that for an order to be understood as an award, it has to be decision on the merits of the dispute that conclusively determines a substantive claim, issue or question that exists between the parties.

Advertiser Must Have Freedom To Make Ads With Generic Comparison, Can't Be Objected To Unless Representation Is Absolutely Misleading: Delhi HC

Title: ZYDUS WELLNESS PRODUCTS LTD. v. DABUR INDIA LIMITED

Citation: 2022 LiveLaw (Del) 1213

The Delhi High Court has ruled that an advertiser ought to have the freedom to make advertisements with generic comparison highlighting features of its own product and that an objection to it cannot be raised unless representation being made is absolutely false or misleading.

Justice Prathiba M Singh said that mere allusions, in the absence of a decipherable comparison, would not be sufficient to make out a case of generic disparagement.

Students Resorting To Unfair Means In Exams Cannot Build This Nation, Must Be Dealt With Heavy Hand: Delhi High Court

Title: YOGESH PARIHAR v. DELHI TECHNOLOGICAL UNIVERSITY & ORS.

Citation: 2022 LiveLaw (Del) 1214

The Delhi High Court has observed that students who resort to unfair means in examinations and get away with it cannot build this nation and must be dealt with a heavy hand.

"Persons using unfair means to steal march over students who work hard to prove their worth has to be dealt with a heavy hand. Students, who resort to unfair means and get away with it, cannot build this nation. They cannot be dealt with leniently and they should be made to learn a lesson not to adopt unfair means in their life," a division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed.

Compensation On Cancellation Of Leasehold Rights Over A Plot, Capital Receipt: Delhi High Court

Case Title: PCIT Versus Pawa Infrastructure (P) Ltd.

Citation: 2022 LiveLaw (Del) 1215

The Delhi High Court has held that the leasehold rights held by the assessee in the plot were a capital asset and that the compensation received by the assessee from the Government of Goa on the cancellation of the plot was a capital receipt and not a revenue receipt.

The division bench of Justice Manmohan and Justice Manmeet Pritam Singh Arora has observed that if an agreement for the transfer of rights in an immovable property is not performed by the transferor, the transferee is entitled to compensation as he/she is deprived of the price of escalation. Therefore, the character of the payment received as compensation by the transferee bears the character of a capital receipt. The payment of interest in the facts of the present case is compensatory in nature and, therefore, does not bear the character of a revenue receipt.