Read Order: SANDEEP KUMAR v. GB PANT INSTITUTE OF ENGINEERING AND TECHNOLOGY GHURDAURI & ORS[SC- CIVIL APPEAL NO(S). 4989-4990 OF 2024]
LE Correspondent
New Delhi, April 17, 2024: While quashing a termination order, the Supreme Court has directed the reinstatement of the appellant to the post of Registrar of the G.B. Pant Institute of Engineering and Technology located in Ghurdauri, Uttarakhand. The Top Court observed that the decision to terminate the services of the appellant from the post of Registrar was not preceded by an opportunity to show cause or any sort of disciplinary proceedings.
The Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta was considering the appeal directed against the judgments of the Division Bench of Uttarakhand High Court dismissing appellant’s Writ Petition assailing the order terminating his services on the post of Registrar of respondent No.1- G.B. Pant Institute of Engineering and Technology (Institute).
The appellant had filed a review application which too was dismissed by the Division Bench. Both these judgments were challenged before the Top Court.
The High Court had held that the appellant herein did not place on record the minutes of the 26th meeting of the Board of Governors held on June 16, 2018 which were referred to in the termination letter. As per the Bench, this non disclosure would tantamount to suppression of material facts warranting dismissal of the writ petition solely on that ground.
It was the appellant's case that the failure to place the aforesaid minutes was neither intentional nor malafide. It was urged that these minutes supported the case of the appellant because the Board of Governors of the Institute approved the recommendations of the Selection Committee, and thereby, selected the appellant as the Registrar of the Institute.
It was also submitted that the appellant continued to satisfactorily serve as the Registrar of the Institute for a period of nearly two years and hence, his services were deemed to have been automatically regularized in terms of clauses (a) and (b) of the appointment letter.
The Bench took note of the fact that the respondent's counsel was not in a position to dispute the fact that before imposing the major penalty of termination of service upon the appellant, no disciplinary enquiry was conducted by the authorities.
Referring to the minutes in question, the Bench observed that the recommendations of the Selection Committee, whereby, the appellant herein was selected on the post of Registrar were approved by the Board of Governors. However, a caveat was marked to the effect that the appointment order of the appellant would be kept in abeyance on account of the fact that some complaints were received regarding the candidate. A three-member committee opined that the appellant fulfilled the eligibility criterion for being appointed on the post of Registrar.
It was also an undisputed fact that the appellant had satisfactorily worked on the post of Registrar in the Institute for nearly two years and thus, apparently, he completed the probation period without demur.
It was observed that the decision to terminate the services of the appellant from the post of Registrar was not preceded by an opportunity to show cause or any sort of disciplinary proceedings. The enquiry as referred to in the termination letter was in relation to the qualifications of the appellant for being appointed on the post of Registrar.
“In this background, we are of the firm view that the termination of the services of the appellant without holding disciplinary enquiry was totally unjustified and dehors the requirements of law and in gross violation of principles of natural justice. Hence, the learned Division Bench of the High Court fell in grave error in dismissing the writ petition filed by the appellant on the hypertechnical ground that the minutes of 26th meeting of the Board of Governors dated 16th June, 2018 had not been placed on record”, the Bench held.
Thus, setting aside the impugned judgments and quashing the termination order, the Bench directed, “... the appellant shall forthwith be reinstated on the post of Registrar of G.B. Pant Institute of Engineering and Technology, Ghurdauri. He shall be entitled to all consequential benefits.”
Read Order:HANIF ANSARI v. STATE (GOVT OF NCT OF DELHI) [SC- Petition(s) for Special Leave to Appeal (Crl.) No(s). 15293/2023]
Tulip Kanth
New Delhi, April 16, 2024: While considering a bail plea pertaining to the NDPS Act, the Supreme Court has referred to a larger Bench the issue of deciding whether failure on the part of the prosecution to include the FSL report pertaining to the seized contraband articles along with the chargesheet, within the time specified in Section 167(2) of the CrPC read with Section 36A of the NDPS Act, would entitle the accused to default bail.
The petitioner, in this case, was implicated for committing offences under various provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS Act). Allegations against him involved recovery of 2 Kgs of heroin and the main ground on which he approached the High Court was that the complete chargesheet was not submitted within the stipulated amount of time as per Section 167(2) of the Code of Criminal Procedure, 1973. The petitioner was arrested on 07.04.2022 and the chargesheet was filed on 07.10.2024. At that point of time, the report of the Forensic Science Laboratory, identifying the specimen allegedly seized as the aforesaid contraband article, was not available. Invoking the provisions of Section 167(2) of the Code, the petitioner sought default-bail. The FSL Report was submitted later confirming the seized material as heroin.
The State Counsel argued that the spot-testing kit used by the arresting team revealed that the seized material was heroin, but submission of the petitioner was that such spot-testing kit results have no evidentiary value.
The issue before the Division Bench of Justice Aniruddha Bose & Justice Sanjay Kumar was whether non furnishing of the FSL report with the chargesheet, within the prescribed time, would entitle an accused to default bail on the ground that it would be an incomplete chargesheet without such a report.
It was noticed by the Bench that the lead matter on this point is the case of Directorate of Enforcement Vs. Manpreet Singh Talwar [SLP(Crl.) No.5724 of 2023], which is still pending before a three-Judge Bench of the Top Court. It was noted that there are many other orders where similar questions of law are involved. But interim bail has not been granted in every tagged petition.
The Bench made it clear that it has been declined in the cases of Pabitra Narayan Pradhan -vs- The State (NGT) of Delhi [SLP (crl.) Diary No.43791 of 2023], Shankar @ Shiva Maheshwar Savai -vs- The State of Gujarat (SLP (Crl.) No.2562/2023) but in none of these cases, it has been finally determined as to whether failure on the part of the prosecution to include the FSL report along with the chargesheet in relation to offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 would automatically entitle the accused to default bail or not.
The Top Court observed that certain other factors like the quantity of the contraband articles being seized and period of incarceration were considered in the aforesaid orders while granting interim bail to the petitioner(s)/applicant(s).
The petitioner's counsel did not press for an interim bail at this stage but wanted the point of law to be adjudicated.
Thus, the Bench held, “In view of there being diversity of views of different Benches of this Court even on the question of granting interim bail, we are of the opinion that a larger Bench may decide the question as to whether failure on the part of the prosecution to include the FSL report pertaining to the seized contraband article(s) along with the chargesheet, within the time specified in Section 167(2) of the Code read with Section 36A of the NDPS Act, would entitle the accused to default bail or not.”
Read Order:SHAHID KHAN @ CHOTE PRADHAN v. UNION OF INDIA & ANR [DEL HC- W.P.(CRL) 224/2023]
Tulip Kanth
New Delhi, April 16, 2024: The Delhi High Court has quashed a detention order passed against a man booked under provisions of thePrevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance (PITNDPS) Act, 1988 after noting that he had already completed his duration of detention and there was nothing before the detaining authority which could have suggested that there was imminent possibility of him being released in near future & indulging in prejudicial activities.
The Sponsoring Authority-Crime Branch (Narcotics), Delhi. brought it to the notice of the concerned authority under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance (PITNDPS) Act 1988 about the involvement of the petitioner in three cases.
As far as first case was concerned, the petitioner along with his nephew was found in conscious possession of 20 kgs heroin and they both were arrested on 18.08.2021. This was quite a substantial quantity as the commercial quantity starts from 250 grams onwards.
As per the facts mentioned in the detention order, there was no conscious recovery of any contraband from the possession of the petitioner in relation to the second case. In said case, the concerned investigating agency had apprehended one person, namely, Hukum Chand @ Titu and from his possession contraband i.e. heroin was recovered and during course of the investigation, he disclosed that he had purchased the same from one Fizula @ Rohit. Hukum Chand was arrested and at his instance, Fizula was arrested on 18.08.2021. There was recovery from the possession of accused Fizula also and in his supplementary disclosure, he named accused Shahid Khan (petitioner herein) as the person who had supplied him such contraband. On the basis of such a disclosure statement, the petitioner was arrested. His arrest was based on disclosure of his co-accused and there was no conscious recovery from him.
In the third case also, there was no recovery of any contraband from the petitioner herein. His co-accused had been arrested earlier and on the basis of disclosure made by him, the police arrested him (petitioner herein) as a co-conspirator.
As per the contents of the detention order, the charge-sheets, in all the aforesaid three cases, had already been submitted before the concerned Court and the petitioner was in custody in all such three matters.
The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was considering a petition whereby the Petitioner sought quashing of the detention order passed by the Joint Secretary, Govt. of India and also consequent confirmation order.He also prayed for his release from the preventive detention passed under the PITNDPS Act.
It was the petitioner's case that these orders had been passed in a perfunctory manner and there was nothing to indicate that the concerned authority had recorded its due satisfaction indicating the necessity of detaining him. It was claimed that since the petitioner was already in judicial custody for a substantial period and there was no material to show that he had indulged in any prejudicial activity while under such incarceration, there was no reason or occasion to have passed the detention order.
“There is no dispute that detention order can be passed even if any such person is already in custody. Admittedly, such power of preventive detention is a precautionary one which can be exercised on reasonable anticipation”, the Bench opined while adding that in the case in hand, there was nothing before the detaining authority which could have indicated that there was any such real possibility.
It was further noted that the petitioner was in custody in three cases and there was nothing before such authority suggesting that any bail application had been filed, much less that there was real possibility of his getting released on bail, particularly when he had been found in possession of commercial quantity in one case.
“Viewed thus, it is not very clear as to on what basis, such authority felt that he was likely to be released on bail in all such cases. Since the petitioner was in custody in three cases, it was sine qua non on the part of detaining authority to record compelling reasons, particularly in light of the fact that such detenu was already languishing in jail for last around 9-10 months”, it held.
Moreover, there was nothing before the detaining authority which could have suggested that there was imminent possibility of him being released in near future and indulging in prejudicial activities.
Noting that the petitioner was already in custody for around 9-10 months, there was time-lag between his alleged last offending act and the date of order of detention, the Bench observed that it was incumbent on the part of detaining authority to have recorded its satisfaction that despite his being in incarceration for such considerable period, there were enough compelling reasons to pass detention order, while also elaborating such reasons.
Referring to the judgements in T.A. Abdul Rahaman v. State of Kerala &Ors. and Sama Aruna v. State of Telangana and Another, the Bench said, “In the case in hand, we have no hesitation in holding that livelink got severed as the petitioner was already in custody for around 9- 10 months. Moreover, the detaining authority was neither in a position to hold that he was likely to be released in near future nor had any material which could have compelled it to observe that if released, he would indulge in prejudicial activities.”
The petitioner was directed to be detained for a period of one year from the date of detention i.e. 31.05.2022 and such period of detention was already over.However, the petitioner still continued to be in custody in one of the cases and this justified the contention raised by the petitioner that the detaining authority had no material before it which could have suggested that he was likely to be released, much less that on his such release, he would continue with any prejudicial activity.
Thus, allowing the petition, the Bench quashed the Detention Orders passed by the Joint Secretary, Govt. of India.
Read Order: VEERPAL @ TITU v. STATE [DEL HC- CRL.A.223/2023]
Tulip Kanth
New Delhi, April 16, 2024: While observing that a child abuser in the eventuality of false implication continues to suffer a blot of social stigma, the Delhi High Court has acquitted a POCSO convict. The High Court was of the view that the testimony of the victim did not inspire confidence and the case was based upon fabrication due to animosity and matrimonial disputes.
The Single-Judge Bench of Justice Anoop Kumar Mendiratta was considering an appeal preferred by the appellant/convict under Section 374(2) of Code of Criminal Procedure, 1973 (Cr.P.C.) challenging the order on sentence of the Additional Sessions Judge, Special Court POCSO. He had been sentenced for offence punishable under POCSO Act to RI for 5 years and for offence punishable u/s 506 of IPC to RI for 5 years.
The incident is of the year 2016, when a written complaint was given by the victim/prosecutrix ‘R’ (name withheld) aged about 12 years alleging that the Appellant Veerpal @ Titu who is brother of her aunt(M), used to visit their house and teach her wrong things. One day when her aunt (M) went to the bathroom, the appellant started kissing her and pressed her chest. She somehow released herself from his clutches and ran away. In the evening at the time of going to his house, appellant threatened to kill her in case she made any complaint against him. She remained upset for many days and disclosed the incident on asking by her grandmother. FIR was accordingly registered under Section 354/509/506 IPC and Section 8/10 of Protection of Children from Sexual Offences Act.
Thereafter, charge was framed against the appellant for offences punishable under Section 506 IPC and Section 6/10 POCSO Act, 2012. Appellant pleaded not guilty to the same and claimed trial. In the statement recorded under Section 313 Cr.P.C., the appellant denied the prosecution version and claimed that he had been falsely implicated. Also, DW1 Shri Om Dutt and DW2 Sukhbeer were examined in defence, who had accompanied the appellant on the alleged date of incident i.e. 10.09.2016 in order to resolve the matrimonial differences between ‘M’ (aunt of victim/sister of appellant) and her husband ‘O’. They also deposed with reference to quarrel which had taken place at the premises of victim and further stated that ‘M’ along with her child had proceeded to her parental home with them.
One of the arguments raised by the appellants was that he had been falsely implicated by using the child victim on account of animosity between the family of victim and the appellant on account of matrimonial differences between his sister ‘M’ and her husband ‘O’. It was vehemently pointed out that there had been a delay of five days in lodging the FIR and the word ‘badtamizi’ used by the prosecutrix had been given different connotations from time to time.
The State Counsel submitted that the victim felt suffocated and nervous and, as such, did not inform the incident for five days after 10.09.2016. The contradictions pointed out on behalf of the appellant were stated to be immaterial to discredit the testimony of witnesses.
According to the Bench, the findings of the Trial Court that victim R was aged about 11 years and 10 months on the basis of school records, required no interference.
The Bench also stated, “The principle is well settled that the Court can base conviction on the testimony of a child victim, if the same is credible and truthful. Corroboration is not a must on record but is a rule of prudence. The precaution which the Court should bear in mind while relying upon the testimony of a child victim is that the witness must be reliable, consistent and there is no likelihood of being tutored or under an influence. The version put forth has to be unassailable, trustworthy and of sterling quality, capable of holding appellant guilty on the basis of solitary evidence.”
The High Court opined that the chain of events reflected that testimony of the witness/victim was unreliable as she had been changing the stands, possibly due to tutoring or influence and throwing doubt if the incident had happened, as alleged. The edifice of prosecution version was weak and full of gaps. “A complete stoic silence on the incident for a period of five days creates a deep shadow of doubt on the prosecution case. It may also be noticed that the victim has been changing her version regarding the acts committed by the appellant at her discretion”, it added.
It was further noted by the Bench that the entire incident was alleged to have happened only within a short period of time while ‘M’ (aunt of the victim) had gone to bathroom and wascfollowed by an altercation due to matrimonial disputes on which the police was called but the incident was not revealed. In the light of contradictions brought on record, the testimony of the victim as well as her grandmother (PW3) did not inspire confidence and it couldn't be ruled out that the case was based upon tutoring or fabrication due to animosity and matrimonial disputes. The victim also refused for internal medical examination for no plausible reasons.
Section 29 of POCSO Act provides that the Court shall presume that the accused has committed the offence for which he is charged with, until contrary is proved. However, the presumption would operate only when the prosecution proves the foundational facts in the context of allegation against the accused beyond reasonable doubt. After the prosecution establishes the foundational facts, the presumption raised against the accused can be rebutted by discrediting the prosecution witnesses through cross-examination and demonstrating the gaps in prosecution version or improbability of the incident or lead defence evidence in order to rebut the presumption by way of preponderance of probability, it Clarified.
The Bench further observed that in absence of foundational fact not being proved beyond reasonable doubt, the reliance placed upon presumption under Section 29 & 30 of POCSO Act by thre Trial Court to base conviction, appeared to be misplaced.
“The presumption of guilt under Section 29 & 30 of POCSO Act taken by the learned Trial Court could not be an edifice to convict the appellant since testimony of victim is unreliable and there are serious flaws and gaps in the prosecution case. As a wrongful acquittal shakes the confidence of people, a wrongful conviction is far worse. A child abuser in the eventuality of false implication even continues to suffer a blot of social stigma. Prosecution case is marred by inadequacies and contradictions which strike to the root of prosecution case and, as such, prosecution has failed to bring home the charge against the accused beyond reasonable doubt”, the Bench asserted.
Thus, allowing the appeal, the Bench acquitted the appellant and ordered him to be released forthwith.
Read Order: MEHER FATIMA HUSSAIN v. JAMIA MILIA ISLAMIA & ORS [SC- CIVIL APPEAL NO. 4963 OF 2024]
LE Correspondent
New Delhi, April 16, 2024: In a case pertaining to the merger of teaching posts sanctioned by the UGC under the Centre for Women’s Studies into regular establishment of the Jamia Milia Islamia University’s budget, the Supreme Court has come to the aid of the aggrieved teachers by ordering their reinstatement within three months.
One of the appellants- Sabiha Hussain, was initially appointed as a Reader on probation on an ad-hoc basis by Jamia Milia Islamia University. The 1st and 2nd respondents represent the University. In 2008, she was appointed to a sanctioned post of Reader in the programme for the Study of Social Exclusion and Inclusive Policy in Dr. K.R. Narayanan Centre for Dalit and Minority Studies. She was appointed a professor under the Career Advancement Schemes of 2010 of the University Grants Commission (UGC), and she was also given the additional charge of the post of Director in Sarojini Naidu Centre for Women Studies.
In 2016, the University invited applications to the post of Professor/Director and other academic posts in the Sarojini Naidu Centre established by the 1st respondent. She applied pursuant to the advertisement and was appointed as the Professor/Director. In a letter dated 25th June 2019, the UGC clarified that the teachers appointed through the proper selection procedure and who are duly qualified shall stand merged under the regular establishment budget of the University.
When the appellant sought confirmation of service by addressing a letter to the University,the first respondent issued a show cause notice to her for misconduct. Thereafter, the appellant was replaced by another professor as the Director of Sarojini Naidu Centre. The appellant filed a Writ Petition and the Single Judge directed the reinstatement of the appellant to the post of Professor/Director of Sarojini Naidu Centre by way of an interim order. On April 1, 2020, the University stopped the functioning of the Sarojini Naidu Centre.
After that, the first respondent advertised the post held by the appellant. In the Writ Petition, the UGC filed an affidavit stating that it had given “in-principle approval” to the University to regularise the appointees of Sarojini Naidu Centre, including the appellant. However, the Single Judge dismissed the Writ Petition on the ground that the appointment of the appellant was purely temporary. Being aggrieved by the said order, the appellant preferred a Letters Patent Appeal. On April 11, 2023, the High Court passed the impugned judgment, dismissing the appeal preferred by the appellant.
Another appellant- Meher Fatima Hussain was appointed to the post of Lecturer on probation in the said University. Subsequently, the University converted the post from a probationary post to a temporary post. As in the case of the other appellant (Sabiha Hussain), the initial appointment of the appellant was in Dr. K.R. Narayanan Centre for Dalit and Minority Studies. The appellant received the upgradation benefit of the Career Advancement Scheme.
Thereafter, she was offered the post of Associate Professor (tenure Post till XII plan period or till the scheme lasts) in the Sarojini Naidu Centre. The steps were taken by the University to seek approval from the UGC for the merger of the posts in Sarojini Naidu Centre into regular establishment. A Writ Petition was filed by the appellant which was dismissed. The case of another appellant-Suraiya Tabassum was more or less similar to those of the aforementioned appeals. The Top Court was considering the appeals challenging the judgment dismissing the Letters Patent Appeals.
After a perusal of the facts, the Division Bench of Justice Abhay S. Oka & Justice Pankaj Mithal opined that the appellants' appointments in December 2016 were made according to a regular selection process commenced based on an advertisement dated July 12, 2016. The selection committee conducted a regular selection process. It was also admitted that the appellants held qualifications prescribed by the UGC for the posts on which they were appointed in December 2016.
Considering the fact that in 2017, the 2nd respondent – Registrar of the University, addressed a letter to UGC alongwith annexure wherein the names of the three appellants were mentioned as persons working in the teaching positions at Sarojini Naidu Centre, the Bench opined that the University admitted that the appellants were appointed to the respective posts by the University through a proper selection process. The present appellants were appointed to the teaching posts in Sarojini Naidu Centre. The appellants, along with other teachers, also made a representation to the Vice Chancellor for their continuation after the merger.
The UGC had also permitted the University to merge the teaching posts in Sarojini Naidu Centre into its regular establishment. The UGC had specifically informed the University that the teachers appointed through a proper selection process, who fulfilled the educational and other qualifications prescribed by UGC and whose appointments were approved by the Statutory bodies, can be merged with the regular establishment of the University. This made it clear that the UGC permitted the University to treat the appellants and similarly situated employees as regularly appointed and merge their posts with the regular establishment budget of the University.
The University was capitalising on the word “may” used in the said letter to contend that it was not mandatory for the University to continue the appellants and similarly situated teachers. However, considering the statutory position of the UGC, there was no reason for the University not to follow what the UGC stated. Moreover, nothing had been placed on record showing that the scheme expired. The Bench was of the view that the appellants should have been continued after the merger, as suggested by the UGC.
The Top Court further stated, “Thus, considering that appellants were appointed after undergoing a regular selection process and they possess relevant qualifications as per the norms of UGC, they should have been continued on the posts merged with the regular establishment of the University instead of adopting the fresh selection procedure. In the facts of this case, the University's action of not continuing them and starting a fresh selection process is unjust, arbitrary and violative of Article 14 of the Constitution of India. Therefore, the employment of the appellants will have to be continued after merger.”
Thus, by setting aside the impugned judgments, the Bench directed the 1st and 2nd respondents to reinstate the appellants in their respective posts based on their selection in December 2016. They have been ordered to be reinstated within three months. Though the appellants would be entitled to continuity in service and other consequential benefits, the Bench held that they will not be entitled to pay and allowances for the period for which they have not worked.
Allowing the appeals with no orders as to costs, the Bench held, “If any teachers have been appointed in the posts held by the appellants, the University shall consider whether they can be accommodated in the vacant posts, if any, in accordance with the law.”
Read Order:RAJENDER PRASAD SHARMA v. NCB [DEL HC- BAIL APPLN. 2291/2023]
LE Correspondent
New Delhi, April 16, 2024: In a bail matter where the applicant was accused of being involved in the import of heroin concealed in mulethi logs, the Delhi High Court has granted him conditional bail as twin conditions under Section 37 of the NDPS Act had been established. The High Court took note of the fact that there were reasonable grounds for believing that the applicant was not guilty and he was not likely to commit such an offence while he was on bail.
The Single-Judge Bench of Justice Navin Chawla was considering an application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) praying for the applicant to be released on bail in a Case registered under Sections 8(c), 21(c), 23, 25, 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
It was the case of the prosecution that based on the information received, the Narcotics Control Bureau (NCB) Team, on 27.04.2022, reached a House in Okhla where they found co-accused Razi Haider Zaidi, and during search of said house, it led to the recovery of 50 packets in Flipkart packing containing off-white powdery substance. Upon testing the substance in each packet, it was found out to be Heroin. Substance of each packet was weighed and found to be 1 kg each.
Ten packets of white powdery substance, which upon testing gave no conclusive result, were also found. Pieces of wooden log Mulethi, containing suspected Heroin, was kept in bags. The weight of said bags was 15.900 kg and 17.150 kg respectively.One piece of wooden log Mulethi was found to contain Heroin.Other materials which were found were packing material of Flipkart and Amazon, Indian currency of Rs 30 lakh, documents and mobile phones.
It was further alleged that Razi Haider Zaidi, in his voluntary statement under Section 67 of the NDPS Act disclosed that the Heroin seized from the said flat was recently shifted from Muzaffar Nagar, U.P. on the direction of a co-accused, Shahid. It had been prepared at a godown at Muzaffar Nagar. The co-accused was stated to have further revealed that he had imported the said heroin in two different modes, out of which, the first lot was received in the consignment of mulethi from the applicant who is running the business as M/s R.R. Global Impex. He further disclosed that the applicant had stored the consignment of heroin at a Cold Storage.
The applicant was arrested and his mobile phone was seized. It was alleged that while in custody, the applicant tendered his statement wherein he disclosed the procedure of import of consignment of mulethi, its distribution, and other documents. Proceedings under Section 52A of the NDPS Act were carried before the Magistrate.
It was the applicant’s case that he is in the legitimate business of import of dry fruits and mulethi. He had imported and supplied mulethi to the accused against proper invoices and receipts, which were being relied upon even by the prosecution. One of the arguments made was also that the mulethi logs that were found in the said bag, however, were not tested for presence of heroin, either at the spot or later in the proceedings under Section 52A of the NDPS Act
It was the NCB’s case that the applicant is involved in the import of heroin concealed in mulethi logs. It was submitted that the entire transaction and the involvement of the applicant in the conspiracy to import the heroin was evident from various circumstantial evidence, like the CDR showing the interaction between the applicant and the coaccused; admitted supply of bags containing mulethi by the applicant to the co-accused; recovery of such bags from the premises of the coaccused; financial transactions between the applicant and the coaccused; and, their presence together at Sonipat.
Noting that the said mulethi logs were not tested for the presence of Heroin, either at the spot or later in the proceedings under Section 52A of the NDPS Act before the Magistrate, the Bench said, “Therefore, prima facie there is no evidence that the mulethi logs that has been supplied by the applicant to the accused Razi Haider Zaidi indeed had Heroin concealed in them. The only evidence of the same is in form of the alleged Voluntary Statements of the co-accused, which would be inadmissible in evidence.”
It was further opined that once the gravamen of the allegation, that the mulethi logs supplied by the applicant to the co-accused Razi Haider Zaidi contained Heroin, was not established, the only material left with the prosecution was the supply of mulethi logs by the applicant to the coaccused; their presence at the Cold Storage at Kondli, Sonepat; and their telephone connectivity. However, these alone were not sufficient to presently hold that the accused had committed the offence charged.
Noting that the prosecution merely relied upon the alleged voluntary statements under Section 67 of the NDPS Act by the applicant and the co-accused, the Bench held that these would not be admissible in nature. Reliance in this regard was placed on to the judgment of the Supreme Court in Tofan Singh v. State of Tamil Nadu.
“From the above, in my view, the applicant has been able to satisfy the twin conditions under Section 37 of the NDPS Act. There are reasonable grounds for believing that the applicant is not guilty of the offence charged against him”, the Bench held.
Further observing that the applicant does not have any criminal antecedents, he has been in custody since 05.05.2022 and also noting that the trial is not likely to conclude any time soon, the Bench granted conditional bail to the applicant on furnishing a personal bond in the sum of Rs 1 lakh.
Read Order: THE VVF LTD. EMPLOYEES UNION v. M/S. VVF INDIA LIMITED & ANR [SC- CIVIL APPEAL NOS. 2744 - 2745 OF 2023]
Tulip Kanth
New Delhi, April 16, 2024: While observing that the Bombay High Court, in the impugned judgment, re-appreciated the evidence led before the Industrial Tribunal in identifying comparable concerns for applying the industry-cum-region test, the Supreme Court has ordered the Tribunal to conclude the reference raising issues of revision in pay scale within 6 months.
The proceedings have their origin in a charter of demand raised by the union for the year 2008 to 2011 under the various heads. The demand was in respect of altogether 146 workmen, out of which 80 were engaged at the employers establishment at Sewree and 66 of them employed at Sion, both being situated within Mumbai. The facts suggested that the original corporate entity VVF Ltd., underwent a demerger process and the units of the company at Sion and Taloja went to VVF India Ltd., the resulting company, during pendency of the reference, arising from the charter of demand.
The demands of the Union primarily related to prayers for revision in pay scale/ wages/ salaries along with certain allowances such as leave facilities and gratuity. The charter of demand.The Tribunal, in its award passed on 29.03.2014, granted relief to the employees represented by the union. Thereafter, both the employer and the union challenged the said award by instituting separate writ petitions before the High Court of Bombay and these writ petitions were disposed of by a common judgment by a Single Judge. The High Court allowed the workmen's writ petition by setting aside the award of the Tribunal so far as the first four demands as per the charter were concerned and upheld the Tribunals verdict regarding the remaining 7 demands.
The union, in its writ petition, had argued that the Tribunal had failed to consider the plea of the workmen for parity with similarly situated units in the vicinity as well as its claim for overtime allowances. It was the case of the Union that it would be well within the jurisdiction of the High Court to undertake some form of exercise of appreciation of facts. Reliance was placed upon Gujarat Steel Tubes and Others - vs- Gujarat Steel Tubes Mazdoor Sabha and Others.
The employer had assailed the judgment questioning the jurisdiction of the Writ Court in entering into fact-finding exercise while testing legality of an award. The employer sought to fault the approach of the High Court mainly on this ground. It was argued that the units with which the High Court had made comparison to arrive at its finding were not similarly situated, having regard to their industrial output and financial position. It was further submitted that the High Court in any event would not sit in appeal over the Tribunals award in exercising its jurisdiction of judicial review, primarily applying the scope of the writ of certiorari. Reference was made to the judgments in Surya Dev Rai v. Ram Chander Rai and Others, General Management, Electrical Rengali Hydro Electric Project, Orrisa and Others -vs- Giridhari Sahu and Others.
The main issue before the Division Bench of Justice Aniruddha Bose & Justice Sanjay Kumar was whether the High Court had traveled beyond its jurisdiction in appreciating facts and in that process substituted the finding of the Tribunal with its own finding on facts.
Referring to the authorities relied upon by the parties, the Bench said, “...though the High Court ought not to reappreciate evidence and substitute its own finding for that of the Tribunal, it would not be beyond the jurisdiction of the High Court in its power of judicial review to altogether eschew such a process.”
The Bench noticed that the High Court, in the impugned judgment, however, reappreciated the evidence led before the Tribunal in identifying comparable concerns for applying the industry-cum-region test. The employer had also emphasised that the High Court ignored the negative financial status of the company on the ground that the losses made by it was miniscule.
Further, reference was made to the judgments in A.K. Bindal -vs- Union of India & Ors. Mukand Ltd. -vs- Mukand Staff & Officers Association which lay down that financial capacity of an employer is an important factor which could not be ignored in fixing wage structure.
“In the given facts where the employer seriously contested the use of the concerned units as comparable ones, and highlighted its difficult financial position, the proper course would have been to remit the matter to the Industrial Tribunal rather than entering into these factual question independently in exercise of the writ jurisdiction. This exercise would have required leading of evidence before the primary forum, the Industrial Tribunal in this case”, the Bench said.
On behalf of the employer, it was also specifically argued that various allowances like house rent, shift allowance, travelling, medical, education and leave travel were granted without any evidence. The employer's witness no.2 had given his deposition in detail, particularly on the financial position of the company. From the judgment impugned, the Bench did not find proper analysis of the employers evidence in that regard. So far as the union's appeal was concerned, their point was confined to treatment of overtime wages in computing allowances admissible to them. That question also ought to be re-examined, the Bench opined.
Thus, setting aside the judgment of the High Court and the Tribunal, the Top Court held, “Let the Tribunal re-examine the cases of the respective parties afresh. We are conscious of the fact that these proceedings arise from a charter of demand made in 2008. We direct the Tribunal to conclude the reference within a period of six months.”
Read Order: YASH TUTEJA & ANR v. UNION OF INDIA & ORS [SC-WRIT PETITION (CRIMINAL) NO.153/2023, 208/2023, 216/2023, 217/2023]
Tulip Kanth
New Delhi, April 15, 2024: In a recent development in the Chhattisgarh liquor scam case, the Supreme Court has quashed PMLA charges against ex-IAS Officer Anil Tuteja & his son Yash Tuteja after noting that no scheduled offence was made out on the basis of the complaint and therefore, there couldn’t be any proceeds of crime.
The Division Bench of Justice Abhay S. Oka & Justice Ujjal Bhuyan was considering a petition challenging the complaint filed by the Directorate of Enforcement under Section 44(1)(b) of the Prevention of Money-Laundering Act, 2002 (PMLA).
The Bench noted the undisputed fact that the alleged scheduled offences on which the complaint was based were under various sections of the Income-tax Act, 1961, read with Sections 120B, 191, 199, 200 and 204 of the Indian Penal Code, 1860 ( IPC). It was also not in dispute that except for Section 120B of the IPC, none of the offences are scheduled offences within the meaning of clause (y) of sub-Section (1) of Section 2 of the PMLA.
Placing reliance upon PavanaDibbur v. Directorate of Enforcement, the Bench said, “Hence, the offence punishable under Section 120B could become a scheduled offence only if the conspiracy alleged is of committing an offence which is specifically included in the Schedule to the PMLA.”
In this case, admittedly, the offences alleged in the complaint except Section 120-B of IPC are not the scheduled offences. It was further noticed that the Conspiracy to commit any of the offences included in the Schedule had not been alleged in the complaint. The Enforcement Case Information Report, which was the subject matter of the complaint, wass based on the offences relied upon in the complaint.
The Top Court was of the view that as the conspiracy alleged is of the commission of offences which are not the scheduled offences, the offences mentioned in the complaint are not scheduled offences within the meaning of clause (y) of sub-Section (1) of Section 2 of the PMLA.
“Therefore, in the absence of the scheduled offence, as held in the decision mentioned above of this Court, there cannot be any proceeds of crime within the meaning of clause (u) of subSection (1) of Section 2 of the PMLA. If there are no proceeds of crime, the offence under Section 3 of the PMLA is not made out. The reason is that existence of the proceeds of crime is a condition precedent for the applicability of Section 3 of the PMLA”, the Bench said.
The Bench further proceeded to explain that once a complaint is filed before the Special Court, the provisions of Sections 200 to 204 of the Cr.PCwill apply to the Complaint. There is no provision in the PMLA which overrides the provisions of Sections 200 to Sections 204 of Cr.PC. Hence, the Special Court will have to apply its mind to the question of whether a prima facie case of a commission of an offence under Section 3 of the PMLA is made out in a complaint under Section 44(1)(b) of the PMLA. If the Special Court is of the view that no prima facie case of an offence under Section 3 of the PMLA is made out, it must exercise the power under Section 203 of the Cr.PC to dismiss the complaint. If a prima facie case is made out, the Special Court can take recourse to Section 204 of the Cr. PC, it added.
In this case, no scheduled offence is made out the basis of the complaint as the offences relied upon therein are not scheduled offences. Therefore, there cannot be any proceeds of crime. Hence, there cannot be an offence under Section 3 of the PMLA. Therefore, no purpose will be served by directing the Special Court to apply its mind in accordance with Section 203 read with Section 204 of the Cr.PC. That will only be an empty formality”, the Court asserted.
“We may note that the petitioners in Writ Petition (Crl.) No.153/2023 and the petitioner in Writ Petition (Crl.) No.217/2023 have not been shown as accused in the complaint. Only the second petitioner in Writ Petition (Crl.) No.208/2023 and the petitioner in Writ Petition No.216/2023 have been shown as accused in the complaint. In the case of those petitioners who are not shown as accused in the complaint, it is unnecessary to entertain the Writ Petitions since the complaint itself is being quashed”, the Bench ordered.
The Bench also quashed the complaint based on ECIR as far as the petitioners Anwar Dhebar and Arun Pati Tripathi were concerned. The Top Court also directed that the interim order dated August 7, 2023 passed in Writ Petition (Crl.) Nos.153/2023 and 208/2023 would continue to operate for 3 weeks to enable the petitioners to take recourse to appropriate proceedings before the appropriate Court.
Read Order: SMT. NAJMUNISHA AND ORS v. THE STATE OF GUJARAT AND ORS [SC- CRIMINAL APPEAL NOS. 2319-2320 OF 2009]
Tulip Kanth
New Delhi, April 15, 2024: While setting aside the conviction of the appellants-accused on account of inadmissibility of their statements under Section 67 of the NDPS Act 1985, the Supreme Court has observed that Article 21 of the Constitution necessitates a just and fair trial to be a humane and fundamental right.
The incident is of the year 1999 when an Intelligence Officer/Inspector received a secret information that the Accused No. 4 would be carrying narcotic substances in an auto rickshaw at about 7:00 AM on 11.12.1999 and shall be passing through one Shahpur Darwaja. The said secret information was recorded by her and reported to her superior officer (PW-3). The members of the raiding party arranged for and chased the said auto rickshaw which was eventually found abandoned near a road. On conducting the search of the said auto rickshaw, the raiding party found a driving license of one Shri Abdulgafar Gulamali Shaikh alias Rajubhai in addition to charas to the tune of 1.450 Kilograms.
As Accused No. 4 had run away, the raiding party eventually was led to his house wherein the Accused No. 1 was already present. Thereinafter, the son of Accused No.1 and Accused No.4 –Abdul Rajak (Accused No. 02) – came inquiring. Eventually the raiding party conducted a search of the said house and found a transparent plastic bag contained 2.098 Kilograms of charas. Thereafter, the necessary formalities were completed and Accused No. 1 and Accused No.2 were arrested.
The criminal appeals before the Top Court arose out of a SLP assailing the Common Impugned Judgment of the Division Bench of Gujarat High Court moved by the Original Accused No. 1 (Najmunisha) and Original Accused No. 4 (Abdul Hamid Chandmiya) whereby their conviction stood affirmed, while the fine imposed on Accused No.1 was enhanced as aforementioned and the default sentence was reduced.
It was the case of the appellant-accused that their statement recorded under Section 67 of the NDPS Act 1985 was not admissible and ought not to have been the basis of conviction. It was contended that there existed no secret information apropos the house wherein the subsequent search/raid was conducted by the raiding party.
However, the respondent submitted that there had been substantial compliance of the statutory requirements under Section 42 as the Intelligence Officer/Inspector had recorded the secret information in writing and conveyed the same to her superior officer prior to the raid conducted.
At the outset, the Division Bench of Justice Aniruddha Bose Justice Augustine George Masih observed, “it is pertinent to refer to the heart and soul of the Constitution of India, 1950 (hereinafter referred to as Constitution of India) – Article 21 – necessitates a just and fair trial to be a humane and fundamental right and actions of the prosecution as well as the authorities concerned within the meaning of the NDPS Act 1985 must be towards ensuring of upholding of the rights of the accused in order to allow to have a fair trial. The harmonious balance between the Latin maxims salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) is not only crucial and pertinent but lies at the core of the doctrine that welfare of an individual must yield to that of the community subject to the State being right, just, and fair as was iterated in the decision of Miranda v. Arizona (1966) 384 US 436.”
The Bench opined that the attempt towards raiding/searching the residence of Accused No.4 was not explicitly in pursuance of detaining the said accused but the testimonies of the members of the raiding party showcased the idea of search of the house to be an afterthought with an admitted time gap of 40-45 minutes between having raided the auto rickshaw which was alleged to be abandoned by the driver and Accused No. 4 and subsequent search of the house of Accused No.4, wherein Accused No.1 was present. Moreover, it appeared from the record that even the idea to search the house was for the purpose of recovery of more contraband and not to apprehend the said absconded accused at the first instance.
The Bench came to the conclusion that the search conducted at the residence of the Accused No.4 was not a continuance of action of the raiding party towards the search of the auto rickshaw based on the secret information received by the Inspector. The Bench further observed that it did not transpire from the material on record as to exactly how the Accused No.4 came into the fiasco here except for the claim by the Superior Officer of having identified him as the auto rickshaw per the secret information fled the scene. It created a doubt in the mind of the Court apropos the case presented by the prosecution.
As per the Bench, the inconsistencies in the testimonies and lack of observation of due process of law by the investigating agency had severely impacted the case of the prosecution.
Referring to Section 41(2) of the NDPS Act 1985, which begins from the power of search and seizure conferred by the State upon its executive or administrative arms for the protection of social security in any civilized nation, the Bench observed that such power is inherently limited by the recognition of fundamental rights by the Constitution as well as statutory limitations. At the same time, it is not legitimate to assume that Article 20(3) of the Constitution of India would be affected by the provisions of search and seizure. As per the Bench, such a power cannot be considered as a violation of any fundamental rights of the person concerned.
The Top Court noted that there was no prior information to the raiding party, including the Gazetted Officer that there was contraband in the house of Accused No. 4, thereby necessitating search for the same. There was no reference to the apprehension of existence of contraband in the house of the Accused No. 4 in the said recorded information and so, the raid at the house of the Accused No. 1 and Accused No. 4 was in violation of the statutory mandate of Section 41(2).
“Consequently, the conviction of Accused No. 01 premised on the recovery of 2.098 kilograms of charas from the house is not in consonance with the mandatory statutory compliance of Section 41(2) of the NDPS Act 1985”, the Bench held while also adding, “Accordingly, the authorities have further failed to protect the inherent rights granted to the Accused No. 01 by virtue of the statutory safeguards.”
Furthermore, referring to its judgment in Tofan Singh vs. State of Tamil Nadu wherein it has been opined that a statement recorded under Section 67 cannot be used as a confessional statement in the trial of an offence under the NDPS Act, the Apex Court opined that the benefit is to be granted to the appellants in regard to the inadmissibility of their statements under Section 67.
Thus, allowing the appeals, the Bench acquitted the appellants of the charges framed against them by giving benefit of doubt.
Read Order:PHR INVENT EDUCATIONAL SOCIETY v. UCO BANK AND OTHERS [CIVIL APPEAL NO. 4845 OF 2024]
Tulip Kanth
New Delhi, April 15, 2024: In view of availability of statutory remedies under the Recovery of Debts and Bankruptcy Act, 1993 as well as SARFAESI Act,2002 the Supreme Court has allowed an auction purchaser’s appeal while imposing a cost of Rs 1 lakh on the borrower for filing a writ petition before the Telangana High Court.
The Borrower, in this case, had availed a loan from the Respondent- Bank and in order to secure the said loan, the Borrower had mortgaged four properties (scheduled properties) as collateral security. However, the Borrower defaulted in the repayment of the loan amount, which led the Respondent-Bank to initiate proceedings against the borrower under the SARFAESI Act.
Aggrieved by the Auction Sale Notice, the Borrower preferred a securitization application before DRT under Section 17 of the SARFAESI Act. Meanwhile, the auction was conducted
and the appellant- PHR Invent Educational Society (auction purchaser) emerged as the highest bidder.
On the same day, DRT passed an interim order refusing to interfere with the sale of the scheduled properties which was to be conducted on that very day. The Borrower had also filed an interlocutory application praying for stay of further proceedings qua the auction of the scheduled properties, wherein DRT directed the Respondent-Bank not to confirm the sale. The DRT further directed that, in the event that the Borrower failed to make the aforesaid deposits, the Respondent-Bank would be at liberty to confirm the sale in favor of the highest bidder.
Subsequently, the appellant deposited Rs 4,29,16,650 towards the payment of the balance auction and the Borrower proposed One Time Settlement (OTS) for all the outstanding loan accounts but the Respondent-Bank requested the Borrower to settle all the outstanding loan accounts with interest payable at the contractual rate.
Thereafter, DRT passed an order whereby the securitization application was dismissed as withdrawn at the behest of the Borrower who submitted that the matter had been settled out of court. On the other hand, the Respondent-Bank informed that no such out-of- court settlement had been reached.
The Respondent-Bank confirmed the sale of the scheduled properties and the possession of the scheduled properties was accordingly delivered to the appellant. The Borrower's application before the DRT, praying for setting aside the aforesaid order was dismissed. Aggrieved thereby, the Borrower filed writ petition before the High Court. The High Court, by the impugned order, set aside the DRT's order and restored the matter to the Tribunal. Being aggrieved thereby, the auction purchaser approached the Top Court.
At the outset, the 3-Judge Bench of Justice B.R.Gavai, Justice Rajesh Bindal and Justice Sandeep Mehta delved into the law with regard to entertaining a petition under Article 226 of the Constitution in case of availability of alternative remedy. Referring to various precedents, the Bench said, “It could thus be seen that this Court has strongly deprecated the practice of entertaining writ petitions in such matters while also adding, “It can thus be seen that it is more than a settled legal position of law that in such matters, the High Court should not entertain a petition under Article 226 of the Constitution particularly when an alternative statutory remedy is available.”
Though it was specifically contended on behalf of the appellant that the writ petition was not maintainable on account of availability of alternative remedy, the High Court had interfered with the writ petition only on the ground that the matter was pending for sometime before it and if the petition was not entertained, the Borrower would be left remediless.
“We however find that the High Court has failed to take into consideration the conduct of the Borrower. It is further to be noted that, though the High Court had been specifically informed that, on account of subsequent developments, that is confirmation of sale and registration thereof, the position had reached an irreversible stage, the High Court has failed to take into consideration those aspects of the matter”, the Bench stated.
Further observing that non-exercise of jurisdiction under Article 226 of the Constitution on the ground of availability of an alternative remedy is a rule of self- restraint, the Bench referred to Commissioner of Income Tax and Others v. Chhabil Dass Agarwal and reiterated the following exceptions when a petition under Article 226 could be entertained in spite of availability of an alternative remedy:
- where the statutory authority has not acted in accordance with the provisions of the enactment in question;
- it has acted in defiance of the fundamental principles of judicial procedure;
- it has resorted to invoke the provisions which are repealed; and
- when an order has been passed in total violation of the principles of natural justice.
“It has however been clarified that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance”, the Bench added.
The Top Court was of the view that the High Court had grossly erred in entertaining and allowing the petition under Article 226 of the Constitution.
Noting that the High Courts had been entertaining petitions arising out of the DRT Act and the SARFAESI Act in spite of availability of an effective alternative remedy, the Bench also reminded the High Courts of the following words pronounced in the case of United Bank of India v. Satyawati Tondon and Others:
“It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.”
Hence, allowing the appeal, the Bench dismissed the writ petition with costs quantified at Rs 1,00,000 imposed upon the Borrower.
Read Order:MANISHA MAHENDRA GALA & ORS v. SHALINI BHAGWAN AVATRAMANI & ORS [SC- CIVIL APPEAL NO. 9642 OF 2010]
Tulip Kanth
New Delhi, April 15, 2024: The Supreme Court has dismissed appeals relating to easementary rights over a 20-feet-wide road after observing that the appellants had nowhere claimed that they or their predecessors-in-interest were enjoying easementary right of use of the said road for over 20 years.
The dispute in the two appeals was in connection with easementary rights over a 20ft. wide road situated over land presently owned by the respondents (Ramanis). In the Suit instituted by Joki Woler Ruzer, the descendants of the subsequent purchaser Mahendra Gala were added as plaintiff Nos.2-4 (Galas). The suit was for declaration of their easementary rights over the 20ft. wide road situate in the property of the Ramanis and for permanent injunction in respect thereof. The suit was decreed by the court of first instance However, the aforesaid judgment was set aside in appeal and the suit was dismissed. The High Court upheld the aforesaid judgment and order of the appellate court in Second Appeal.
Apart from the above suit, another Suit came to be filed by the Ramanis for declaring that the Galas or their predecessor-in-interest have no right, title and interest in the property and they do not have any right of way through the above land. The aforesaid suit was dismissed by the court of first instance and in appeal, the suit was decreed holding that the Galas have no right of way either by easement of prescription or of necessity on the suit land/road. The Galas were restrained from disturbing the possession of Ramanis over the suit land and from doing any overt act over it.
Aggrieved by the dismissal of their Suit and the decreeing of the Suit of the Ramanis, the two appeals had been preferred by the Galas. Their predecessor- in-interest Joki Woler Ruzer had not preferred any separate appeal which meant that the original plaintiff had accepted the verdict of the High Court.
Referring to Section 4 of the Indian Easements Act, 1882 which defines Easement, the Division Bench of Justice Pankaj Mithal and Justice Prashant Kumar Mishra opined that the easementary right is essentially a right claimed by the owner of a land upon another land owned by someone else so that he may enjoy his property in the most beneficial manner.
Moreover, Section 15 categorically provides that for acquiring any easementary right by prescription, the said right must have been peaceably enjoyed in respect of the servient heritage without any interruption for over 20 years. In the plaint, neither the original plaintiff Joki Woler Ruzer nor the Galas had specifically claimed that they or their predecessor-in- interest were enjoying easementary right of use of the said rasta for over 20 years. They simply alleged that they had been using and managing the same for many years.
“The use of the term last many years is not sufficient to mean that they have been enjoying the same for the last 20 years. Last many years would indicate use of the said rasta for more than a year prior to the suit or for some years but certainly would not mean a period of 20 or more years. Therefore, their pleadings fall short of meeting out the legal requirement of acquiring easementary right through prescription”, the Bench held.
It was further observed by the Bench that there was no evidence to prove that the Galas were in use of the said land for the last over 20 years uninterruptedly. The Galas entered the scene only on purchasing the said land on 17.09.1994 after the suit had been filed and as such, they could not and had not deposed anything about the pre-existing right or the easementary right attached with the Dominant Heritage. The said right had to be proved as existing prior to the institution of the suit.
Noting that PW-1 had no authority to act as the Power of Attorney of the Galas at the time his statement was recorded and his evidence was completely meaningless to establish that Galas had acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted, the Bench said, “It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene.”
The Top Court was of the view that the easementary right by necessity could be acquired only in accordance with Section 13 of the Act which provides that such an easementary right would arise if it is necessary for enjoying the Dominant Heritage. In the instant case, findings had been returned not only by the appellate courts but even by the trial court that there was an alternative way to access the Dominant Heritage, which may be a little far away or longer which demolished the easement of necessity. There was no justification to go into those findings of fact returned by the courts below.
In light of such facts, the Galas were not entitled to any easementary right by necessity upon the disputed rasta.The Galas also failed to prove that they had acquired any easementary right under the sale deed.
On the issue regarding the powers of the appellate court in disturbing the findings recorded by the court of first instance, the Bench referred to section 107 of the Code of Civil Procedure and observed, “...it is evident that the first appellate court is empowered to exercise powers and to perform nearly the same duties as of the courts of original jurisdiction. Therefore, the first appellate court has the power to return findings of fact and law both and in so returning the finding, it can impliedly overturn the findings of the court of first instance if it is against the evidence on record or is otherwise based upon incorrect interpretation of any document or misconstruction of any evidence adduced before the court of first instance.”
Thus, finding no basis to record that the Galas had acquired easementary right over the disputed rasta in any manner much less by prescription, necessity or under an agreement, the Bench dismissed the appeal.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
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Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
Environment and Sustainable Development – A Balanced Approach - Nayan Chand Bihani
The debate between protection of the environment and sustainable development is an age old one and is growing in proportion with every passing day all over the world, in general and specifically with respect to developing countries like India, in particular.
The Stockholm Declaration on the Human Enviornment,1972 categorically stated that man is both the creator and the moulder of his environment, which gives him physical sustenance and affords him the opportunity of intellectual, moral, social and spiritual growth. In the long run and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspect of man’s environment, the natural and the man-made, are essential to his wellbeing and to the enjoyment of basic human rights-even the right to life itself. It also states that the protection and improvement of the human environment is a major issue which affects the wellbeing of peoples and economic development throughout the world, it is the urgent desire of the people of the whole world and the duty of all the Governments. The Declaration, in Principle 2, states that the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. It further, in Principle 8, states that economic and social development is essential for ensuing a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.
A milestone in this field is the Rio Declaration on Environment and Development, 1992. It, interalia, states that human beings are at the centre of concern for sustainable development and that they are entitled to a healthy and productive life in harmony with nature. It also states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. It states that in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it and that to achieve sustainable development and a higher quality of life for their people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. It contemplates that the States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. The Declaration states that in order to protect the environment, the precautionary approach shall be widely applied by the states according to their capabilities and that environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
Initially, the trend was to use ‘Polluter Pays’ principle and punish the offending unit. Subsequently, vide judicial decisions, the principle of sustainable development was widely applied so as to balance the two principles.
The Polluter Pays principle talks about the liability of the polluter. With the increase in the industrial development what subsequently also increased is the waste emitted out of these industries and as a result of these wastes not only were the immediate surroundings adversely affected but also the environment at large. There is no specific definition of the Polluter Pays principle, rather it is a practice emphasising on the fact that one who pollutes the environment should be held accountable and responsible for the same with consequential steps to be taken. The principle not just focuses on punishing the polluter but its main criterion is to ensure that the polluted environment returns back to its original state. The reason behind it is to promote ‘Sustainable Development’. Thus it can be summed up that Polluter Pays principle is an essential element of sustainable development. Therefore, whosoever causes pollution to the environment will have to bear the cost of its management. The principle imposes a duty on every person to protect the natural environment from pollution or else he will be responsible for the cost of the damage caused to the environment. The main reason behind imposing a cost is two folds. Firstly, to refrain any person from polluting the environment and secondly, if in the case there is pollution then it is the polluter’s duty to undo the damage. Hence, both of the above ensures that there should be sustainable development. It is pertinent to mention that the Polluter Pays principle is not a new concept. It was first referred to in 1972 in a Council Recommendation on Guiding Principles Concerning the International Economic Aspects of Environmental Policies of the Organisation for Economic Co-operation and Development. The same is also enshrined in Principle 16 of the Rio Declaration, which states that ‘the polluter, in principle, bear the cost of pollution.’ The need of the hour is a demonstrable willingness to adhere to the essence of the principle in order to ensure that there is development, but not at the cost of causing environmental degradation.
The Hon’ble Supreme Court of India in the case of Indian Council for Enviro-legal Action vs Union of India reported in LQ/SC/1996/358, interalia, putthe absolute liability upon the polluter for the harm caused to the environment.
The Hon’ble Supreme Court of India in the case of Vellore Citizens Welfare Forum vs Union of India, reported in LQ/SC/1996/1368, interalia, accepted the Polluter Pays Principle as a part of the Article 21 of the Constitution of India and also emphasised Article 48A and Article 51A(g) of the Constitution of India.
The Hon’ble Supreme Court of India in the case of Amarnath Shrine reported in LQ/SC/2012/1121, has categorically stated the right to live with dignity, safety and in a clean environment.Article 21 of the Constitution of India, guaranteeing the right to life is ever widening and needs to maintain proper balance between socio-economic security and protection of the environment.
The Hon’ble Apex Court in the case of Bombay Dyeing and Manufacturing Co Ltd- vs – Bombay Environmental Action Group reported in LQ/SC/2006/206, interalia, states that the consideration of economic aspects by Courts cannot be one and it depends on the factors of each case. However, strict views ought to be taken in cases of town planning and user of urban land so as to balance the conflicting demands of economic development and a decent urban environment. Ecology is important but other factors are no less important and public interest will be a relevant factor.
The Hon’ble Supreme Court in the case of Dahanu Taluka Environment Protection Group –vs- Bombay Suburban Electricity Supply Company Ltd reported in LQ/SC/1991/157, has held that it is primary for the Government to consider importance of public projects for the betterment of the conditions of living of people on one hand and necessity for preservation of social and ecological balance, avoidance of deforestation and maintenance of purity of atmosphere and water from pollution and the role of the Courts is restricted to examine the whether the Government has taken into account all the relevant aspects and has not ignored any material condition.
The Hon’ble Supreme Court of India in the case of Narmada BachaoAndolan vs Union of India reported in LQ/SC/2000/1509, interalia, reiterated the Polluter Pay Principle.
A milestone case is that of M C Mehta vs Union of India reported in LQ/SC/2004/397, wherein the Hon’ble Supreme Court explained the Precautionary principle and the principle of Sustainable Development. It was, interalia, stated that the development needs have to be met but a balance has to be struck between such needs and the environment. The Hon’ble Supreme Court also reiterated similar views in a series of cases, some of which are stated hereinbelow;
LQ/SC/2007/1421
- M C Mehta vs Union of IndiaLQ/SC/2009/1231
- Tirpur Dyeing Factory Owners Association vs Noyyal River Ayacutdars Protection Association &Ors.LQ/SC/2009/1891
An interesting question came up before the Hon’ble Supreme Court with regard to the setting up of nuclear power plants with regard to the possibility of considerable economic development weighed against risk of feared radiological hazard. The Hon’ble Apex Court in the case of G.Sundarrajan –vs- Union of India reported in LQ/SC/2013/536, interalia, held that the Courts will be justified to look into the aspect as to the opinions of experts and the adequacy of safety measures and will be justified to look into the safety standards being followed by the Nuclear Power Plant.
The Hon’ble Supreme Court, in the case of Lal Bahadur vs State of UP reported in LQ/SC/2017/1384, interalia, emphasised the importance of striking a balance between the two principles.
An important development is the advent of the National Green Tribunal which has the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and relates to the Acts specified in Schedule I, namely the Water (Prevention and Control of Pollution) Act, 1974, the Water(Prevention and Control of Pollution) Cess Act, 1977, the Forest Conservation Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991 and the Biological Diversity Act, 2002. The National Green Tribunal, since its inception, has been looking into the aspects of environmental pollution and the mitigation thereof.
It can thus be said that both the environment and development are essential in the modern world for the betterment and living standards of the people. However, rampant and unplanned development at the cost of the environment is not to be entertained and the Courts will keep a close watch into the aspect of sustainable development, interalia, based on the criteria and guidelines, as specified.
Nayan Chand Bihani is a practising advocate at Calcutta High Court. Mr. Bihani pursued his LL.B from the Calcutta University College of Law, Hazra Campus and was enrolled as an Advocate in December,1998. Mr. Bihani deals mainly with Writ petitions, specially in Environmental laws, Election laws, Educational laws, Municipal laws, Service laws and Public Interest Litigations. He also represents several authorities like the West Bengal State Election Commission, the West Bengal Pollution Control Board, the State of West Bengal, several Educational Institutions and Universities and several Municipalities and Municipal Corporations and the Odisha Pollution Control Board. He can be contacted at nayanbihani@gmail.com.
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