Today’s Legal Updates

Wednesday, 6th April 2022




Miscellaneous Financial Provisions

Article – 283 Custody, etc., of Consolidated Funds, Contingency Funds and moneys credited to the public accounts

(1) The custody of the Consolidated Fund of India and the Contingency Fund of India, the payment of moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by or on behalf of the Government of India, their payment into the public account of India and the withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by Parliament, and, until provision in that behalf is so made, shall be regulated by rules made by the President.
(2) The custody of the Consolidated Fund of a State and the Contingency Fund of a State, the payment of
moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by or on behalf of the Government of the State, their payment into the public account of the State and the withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by the Legislature of the State, and, until provision in that behalf is so made, shall be regulated by rules made by the Governor of the State.

Today Legal Updates :-

  1. On Wednesday the Bombay High Court enhanced the compensation payable to a motor accident victim by holding the insurance company liable to pay ₹5 lakh each under the heads of ‘loss of amenities’ and ‘loss of expectation of life’, in addition to compensation of ₹52 lakh already awarded by the Motor Accidents Claim Tribunal (MACT).  (Manager, National Insurance Co. Ltd. vs Nilesh Bhandari)
  2. On Wednesday the national spokesperson of the All India Trinamool Congress, Saket Gokhale has moved the Supreme Court challenging the extension of tenure granted to the current Director of Enforcement Directorate (ED) Sanjay Kumar Mishra. (Saket Gokhale v Union of India)
  3. On Wednesday the Kerala High Court held that a person who had earlier enrolled as an advocate and later suspended legal practice to serve as a government employee, cannot be treated as a “member of the Bar”.  (Saumya MS v. State of Kerala & Ors)
  4. On Wednesday the Supreme Court observed that while coming up with welfare schemes or laws, governments should factor in the financial impact they could have on the State exchequer.
  5. On Monday A special court in Mumbai oconvicted and sentenced a 37-year-old man to 25 years in jail for offences under the Protection of Children from Sexual Offences Act (POCSO Act) after he was found guilty of raping his adolescent daughter multiple times.  (The State of Maharashtra vs Sachin Suresh Wadekar)
  6. On Wednesday the Rajasthan High Court commuted the death sentence to life imprisonment of four men of a family, convicted for killing four persons including a minor over a land dispute.  (State of Rajasthan vs Atmaram Lakhara)
  7. On Wednesday the Supreme Court suggested that the Central government should consider establishing an institution to conduct arbitration involving governmental bodies.
  8. On Wednesday the Delhi High Court was struck down an order of the Central government which mandated judges of the Supreme Court and High Courts to seek political clearance for their private visits abroad. (Aman Vachar v Union of India)
  9. On Wednesday A Delhi Court sought response from the Central Bureau of Investigation (CBI) on a plea filed by former Amnesty International India chair Aakar Patel. (Aakar Patel v. CBI)
    • Aakar Patel Tweet, stopped from leaving india at Bangalore airport. am on the exit control list. Got passport back through court order specifically for this trip to the US.
    • Patel, according to his plea, was stopped from boarding a British Airways flight, scheduled to depart at around 6.50 am on Wednesday. He was told about a LOC being issued against him by the CBI, specifically the investigating officer.
    • The applicant suffered the value of his tickets and his immediate program as well on account of the arbitrary and absolute illegal actions on part of the investigating authorities.
  10. On Wednesday Justices Revati Mohite Dere and PD Naik of the Bombay High Court recused from hearing the appeal filed by former Maharashtra Home Minister Anil Deshmukh challenging orders of two special courts that granted the Central Bureau of Investigation (CBI) custody over him in a corruption case.
  11. On Wednesday the Central government told the Karnataka High Court that the National Education Policy, 2020 (NEP) did not mandate that regional languages need to be made a compulsory subject in higher studies.  (Shivakumar KG and Ors v. State of Karnataka and Ors)
    • the Bench observed, We are only concerned with whether in view of the National Education Policy whether regional language can be made compulsory or not, that is the only legal issue before us. We are not concerned with the development of Kannada language.
    • The Court was hearing last week of July a petition seeking to quash two government orders which made learning Kannada mandatory for students at graduation level. The plea also sought a declaration that the National Education Policy does not impose any restriction upon the student to choose any particular language as part of the curricula for higher education.
  12. On Wednesday A Mumbai court remanded the former Home Minister of Maharashtra Anil Deshmukh to 5-day custody with the Central Bureau of Investigation (CBI) in connection with a corruption case.
  13. On Wednesday the Delhi High Court granted an interim injunction in favour of Taiwanese electronics company HTC, restraining three Chinese firms from manufacturing or exporting products under its trademark.  (HTC Corporation v. Mr LV Degao and Ors)
    •  the High Court held, The unfair and dishonest use of the identical trade mark by the defendants for their products clearly riding on the reputation of the plaintiff with clear intent to take unfair advantage of the reputation, cannot, but lead to, a detrimental effect on the distinctive character of the trade mark of the plaintiff, namely, HTC/htc initially drawn from their corporate name and subsequently, itself becoming the corporate name of the plaintiff company.
    • Justice Menon noted that while HTC stood for High Tech Computers, the ‘lame’ explanation given by the defendants was that their HTC stood for High Tech Trimmers and Clippers, but this does not adequately stand for their products because then they would be known as ‘HTTC’.
    • The only inference that can be drawn is that the defendants sought to sail with the plaintiff’s “to gain unfair advantage”, and such adoption by the defendants of the plaintiff’s Trade Mark is “without due cause.
  14. On Wednesday the Competition Commission of India (CCI) has called for a Director General (DG) investigation into alleged anti-competitive behaviour on the part of food delivery platforms Zomato and Swiggy.
    • NRAI submitted the following information before the Commission:-
      • The two major online food platforms do not face competitive pressures from other players and/or the restaurant partners (RPs). There has not been any effective credible entry in the market since last three years and other players have been absorbed either by Zomato or Swiggy, demonstrating significant entry barriers.
      • OPs have taken unfair advantage of their significant market power and compounding network effect to enforce vertical agreements and impose vertical restraints on the RPs.
      • Delivery services are not optional for RPs who wish to avail the listing service, and they are forced to take the delivery service of the platform. Such bundling of delivery services is an unfair imposition.
      • RPs do not have the option to self-deliver. RPs are severely affected because of inter alia non-availability of delivery partners, delay in pickups and delay in delivery, which directly affects the business of the restaurant, especially those that majorly depend upon delivery of their food.
      • OPs engage in the practice of data masking, where the RPs receive no data or information about the end consumers to whom the food is delivered. The same creates lack of transparency from the perspective of RPs and they receive least information despite being accountable for the services offered by them.
      • OPs are engaging in a dual role on their platform where they list their own cloud kitchen brands exclusively on their platform, akin to private labels, thereby creating an inherent conflict of interest.
      • Zomato and Swiggy both enter into unfair and one-sided contracts with their RPs, owing to their superior bargaining power. They often compel RPs to commit exclusively to be listed on their respective platform through incentives, lower commissions etc. to maintain their competitive edge in the market, at the exclusion of other new entrants.
      • Both the OPs have imposed price parity terms and restrict restaurants from charging lower prices or providing better terms on their website or offline shop, as well as through any other sales channel, including other online food aggregator platforms.
      • The commissions which are charged by the OPs from RPs are to the tune of 20% to 30%, which are extremely exorbitant for the RPs.
    • The integrated service of food ordering and delivery provided by the OPs, when opted for by consumers, appears to be in alignment with user interest and preference of availing a hassle-free ‘one stop’ service. Thus, the bundling does not seem to raise any competition concern as such. Even otherwise, the Informant has not been able to substantiate its claim that bundling of delivery with ordering, in itself, has led to or has the likelihood to cause AAEC either between restaurants or between hyperlocal delivery service providers.
    • the Commission is of the view that prima facie a conflict of interest situation has arisen in the present case, both with regard to Swiggy as well as Zomato, because of the presence of commercial interest in the downstream market, which may come in the way of them acting as neutral platforms. This requires a detailed examination. Given that platforms are vertically related with the RPs, including their private brands and those operating through their respective cloud kitchens, such arrangements whereby preferential treatment is accorded to some entities can be looked as a potential contravention of Section 3(4) read with Section 3(1) of the Act.
    • It may also be seen during investigation whether exclusivity in conjunction with minimum guarantee obligation is further accentuating the structure which may come in the way of the platform operating in a neutral manner. Thus, the aforesaid conducts require a holistic examination to ascertain whether these intermediaries prevent competition on merits, creating an ecosystem causing or likely to cause an appreciable adverse effect on competition.
    • The Commission has given a thoughtful consideration to the submissions made by Zomato and Swiggy on the allegations pertaining to delayed payment cycle, imposition of one-sided clauses in the agreement, charging of exorbitant commission etc. and based on those submissions, the Commission is of the view that prima facie these do not seem to have an effect on competition in the facts and circumstances of the present case.
    • n case of food delivery apps, widely defined price parity arrangements/restrictions may result in removal of the incentive for platforms to compete on the commission they charge to restaurants, may inflate the commissions and final prices paid by consumers and may also prevent entry of new low-cost platforms…Given that Zomato and Swiggy are the two biggest platforms present in the food delivery segment, their respective agreements with RPs of this nature are likely to have an AAEC on the market by way of creating entry barriers for new platforms, without accruing any benefits to the consumers. Thus, the Commission is of the view that an investigation under Section 3(4) read with Section 3(1) of the Act is made out on this aspect as well.
  15. On Wednesday the Kerala High Court ordered the Director of Animal Husbandry to expeditiously appoint veterinary staff under the Central Government sponsored Livestock Health and Disease Control Scheme in Lakshadweep.  (CP Abdul Kabeer v Union Territory of Lakshadweep & Ors.)
    • the Court said, Having regard to the plight of the birds and animals without getting any treatment as evidenced from Exhibits P3, P4 and P5 office orders and the representations dated 30.09.2021, 09.10.2021 and 06.10.2021 submitted by the petitioner, we direct the Director (Animal Husbandry) to initiate and finalise the appointment of the above said surgeons and staff on contract basis under the (Livestock Health And Disease Control) scheme by utilising the fund, within three weeks from the date of receipt of a copy of this judgment. Sufficient allocation and permission be granted by the competent authority, if not done earlier.
  16. On Wednesday the Andhra Pradesh High Court found eight Indian Administrative Service (IAS) officers guilty of contempt of court for wilful disobedience of an interim order. (In re v. Gopal Krishna Dwivedi)
    • Justice Battu Devanand initially sentenced the contemnors to two weeks of simple imprisonment and a fine of ₹1,000, on the petitioner’s request for a pardon in light of their age and services rendered, the Court ordered them to carry out social work.
    • This Court after considering the submissions of the Respondents and considering their age and the interest of the families of the contemnors, in the opinion of the Court, it is not desirable for sending them into jail in the present situation of COVID-19 pandemic.
    • Due to deliberate violation of the orders of the Court, the poor students, who are studying in Government and Local Body Schools suffered. This Court never expected such lethargic and lawlessness behaviour from the senior officers of All India Service.
  17. On Wednesday the Bombay High Court reserved its verdict in the petition filed by DHFL promoter Dheeraj Wadhawan, challenging the orders of a special CBI court which had asked the Taloja jail authorities to shift Wadhawan from the Kokilaben Dhirubhai Ambani hospital to state-run J J hospital.
  18. The Supreme Court has reiterated that the period for which interim order was operative, has to be excluded while computing the 5-year period under Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act.  (Delhi Development Authority v. Rajan Sood and Ors.)
    • Therefore, in view of the subsequent decision of this Court in the case of Indore Development Authority (supra ­ paragraph 366.8), the period, during which the interim order is/was operative, has to be excluded in the computation of five years’ period.
  19. On Wednesday the Bombay High Court asked the Maharashtra State Road Transport Corporation (MSRTC) to show compassion towards its workers and ensure they do not lose their livelihood because of the ongoing strike.  (Maharashtra State Road Transport Corporation (MSRTC) v. Sangarsh ST Kargar Sanghatan& Ors)
    • Nearly 90,000 employees of one of the largest inter-city bus systems in the country, have been on strike since October 2021 seeking they be treated at par with the State government employees and that MSRTC be merged with the State government, amongst other demands.
    • CJ Datta suggested, We would request the corporation to review their decision and take them back. …Do not terminate services. Do not take away their livelihood.
    • Resume duty. It is unfortunate what has happened, and what happened. But do not lose your livelihood for this. …Let the workers come back to work. Let them not miss their livelihood and in the broader picture, let the public not suffer.
    • I cannot take my discretion in these matters, there are criminal cases pending, then I cannot say I will withdraw them without seeing the nature. If it is a matter of participation and illegal strike, no difficulty, we will take all those back. But violence that has led to damage to property and people, I am not sure without checking.
    • ou give a date when they have to come back. If they do not come back then you are liberty to take action according to law. …You are a model employer. During testing times of COVID, people may not have acted according to their senses. Give them one chance. …because after all you will have to appreciate that when all this was happening it was not normal.

Legal Prudent Fraternity