Today’s Legal Updates

Thuresday, 20th October2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – XII FINANCE, PROPERTY, CONTRACTS AND SUITS

CHAPTER – I FINANCE

Miscellaneous Financial Provisions

Article – 285  Exemption of property of the Union from State taxation

(1) The property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State.
(2) Nothing in clause (1) shall, until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the commencement of this Constitution liable or treated as liable, so long as that tax continues to be levied in that State.

Today’s Legal Updates :-

  1. On Wednesday the Kerala High Court raised concerns regarding the amount of waste generated due to the flags, banners and posters displayed by political parties in public places.  (St. Stephen’s Malankara Catholic Church Kattanam Village v State of Kerala)
    • the Court said in its order, This is incongruous in the modern times, when countries around the world are attempting to find novel solutions to control their waste; but in our State, powerful persons and entities are adding to the load solely for self propagation and self advertisement and they are apparently being able to do so without fear.
    • the Court said, Times have gone where one could say that we would face a particular climatic condition at a particular time, and we are now at the mercy of the vagaries of nature; which makes it much more important for us to be aware of the deleterious consequences of actions such as placing of Boards and Banners thoughtlessly, without mind to the manner in which it has to be disposed of.
    • Department to issue immediate orders constituting the following committees:
      • 1. Committee at the level of every Local Self Government Institution, comprising:
        • Its Secretary;
        • The Station House Officer of the Police Station/ Police Stations involved;
        • The competent Official of the National Highway Authority of India; and
        • The competent Engineer of the PWD.
      • 2. District Monitoring Committee comprising:
        • The District Joint Director of the Local Self Government Institution;
        • The Executive Engineer of the PWD;
        • The District Police Chief/Deputy District Police Chief; and
        • The Project Director/Competent equivalent Authority of the NHAI.
    • the order stated, The Local Self Government Institution level committees will survey the territories under it atleast every two weeks and remove all illegal boards, flags, banners and such other, returning it to the persons who placed the same, along with registration of necessary FIRs, not in the name of the entities, but in the name of persons behind it; and make sure that prosecution and such other steps are launched.
  2. On Wednesday the Kerala High Court directed Legal Services Authorities to intervene and ensure that the communities and neighborhoods of elderly family members of convicts are given the necessary support and care especially when they require medical services.  (Pranavu @ Pedali v State of Kerala)
    • the Court said in its order, We feel that in cases of this nature, the legal services authorities may proactively involve with the family members and the immediate neighbours, as well as the residents association and the ward member of the local body concerned, to sensitize such persons to be aware of their social obligations, to ensure that adequate assistance and help is rendered to the concerned elderly patients so that they can get treatment at the hospital.
    • Justice Thomas remarked orally, I think this is far better. Wherever you go, this stigma will be there and the kind of help you get will be less. This is way better for the patient, especially those coming from a poor background.
  3. On Thursday the Gujarat High Court issued notice to the State government in a petition seeking initiation of contempt of court proceedings against fourteen policemen for flogging five Muslim men over allegations that they attempted to disrupt a Garba event during the Navratri festival.  (Jahirmiya Rehamumiya Malek v. State of Gujarat)
    • Syed said, The petitioner is a senior citizen, he too was beaten up mercilessly in public view. The policemen were in civil dress; they tied the petitioners one by one to a pole and beat them with lathis. This is what is happening in Gujarat.
    • the Chief Justice interjected, saying, Mr counsel, this is not happening, but has happened.
    • Syed responded, Milords are there to take care (that it doesn’t happen).
    • the senior counsel said, These police officers are in contempt of the DK Basu guidelines. They were in civil dress, they detained my clients illegally and later showed them to have been arrested, but on paper, the arrest timing is shown to be much earlier.
  4. On Thursday the Bombay High Court issued a notification amending the Civil Manual and Criminal Manual to ensure that lower courts comply with orders communicated from Supreme Court and High Court when an e-copy is transmitted, and not insist on hard copies of orders.
    • The notification issued by Registrar General RN Joshi said that an amendment be made to Civil Manual, 1986 and Criminal Manual, 1980.
    • In Civil Manual, sub-para 675 (A) will be added below existing para 675 of Chapter XXXV:
      • 675 (A) – When e-authenticated copies of orders and processes are communicated by the Supreme Court of India and High Court of Bombay through the FASTER (Fast and Secured Transmission of Electronic Records) system, the receiving court should ensure compliance with the same , without insisting upon production of a hard copy.
    • In Criminal Manual, a new Chapter XXXII-A titled ‘E-Judgments, Orders, Processes and Systems’ containing two rules, would be added:
      • The first rule provides that all purposes in the manual, e-authenticated copies of judgments, order and processes by the apex court and Bombay High Court communicated through FASTER system be accepted by lower courts as valid without insisting on production of hard copy.
      • The second rule provides that when e-authenticated copies of bail orders and other processes are communicated through FASTER by the Supreme Court or Bombay High Court, the receiving court should ensure compliance with them without insisting on production of hard copy.
  5. On Thursday the Delhi High Court ordered that in cases of child sexual abuse (CSA), special courts under the Protection of Children from Sexual Offences Act (POCSO Act) should provide interim compensation to the survivor within 60 days of filing of chargesheet.  (X v State of NCT of Delhi (Acting through its Secretary) & Anr)
    • the Court said, This interim compensation will be in addition to the interim compensation (amounting to 25% of the maximum amount) disbursed by the Delhi State Legal Services Authority (DSLSA)/ District Legal Services Authority (DLSA).
    • the Court stated, How can there be price tag on the suffering of the survivor? No amount of compensation can undo the trauma. The least that can be to help the survivor get his/her life back on track. However, pecuniary compensation can be of assistance in the rehabilitation of the survivor.
    • the judgment said, For instance, the compensation for ―rape in the schedule has been provided as ₹7 lakhs maximum. In view of the aforesaid discussion, I am of the view that purposive interpretation and beneficial legislation requires the said sum of ₹7 lakhs to be considered as a minimum base while adjudicating compensation in POCSO cases. Hence for POCSO survivors of rape, it should be ₹7 + ₹3.5 = ₹10.5 lakhs (50% of ₹7 lakhs being added in POCSO cases as per DVC scheme). The final compensation shall not be less than ₹10.5 lakhs.
  6. The Punjab & Haryana High Court has sought the Central government’s response in a plea challenging 90 percent reservation extended to men in the Army Dental Corps (ADC).  (Satbir Kaur v Union of India)
    • the interim order said, Keeping in view the above, petitioner shall also be provisionally interviewed by the respondents. The recruitment process shall be subject to final decision of the writ petition.
    • the petitioner submitted, The age limit for applying for such posts is 45 years, and unlike certain arms other and services, even married persons can apply for the said appointments. In fact, women have served since the year 1888 in the medical services of the military in India, whereas, women were allowed to join other branches of the military only in the year 1992.
  7. On Thursday the Madras High Court upheld the conviction and life sentence handed down by a Sessions Court to a man who had murdered a class 9 girl by setting her ablaze, after she had rebuffed his advances.  (Balamurugan vs The State)
  8. On Monday the Punjab & Haryana High Court awarded costs of ₹1 lakh to a judicial officer who faced contempt proceedings for six years as a result of the deliberate concealment of facts by an accused in a case. (Court on its own motion v. Yogesh Chaudhary)
    • the order recorded, Before taking the suo motu action, no opportunity of hearing was granted to the respondent and straightway some adverse remarks were also passed while initiating the proceedings.
    • the High Court’s 2016 order read, In the light of this intentional gross misconduct and total arrogance by then learned Chief Judicial Magistrate, Rewari as well as his utter disrespect and disregard to judicial orders of Superior Court entails not only initiation of contempt of Court proceedings as well as separate administrative action against him.
    • the order said, Even otherwise, nothing has come on record that the respondent, in any manner, is prejudiced against the accused Purshottam Dass and rather has acted, in accordance with law and has conducted the trial by adopting a due procedure of law.
  9. On Thuresday the Supreme Court held that the standard to determine a pre-existing dispute under the Insolvency and Bankruptcy Code (IBC) could not be equated with the principle of preponderance of probabilities, which guides a civil court while finally decreeing a suit. (Rajratan Babulal Agarwal v. Solartex India Pvt Ltd)
    • the Court said, Here, we must not be oblivious to the limited nature of examination of the case of the corporate debtor projecting a pre-existing dispute. Overlooking the boundaries of the jurisdiction can cause a serious miscarriage of justice besides frustrating the object of the IBC.
    • This is for the simple reason that the suit was not filed before the receipt of the demand notice under Section 8 of the IBC.
    • Therefore, we are of the view that the NCLAT has clearly erred in refusing to lay store by the said communication.
    • the Court reasoned, Their absence may not clinchingly rule out the existence of a ‘pre-existing dispute’ under the IBC.
  10. On Tuesday the State government informed the Kerala High Court that it is presently contemplating enacting an anti-superstition legislation.  (Kerala Yukthi Vadi Sanghom v Union of India and others)
    • the order stated, On this day, when the matter came up for admission, Mr. N. Manoj Kumar, learned State Attorney submitted that the Government of Kerala is contemplating legislation on the above said subject.
    • the petition stated, It has come to light several cases of human sacrifices and other types of assaults in connection with the superstitious belief of black magic and witchcraft. For the purpose of god’s grace, financial gains, getting jobs, resolving family problems, the birth of children, and for several other desires, some people are practicing black magic and witchcraft of which people belong to the downtrodden, and the children and women are mostly the victims.
    • The Kerala Prevention of Eradication of Inhuman Evil Practices, Sorcery and Black Magic Bill, 2019.
  11. The three accused persons in the now infamous human sacrifice case have approached the Kerala High Court challenging the order of a Magistrate Court that had granted the police custody of the accused for 12 days.
  12. On Thursday the Supreme Court granted interim bail to the accused in the 2017 Ryan International School murder case.  (Master Bholu vs CBI and anr)
  13. On Thuresday the Delhi High Court passed an interim order restraining twenty-three ‘rogue websites’ from illegally streaming or hosting the upcoming movie Ram Setu after its producer filed a suit for copyright infringement.  (Cape of Good Films LLP v Hitmovies4u.Live & Ors)
    • the Court ordered, Defendants No. 1 to 23 (rogue websites) and all others acting for and/or on their behalf are restrained from in any manner hosting, streaming, retransmitting, exhibiting, making available for viewing and downloading, providing access to and/or communicating to the public, displaying, uploading, modifying, publishing, updating and/or sharing (including to its subscribers and users) on their websites through the internet or any other platform, the film ‘Ram Setu’ and contents related thereto, so as to infringe the Plaintiff’s exclusive rights and copyrights therein, till the next date of hearing.
  14. On Thuresday the Chhattisgarh government vehemently denied the claim of the Enforcement Directorate (ED) that the Chief Minister of the State had met a Chhattisgarh High Court judge in connection with Nagrik Apurti Nigam scam (NAN scam).
  15. The mother of a 29-year-old law student detained under the Kerala Anti-Social Activities (Prevention) Act has moved the Supreme Court challenging an order of the Kerala High Court granting time to State authorities for completion of procedural formalities. (Jasheela TM v State of Kerala)
    • the plea said, It is a matter of concern that the impugned judgment had erred in not appreciating the inordinate, undue, deliberate and unexplained delay caused by the Respondent authorities.
    • Because it is submitted that personal freedom and liberty is the ultimate source of all moral and spiritual values in the democratic society.
  16. On Wednesday the Competition Commission of India (CCI) imposed penalties of ₹223.48 crore and ₹168.88 crore on Goibibo-MakeMyTrip (Go-MMT) and OYO respectively for indulging in anti-competitive conduct in the hotel bookings market.  (Federation of Hotel & Restaurant Associations of India and Anr v. MakeMyTrip India Pvt Ltd and Ors)
    • The Commission observes that MMT-Go is a dominant player in the relevant market. Consumers heavily rely on results being shown on MMT-Go’s website and any such misrepresentation of information on MMT-Go’s platform could affect the perspective of the consumer and may dissuade the consumer from searching on alternative channels for the same hotel, under the assumption that the hotel is sold out. This could result in lower number of room bookings of the hotel partner and also reduces the competition among the budget hotels registered on different OTAs, thereby leading to exclusion of such hotels. Moreover, MMT-Go being a dominant platform, the act of misrepresentation is also exploitative in nature as regards such hotels.
    • It thus issued the following directions to Go-MMT:
      • MMT-Go is directed to suitably modify its agreements with hotels/chain hotels, to remove/abandon the price and room availability parity obligations imposed by it on its hotel/chain hotel partners with respect to other OTAs.
      • MMT-Go is directed to modify its agreement with hotels/chain hotels, to remove/abandon the exclusivity conditions that exist inter-alia in the form of D minus clause.
      • MMT-Go is directed to provide access to its platform on a fair, transparent and non discriminatory basis to the hotels/chain hotels, by formulating the platforms’ listing terms and conditions in an objective manner.
      • MMT-Go will notify all its hotel/chain hotel partners, about the aforesaid modifications.
      • MMT-Go is directed to provide transparent disclosures on its platform as regards the properties not available on its platform, either on account of termination of the contractual arrangement with any hotel/chain hotel or by virtue of exhaustion of quota allocated to MMT-Go by such hotel/chain hotel.
    • The Commission was acting on information filed by the Federation of Hotel & Restaurant Associations of India (FHRAI) in 2019. Hotel aggregators Treebo and FabHotels were later impleaded as parties. The informants had claimed the following:
      • MMT-Go has imposed price parity in its agreement/contract with hotel partners whereby the hotel partners are not allowed to sell their rooms at any other online travel agency (OTA) or on its own online portal at a price below which it is being offered on MMT-Go’s platform. However, MMT-Go in its own discretion can fluctuate the prices of such hotel rooms.
      • MMT-Go has been indulging in predatory pricing by offering the hotel rooms at less than the “average room rate”, which is the industry practice for calculating unit basis cost of rooms.
      • MMT-Go has been offering deep discounts to the customers which has further led to expansion of their network and retention of customers. Due to such conduct, the smaller players in the OTA market are being forced to exit.
      • Chain hotels/hotel aggregators like Treebo and FabHotels have been denied market access because of their removal from the platform of MMT-Go as they did not agree to pay the exorbitant commission brokerage charged by the latter.
      • MMT-Go and OYO have entered into confidential commercial agreements wherein MMT-Go has agreed to give preferential treatment to OYO on its platform, leading to a denial of market access to Treebo and FabHotels.
    • The Commission observes that the wide rate parity impositions, whereby the hotel partners are restrained from offering better prices to other OTAs or to offer any better prices on their own websites, are generally perceived as anti-competitive because of their ability to restrict price competition and, thus, making it difficult for an entrant or an existing player to establish a market presence, thereby creating entry/expansion barrier for new/other platforms due to the supplier’s price parity clause with an incumbent platform.
    • the order said, More than the harm to a competitor, the Commission is more concerned about the harm to the competitive process. Thus, more than the survival of FabHotels and Treebo, albeit through other means, the Commission cannot be oblivious of the adverse impact which their exclusion from the OTA channel has caused or is likely to cause to the competition in the market and the consequently on the consumers.
    • The Commission concluded, In the facts and circumstances of the case, the Commission finds the conduct of MMT-Go in violation of the provisions of Section 4(2)(a)(i) as well as Section 4(2)(c) read with Section 4(1) of the Act as adumbrated in this order. Further, for the reasons recorded in this order, the arrangement between MMT-Go and OYO has also been found to be in contravention of Section 3(4)(d) read with Section 3(1) of the Act.
  17. On Thuresday the Commissioner of Excise in Panaji, Goa today refused to suspend or cancel liquor license issued to the owner of Silly Souls Cafe and Bar, in which the kin of Union Minister Smriti Irani is alleged to be holding a stake.  (Adv Aires Rodrigues v. Anthony D’Gama & Anr.)
  18. On Thursday the Kerala High Court cancelled the anticipatory bail granted to activist Civic Chandran in a case of sexual harassment of a member of a Scheduled Caste community.  (State of Kerala v Civic Chandran)
  19. Last Week the Uttarakhand High Court dismissed a petition seeking appointment of judges to fill vacancies in the High Court while stating that it is for the Court’s collegium to make recommendations. (Youth Bar Association of India (Regd.) v Union of India)
  20. On Thursday the Delhi High Court dismissed a petition challenging the Delhi Pollution Control Committee (DPCC) order banning manufacture, sale, storage and bursting of firecrackers in the national capital.
  21. On Thursday the Bombay High Court agreed to hear after Diwali vacation, the plea challenging the practice of courts taking long vacations thereby affecting filing and hearing of case during such vacation period.
  22. On Thursday the Delhi High Court held that Gems and Jewellery Export Promotion Council (GJEPC) is not a ‘State’ within the meaning of Article 12 of the Constitution.  (Dr Jitarani Udgata v Union of India & Anr)
  23. On Wednesday the Supreme Court emphasised that the right to personal liberty and individual’s freedom is probably the most cherished right and cannot be taken away even temporarily without following the procedure established by law.  (State of Manipur vs B Abdul Hanan and anr)
  24. on Tuesday the Supreme Court said it will examine whether the bars run by the Tamil Nadu State Marketing Corporation Limited (TASMAC) are in the exercise of the State government’s sovereign function of regulating the sale of alcohol.  (TASMAC vs Principal GST Commissioner)
    • A bench of Justices Ajay Rastogi and CT Ravikumar granted leave in the appeal filed by TASMAC against a Madras High Court order that had ruled that such bars, attached to TASMAC outlets selling alcohol, are taxable under service tax laws.
    • The High Court had ignored this conclusion and directed payment of ₹40 crore as service tax which would cripple TASMAC’s as well as the State’s finances, it was submitted.

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