LatestLaws.com's Monthly Digest (March 2023)
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ADMINISTRATIVE LAW
The Bombay High Court dismissed a writ petition challenging the rejection of the Petitioners’ candidature in the selection process convened by Pune Municipal Corporation for appointment to the post of Assistant Encroachment Inspector. The Court observed that Equivalence/similarity is required to be recognized in respect of specific courses and the same cannot be assumed based on logic.
The Delhi High Court allowed for the treatment of the Petitioner, appointed for the post of Assistant Commandant in CAPF at par with this batch mates from the 26th Batch and re-fixing of the seniority w.e.f. the date of his batch mates from the 26th Batch.
It was opined that the delay in issuing the appointment letter of the Petitioner was caused by the administrative functioning of the Respondents and the Petitioner cannot be made to suffer because of that.
The Jammu and Kashmir High Court comprising Justice Wasim Sadiq Nargal while hearing a plea challenging the Standing Order dated February 23, 2021, issued by the Department of Geology and Mining, Government of Jammu and Kashmir ordered that Standing Orders are for the regulation of the stone crushing units in the Union Territory as a valid piece of legislation and it has liberalized the establishment of stone crusher units.
The High Court highlighted the role of stone crushing industry in the growth and development of the country and said that any impediments in the process can bring the development to a standstill hence the Government S.O. 60 is a valid piece of legislation and cannot be interfered.
The Allahabad High Court dismissed a writ petition praying to conduct the online common recruitment test in the Hindi language for selection in pursuance of the advertisement dated 06.01.2022 and other similar reliefs.
The court observed that it was not open to the applicants after participating in the selection process to question the result, on being declared unsuccessful.
A single-judge bench of the Madras High Court comprising of Mr. Justice C.V. Karthikeyan was reviewing a couple of orders passed by the government in relation to limiting the fee of the government advocates in matters of arbitration among other things.
The court held that the government cannot reduce a legal professional merely to a position of a contract worker and limit his fee/put a ceiling accordingly. The impugned government orders were struck down by High Court.
The Himachal Pradesh High Court in a petition challenging the office order for removal of service observed that an employee can be penalized without inquiry if convicted and sentenced, but it does not mean that every conviction means the automatic removal of the convicted employee.
- ARBITRATION CASES
- Delhi High Court rules: Arbitration clause in MoU valid even if Letter of intent does not have any such clause
The Delhi High Court opined that the issue related to whether the dispute arose from the MoU or the Letter of intent can be looked into by the Arbitrator as according to Section 16 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “A&C Act”), the Arbitrator can decide his jurisdiction. The present case was not one where it was alleged that no arbitration clause existed between the parties.
Further, it was ruled that if the Memorandum of Understanding (“MoU”) and Letter of Intent are found to be 2 independent contracts, then also the Arbitration clause in MoU would be given effect.
The Delhi High Court propounded that a party cannot escape liability if it has funded litigation for a gain, but the result is contrary to its expectations. There has to be a balance between the need to ensure access to justice via the funding arrangement and the cost that Defendant would bear if such litigation fails.
There was a Bespoke Funding Agreement between the parties, regarding which the Court opined that prima facie the cost levied by the arbitral award would become the cost covered by the Bespoke Agreement itself as these are the cost of litigation of Respondents No.1 to 4, agreed to be funded by the Respondent No.5.
The Calcutta High Court opined that the arbitral award would be rendered unsustainable and non-est in the eyes of law if the arbitrator was appointed unilaterally.
The compliance with Section 12(5) read with Schedule VII of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “A&C Act”) is a sine qua non for any arbitral reference to be recognized and valid.
It was noted that the unilateral appointment of the Arbitrator would not survive a challenge under Section 34, however, the present petition was filed for execution under Section 36. But the Bench noted that Impartiality as a principle cannot be railroaded. If a unilateral appointment has been done by one party, it cannot hide behind procedural limitations and technicalities to protect their unlawful act.
It was unequivocally stated that even at the execution stage the Court can step in and declare such an award null and void.
- CIVIL CASES
- SC rules: Applications under Order VII Rule 10 and Order VII Rule 11 cannot be allowed together
The Supreme Court opined that allowing both the applications under Order VII Rule 10 and Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) is erroneous. If a plaint is rejected as per Order VII Rule 11, then the only recourse is to file a fresh plaint as per Order VII Rule 13, and the question of presenting the same plaint before the proper court as per Order VII Rule 10 does not/cannot arise only.
The Delhi High Court opined that Order 39 Rule 10 along with Order XV-A of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) is an interim measure that safeguards the interest of the owner. The order as an interim measure has to be passed carefully and has to be given a broad interpretation so that the party claiming ownership is safeguarded.
In the present case, it was noted that solely because the trial is about to get concluded, the Plaintiff cannot be deprived of the fair protection of his interest. It was held that given the broad scope of Order XV-A of CPC, the Trial Court should not have restricted the decision to direct payment only to the ‘admitted’ amount of rent.
The Punjab and Haryana High Court enunciated that when a suit is filed for declaration that the Plaintiff is a joint owner in joint possession to the extent of her share in the property, the ad valorem Court fee is not required to be paid.
A single judge bench of the Madras High Court comprising Justice R. Vijayakumar was dealing with the legal question of whether a mortgage deed would amount as a usufructuary mortgage or not and whether Article 137 of the Limitation Act would apply on usufructuary mortgagor’s right to a final decree application or not. Justice Vijayakumar answered the aforementioned in negative and adjudicated upon certain more aspects regarding the same.
The Bombay High Court disposed of the petition filed against the Circular dated 16.11.2016 by which the sub-Divisional Officer and Tahsildar of the Region was directed to not mutate the Revenue Record based on the unregistered documents.
A single-judge bench of this Court comprising of Hon’ble Justice Sandeep V. Marne held that a compromise decree effectuating partition of agricultural land does not require compulsory Registration.
The Himachal Pradesh High Court decided that the judicial discretion vested with the Revenue Officer to convert itself as a Civil Court while adjudicating a plea of adverse possession under the Himachal Land Revenue Act 1954 cannot be used arbitrarily or capriciously.
The Allahabad High Court dismissed a petition under Article 227 of the Constitution of India, filed assailing the order dated 10th January 2018, passed by the trial court rejecting the petitioner's application for the issue of a commission under Order 26 Rule 9 of the Code of Civil Procedure, as well as the order dated 31st January 2020 passed by revisional court dismissing the revision.
The Court observed that the provisions of Order XXVI Rule 9 of the Code do not make it applicable for the collection of evidence on behalf of the plaintiff.
A single judge bench of the Madras High Court comprising of Justice K. Kumaresh Babu held that a court can exercise extraordinary power to issue an interim order under Order 38 Rules 5 to 13 of the Code of Civil Procedure, 1908 for the attachment of a property before judgment.
However, that can only be exercised when the plaintiff establishes that the defendant was trying to deal with the property and that such dealing of the property was to defeat the right or delay the execution of any decision that may be made against him.
The Kerala High Court Bench comprising Justice K Vinod Chandran and Justice C. Jayachandran while hearing the clubbed Petitions and Appeals challenging the Order of the Lower court relating to the Liquor ban observed that when the sale of liquor is prohibited for a few days to ensure peace, preserving public order and for the public good, commercial interests are not taken as a priority even if it leads to sale disruptions.
The Kerala High Court expounded that the Commercial Court shall not allow a written statement to be taken on record if 120 days have passed since the date of service of summons.
It was held that as per Section 16 of the Commercial Courts Act, 2015, Defendant has to file the written statement within 120 days from the date of service of summons. If 120 days have lapsed, then the Defendant's right to file the written statement shall stand forfeited and the Court shall not accept the written statement on record.
A single judge bench of the Madras High Court comprising Justice V. Bhavani Subbaroyan, while deciding the jurisdiction of the Commercial Appellate Division to entertain certain appeals observed that no Appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act. The court cleared that the Parliament introduced Subsection 2 of Section 13 and Subsection 3 of Section 16 of the Commercial Courts Act with the intent to dispose of the cases/appeals speedily.
- CONSTITUTIONAL CASES
The Single Bench of the Delhi High Court in the case of Ved Yadav vs State of NCT of Delhi consisting of Justice Swarana Kanta Sharma opined that the right of a convict to file an SLP against the dismissal of his criminal appeal by a High Court is essential and the same could not be denied on the ground that free legal aid was available in the jail and SLP could be filed from the jail itself. Since the only hope for the Petitioner was from the Hon’ble Apex Court regarding his conviction, he must be provided with an opportunity to pursue his legal remedy by filing an SLP through the counsel of his choice.
The Division bench of the HP HC while dealing with a case, where the petitioner was aggrieved by the rejection of their application for opening a Para Veterinary Institute, noted that the Court does not interfere with the Policy decisions of the Government until and unless it is demonstratively capricious and the same cannot be done in the current case, since the policy decision of the government was neither illegal nor illogical.
The Division Bench of Justice Aniruddha Bose and Justice Krishna Murari of the Apex Court in the case of R Sundaram Vs The Tamil Nadu State Level Scrunity Committee & Ors held that where the validity of a community certificate is put to question, keeping in mind the importance of the document and the effect it has on people’s rights, the proceedings questioning the document cannot, except in the most exceptional circumstances, be done ex-parte.
It was also opined that the right to pensionary benefits is a constitutional right and as such cannot be taken away without proper justification.
The Bombay High Court allowed the writ petition seeking the quashing of the Order of detention dated 29th September 2022 under Section 3(2) of the M.P.D.A. Act.
A division bench of this Court comprising of Hon’ble Justice A.S. Gadkari and Prakash D. Naik held that the disposal of representation must be considered with the reasonable expedition as any delay in its disposal affects the right of detenu under Article 22(5) of the Constitution of India.
A division bench of the Madras High Court comprising of Mr. Justice M. Sundar and Justice N. Anand Venkatesh was adjudicating upon a detention matter wherein the petitioner contended that the impugned detention order suffered from non-application of mind.
The court observed that no bail application was filed by the detenu and Section 167(2) Cr.PC would not have come to the aid of the detenu even if he had filed a bail petition. Hence, there was non-application of mind. The court emphasised on the fact that preventive detention is not a punishment and HCP is a high prerogative writ.
The Supreme Court propounded that a breach of contract does not give rise to criminal prosecution for cheating unless the fraudulent or dishonest intention is proved right at the commencement of the transaction. Criminal proceedings cannot be initiated merely because it has been alleged that the promise was not kept.
The Division Bench of Justice Sanjiv Khanna and Justice M.M. Sundresh of the Apex court in the case of M/S Hornbill Consultants Vs State of Punjab and others enunciated that even though this power is plenary and unrestricted by any provision of the Constitution of India, the High Court prefers not to exercise extraordinary jurisdiction under Article 226 of the Indian Constitution in contractual matters because, typically, adjudication of disputed questions of fact in a Civil Court is more appropriate, just and fair. It was then ruled that this is not a hard and fast rule, especially when the government authorities' decisions are arbitrary, unfair, or unreasonable and when the facts are undisputed and unambiguous.
A single judge bench of the Madras High Court comprising Justice Krishnan Ramasamy while entertaining a dispute under the Arbitration and Conciliation Act observed that even though there was no express clause in the contract mentioning that 9% interest has to be paid by the respondents, the emails and other media could be considered as a record for the said agreement between the parties. They further appointed an arbitrator to adjudicate the dispute.
The Himachal Pradesh High Court while allowing the appeal challenging the award passed by the lower court, held that the determination of the value of land would be done after taking into consideration the acquisition of land vide Award, along with the sale deed that is relevant for determining the value of the land. Both of these transactions are relevant to determine the value of the land.
- CRIMINAL CASES
The Division Bench of Justice Sudhanshu Dhulia and Justice Manoj Misra of the Apex Court in the case of M/S BLS Infrastructure Limited Vs M/S Rajwant Singh & Ors held that where the Complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the Complainant.
The Division Bench of Justice Sanjay Kishan Kaul and Justice B.V. Nagarathna of the Apex court in the case of Ravi Dhingra Vs The State of Haryana opined that for proving a threat under Section 364A of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’), intimidation of the child victim for making him silent is not enough.
It was noted that in the present case, there were changes in the statements of the Prosecution witness. First, a change in the exact timing of the threat. Second, the specificity of the delivery of the threat to kill; and Third, omission of the intent behind the threat i.e. to prevent the child from crying out. It was ruled that the ingredient of proving a threat to cause death or hurt was not established beyond a reasonable doubt.
The Delhi High Court expounded that the exercise of the Police regarding adding sections based on the investigation has to be done before the expiry of 60 days otherwise the Accused would always be left at the mercy of the Police who would have an opportunity to defeat the statutory right under Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”). The Police should bring to the knowledge of the Magistrate, additional offences/sections before the expiry of 60 days.
The Bench further ruled that unless any such knowledge reaches the Magistrate, it should be presumed that the investigation was required to be completed within a period of 60 days unless FIR itself was registered with offences attracting imprisonment up to life or more than 10 years.
Regarding Section 304 IPC, the High Court opined that if Part is not specified, then the Accused is liable to be detained for only 60 days without any demurer. If the Prosecution is unable to determine the Part, the Accused cannot be remanded for further custody. The benefit goes to the Accused in such a case.
The Hon’ble Supreme Court opined that the relevant questions have to be prepared by the Court for Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) by properly tracing the incriminating circumstances in the evidence produced against the Accused so that the Accused gets an opportunity to present.
The Court summarized the legal proposition on Section 313 such as Section 313 is a safeguard for the Accused to prove his innocence, no conviction solely based on Section 313 statement and Section 313 mandates the Court to question the Accused so that he can personally explain the circumstances appearing in the evidence against him.
The Kerala High Court expounded that how cross-examination is done has no bearing on the right of the Accused to cross-examine the witness. It was held that whether the cross-examination is done physically or through electronic video linkage, it would not make a difference.
Opining that Electronic Video Linkage Rules for Courts (Kerala), in 2021 (hereinafter referred to as “Rules, 2021”) were enacted for this very special purpose, the Bench held that the Petitioner cannot assert that his right to effective cross-examination will be affected if cross-examination is done via video linkage.
The Delhi High Court opined that further investigation cannot be ground for the continued incarceration and granted bail to the Applicant noting that the primary evidence in the case would mostly be documentary evidence and has already been possessed by the Investigating Office. Further, at this stage presumption of tampering with the witness or destroying evidence could not be presumed.
A single-judge bench of the Madras High Court comprising of Justice P. Velmurugan refused to quash the order where the CBI was directed to investigate the case of 2 stolen ancient idols of Raja Raja Cholan and Logamahadevi displayed for public view in the Sarabhai Foundation's Museum which was alleged to be unlawfully removed from the Tanjore Bragatheeswarar Temple in late 1960s.
The Kerala High Court Bench of Justice Benchu Kurian Thomas while dealing with the criminal case wherein the Petitioner was arrested for offences punishable under sections 294(b), 323, 308, 354, and 354A of the Indian Penal Code, 1860 ordered that Bail granted in crime cannot be rejected on the mere ground that Accused has been subsequently booked in another case.
It was held that the mere registration of a subsequent crime against the Accused by itself cannot result in an automatic cancellation of bail. Registration of a subsequent crime is only an indication of an allegation or a complaint of the Accused having been involved in a subsequent crime. The presumption of innocence available to the Accused in the second crime, the right to liberty as a fundamental right under Article 21 of the Constitution of India which envelopes every provision of the Code of Criminal Procedure are factors that cannot be forgotten by the Court when called upon to cancel the bail.
The Allahabad High Court rejected an application praying for setting aside the entire proceedings of State Vs. Mehandi Hasan & Ors., impugned cognizance/summoning order dated 2.4.2022 and the impugned charge-sheet dated 20.7.2021, arising out of Case under Section 3 (1) U.P. Gangsters Act, 1986. The court observed that illegal extraction of mines and minerals would fall under the category of immovable property.
The Single Bench of the Delhi High Court in the case of Shiv Dutt Bakshi vs CBI consisting of Justice Yogesh Khanna opined that the absence of sanction cannot be a ground to quash the criminal proceedings in the exercise of power under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”).
In the present case, the complaint was filed for accepting a bribe, however, the Bench found that it was not a case of bribe but of the sale of the Petitioner’s son’s private gun which could not be termed as illegal gratification. Hence, the closure report filed was upheld by the Court.
The Punjab and Haryana High Court while de-freezing the seized Bank accounts of an accused held that u/s 102 CrPC there has to be a nexus between the property that has to be seized with the offence in order to empower the Investigating Officer to seize them.
The Punjab and Haryana High Court expounded that the Accused has an indefeasible right to bail if the investigation agency is unable to present the report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) within the prescribed time.
In the present case, the investigating agency sought an extension of 90 days, and the same was granted. However, the order allowing for extension was set aside. Therefore, when the extension itself is declared as bad in law the detention of Petitioner would be violative of Section 167(2) read with Section 36A(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”)
- CUSTOMS ACT
The Division Bench of the Delhi High Court in the case of M/S Great Nuts Impex Pvt. Ltd. vs Commissioner of Customs Delhi & Ors. consisting of Justices Vibhu Bakhru and Amit Mahajan held that “Boiled Supari” cannot be classified as those covered under Chapter 21 (“Miscellaneous Edible Preparations India Custom Duty”) of the Customs Tariff Act, 1975 (hereafter referred to as ‘the Customs Tariff Act’).
The Bench also ruled that the goods covered under “Betel nut product known as Supari” means “any preparation containing betel nuts”. Therefore, the goods covered under this heading only implies preparation that contains betel nuts and not treating the products as betel nut.
The Division Bench of the Delhi High Court in the case of Commissioner of Customs (Airport & General) vs M/S R.P. Cargo Handling Services consisting of Justices Vibhu Bakhru and Amit Mahajan held that the question whether the Commissioner took the necessary steps to commence the proceedings under Regulation 20 of the Customs Brokers Licensing Regulations, 2013 (hereinafter referred to as “the CBLR”) which he had to do within the stipulated period of ninety days, was not contingent on the customs broker receiving the notice.
It was held that the word ‘issue’ used in Regulation 20(1) of the Customs Brokers Licensing Regulations, which talks about the “Procedure for revoking a license or imposing penalty”, cannot be interpreted to mean ‘serve’ or ‘receipt’.
- MOTOR VEHICLES ACT
- Madras High Court added 50% of Income towards Future prospects in Multiplier Method to compute Compensation to be given to a Victim
A single-judge bench of the Madras High Court comprising of Justice Rmt.Teekaa Raman decided to uphold the order of the claim tribunal which applied the ratios of 3 landmark Supreme Court judgments to calculate the compensation to be given to the victim using the multiplier method. To account for the future prospects, the judge added 50% of the income of the victim at the time of the accident.
The Punjab and Haryana High Court opined that income from agriculture and dairy farming is not included when notional income is assessed for computing compensation payable to the claimant under the Motor Vehicles Act, 1988. The rationale for this is that the income from land and milch cattle continue even after the death of the deceased and hence, there is not much loss from such types of income.
The Punjab and Haryana High Court ruled that if the deceased is self-employed or on a fixed salary and is below 40, an additional 40% of established income should be granted as future prospects.
The Bench enhanced the compensation of a 25-year-old deceased who died in a motor vehicle accident.
The Bombay High Court partly allowed an appeal seeking to declare that the bursting of tyre was an act of god and hence no insurance can be claimed.
The Court observed that merely stating that a burst of tyre is an "act of god" cannot be a ground to exonerate the appellant/insurance company from paying compensation.
- POCSO AND JUVENILE JUSTICE ACT
- SC rules: Trial and Conviction not vitiated in law even if Accused subsequently proves juvenility
The Hon’ble Supreme Court in the case of Karan @ Fatiya Vs The State of Madhya Pradesh set aside the death sentence awarded to the rape and murder convict who was later on found to be a minor at the time of the commission of an offence and opined that the law itself supports that person who is established as a child on the date of the commission of the offence, can avail of the benefits provided under the Juvenile Justice (Care and Protection) Act, 2015 (hereinafter referred to as “JJ Act”), even after the case has been decided and the person later attains majority.
It was noted that the legislature was intended to benefit a person who was declared to be a child on the day of the offence exclusively about the punishment component of the law. If the conviction was to be rendered ineffective Section 9 of the JJ Act would have completely excluded the regular Sessions Court's jurisdiction and Section 25 of the JJ Act would have provided that any trial that was ongoing when it was determined that the person being tried was a child should be transferred to the Juvenile Justice Board and declared null and void. Instead, under section 25 of the 2015 Act, it is provided that any proceeding pending before any Board or Court on the date of commencement of the 2015 Act shall be continued in that Board or Court as if this Act had not been enacted.
It was propounded that the conviction could be tested and cannot be said to be vitiated in law merely because the inquiry was not conducted by Juvenile Justice Board. The sentencing will have to be amended as per the limitations under the JJ Act.
The Allahabad High Court allowed the revision application seeking bail rejected by the Juvenile Justice Board and Appellate Court under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 ("JJ Act, 2015").
A single judge bench of this Court comprising of Hon’ble Justice Sanjay Kumar Pachori held that the juvenile's bail cannot be denied due to the nature of the offense he committed.
The Kerala High Court opined that as per Section 17(1) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI”), any person aggrieved with measures taken under Section 13(4) may make an application to the Debts Recovery Tribunal. The jurisdiction in respect of these matters has been conferred to the Debts Recovery Tribunal. The High Court, therefore, declined to interfere under Article 226. Further, it was also ruled that the secured creditor has the power to take recourse to measures to recover the debt. Read More
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