Today’s Legal Updates

Thursday, 3rd March 2022

Legal Awareness :- CONSTITUTION OF INDIA

PART III FUNDAMENTAL RIGHTS

Cultural and Educational Rights

Article – 31B Validation of certain Acts and Regulations

Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.

Today’s Legal Updates :-

  1. Today the Supreme Court has held that an injunction cannot be granted against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. (Padhiyar Prahladji Chenaji (Deceased) vs Maniben Jagmalbhai (Deceased))
    • “In such a situation, it will not be open for the plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the defendant –the true owner still be restrained from disturbing his/her possession and his/her possession be protected,”
    • “Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to dispossess him, except in due process of law,”
    • “High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view,” 
    • “It is true that under normal circumstances, the relief of permanent injunction sought is a substantive relief and the period of limitation would commence from the date on which the possession is sought to be disturbed so long as the interference in possession continuous. However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not be applicable,” 
    • “In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is “not legal or authorised by the law,” the plaintiff shall not be entitled to any permanent injunction,” 
  2. Today the Kerala High Court imposed costs of ₹25,000 on a passport officer for compelling a divorced woman to resort to litigation for re-issuance of her minor daughter’s passport.  (Shiny Shukoor v Union of India)
    • “The officers at the helm of affairs exercising the powers for issuing the passport are supposed to deal with the application in a pragmatic and reasonable manner, but should not reject the application in the manner and mode as extracted above. Knowing fully well that this Court would have expressed concern with regard to the spate of litigation and may come down heavily on the action of the respondents, in anticipation of that processed the application of the petitioner, but for redressal of the grievance, is impelled to shell out litigation expenses,” 
  3. The Delhi High Court is set to examine the question of whether a husband can be prosecuted under Section 377 of the Indian Penal Code (IPC) for having non-consensual anal sex with his wife when the Exception 2 under Section 375 IPC excludes forceful marital sex from offence of rape.  (Abdulla Khan v. Union of India and Others)
    • “Since the issue raised in the above-captioned petition is qualitatively different from the bunch of the writ petitions in which hearing has been held before us i.e., W.P.(C) Nos. 284/2015, 5858/2017, 6024/2017 and W.P.(Crl.) No.964/2017, it is ordered to be delinked from the batch. The instant writ petition will be heard separately. Accordingly, list the matter on March 11, 2022,”
  4. Today the Delhi High Court called for a report on the sentencing proceedings of former Delhi High Court Bar Association (DHCBA) President Rajiv Khosla who was convicted for assaulting former District and Sessions Judge Sujata Kohli.  (Sujata Kohli v Rajiv Khosla)
  5. Today the Supreme Court reiterated that the State has no power to levy excise duty on wastage of alcohol after distillation.  (State of Orissa vs Utkal Distilleries)
    • “It has been held that the alcoholic liquors, which are for human consumption, are put in Entry 51 List II authorizing the State Legislature to levy tax on them, whereas alcoholic liquors other than for human consumption have been left to the Central Legislature under Entry 84 for levy of duty of excise. It has been held that what has been excluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation,” 
    • “‘Excisable article’ has been defined to be any alcoholic liquor for human consumption or any intoxicating drug. It is thus clear that even under the relevant statute, the State has power to levy excise duty only in respect of the alcoholic liquor for human consumption,” 
  6. Today the Madras High Court directed the regional passport authority to reissue the passport of Member of Parliament Karti Chidambaram with an extended validity. (Karti P Chidambaram v. The Regional Passport Office)
    • “Therefore, in the considered opinion of the court, impugned action of the respondent shortening of the period of validity from 05.03.2024 to 04.03.2022 in violation of Section 7; without taking recourse to Section 10; without recording reasons there for and in Violation of Principles of Natural Justice is not sustainable in law and accordingly, the same is set aside,”
    • “This provision mandates adherence of principles of natural justice…and for issuing the same for a shorter period it is mandatory to record reasons and communicate the same,” 
  7. Today A Delhi Court reserved order after six months of Umar Khalid filed a bail application in an Unlawful Activities (Prevention) Act case registered against him in relation to the Delhi Riots. (Umar Khalid v. State)
  8. Today the Kalaburagi Bench of the Karnataka High Court confirmed the conviction of a Commercial Tax Officer under the Prevention of Corruption Act (PC Act), for demanding and accepting a bribe of ₹5 lakh.   (Padmanabha v. State of Karnataka)
    • “Corruption is a distinct type of offence. It is like a cancer to the society. It eats the social and economical health every second resulting in unimaginable consequences…. it is often said that the world is not suffering from ‘violence of many’ but is suffering from ‘silence of many’. Therefore when a true complainant has taken recourse to the legal battle, his testimony cannot be disbelieved on flimsy reasons,” 
  9. Today the Karnataka High Court directed the State government to ensure that protests or processions in Bengaluru are only held at Freedom Park in the Gandhinagar area, that too in an ‘organised’ manner.  (Suo-Motu Writ Petition)
  10. Today the Andhra Pradesh High Court dismissed a plea by State government seeking recusal of two judges from a case, observing that the same was a strange contention meant to create fear complex in the minds of the judges.  (State of Andhra Pradesh Versus Rajadhani Rythu Parirakshana Samithi)
    • “The question of raising ground of pecuniary interest by the State on account of allotment of sites to the Judges is a strange contention not only to browbeat the judges in discharging their duties but also to create fear complex in the minds of the judges,”
    • “Even without looking into clauses in the allotment letter and G.O.Ms.No.34 dated 24.01.2019 she (Chief Secretary) made such allegations to demean the judicial institution in the eye of public, slinging mud on the credibility of very judicial institution itself”
    • “If the alleged pecuniary interest likely to be gained by the Judge is minimum, it can also be ignored …The petitioner made bald allegations in an irresponsible manner to tarnish the image of very institution, particularly the judges,” 
    • “Therefore, the question of raising ground of pecuniary interest by the State on account of allotment of sites to the Judges is a strange contention not only to browbeat the Judges in discharging their duties but also to create fear complex in the minds of the judges,”
    • “If purchase of 600 Sq.yards house plot from the government itself creates a pecuniary interest, most of the judges in the High Court i.e. 14 judges, who were allotted house sites are not entitled to decide any lis, where the State is a party,” 
    • “Therefore, both are unmindful of the result of the lis pending before us and we are bound to discharge our duties without fear, favour, fervour or ill-will and as per the oath we took under Article 219 of the Constitution of India,” 
  11. Today the Supreme Court of India has invited tenders from agencies for providing services of monkey scarers to be deployed at residential bungalows of judges of the top court.
    • “Sealed tenders are invited from the reputed ‘Housekeeping Agencies’ of Delhi and NCR for engaging/hiring the services ‘for providing the manpower for Monkey Scarers at the Residential Bungalows of Hon’ble Judges of the Supreme Court of India including Guest House initially for a period of six months on as and when required basis,” 
  12. Today the Kerala High Court held that complaints in respect of medical negligence or deficiencies in medical service are maintainable before the District and State Consumer Disputes Redressal Commissions.  (Dr. Vijil & Ors v Ambujakshi TP)
    • “The medical services therefore would indeed fall within the ambit of Section 2(42), unless of course the service is free of charge or is under a contract of personal service,”
    • “A reading of the inclusive part in Section 2(42) would show that the Parliament intended to specifically underline that certain services like Banking, Financing, Insurance, Transport, etc., which are in the nature of public utility services, would come within the purview of ‘services’. The definition is inclusive and not exhaustive. Therefore, all services which are made available to potential users would fall under Section 2(42), except those services rendered free of charge or under a contract of personal service. The words “but not limited to” appearing in Section 2(42) clarifies the intention of the Parliament”,
  13. Today the Delhi High Court came down on the Jharkhand government for leasing out 295 hectares of land for mining to Adani Power (Mundra) Limited even as more than 95 per cent of the land did not have the required permissions.  (Adani Power (Mundra) Limited and Anr v Union of India and Ors)
    • “This is a fraud. You never acquired land yet you gave this private land to the petitioner without acquisition. We have given several weeks to you to file a response. How can you give on lease the property that does not belong to you?”
    • “You have taken ₹92.5 crore and you have given the land which is yet to be acquired, the land which is forest land. Only 17 hectares belong to the government and even that is forest. You have only given 2% or 3% of the promised land and you have taken away ₹92.5 crore. This is a criminal offence. I will pass an order to register FIR against your officers. It is fraud…what kind of state is this where the land which is yet to be acquired has been given to the petitioner?” 
  14. Today the Andhra Pradesh High Court directed the State government to construct and develop the Amaravati capital city and capital region of the Andhra Pradesh State within six months. (Rajadhani Rythu Parirakshnana Samithi v. The State of Andhra Pradesh)
    • “The State is directed to construct and develop Amaravati capital city and capital region within six months time, as agreed in the terms and conditions of Development Agreement-cum Irrevocable General Power of Attorney in Form 9.14, provisions of Andhra Pradesh Capital Region Development Authority (APCRDA) Act and Land Pooling Rules, 2015,”
  15. Today the Delhi High Court quashed a first information report (FIR) filed for rape and offences under the Protection of Children from Sexual Offences (POCSO) Act using its inherent powers under Section 482 of the Code of Criminal Procedure (CrPC).  (Kundan and anr. v State and Ors)
    • As per the facts of the case, the father of a minor girl had in 2019 filed a missing persons complaint alleging that the petitioner, then 18 years old, had kidnapped his then 16-year-old daughter. After the FIR was lodged, the mother of the petitioner handed over the girl to her parents. The girl gave a statement to the police that she had married the petitioner and was seven months pregnant. On the basis of her statement, charges of rape and POCSO Act offences were added to the FIR.
  16. Today A Mumbai court extended the Enforcement Directorate (ED) custody of Maharashtra cabinet minister and Nationalist Congress Party (NCP) leader Nawab Malik till March 7, 2022 in the money laundering case registered against him.
    • “The property at Goawala, persons involved, nature of transaction coupled with the fact that not a single rupee was paid to the owner. Having lost 3-4 to medical reasons, and I have additional material…this is a case where remand ought to be extended,”
    • “Today this agency, finds these people from 1993, and underworld, who have extortion charges and they find their statements credible…Everybody will come out from anywhere.. and say go and make a statement to ED. Anybody will come after 20 yesrs, there may be no crime, but they will come.”
    • “Please look at credibility of facts. As officer of the agency, check the credibility, it should not be kept for stage of appreciation of evidence. So now all that an agency has to do is record statements and prosecute. But that is not how law works or this system works,” 
    • “Accused complained of some medical issue. He was taken to hospital, JJ hospital for medical examination. He was asked to be admitted….Out of the 8 days 3-4 days went in medical custody. Obviously medical emergency cannot be ignored,” 
  17. The Delhi High Court is set to examine as to whether an order sanctioning prosecution of an accused under the Unlawful Activities (Prevention) Act can be challenged before a court of law. (Sachin Hindurao Waze v Union of India and Ors)
  18. Today A sessions court in Mumbai clarified that a domestic violence complaint can also be filed against the relatives of the assailant who do not share a household with the survivor.
    • “Had that been so, it would have been very convenient to cause violence or any other trouble to the aggrieved person through the relatives not sharing the same household and yet remained out of the clutches of the DV Act,” 
    • “Such an observation of the learned Metropolitan Magistrate however, is wholly misplaced. It is for the simple reason that the proviso to Section 2 (q) of the DV Act makes it very clear that an aggrieved wife can also file a complaint against a relative of the husband”
    • “Holding that any relative of the husband if not sharing or shared the same household cannot be a respondent would amount to giving licence to those relatives to commit violence to the aggrieved person and thereby rendering the very Act meaningless,” 
  19. Today the Supreme Court declined to entertain a public interest litigation (PIL) petition filed by Hindu Sena leader seeking disqualification of candidates of Samajwadi Party, Aam Aadmi Party and Indian National Congress in the upcoming Assembly polls in Uttar Pradesh and Punjab.
  20. Today Senior Advocate Harish Salve told the Supreme Court that no one was winning the legal battle between Amazon and the Future Group companies.
    • “What stops Amazon to call Mr Kishore Biyani and discuss? Let me assure you, no one is winning in this battle. Amazon God has to come to the ground and speak to lesser mortals like us…”
    • “Amazon is a foreign investor; even if Reliance India Limited (RIL) or Adani gets FDI, all of us will be in same position…can a person who sets in motion arbitral remedy complain against statutory authority?”
    • “We are facing injunction in terms of our scheme. We have a debt of ₹27,000 crore. One company wants to take it up. Now there is a proposal of talks, but what about the injunction?”
    • “We will simply adjourn the matter for 10 days and we don’t say anything on record. Meanwhile, work out by gentleman’s understanding. It will be better in interest of business. If you can find out some solution, tell us, or we will hear and pass orders.”
    • “We hear Amazon is starting criminal proceedings and we hope the 10-day period is not used to start a criminal case against us.”
  21. Today the Delhi High Court issued notice to the Delhi Government in a plea challenging the process to appoint new Managing Director of the Delhi Metro Rail Corporation (DMRC).  (Ashwini Kumar Upadhyay vs Govt of NCT of Delhi and ors)
    • “manifestly arbitrary, irrational, unfair and contrary to the due procedure of Law, but also brazenly violates Articles 14, 16, 21 of the Constitution, hence, void and inoperative.”
    •  “under the garb of non-availability of suitable candidate but suddenly reduced the maximum age for applicants from other Metro … where candidates with desired skills are working at senior positions and could be potential applicants.”
  22. The Jaipur Bench of the National Company Law Tribunal (NCLT) clarified the ambit of Non-Banking Finance Companies (NBFCs) as corporate debtors and the initiation of insolvency proceedings against personal guarantors of such financial service providers under the Insolvency and Bankruptcy Code (IBC).  (Shapoorji Pallonji Finance Private Limited v. Rekha Singh)
  23. Today the Supreme Court mused how it can give directions to stop war, a remark which came in the context of a petition seeking evacuation of Indians stuck in Ukraine.
  24. Today the Supreme Court held that if a party to a contract was equally or more responsible for any illegality in relation to the defendant, restitution claims will fail. (Loop Telecom and Trading Limited v. Union of India)
    • The Court, therefore, rejected the plea by Loop Telecom seeking refund of entry fees it had paid for 2G license, before the top court had in 2011 quashed the award of licenses in its notable judgment in Centre for public Interest Litigation (CPIL) v Union of India (CPIL judgment).
    • “In determining a claim of restitution, the claiming party’s legal footing in relation to the illegal act (and in comparison to the defendant) must be understood. Unless the party claiming restitution participated in the illegal act involuntarily or the rule of law offers them protection against the defendant, they would be held to be in pari delicto and therefore, their claim for restitution will fail,” 
    • “It is important to note that the criminal trial before the Special Judge, CBI was limited to the question as to whether the promoters of the appellant had cheated the DoT by providing a false representation of its compliance with Clause 8 of the UASL Guidelines, since it was allegedly being controlled by the Essar group.”
    • “The payment of the Entry Fee was one element in the overall financial conspectus which led to the award of licences. The adjudication before this Court in CPIL (supra) must be construed as a one composite whole from which its parts cannot be separated,”
    • “The decision of this Court in CPIL (supra) leaves no manner of doubt that the appellant was among the group of licensees who were found to be complicit in obtaining benefits under the ‘First Come First Serve policy’ of the Union government at the cost of the public exchequer. In such a situation and following the well-settled principles which have been enunciated above, the appellant could not be held entitled to claim a refund of its Entry Fee,”
  25. Today the Madurai Bench of the Madras High Court took strong exception to the growing practice of government teachers taking up part time employment by way of tuition classes or other businesses. (K. Radha v The Chief Educational Officer)
    • “These part-time employment out of tuition classes and business amongst the teachers are spreading like cancer as they develop greediness for the purpose of earning more money. In the event of allowing such misconducts, undoubtedly, the government cannot expect better performance of the duties and devotion to duty from the teachers,” 
    • “Mere preference or priority granted in certain guidelines cannot be construed as a right or violation of such instructions/guidelines providing concession would not provide a cause for filing a writ petition,” 
    • “The scope of interference is undoubtedly limited and in the event of frequent interference by the Constitutional Courts in the matter of administrative transfer, the executives may not be in a position to run the administration in a smooth manner,”
    • “Unfortunately, what is prevailing in our society is that these teachers are largely indulging in taking private tuition classes, doing business or part-time employment etc,” 
  26. Today the Kerala High Court quashed the proceedings against two nuns accused of revealing the identity of a rape survivor.
    • “Therefore, the contents of the report as such do not fall within Section 228A of the IPC. Of course, the report carries the photograph of the victim. But a specific instruction was given by the petitioners to the recipient of the e-mail that the identity of the person in the photograph or identity of the victim shall not be published at all. It is submitted that, that is not published also. Hence, I am of the view that, it is only a private communication between two persons. The circumstance shows that there was no intention on the part of the petitioners to disclose the identity of the victim involved in a sexual offence to the public at large or even to a third party“,
    • “In the report, the name of the victim has not been disclosed at all. However, after the report, a photograph of the victim along with a few other priests had been shown. But it is specifically stated at the end of the report that the identity as well as the face of the victim shall not be published“,
  27. Today the Supreme Court refused to accept the interim report submitted by the Maharashtra Backward Class Commission recommending reservations for Other Backward Classes (OBCs) in local body elections.(Rahul Ramesh Wagh v. State of Maharashtra)

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