LatestLaws.com's Monthly Digest (December 2023)
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LATESTLAWS DECEMBER NEWSLETTER
A. ADMINISTRATIVE LAW CASES
The single-judge bench of the Patna High Court held that the provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are.
The High Court of Tripura while dismissing a petition of a contractual teacher seeking resumption of his services held that a contractual employee cannot claim continuation of his service however long he has served the organization petitioner’s engagement or reinstatement in service can only be decided by the respondents and the court should not exercise its jurisdiction for directing the respondents for his reinstatement.
The Himachal Pradesh High Court disposed of a petition, praying that the respondents may kindly be directed to transfer the petitioner from the present place of posting and to decide and consider the representation of the petitioner as per law and policy in a time-bound manner. The Court observed that once an employee has completed the normal tenure of two winters and three summers in a tribal area or such like areas then, the State shall not prolong the stay of an employee in such areas; on the pretext of awaiting the posting of a substitute to be sent to such areas.
The Jharkhand High Court has determined that being entitled to specific benefits as the State Information Commissioner, akin to those received by the Chief Secretary, does not inherently grant the right to a pensionable service. The court highlighted that just because the Chief Secretary's position is pensionable, it doesn't mean the same applies to the State Information Commissioner.
The Karnataka High Court allowed a writ petition filed Articles 226 and 227 of the Constitution of India, seeking certain reliefs against the order dated 22.09.2016 passed by the first respondent - the Labour Commissioner, giving sanction for prosecution. The Labour Court directed to reinstate the second respondent in the 'post' held by him as of 17.05.2008 and never directed to reinstate the second respondent at the same place where he was working in Wilson Garden as on the date of dismissal.
B. ARBITRATION
The Delhi High Court disposed of a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Arbitration Act’) for the appointment of a Sole Arbitrator to adjudicate the disputes between the parties by stating that “respondent having agreed to constitute the Arbitral Tribunal cannot now seek to resist arbitration by seeking to rely upon Clause 63 of the GCC.”
A CJI-led constitution bench of the Supreme Court has upheld the validity of the “group of companies” doctrine in Indian arbitration jurisprudence. This doctrine is based on the interpretation of Section 2(1)(h) along with Section 7 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Arbitration Act’). This doctrine involves the recognition that, in certain situations, entities within a corporate group can be considered as a single economic unit, and the actions or intentions of one entity may be attributed to another within the same group.
In a recent verdict, the Delhi High Court, presided over by Justice Rajiv Shakdher and Justice Tara Vitasta Ganju, has ruled against the application of Section 14 of the Limitation Act in a case involving U.P. Jal Vidyut Nigam Ltd and C.G. Power & Industrial Solution Ltd. The court observed that the petitioner, due to a lack of diligence, allowed its Section 34 petition under the Arbitration and Conciliation Act to be dismissed twice for non-prosecution.
C. CIVIL LAW CASES
The Himachal Pradesh High Court allowed a writ petition, praying to quash the complaint no. 104 of 2018, titled Girija Nand vs. Reeta Devi & others, pending before the learned Judicial Magistrate First Class.
The Court observed that there is no averment in the present petition that the contract provided for the dissolution of the firm or that there was consent of all the partners to dissolve the firm.
The Karnataka High Court dismissed an appeal filed u/s 100 of CPC, against the judgment and decree dated 16.12.2022 passed on the file of the Senior Civil Judge and JMFC, allowing the appeal and setting aside the judgment and decree dated 08.07.2022 passed on the file of the Additional Civil Judge and JMFC. The Court observed that the documents have to be necessarily supported by the pleadings mentioned either in the plaint or in the written statement.
The Karnataka High Court dismissed a writ petition filed under Article 227 of the Constitution of India, praying to set aside the order dated 03.02.2021 passed by the Learned Senior Civil and JMFC in a suit filed by the petitioner under order 6 rule 17 r/w section 151 of CPC and allow the application pending on the file of learned senior civil and JMFC. The Court observed that if the amendment application as prayed is allowed it would put back the stage of the suit from arguments to the recording of evidence of the plaintiff.
The Karnataka High Court allowed a writ petition filed under Article 227 of the Constitution of India, praying to set aside the impugned order dated 08.11.2022 in the original suit passed by the learned Addl. Civil Judge and JMFC passed in i.a.no.9 filed under Order VI Rule 17 of CPC to amend the plaint to include additional prayer for a permanent injunction. The Court observed that the proposed amendment would not in any way prejudice the case of the respondents/defendants. Moreover, if the amendment is allowed, it would not change the nature or complexion of the suit.
The Karnataka High Court dismissed an appeal filed u/s .96 r/w Order 41 Rule 1 of CPC, against the order dated 06.06.2015 passed on an application on the file of the Addl. Sr. Civil Judge and CJM, rejecting application no.1 to 4 filed u/o 21 rule 97 of CPC. The Court observed that upon dismissal of the suit for partition in the original suit filed by the appellants, the instant applications being subject to the said order of dismissal would also be liable to be dismissed.
D. CONSTITUTIONAL CASES
The Karnataka High Court allowed a writ petition filed under Articles 226 and 227 of the Constitution of India, seeking certain reliefs. The Court observed that in the absence of adjudication of the right of the respondent to recover the amount in question from the Corporation, the Labour Court could not have directed the Corporation to calculate and pay the wages in a proceeding under Section 33 C (2) of the I.D Act.
2. Punjab and Haryana High Court issues directions to check misuse of UAPA provisions
The High Court of Punjab and Haryana while granting bail to a murder accused, who was charged with UAPA due to misinterpretation of the statute by police issued directions to the Punjab Police to check misuse of the application of the Act and observed that mechanical and perfunctory manner of inclusion of offences under the UAPA Act ultimately causes deep trauma, upon the minds of the petitioner as the stringency and the exacting rigour, of the relevant provision of the UAPA Act, do thereby prima facie, forbid them, to claim the facility of bail from the Courts of Law.
The division judge bench of the Patna High Court held that the sole purpose of putting the incriminating materials to an accused is to elicit his response and also to guarantee him a fair chance to defend himself. This is in recognition of the principles of audi alteram partem.
The High Court of Jharkhand while quashing the summoning order against the petitioner, accused of molesting and assaulting a woman held that criminal proceedings are serious affairs as it interfere with the liberty of citizens and courts are not supposed to act mechanically like a post office and issue process without scrutinizing and applying the judicial mind and present case appears to be filed to wreak vengeance on account of civil dispute and continuation of proceedings will be an abuse of process of court.
The Delhi High Court has noted that the accuracy of information furnished under the Right to Information Act, 2005, or any conflicting dispute, cannot be determined through proceedings under the said legislation. The judgment by a division bench comprising Acting Chief Justice Manmohan and Justice Mini Pushkarna dismissed an appeal challenging the dismissal of a writ petition and emphasized the limited scope of RTI proceedings.
The Karnataka High Court dismissed a writ petition filed under Article 226 of the Constitution of India r/w rule 14(1) of the High Court of Karnataka Rules, 2018, praying to issue an appropriate writ, order, or direction, quashing the recommendation made by the respondent no.12 government of the Karnataka through social welfare and labor secretariat of forwarded to the government of India for inclusion of backward tribes or non-scheduled tribes in the list of scheduled tribes for Karnataka. The Court observed that the prayers for derecognizing the Scheduled Tribes Certificates duly issued to the members of subject communities namely Nayak, Naik, Beda, Bedar, Valmiki & Talawara cannot be granted in a wholesale way when the prayers for invalidation of the above Parliamentary legislations have not been favoured.
E. CRIMINAL LAW CASES
The Supreme Court dismissed a criminal appeal filed by an appellant challenging the trial court and High Court judgments, which had sentenced him to life imprisonment under Section 302 read with Section 34 of the Indian Penal Code (IPC), while discussing the applicability of Section 34 IPC.
2. Kerala High Court expounds: Second FIR not barred if allegations are substantially different
The Kerala High Court held that if both the FIRs are with the same set of allegations and the offences constituting from the allegations are the same, the second FIR and the proceedings following such second FIR are illegal.
In the present case, both FIRs had substantial difference and accused were also not same. Hence, there was no bar on Second FIR.
The Delhi High Court has observed that quashing kidnapping proceedings on the basis of settlements between parties could contribute to a culture where the rights and dignity of minors are compromised through negotiation.
The High Court of Kerala in a bench comprising the Hon’ble Justice K. Babu held that Law Enforcement agencies may recover electronic records containing sexually explicit materials during investigations and since there are no rules for handling such records, the need is for issuance of guidelines until a law is enacted.
The Delhi High Court has held that in cases transferred from the Magistrate to the Court of Session, the trial must commence ‘de novo’. This decision was reached as the Court emphasised that the Magistrate becomes ‘functus officio’ in such situations, rendering any evidence recorded inadmissible for the purposes of a de novo trial before the committal Court. It was pointed out that the trial proceedings would need to restart, with the Court of Session first framing charges and then proceeding with the examination of witnesses.
The High Court of Punjab and Haryana while quashing the summoning order against the petitioner accused under Section 295 IPC held that the desecration of the Samadh of a family member would not amount to the offence of defiling a place of worship or sacred object under Section 295, IPC and a Samadh of a family member cannot constitute a place of worship held sacred by a class of persons.
The High Court of Punjab and Haryana while granting bail to the petitioner, accused under the NDPS Act observed that deprivation of the right of speedy trial due to carelessness, insensitiveness, malafide or any other reason on the part of police officers is unacceptable and violative of Article 21 and thus even the police officers should also be imparted dedicated training by engaging appropriate faculty, who are experts in the field of Constitutional Law.
The High Court of Punjab and Haryana in a petition filed for cancellation of bail murder accused held that the grant or denial of bail cannot be done mechanically and the Courts must satisfy the minimum requirement of assigning a prima facie view borne out from the record while exercising such discretion and further stated that a very disturbing trend is emerging with the trial Courts as they have adopted a practice to grant bails in a mechanical manner, which is a huge cause of concern.
The Calcutta High Court allowed the appeal, acknowledging that the appellant caused a fatal injury leading to the victim's death with a knife. However, considering the circumstances in which the victim and his inebriated brother intervened in a domestic dispute between the appellant and his wife, the appellant lost his control, and due to his lack of intention and sudden rage, he couldn’t be held liable under 302 IPC. Consequently, the appellant was convicted under Section 304 Part-I IPC instead of Section 302 IPC.
The High Court of Andhra Pradesh dismissed a criminal petition seeking to quash the proceedings against him in which the offences alleged against him are under Sections 417, 418, and 420 of the Indian Penal Code. The court ruled that the complaint filed directly with the magistrate seeking inquiry does not involve misuse of the criminal justice system, allowing the magistrate to use Section 156(3) of the CrPC to direct police investigation without the complainant having to go through multiple stages.
The Himachal Pradesh High Court dismissed a petition, filed under Section 482 of Cr.P.C for quashing of Zero F.I.R. of 2023 dated 20.11.2023, registered at Police Station for the commission of offences punishable under Sections 376, 377 & 498-A read with Section 34 of IPC. The Court observed that the Magistrate has the power to order the registration of the FIR and monitor the investigation under Section 156(3) of Cr.P.C.; therefore, the petition under Section 482 of Cr.P.C. for such directions is not maintainable.
The Himachal Pradesh High Court dismissed a petition, filed for seeking regular bail in a case registered against the petitioner for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act. The Court observed that once, the visa expires, the person has no right to remain on Indian soil and if he remains so, he commits an offence.
F. FAMILY LAW CASES
The Meghalaya High Court observed that a spousal relationship cannot lead to any disqualification in a tender process unless there exists a specific restriction incorporated in the related terms and conditions. While adjudicating upon a tender dispute case, the Court held that wrongfully banning and debarring the petitioner from entering into business dealings with the respondent, on grounds of a married couple taking part in the tender process in the name of their individual business identities, cannot be sustained in law.
The Delhi High Court has observed that a wife's earning capacity does not serve as an absolute bar for a husband to provide maintenance. The division bench of Justice V Kameswar Rao and Justice Anoop Kumar Mendiratta stated that the obligation of the husband to provide maintenance is on a higher pedestal than that of the wife.
The Supreme Court set aside an impugned order by the Jharkhand High Court which imposed a condition of 'resuming the conjugal life' upon the appellant as a condition for granting anticipatory bail.
4. Delhi High Court: Filing a withdrawal application does not render court 'functus officio'
The Delhi High Court has observed that a court doesn't become functus officio just because the appellant filed a withdrawal application for the guardianship petition. The power of the Family Court to adjudicate the memo of withdrawal under Order XXIII Rule 1 of the Code of Civil Procedure, 1908, (CPC) was challenged by the appellant. The Court dismissed this claim and held that the exercise of 'parens patriae jurisdiction' for the welfare of the minor child involved in such cases.
The Punjab & Haryana High Court while upholding the visitation rights granted to the father of a 10-year-old daughter, who was dependent on substances observed that a mother or father, maybe morally bad in the societal sense, but that parent may be good for the child and the so-called morality is created by society, based on their own ethos and norms and should not necessarily reflect in a contextual relationship between the parent and child.
G. INCOME TAX RELATED CASES
The Supreme Court has ruled in favour of Jindal Steel and Plant Limited observing that market value of electricity should be determined by comparing it with the open market rate for power. The Court affirmed the decisions of the tribunal and the High Court, rejecting the respondent’s contention. The argument put forth was that an assessee was not entitled to benefits under Section 80-IA of the Income Tax Act, 1961 (hereinafter referred to as the 'ITA') when power generated was consumed domestically or by other businesses. The Court emphasized the crucial factors of the absence of a contract with the State Electricity Board and reliance on rates fixed by the tariff regulatory commission.
2. Delhi High Court: Officers cannot pressure Taxpayers to pay tax even if such Tax is due and payable
The Delhi High Court, in a recent ruling, has held that tax officers are not permitted to coerce taxpayers into paying taxes without following due process, even if it is evident that the taxes are due and payable.
3. Delhi High Court sheds light on the issue of levy of VAT on sale of re-possessed vehicles
The Delhi High Court, under the jurisdiction of Justices Vibhu Bakhru and Amit Mahajan, has recently delivered a significant verdict affirming the imposition of value-added tax (VAT) on the sale of repossessed vehicles.
H. IBC CASES
1. NCLT, Mumbai Bench rules: No debt due if assignment deed insufficiently stamped
The NCLT, Mumbai Bench expounded that an instrument, which is not stamped or insufficiently stamped in accordance with the Stamps Act, is not an enforceable instrument, hence is a void contract in terms of provisions of Contract Act. Accordingly, such instrument cannot be taken in evidence by the Court.
In the present case, since the liability of the Corporate Debtor arose from the assignment deed, there was no debt due on account of the deed being insufficiently stamped.
The NCLAT, New Delhi Bench opined that Appellant who never submitted any claim before the Resolution Professional claiming to be workmen could not be allowed to contend at this stage that they are workmen and they should be paid at par with the workmen of the Corporate Debtor for amount which was admitted in the CIRP by the Resolution Professional.
Further, it was noted that Section 53 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) itself provides different treatment in distribution of assets where workmen dues are dealt in Section 53(1)(b) and operational debt at much lower ladder.
The Bench held that when Resolution Plan differentiates between payment to the workmen as well as to the Operational Creditors, such distinction is in accordance with law and cannot be faulted.
The NCLT, Mumbai Bench held that the amounts due (rentals for the period) to an owner or lessor where such property is occupied by or in the possession of the corporate debtor, who was barred to recover his property on account of Moratorium under Section 14 of the IBC is included in the definition of Insolvency Resolution Process Costs.
Accordingly, the dues of Applicant was admitted in the liquidation proceedings. However, it was clarified that the dues would be settled only as per Section 53 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”).
I. IPR CASES
1. Orissa High Court opines: Trademark protection denied for marks that can confuse consumers
Orissa High Court has held that where marks are of the nature that they can confuse the consumer, such marks would not get Trademark Act protection. Additionally, if an agreement is between the parties for such use then it should be exclusive use for entitlement of prior use.
This case came before the court as an appeal against an impugned order granting permanent injunction for using the mark "Khimji Jewels" or "Khimji" until the suit is disposed of. Respondent is the plaintiff and his suit was for decree of permanent injunction against the defendant from using the Trademark.
J. NDPS RELATED CASES
Meghalaya High Court refused the grant of bail stating that in certain instances related to narcotic drugs and psychotropic substances, the strict provisions of Section 37 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) may not apply. However, even if there is a mere suspicion of prima facie involvement, especially when there is a direct seizure from an individual, it is advisable to allow the legal process to unfold through a proper trial.
The High Court of Punjab and Haryana took suo moto cognizance against drug trafficking at border areas of Punjab after a news item reporting details of seizures and recovery of narcotic items as well as rifles and pistols was published in the newspaper and directed the NCB to file a status report giving details of the persons suffering from drug addiction in the States of Punjab and Haryana, and what kind of steps can be taken to make them aware of the drug menace.
The Himachal Pradesh High Court dismissed a writ petition, filed for seeking the grant of regular bail in a case registered against the petitioner for the commission of the offences punishable under Sections 20 and 25 of the Narcotic Drugs and Psychotropic Substances Act.
The Court observed that the accused is not entitled to bail if he causes a delay in the trial as the same will amount to taking advantage of one’s wrong which is impermissible.
The Punjab & Haryana High Court while granting bail to a pregnant woman, accused under Section 15 of the NDPS Act observed that although the petitioner is alleged to have been found in possession of the contraband falling in the commercial category but pregnancy of a woman is a special circumstance, in which the gravity of the offence for the time being is liable to be ignored and Section 37 of the NDPS Act cannot be considered to act as a blanket ban on the power of the Court to grant interim bail.
The High Court of Andhra Pradesh allowed an appeal filed against the judgment by a special judge for NDPS cases in which the learned judge found the accused guilty of the charge under Section 20(b)(ii)(B) read with 8(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 and convicted them. The court ruled in favour of the accused due to doubts raised by false allegations and procedural lapses by the Excise police, including non-compliance with Section 50 of the NDPS Act and the unexplained abandonment of a mediator by the prosecution.
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