Weekend Legal Updates

Saturday & Sunday, 23rd & 24th April 2022




Article – 298   Power to carry on trade, etc

The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose:

Provided that—
(a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the
(b) the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament.

Weekend Legal Updates :-

  1. On Thursday the Allahabad High Court in the Gyanvapi mosque – Kashi Vishwanath temple dispute,  dismissed a petition challenging the orders of a lower court which had appointed a court commissioner to inspect the site at Varanasi to which Muslims and Hindus have laid claim for right to worship.  (Anjuman Intezamia Masajid vs Rakhi Singh & 8 others)
    • the High Court said, “Apparently, the suit claims the existence of the named Deities on the property in dispute and that is a kind of evidence that would fall under the exception to the normal rule for issue of a commission, spoken of in K. Raghunath Rao’s case. The existence or non-existence of the deities on the property in dispute is a matter about which the parties under the circumstances can hardly produce evidence. Even otherwise, it is evidence which is to be found on the spot where the disputed property exists and can be best gathered therefrom. If the Court has exercised its discretion to issue a commission, so that evidence about the fact in issue can be collected, it cannot be said that the order is beyond jurisdiction of the Court under Order XXVI Rule 9 of the Code of Civil Procedure.” 
    • It is not always that a commission is issued to elucidate evidence already on record. There can be cases where it is necessary to secure evidence, which is available on the spot and the parties cannot produce it. The commission issued here clearly falls into that category. Quite apart, the commission does not, in any way, impinge upon the rights of the petitioner. If anything is said in the report of the Advocate Commissioner that the petitioner or any other defendant to the suit feels is contrary to the spot position, he can always object to the Commissioner’s report, which would then be a subject matter for decision by the Court on the basis of evidence on record.
  2. The Karnataka High Court quashed criminal proceedings against a person accused of human trafficking, since the alleged victims had not made an allegation of exploitation in their statements.  (Rajkumar v. State of Karnataka)
    • the Court said, The soul of the provision is exploitation. There is no allegation in the complaint made by any victim alleging exploitation by the petitioner. The complaint, investigation and wavering statements of the persons, who accompanied the petitioner created suspicion in the mind of the Immigration Officer. The suspicion was on account of the statement of handing over some cash to the petitioner by the people who accompanied him. This cannot in my considered view, be enough circumstance to prosecute the petitioner for offence punishable under Section 370 of the IPC for human trafficking.
  3. The Supreme Court of India held that if there is any dispute that arises under the Bihar Public Works Contracts Disputes Arbitration Tribunal Act of 2008 and there is no arbitration clause in the contract, the Arbitration and Conciliation Act of 1996 will not be applicable.  (Bihar Industrial Area Development Authority & Ors. v Rama Kant Singh)
    • the judgment stated, In view of Section 8 of the 2008 Act, if any of the provisions of the 2008 Act are in conflict with the 1996 Act, the latter shall prevail to the extent of the conflict. In the present case, as there is no arbitration clause in the agreement between the parties, the provisions of the 1996 Act will have no application. Therefore, the reference to the Arbitration Tribunal will be governed by the 2008 Act.
    • As the 2008 Act provides for a specific period of limitation, Article 137 of the schedule in the 1963 Act will not apply”
  4. A Special Central Bureau of Investigation (CBI) Court has convicted a company and its directors for allegedly conspiring to cheat the Government of India in 2003 to get a coal block in Odisha allocated in their favour. (CBI v. M/s Adhunik Corporation Ltd. & Ors)
    • According to the balance sheet of M/s Adhunik Corporation, the production of sponge iron in the year ending on March 31, 2004 was just 36,435 and installed capacity was 60,000 TPY. Therefore, it is proved that M/s Adhunik Corporation was not producing 72,000 TPY sponge iron and its production capacity was not 72,000 TPY as on April 7, 2003.
    • The deficiencies/shortcomings in letter dated April 7, 2003 as pointed out by MoS in their letter on August 7, 2005, were made good by Nirmal Kumar Agarwal by enclosing with his letters as many as four forged letters. He was using forged letters with gay abandon oblivious of consequences of the same.
    • Circumstantial evidence in this case unerringly points to the conspiracy amongst the accused and there is no other inference except the inference of criminal conspiracy to secure allocation of a coal block by cheating MoS, Screening Committee and MoC, Government of India in the process.
  5. On Friday the Calcutta High Court imposed costs of ₹25,000 on a party for seeking repeated adjournments.  (Bengal State Table Tennis Association & Ors. v Malda District Table Tennis Association & Ors.)
    • the Court noted in its order, This is the fourth occasion when adjournment has been sought for by the appellants. We have passed several orders from 18.04.2022 to accommodate the appellants. At the time of third call today, adjournment is again sought for on behalf of the appellants. Since today is the last date of the Circuit bench, we are unable to keep the matter after recess owing to our respective Single Bench lists.
    • We are of the view that this is the fit case where costs should accordingly be imposed on the appellants. The appellants shall pay costs of Rs.25,000/- to the District Legal Services Authorities, Jalpaiguri within seven days from today.
    • We have been sitting here since 10.30 am and we have done nothing. Then what is the use of being here? In every matter, there is such a request. Bar has to realise this now.
    • One of the reasons for pendency is letter for adjournments. Everyday 5 to 6 matters in criminal matters adjournments letters are given, where personal difficulty is cited.
  6. A magistrate court in Mumbai’s Kurla acquitted five women accused of unlawfully assembling to protest against shortage in water supply in their neighbourhood.  (The State of Maharashtra vs. Rajani Vijay Angre & Ors.)
    • the Court said, In democratic country making peaceful agitation is fundamental right of citizen. The women were making agitation as there was no water supply in their area for some days They were sent by the police to their home by giving an understanding. Therefore, there was no reason for the police to register F.I.R. against them and subsequently arrest them.
    • It is strange that at the time of incident there were 35 to 40 women present on the spot of incident, however the police arrested only one accused on that day and did not arrest other women.
    • When the independent witnesses are available on the spot of incident, the rule of prudence requires the evidence of at least one independent witness. However, no single independent witness has been examined by the prosecution. Therefore, it creates doubt about genuineness on the investigation carried out by the Investigating Officer.
  7. The Gwalior Bench of the Madhya Pradesh High Court granted to bail to an accused in an attempt to murder case on the condition that he plants 10 saplings and care for them. (Rinku Sharma v The State of MP)
    • Presently, there is a need to develop the nature of kindness, service, love and compassion as an essential part of human existence because these are the basic tendencies of human life and they need to be revived to maintain human existence.
    • Any lapse on the part of the applicant in the plantation or in the care of the trees may deprive the applicant of the benefit of bail.”
    • the Court ordered, It is the duty of the trial court to monitor the progress of the trees as human existence is at stake due to environmental degradation, and the court cannot ignore any negligence shown by the applicant regarding compliance.
  8. On Saturday Chief Justice of India (CJI) NV Ramana said that in order to ensure that Supreme Court remains accessible to lawyers from distant parts of the country, he after consultation with brother and sister judges of top court, has decided to continue online hearings on miscellaneous days i.e. Mondays and Fridays.
    • I am not aware if Centre has expressed its view on the subject but in the same spirit of accessibility, in consultation with my brother and sister judges of Supreme Court continued the hearing online on miscellaneous days,
    • On non-miscellaneous days advocates can still take permission of court to appear online and thus enabled advocates from all over the country to continue their practice before the Supreme Court. I hope this practice will continue in future also,
  9. Today Chief Justice of India (CJI) NV Ramana said People today expect instant justice but real justice could be the casualty in the quest for instant justice.
    • From the test match we have moved to 20-20 format. We prefer short duration entertainment over 3 hour long movies. From filter coffee we have moved on to instant coffee. In this era of instant noodles, people expect instant justice. But the people don’t realise that real justice will be a casualty if we strive for instant justice.
    • “It is important to contemplate how to improve the functioning of the judiciary and how to reach out to people to fulfill justice needs,”
    • “It is a multi dimensional concept. It calls for inclusivity, providing access to people to participate in proceedings, removal of language barrier, reforms in practice, development of infrastructure, filling up of vacancies, augmenting the strength of judiciary and so on,”
    • “Infrastructural development forms one of the core ideas with the expanding economy and growth in population. Population is rising alarmingly. But there is a severe gap between existing infrastructure and projected justice needs of the people,” 
    • “While TN has been working to improve Judicial infrastructure. I wholeheartedly appreciated efforts by MK Stalin, CM of Tamil Nadu. This is why I am championing National Judicial Infrastructure Authority both at national and state level which will implement national court development project. I have already sent a proposal in this regard to Government of India,”
  10. On Saturday the Bombay High Court at Goa rejected the objections raised by former editor of Tehelka magazine Tarun Tejpal to the maintainability of appeal filed by State of Goa against his acquittal by the trial court in a sexual assault case.
    • the order said, We not only reject the preliminary objections raised on behalf of the Respondent regarding the maintainability of this application but further allow the application and grant leave under Section 378(3) of Cr.P.C. because we are satisfied that a prima facie case has been made out and arguable points have been raised in the matter.
    • the Division Bench said, we believe that deeper scrutiny and reappreciation may be necessary of the evidence of the Respondent’s SMS, Whatsapp, and Email messages sent to the victim. This examination, we believe, is essential for several reasons that need not be elaborated.
    • Suffice to state that this evidence has to be evaluated from the context of corroboration of the victim’s testimony in the matter. Based on this evidence, perhaps, some of the learned Additional Sessions Judge inferences about the victim’s conduct may also need a revisit. The inference from the victim’s conduct of consulting some lawyers before lodging her complaint may also require a revisit. Finally, the contention about the alleged admissions in the messages or the proper scope of such statements also requires consideration.
    • There is nothing on record to suggest that the Respondent had at any stage breached the terms and conditions subject to which he was enlarged on bail. Therefore, according to us, no case is made out for issuing any warrant under Section 390 of CrPC.
  11. On Friday the Supreme Court held that while significant scrutiny is required at the instance of a superior court to cancel bail already granted by a lower court, the same could be done if relevant material, gravity of the offence or its societal impact were not considered by the lower court. (Imran v Mohammed Bhava)
    • In such instances, where bail is granted in a mechanical manner, the order granting bail is liable to be set aside.
    • The High Court lost sight of the fact that there exists sufficient material against the accused Respondents herein, so as to establish a prima facie case against them.
  12. The Bombay High Court quashed a first information report (FIR) against a man booked for rape and sexual assault against a minor after she granted her consent to quash the criminal proceedings claiming she wanted to focus on her academic career.  (Ganesh Shankar Pilane vs The State of Maharashtra & Ors.)
    • In her desire to prosecute the academic course and further studies, the pendency of the criminal proceedings and trial would be an hurdle. It seems that the respondent No. 2 is adopting an approach of leaving behind her baggage of past and proceeding further in the life concentrating on the positive side for better future.
  13. The Supreme Court observed that an ad-hoc employee can be replaced by only a regular employee who is appointed following the procedure prescribed and not by another ad-hoc employee.  (Manish Gupta and Another v. President, Jan Bhagidari Samiti and Others)
    • “It is a settled principle of law that an ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed,” 
  14. The Supreme Court held that an application for appointment of arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 is “hopelessly” barred by limitation if the arbitration clause is invoked 32 years after the dispute arose. (Vishram Varu and ors. v. Union of India)
    • The appellant, who served the legal notice invoking the arbitration clause and requesting for appointment of an arbitrator after a period of approximately thirty-two years, cannot contend that still his application under Section 11(6) of the 1996 Act be considered as the limitation would start from the date of serving the legal notice and after completion of 30 days from the date of service of the legal notice and invoking arbitration clause.
    • The High Court has not committed any error in dismissing the application under Section 11(6) of the 1996 Act on the ground that it is hopelessly barred by limitation and is a stale claim.
    • the Court held, Merely because for the claim/alleged dues of 1985/1986, the legal notice calling upon the respondent to pay the amount due and payable or to refer the dispute to the arbitrator is made after a period of approximately thirty-two years, the appellant cannot be permitted to say that the cause of action to file the application under Section 11(6) of the 1996 Act had accrued in the year 2018/2019.
  15. The Supreme Court Collegium has recommended that five additional judges of the Calcutta High Court be made permanent judges of that court.
    1. Justice Kesang Doma Bhutia
    2. Justice Rabindranath Samanta
    3. Justice Sugato Majumdar
    4. Justice Bivas Pattanayak
    5. Justice Ananda Kumar Mukherjee
  16. Last Week the Supreme Court refused to stay an order passed by the National Green Tribunal (NGT) setting aside the Uttar Pradesh government decision to permit to 1,350 new wood-based industries to start operations in the State.  (State of Uttar Pradesh vs Uday Education and Welfare Trust)
    • the Supreme Court said, We have heard the learned counsel at some length and at present, we are not convinced that the judgment of the Tribunal needs to be stayed. Prima facie, we are in agreement with the Tribunal that data has to be collected by the State before permitting new wood-based industries.
    • “The correctness of the said judgment will have to be determined by this Court as and when these appeals are finally heard,” 
    • “The State submits that the decision to permit new wood-based industries was based on the recommendations made by the State Level Committee, we directed the it to provide the copies of minutes of meetings of the State Level Committee held thrice in 2018. The decision taken by the State Level Committee to grant permission for new wood-based industries only after getting a report from IPIRTI, Bengaluru which was requested to conduct an assessment, was given a go bye in the resolution.”
    • The NGT had asked the state to provide data on three counts:-
      • District wise data of the existing saw mills or wood-based industries with their number, capacity and availability of wood species wise for the said saw mills for the period of three years.
      • Justification for new industries in terms of availability of demand and supply of timber-species wise.
      • Mechanism to ensure that no trees are cut from the government forests or private trees of categories which are not exempted.

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