Delhi High Court Weekly Round-Up: December 5 To December 11, 2022

Citations [2022 LiveLaw (Del) 1145 TO 2022 LiveLaw (Del) 1161]

NOMINAL INDEX

MRS. X v. GNCTD & ANR. 2022 LiveLaw (Del) 1145

SUSHIL KR. JAIN( ADVOCATE) v. UNION OF INDIA & ORS. 2022 LiveLaw (Del) 1146

MUNICIPAL CORPORATION OF DELHI vs GOVT OF NCT OF DELHI & ANR. 2022 LiveLaw (Del) 1147

SHWETA v. GNCTD AND ANR 2022 LiveLaw (Del) 1148

Spectrum Power Generation Limited v. GAIL (India) Limited 2022 LiveLaw (Del) 1149

Kush Raj Bhatia v. M/S DLF Power & Services Ltd. ARB. P 869/2022 2022 LiveLaw (Del) 1150

FARIDA BEGUM vs GOVT. OF NCT OF DELHI THROUGH DY LABOUR COMMISSIONER & ANR 2022 LiveLaw (Del) 1151

PCIT Versus Simon India Ltd. 2022 LiveLaw (Del) 1152

Ram Kumar v. Shriram Transport Finance Co. Ltd. FAO (COMM.) 60 of 2021. 2022 LiveLaw (Del) 1153

SANJAY PANDEY v. DIRECTORATE OF ENFORCEMENT 2022 LiveLaw (Del) 1154

ANTI-CORRUPTION COUNCIL OF INDIA THROUGH ITS AUTHORISED SIGNATORY MOHD KAMRAN KHAN v. STATE & ORS. 2022 LiveLaw (Del) 1155

SRI DESARAJU VENUGOPAL v. CENTRAL BUREAU OF INVESTIGATION 2022 LiveLaw (Del) 1156

JOLLY SINGH v. THE STATE 2022 LiveLaw (Del) 1157

UMESH BABU vs JAWAHARLAL NEHRU UNIVERSITY 2022 LiveLaw (Del) 1158

POWER INFRASTRUCTURE INDIA v. UNION OF INDIA & ORS. 2022 LiveLaw (Del) 1159

Master Arnesh Shaw v. Union of India & Anr. 2022 LiveLaw (Del) 1160

New India Assurance Company Limited v. Khanna Paper Mills Limited 2022 LiveLaw (Del) 1161

1. Mother's Choice & Quality Of Unborn Child's Life Deciding Factors For Final Decision: Delhi High Court On Termination Of Pregnancy With Fetal Abnormalities

Title: MRS. X v. GNCTD & ANR.

Citation: 2022 LiveLaw (Del) 1145

The Delhi High Court this week ruled that ultimate choice in the pregnancy cases involving fetal abnormalities is of the mother and emphasised that the medical boards in such cases must give qualitative reports.

"In conclusion, the Court holds that the ultimate decision in such cases ought to recognize the choice of the mother, as also, the possibility of a dignified life for the unborn child," said Justice Prathiba M. Singh in the ruling, while allowing a 26-year-old married woman's plea seeking medical termination of her foetus of over 33 weeks suffering from cerebral abnormalities.

Justice Singh said the opinion of the medical board in such cases of termination of pregnancy is of considerable importance for the assistance of the courts.

"Such opinions cannot be sketchy and fragmented. They ought to be comprehensive in nature," said the judge.

The court further said that in such cases, speediness coupled with qualitative reports is of utmost importance.

"There ought to be some standard factors on which the opinion should be given by the board to whom such cases are referred. Such factors ought include medical condition of the fetus. While giving the scientific or medical terminologies, some explanation in laypersons terms as to the effect of such condition ought to be mentioned. Alternatively, medical literature could be an annexed with opinion."

2. High Court Refuses To Entertain PIL Seeking Deportation Of African Nationals Allegedly Living Without Valid Visa Or Passport In Delhi

Title: SUSHIL KR. JAIN( ADVOCATE) v. UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 1146

The Delhi High Court refused to entertain a public interest litigation seeking immediate deportation of people from Africa, Bangladesh and other foreign nationals allegedly living without a valid visa or passport in the national capital.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad dismissed as withdrawn a plea filed by Advocate Sushil Kumar Jain. The plea also claimed the foreign nationals are living as tenants in Delhi without any proper verification.

3. Delhi High Court Directs Registry To Issue Practice Directions For Arraying Workman As First Respondent In Pleas Challenging Labour Court Orders

Title: MUNICIPAL CORPORATION OF DELHI vs GOVT OF NCT OF DELHI & ANR.

Citation: 2022 LiveLaw (Del) 1147

The Delhi High Court has directed its Registry to ensure that the petitioners array the workman as first respondent in the petitions assailing the order or award passed by labour courts or any other statutory authority, where the workman is a contesting respondent so that he or she is easily able to locate the writ petition in the cause list.

The direction was issued by Justice Rekha Palli on the judicial side while hearing petitions filed by the Delhi Municipal Corporation against recovery certificates issued in favour of the workmen by the Deputy Labour Commissioner.

Justice Palli said that when the writ petitions assailing the awards or orders passed by the labour court are filed by the management including the municipal corporation, the Delhi government is impleaded as first respondent and the workmen are generally impleaded as respondent two or three. The court said due to such practice, the title of the petitions assailing different awards becomes identical and it causes confusion to the workmen.

4. Delhi High Court Quashes FIR Against First Year Law Student Who Appeared As Proxy Counsel Before Trial Court

Title: SHWETA v. GNCTD AND ANR

Citation: 2022 LiveLaw (Del) 1148

The Delhi High Court has quashed an FIR registered against a first year law student who appeared before a Metropolitan Magistrate as a proxy counsel on instructions from a lawyer for taking adjournment in two cases.

Observing that the law student, who was interning with an advocate, was either confused or unable to handle the situation, Justice Anish Dayal said:

"It is evident that a law student should not appear as a proxy counsel or counsel in any matter before any court of law, prior to being properly enrolled by a Bar Council and being admitted to the Bar."

The court quashed the FIR registered under sections 419 (punishment for cheating by personation) and 209 (dishonestly making false claim in court) of the Indian Penal Code.

5. An Issue As To Which Party Would Bear The GST Expenses Under The Agreement Is Arbitrable: Delhi High Court

Case Title: Spectrum Power Generation Limited v. GAIL (India) Limited, ARB. P. 746 of 2022

Citation: 2022 LiveLaw (Del) 1149

The High Court of Delhi has held that an issue that purely relates to the inter se liability of the parties regarding the burden of GST is not related to the taxing power of the State, therefore, the same is arbitrable.

The bench of Justice Yashwant Varma held that a dispute surmised on the Pricing Clause in an agreement wherein the inter se liabilities of the parties regarding the payment of taxes are given can be referred to arbitration.

The Court held that in situations where "debatable and disputed facts" arise or in respect of "good reasonable arguable cases", the Court should force parties to raise the same before the Arbitral Tribunal which has the primary jurisdiction to decide all disputes including jurisdictional challenges which may be raised including with respect to non-arbitrability.

6. High Court Cannot Review The Order Passed Under Section 11 Of The A&C Act: Delhi High Court

Case Title: Kush Raj Bhatia v. M/S DLF Power & Services Ltd. ARB. P 869/2022

Citation: 2022 LiveLaw (Del) 1150

The High Court of Delhi has held that the High Courts cannot review an order passed under Section 11 of the A&C Act as the Act does not contain any provision for review.

The bench of Justice Neena Bansal Krishna held that power of review is not an inherent power but the creation of a statute, therefore, it cannot be exercised absence of a provision. The Court held that unlike the Supreme Court which by virtue of Article 137 enjoys the inherent power of review, there is no such power conferred on a High Court.

The Court held that once an application for the appointment of the arbitrator has been heard and rejected, the same cannot be re-opened by an indirect method i.e., review petition.

7. Landlord Can't Be Made To Suffer Indefinitely For Tenant's Misconduct: Delhi High Court Orders De-Sealing Of Property In Child Labour Case

Title: FARIDA BEGUM vs GOVT. OF NCT OF DELHI THROUGH DY LABOUR COMMISSIONER & ANR

Citation: 2022 LiveLaw (Del) 1151

Observing that the landlord cannot be made to suffer indefinitely due to misconduct of the tenant, the Delhi High Court has directed the Delhi government to de-seal a property which was sealed last year after it was found that the tenant had engaged children for his tailoring business.

Justice Prathiba. M Singh said the petitioner is merely the landlady of the subject property and one of her sources of income is its rent.

"She cannot be made to suffer indefinitely due to misconduct of the tenant. Moreover, ld. Counsel for the Petitioner submits that the tenant has not paid even up-to-date rent, and the landlady has already suffered immensely. There are no allegations against the Petitioner of having been complicit in any manner with the tenant," said the court.

8. Delhi High Court Allows Income Tax Deduction On Loss On Forward Cover Purchase Contracts For Foreign Exchange

Case Title: PCIT Versus Simon India Ltd.

Citation: 2022 LiveLaw (Del) 1152

The Delhi High Court has held that reinstatement of year-end losses on forward cover purchase contracts is allowable in spite of the fact that the forward contracts have not been closed.

The division bench of Justice Vibhu Bakharu and Justice Purushaindra Kumar Kaurav, while upholding the findings of the tribunal, held that the loss on account of forward contracts cannot be considered speculative.

9. Disclosure By The Arbitrator Is Not A Discretionary But A Mandatory Requirement, Non-Disclosure Vitiates The Award: Delhi High Court

Case Title: Ram Kumar v. Shriram Transport Finance Co. Ltd. FAO (COMM.) 60 of 2021.

Citation: 2022 LiveLaw (Del) 1153

The High Court of Delhi has held that disclosure by the arbitrator under Section 12 r/w 6th Schedule of the A&C Act is not a discretionary but a mandatory requirement. The Court held that the failure of the arbitrator to disclose a fact that might give rise to a justifiable doubt as to his impartiality vitiates the arbitral proceedings as well as the consequent award.

The bench of Justices Vibhu Bakhru and Amit Mahajan set aside an arbitral award passed without the arbitrator making the necessary disclosure. The Court held that disclosure is a necessary safeguard to ensure the integrity and efficacy of arbitration, therefore, the same cannot be an option but an obligation.

The Court held that the onus of disclosing the necessary information is on the arbitrator itself and a party cannot be precluded from challenging the award on the ground that it did not raise any such challenge before the arbitrator itself.

10. Tapping Phone Lines Or Recording Calls Without Consent Violates Right To Privacy: Delhi High Court, Grants Bail To Former Mumbai Police Chief

Title: SANJAY PANDEY v. DIRECTORATE OF ENFORCEMENT

Citation: 2022 LiveLaw (Del) 1154

The Delhi High has ruled that tapping phone lines or recording calls without the concerned individual's consent is a breach of privacy as enshrined under Article 21 of the Constitution of India.

"I am prima facie of the view that tapping phone lines or recording calls without consent is a breach of privacy. The right to privacy enshrined under Article 21 of the Constitution demands that phone calls not be recorded. Only with consent of the individuals concerned, can such activity be carried out otherwise it will amount to breach of the fundamental right to privacy," Justice Jasmeet Singh said.

The court made the observations while granting bail to Sanjay Pandey, the former Mumbai Police Commissioner, in a money laundering case related to the alleged illegal phone tapping of employees by National Stock Exchange (NSE).

ISEC Services Private Limited, an entity which had entered into a contract with NSE for analysing data and evaluating cyber vulnerabilities, was allegedly also asked by the NSE in 2009 to analyse the pre-recorded calls of its employees. This was purportedly done to "identify and isolate suspicious calls bearing on the issue of data and information security and cyber and process vulnerability".

11. Ensure Completion Of Project For Installing Panic Buttons, Tracking System In DTC And Cluster Buses: High Court To Delhi Govt

Title: ANTI-CORRUPTION COUNCIL OF INDIA THROUGH ITS AUTHORISED SIGNATORY MOHD KAMRAN KHAN v. STATE & ORS.

Citation: 2022 LiveLaw (Del) 1155

The High Court has directed Delhi Government to ensure completion of its project for installing panic buttons and Automatic Vehicle Location Tracking System (AVLTS) in all DTC and cluster buses plying in the national capital.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that the task must be completed within a time-frame which has been decided as per the terms and conditions of the agreement executed between the Delhi Government and contractor.

The court passed the direction while disposing of a public interest litigation filed in 2019 seeking direction for making arrangements for protection of travellers in the buses from crimes like snatching, theft and eve teasing.

12. Section 173(8) CrPC Gives Unfettered Right To Investigating Agency For 'Further' Probe, No Restrictions Exist: Delhi High Court

Title: SRI DESARAJU VENUGOPAL v. CENTRAL BUREAU OF INVESTIGATION

Citation: 2022 LiveLaw (Del) 1156

The Delhi High Court has said Section 173(8) CrPC gives an "unfettered right" to the investigation agency for further investigation "with no conditions" and it cannot be restricted since such restrictions do not exist in the statute.

"The Statute does not limit the right to investigate under Section 173(8) Cr.P.C. only till the trial begun," said Justice Yogesh Khanna.

Section 173(8) of the Code states that further investigation can be done in respect of an offence wherein a police report or chargesheet has been forwarded to the Magistrate.

Justice Khanna said it is not mandatory to take prior permission from the Magistrate for 'further' investigation even after the filing of the charge sheet as it is the statutory right of the police. The material collected in further investigation cannot be rejected merely because it has been filed at the stage of trial, said the court. 

13. Police Can't Transfer FIR Citing Territorial Jurisdiction After Magistrate's Order Under Section 156(3) CrPC: Delhi High Court

Title: JOLLY SINGH v. THE STATE

Citation: 2022 LiveLaw (Del) 1157

The Delhi High Court has ruled that once a magistrate passes an order under Section 156 (3) CrPC directing registration of FIR on a complaint, it is not open for the police to raise an objection regarding territorial jurisdiction.

Quashing an order passed by an Additional Commissioner of Police whereby the investigation in an FIR alleging abduction was transferred to from Delhi's Model Town police station to Uttar Pradesh's Greater Noida, Justice Jasmeet Singh said:

"Once the order has been passed by the magistrate directing investigation, it is not open to the police to raise objection regarding territorial jurisdiction. In fact, in the present case, the Addl. Commissioner of Police has transferred investigation from Delhi to Greater Noida, U.P. This is tantamount to reviewing the order of MM which only a superior court has the authority to do".

14. 'Classic And Textbook Example Of Prejudice': Delhi High Court Raps JNU For Refusing To Relieve Officer For Deputation To Mozambique

Title: UMESH BABU vs JAWAHARLAL NEHRU UNIVERSITY

Citation: 2022 LiveLaw (Del) 1158

The Delhi High Court has directed the Jawaharlal Nehru University to forthwith issue a relieving order to enable an employee of the varsity to proceed on a short-term deputation with Indian Council for Cultural Relations in Mozambique.

The petitioner Umesh Babu had applied for deputation of 11 months as Teacher Indian Culture at ICCR's Cultural Centre and successfully cleared the interview for it in November 2021. He was issued an offer of appointment in April 2022. However, his employer JNU refused to issue him a relieving order on the ground of pendency of an inquiry into alleged fraudulent LTC claims.

Justice Jyoti Singh said it is a matter of record that the Inquiry Officer has rendered a finding that charges levelled against the petitioner have not been proved and has absolved him in the case alleging violation of Rule 3 of CCS(Conduct) Rules, 1964, Rule 16 of CCS (Leave Travel Concession) Rules, 1988 and provisions of CCS (Classification, Control and Appeal), Rules, 1965, as well as other Rules governing the terms and conditions of service of non-teaching staff of the University.

15. Plea Says NCLAT Considers Only Physical Filing For Computing Limitation, Delhi High Court Asks Tribunal To Consider Prevalent Position On E-Filing

Title: POWER INFRASTRUCTURE INDIA v. UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 1159

The Delhi High Court has asked the National Company Law Appellate Tribunal (NCLAT) to consider the prevalent position with regard to e-filing of documents across courts and tribunals in the country, while disposing of a petition which sought quashing of the order that requires physical filing of documents before the tribunal for the purpose of computation of limitation.

As per an office order issued by NCLAT on October 21, it is mandatory for lawyers and parties to file case documents in hard copy along with e-filing receipt. It further states that the period of limitation shall be computed from the date of presentation of appeals i.e. physical filing.

"Suffice it to observe that the prevalent position with regards to e-filing of documents across Courts and Tribunals in the country, encouraging e-filing, which may become the norm in the future, would duly be taken into consideration by the Tribunal," Justice Prathiba M Singh said.

16. Rare Diseases: Delhi High Court Calls For Plan To Publicize Crowdfunding Platform Among Top Companies, PSUs For CSR Contributions

Title: Master Arnesh Shaw v. Union of India & Anr.

Citation: 2022 LiveLaw (Del) 1160

The Delhi High Court has called for preparation of a plan to publicize the crowdfunding platform, which has been setup under the national policy for rare diseases, among top private companies and public sector undertakings (PSUs) for receiving their contributions under Corporate Social Responsibility (CSR).

Justice Prathiba M Singh was hearing a clutch of petitions concerning children suffering from rare diseases like Duchenne Muscular Dystrophy (DMD), Hunter's syndrome. The pleas seek directions to provide them free of cost treatment, which is otherwise very expensive.

Noting that the court had directed setting up of a crowdfunding platform by the Centre under National Rare Diseases Policy on March 23, 2021, Justice Singh said:

"The said crowdfunding platform is operational, however, it appears that the same requires to be publicized in order to attract funding from the general public and corporate entities as also PSUs."

17. Signing A Blank Discharge Voucher Indicates That A Party Was Acting Under Pressure And Compulsion: Delhi High Court

Case Title: New India Assurance Company Limited v. Khanna Paper Mills Limited, O.M.P. (COMM) 496/2020

Citation: 2022 LiveLaw (Del) 1161

The High Court of Delhi has held that the fact that a party signed on a blank Discharge Voucher indicates that it was acting under pressure and compulsion and did not sign the document out of free will.

The bench of Justice C. Hari Shankar held that a discharge voucher signed out of economic duress and compulsion would not extinguish the legitimate claims of a party and it would be open to the party to claim the remaining amount.

The Court also held that the non-supply of documents on which the amount as given under the discharge voucher is based also indicates that it was not signed out of free will.