Read Order: THE STATE OF TELANGANA & ORS v. MOHD. ABDUL QASIM (DIED) PER LRS [SC- CIVIL APPEAL NO. 5001 OF 2024]
LE Correspondent
New Delhi, April 19, 2024: While setting aside an order passed by the Telangana High Court whereby a forest land was held to be owned by a private person, the Supreme Court has observed that it was a classic case where the officials of the State, who are expected to protect and preserve the forests in discharge of their public duties, clearly abdicated their role.
The factual background of the case was that a revision of survey and settlement of village Kompally took place. An application was stated to have been filed by Respondent No. 1 (Original Plaintiff), invoking Section 87 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 F, seeking rectification of survey error. It was so filed on the premise that the Plaintiff actually owned the suit land. This application did not surface for nearly a decade and a half, for the reasons known to the Plaintiff.
A notification was published, declaring the land, which was part of the earlier proceedings of the revenue department as reserved forest. It was done on the premise that the lands were forest lands and, therefore, they were accordingly declared as reserved forest. Strangely, the application so filed by the Plaintiff was rejected by the Revenue Authority. Despite the findings rendered, neither the Forest Department nor the Forest Settlement Officer was arrayed as a party to these proceedings before the revenue department. Thereafter, the Joint Collector, Warangal allowed the application of the Plaintiff. Realising that the said order will not give the Plaintiff benefit of any sort, he filed an application before the Government seeking denotification of the land declared as reserved forest', which was dismissed.
A suit was filed by the Plaintiff seeking a declaration of title and permanent injunction. The trial court while granting title to the plaintiff declined the incidental relief of injunction.
On appeal, the High Court reversed the said finding of the trial court qua the declaration, and confirmed the findings on injunction by dismissing the suit in toto. Ultimately, it was held that the property is a forest land. The High Court went ahead and held that the plaintiff had miserably failed to show his title to the suit property.
The District Forest Officer did not appear before the Committee and based upon a report submitted, it was held that the suit property was required to be excluded in favour of the plaintiff. The aforesaid decision was taken by the District Collector after the judgment of the First Appellate Court. The review came to be filed before another Judge. The impugned order was passed in the purported exercise of the power of review, by virtually reversing all the findings rendered in the appeal, while placing reliance upon evidence which on the face of it was inadmissible and, therefore, void from its inception, rendered by an authority which had absolutely no jurisdiction at all. In its 2021 review ruling, the High Court had reversed its earlier findings.
It was the case of the appellants that revenue records do not confer title. It was submitted that the High Court clearly exceeded its jurisdiction in review by entertaining a re-hearing and virtually acted as an appellate court. The Respondents did not satisfy the court on the title, which finding has not been touched.
On the other hand, the respondents contended that the proceedings before the Forest Settlement Officer had become final. Even the trial court held that the plaintiff had title. Once title is proved, possession has to follow.
The Division Bench of Justice M.M. Sundresh & Justice S. V. N. Bhatti, at the outset, observed, “It is a classic case where the officials of the State who are expected to protect and preserve the forests in discharge of their public duties clearly abdicated their role. We are at a loss to understand as to how the High Court could interfere by placing reliance upon evidence produced after the decree, at the instance of a party which succeeded along with the contesting defendant, particularly in the light of the finding that the land is forest land which has become part of reserved forest.”
According to the Top Court, there was a distinct lack of jurisdiction on two counts – one was with respect to an attempt made to circumvent the decree and, the second was in acting without jurisdiction. The land belonged to the Forest Department and therefore, Defendant No. 1 had absolutely no role in dealing with it in any manner. Proceeding under the A.P. Land Revenue Act, 1317 F. had no relevancy or connection with a concluded proceeding under the A. P. Forest Act. Thereafter, without any jurisdiction, an order was passed under Section 87, it noted.
Noticing the fact that the High Court on the earlier occasion had given a clear finding that even at the time of declaration under the A.P. Land Revenue Act, 1317 F, these lands were not shown as private lands by the defendant, among other factual findings, the Bench said, “It is indeed very strange that the High Court which is expected to act within the statutory limitation went beyond and graciously gifted the forest land to a private person who could not prove his title. While disposing of the first appeal, the High Court exercised its power under Order XLI Rule 22 of the CPC 1908 for partly reversing the trial court decree. Even otherwise, there were concurrent findings in so far as dismissal of the suit for injunction is concerned. In our considered view, the High Court showed utmost interest and benevolence in allowing the review by setting aside the well merited judgment in the appeal by replacing its views in all material aspects.”
It was also opined that the suit filed was not maintainable as the plaintiff had not challenged the proceedings under Section 15 of A. P. Forest Act. These had become final and conclusive in view of the express declaration provided under the statute in Section 16 of A. P. Forest Act. The Bench opined that the Plaintiff could not prove his title nor does there lie any relevance to the action taken under the A.P. Land Revenue Act, 1317 F. Furthermore, there was no specific challenge to the concluded proceedings under the A. P. Forest Act as the Plaintiff had merely asked for declaration of title and permanent injunction restraining the Defendants from interfering with possession.
The Bench also presented a constitutional perspective on the current environmental scenario and observed, “Human beings indulge themselves in selective amnesia when it comes to fathom the significance of forests…the protection of forests is in the interest of mankind, even assuming that the other factors can be ignored.”
Thus, allowing the appeal, the Bench set aside the impugned judgment and impose cost of Rs 5,00,000 each on appellants and respondents to be paid to the National Legal Services Authority (NALSA) within a period of two months
The Bench concluded the matter by stating, “The appellant State is free to enquire into the lapses committed by the officers in filing collusive affidavits before the competent court, and recover the same from those officers who are responsible for facilitating and filing incorrect affidavits in the ongoing proceedings.”
Read Order: MRINMOY MAITY v. CHHANDA KOLEY AND OTHERS [SC- CIVIL APPEAL NOs. 5027 of 2024]
Tulip Kanth
New Delhi, April 19, 2024: In a case where the appellant was granted approval for starting LPG distributorship, the Supreme Court has upheld the order of a Single-Judge Bench dismissing a rival applicant's petition which was filed after a lapse of four years.
The issue before the Division Bench of Justice Pamidighantam Sri Narasimha and Justice Aravind Kumar was whether the writ court was justified in entertaining the writ petition filed by the respondent No.1 challenging the approval dated 03.06.2014 granted in favour of the appellant for starting LPG distributorship at Jamalpur, District Burdwan.
The facts of the case which led to the filing of the appeal were that an advertisement came to be issued calling for application for distributors to grant LPG distributorship under GP Category at Jamalpur, District Burdwan. Since both the appellant and the respondent No.1 were held to be eligible from amongst the six (6) candidates, draw of lots was held and the appellant was found to be successful and was selected for verification of the documents. A letter of intent was issued to the appellant and the approval was granted by the BPCL in favour of the appellant for starting LPG distributorship at the notified place.
After a lapse of 4 years, the respondent No.1 filed a complaint with the BPCL alleging that land offered by the appellant was a Barga land and the same cannot be considered. Subsequently an application having been filed by the appellant offering an alternate land, the Corporation allowed the prayer of the appellant to construct the godown and showroom on the alternate land offered by the appellant.
The respondent No.1 being a rival applicant for grant of distributorship, having participated in submitting the application and being unsuccessful in the draw of lots held way back in the year 2013 filed a writ petition in the year 2017 which came to be dismissed by the Single Judge on the ground that the writ petitioner (respondent No.1) had no locus standi since she had participated in the selection process.
Being aggrieved by the same the intra-court appeal came to be filed and the same was allowed. The allotment made in favour of the appellant was set aside by the impugned order and as a consequence of it, the letter of intent, the letter of approval accepting the alternate land offered by the (appellant herein) and all subsequent permissions, licences and no objections issued in his favour were held to be of no effect. Hence, the instant appeal was filed before the Top Court.
On a perusal of the facts, the Bench opined that the writ petitioner ought to have been non-suited on the ground of delay and latches itself. “An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India”, the Bench observed.
Noting that the discretion to be exercised would be with care and caution, the Bench opined that if the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned.
Referring to its judgment in Tridip Kumar Dingal and others v. State of W.B and others., the Top Court also held that when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death.
“It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court”, it added.
On the facts of the case, the Bench observed that the writ petitioner was aware of all the developments including that of the allotment of distributorship having been made in favour of the appellant herein way back in 2014, yet did not challenge and only on acceptance of the alternate land offered by the appellant in March, 2017 and permitting him to construct the godown and the showroom. Same was challenged in the year 2017 and thereby the writ petitioner had allowed his right if at all if any to be drifted away or in other words acquiesced in the acts of the Corporation and as such on this short ground itself the appellant had to succeed.
Another fact which swayed the Bench to accept the plea of the appellant was that the appropriate government had felt the need of permitting the Oil Marketing Companies to be more flexible and as such modification to the guidelines had been brought in 2015 whereby the applicants were permitted to offer alternate land where the land initially offered by them was found deficient or not suitable or change of the land, subject to specifications as laid down in the advertisement being met.
“There being no stiff opposition or strong resistance to the alternate land offered by the appellant herein not being as per the specifications indicated in the advertisement, we see no reason to substitute the court’s view to that of the experts namely, the Corporation which has in its wisdom has exercised its discretion as is evident from the report filed in the form of affidavit by the territory manager (LPG)/ BPCL”, the Bench added.
Thus, allowing the appeal, the Bench set aside the Order of the Division Bench while restoring the order of the Single Judge.
Read Order:THE STATE OF WEST BENGAL v. JAYEETA DAS [SC- CRIMINAL APPEAL NO(S). 2128 OF 2024]
Tulip Kanth
New Delhi, April 18, 2024: Noting the fact that the West Bengal Government has so far not exercised the power conferred upon it by Section 22 of the NIA Act for constituting a Special Court for trial of offences set out in the Act's Schedule, the Supreme Court has held that the Chief Judge cum City Sessions Court within whose jurisdiction the offence took place, had the jurisdiction to permit addition of the offences under UAPA to the case.
The facts of the case suggested that based on a written complaint filed by the SI Raju Debnath, STF Police Station, Kolkata informing about recovery of an unclaimed black coloured bagpack lying abandoned at Sahid Minar containing some written posters of CPI(Maoist) and some incriminating articles about the activities of CPI(Maoist), an FIR came to be registered for the offences punishable under Sections 121A, 122, 123, 124A, 120B of the Indian Penal Code, 1860(IPC).
The respondent herein was apprehended and was produced before the Chief Metropolitan Magistrate. The Investigating Officer conducted preliminary investigation and thereafter filed an application praying for addition of offences punishable under Sections 16, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).
The Chief Judge, vide order dated April 7, 2022 permitted addition of offences under Sections 16, 18, 18B, 20, 38, 39 of UAPA in the case and allowed the same to be investigated along with the existing offences for which the FIR had been registered.
The State of West Bengal had approached the Top Court by way of this appeal for assailing the legality and validity of the judgment of the Calcutta High Court.The High Court had quashed the proceedings of the case registered against the respondent to the extent of the offences punishable under the provisions of UAPA, holding that only a Special Court constituted by the Central Government or the State Government as per the National Investigation Agency Act (NIA Act) had the exclusive jurisdiction to try the offences under UAPA.
The frontal issue which fell for consideration, before the Division Bench of Justice B.R. Gavai & Justice Sandeep Mehta was whether the Chief Judge, City Sessions Court, Calcutta had the jurisdiction to pass the order dated April 7, 2022.
Referring to sub-section (3) of Section 22 of NIA Act, the Bench opined that until a Special Court is constituted by the State Government under sub-Section (1) of Section 22, in case of registration of any offence punishable under UAPA, the Court of Sessions of the division, in which the offence has been committed, would have the jurisdiction as conferred by the Act on a Special Court and a fortiori, it would have all the powers to follow the procedure provided under Chapter IV of the NIA Act.
The present case involved investigation by the State police, and therefore, the provisions of Section 22 were held to be applicable insofar as the issue of jurisdiction of the Court to try the offences was concerned.
“It is not in dispute that the State of West Bengal has so far not exercised the power conferred upon it by Section 22 of the NIA Act for constituting a Special Court for trial of offences set out in the Schedule to the NIA Act and hence, the Sessions Court within whose jurisdiction, the offence took place which would be the Chief Judge cum City Sessions Court in the case at hand, had the power and jurisdiction to deal with the case by virtue of the sub-section (3) of Section 22 of the NIA Act”, the Bench said.
Hence, it was held that the order dated April 7, 2022, whereby the Chief Judge cum City Sessions Court permitted the addition of the offences under UAPA to the case did not suffer from any illegality or infirmity.
The Bench also made it clear that Section 43D of UAPA provides a modified scheme for the application of Section 167 CrPC. Moreover, under the proviso to Section 43D(2), the Court has been given the power to extend and authorise detention of the accused beyond a period of 90 days as provided under Section 167(2) CrPC.
Placing reliance upon section 2(1)(d) of UAPA, the Bench opined that this provision admits to the jurisdiction of a normal criminal Court and also includes a Special Court constituted under Section 11 or Section 22 of the NIA Act. “Hence, the Chief Judge cum City Sessions Court had the jurisdiction to pass the order dated 7th April, 2022. In view of the definition of the ‘Court’ provided under Section 2(1)(d) of UAPA, the jurisdictional Magistrate would also be clothed with the jurisdiction to deal with the remand of the accused albeit for a period of 90 days only because an express order of the Sessions Court or the Special Court, as the case may be, authorising remand beyond such period would be required by virtue of Section 43D(2) of UAPA”, the Bench asserted.
It was further held that to the extent the Chief Metropolitan Magistrate extended the remand of the accused beyond the period of 90 days, the proceedings were grossly illegal. However, the charge sheet came to be filed beyond the period of 90 days and as a matter of fact, even beyond a period of 180 days, but the accused never claimed default bail on the ground that the charge sheet had not been filed within the extended period as per Section 43D of the UAPA. “...the only academic question left for the Court to examine in such circumstances would be the effect of evidence collected, if any, during this period of so called illegal remand, after 90 days had lapsed from the date of initial remand of the accused and the right of the accused to seek any other legal remedy against such illegal remand. Such issues would have to be raised in appropriate proceedings, i.e. before the trial court at the proper stage”, it added.
Thus, allowing the appeal, the Bench set aside the impugned judgment of the Calcutta High Court.
Read Order: KIRPAL SINGH v. STATE OF PUNJAB [SC- CRIMINAL APPEAL NO(S). 1052 OF 2009]
Tulip Kanth
New Delhi, April 18, 2024: While observing that the story set up by the prosecution did not inspire confidence and inherent improbabilities as well as loopholes were showcased in the evidence, the Supreme Court has acquitted a convict sentenced to life in a 27-yr-old murder case.
The factual background of the case was such that Sharan Kaur, the first informant(PW-5), wife of Balwinder Singh (deceased) used to reside along with her family members in the house which was situated on the backside of the grocery and sweets shop owned by her husband Balwinder Singh (deceased). In the intervening night of 12th/13th November, 1997, Balwinder Singh (deceased) went to sleep in the open balcony of the house which was not having any shutter, whereas Sharan Kaur (PW-5) along with the other family members slept in a room on the ground floor.
It was alleged that Sharan Kaur (PW-5) heard a knock on the door of the room in which she was sleeping at about 2.30 a.m. She thought that it was her husband and thus she opened the door. In the illumination of light placed in the courtyard, she saw the accused appellant-Kirpal Singh standing there armed with a knife.
The appellant inflicted an injury with the weapon on the abdomen of Sharan Kaur (PW-5). Another assailant who was accompanying appellant Kirpal Singh caught hold of her arm. She raised an alarm and her sons Goldy and Sonu woke up. None of these three persons could identify the other assailant. Both the assailants fled away by opening the main gate, in between the two shops. Sharan Kaur (PW-5) went upstairs to have a look at her husband and found him lying severely injured on the cot with blood oozing out of his mouth and head.
On the way to the hospital, Balwinder Singh expired. First aid was provided to Sharan Kaur (PW-5), thereafter, she as well as the dead body of Balwinder Singh (deceased) was brought back to their home in the same vehicle and by that time the police had arrived. The prosecution alleged that the motive behind the occurrence was that the appellant and his associate were bearing jealousy on account of the roaring business being done at the halwai shop of Balwinder Singh (deceased), which was doing much better as compared to the halwai shop run by the accused appellant.
The appellants had approached the Top Court assailing the judgment of the Punjab and Haryana High Court confirming the judgment rendered by the Additional Sessions Judge vide which the appellant was convicted u/s 302 of the Indian Penal Code, 1860 and sentenced to imprisonment for life. Under Section 307 IPC, rigorous imprisonment for a period of five years was imposed upon him.
The Division Bench comprising Justice B.R. Gavai and Justice Sandeep Mehta was of the view that if the prosecution case was to be accepted, it was apparent that the accused had painstakingly, planned out the murder of Balwinder Singh (deceased), inasmuch as they put up a ladder against the outer wall of the house, climbed into the house by using the said ladder and attacked the deceased by spade. Thus, the moment Balwinder Singh (deceased) had been belaboured, the purpose of the accused was served and hence, there was no rhyme or reason as to why the accused would take the risk of being exposed to the other family members. As per the prosecution, the accused appellant had assaulted Balwinder Singh (deceased) with a spade which was abandoned at the spot and then the accused came down with a knife.
This story set up by the prosecution did not inspire confidence. The Bench opined that once the accused had achieved the objective of eliminating Balwinder Singh(deceased) without being discovered, they had all the opportunity in the world to escape from the spot by using the very same ladder, which had been used to climb up the chaubara. Thus, there was no reason for the accused to risk discovery by coming down and alarming the family members.
Furthermore, as per the prosecution case, two accused were involved in the incident. If at all the prosecution case is to be believed, the accused after killing Balwinder Singh(deceased), must have gone down to eliminate the other family members and in that background, there was no reason as to why the person accompanying the accused appellant was unarmed. This again created a doubt on the truthfulness of the prosecution story.
In her examination in chief, the first informant-Sharan Kaur(PW-5) categorically stated that her statement was recorded at the Civil Hospital on November 13, 1997 at about 7:30 a.m. It was read over and explained to her, and she signed it admitting it to be correct. If that was so, then it was opined that the subsequent conduct of Sharan Kaur (PW-5) in raising a hue and cry that investigation being conducted was tainted and the police had intentionally favoured the co-accused Kulwinder Singh by leaving out his name from the array of offenders created a great doubt on her credibility.
A serious doubt was created on the credibility of the deposition made by the first informant, in light of the fact that she claimed in her examination in chief that a van was brought by her son wherein, she and her husband were taken to the Civil Hospital, Tanda, where the medical officers opined that her husband had expired and she was medically examined. However, they did not believe in this opinion and took the victim to Bhogpur where again the doctors reiterated that her husband had expired. Only after this confirmation, the dead body of Balwinder Singh was brought back to the house where police was already present. This version, as set out in the testimony of the first informant, Sharan Kaur(PW-5), completely destroyed her credibility.
“There cannot be two views on the aspect that if a case of homicidal death is reported at a Government hospital the doctors would immediately inform the police and there is no chance that the dead body would be allowed to be carried away by the family members”, the Bench held.
Not only this but the medical records of the Civil Hospitals at Tanda and Bhogpur were not collected by the investigating agency nor were the same brought on record by the prosecution in its evidence. Gurmeet Singh, elder brother of Daljit Singh(PW-6), was not examined by the prosecution and Daljit Singh (PW-6) did not even utter a word that appellant was having a weapon with him when he saw him fleeing away from the crime scene. According to the Bench, these inherent improbabilities and loopholes in the evidence completely destroyed the fabric of the prosecution case which was full of holes and holes and were impossible to be stitched together.
On going through the evidence of Sharan Kaur (PW-5) and Daljit Singh (PW-6), with reference to other evidence available on record, the Top Court was of the firm opinion that both these witnesses fell in the second category, i.e., wholly unreliable. No other tangible evidence was led by the prosecution to connect the accused appellant with the crime. The Bench found that no weapon of crime was recovered at the instance of the accused appellant and thus, there was no corroborative evidence so as to lend credence to the wavering and unreliable testimony of Sharan Kaur (PW-5) and Daljit Singh (PW-6).
Thus, the Bench observed that the evidence of Sharan Kaur (PW-5) and Daljit Singh (PW-6) was wholly unreliable and did not inspire confidence in the Court so as to affirm the conviction of the appellant. “It may be reiterated that no corroborative evidence was led by the prosecution so as to lend credence to the testimony of these two witnesses”, the Bench added.
Thus, quashing the orders of the Trial Court and the High Court, the Top Court allowed the appeal.
Read Order: VAKIL MAHTO AND ANR v. THE STATE (GOVT. OF NCT OF DELHI ) AND OTHERS [DEL HC- W.P.(CRL) 1155/2024]
Tulip Kanth
New Delhi, April 18, 2024: The Delhi High Court has imposed cost of Rs 10,000 on the petitioners while dismissing a Habeas Corpus petition seeking production of their father before the Court on the ground that the father’s second wife was not allowing them to meet him.
The Bench was considering a Habeas Corpus petition praying for a direction to the Respondents to produce Lalan Mehto S/o Nikhandi Mehto before the Court either dead or alive so that the petitioners may be sure that their father is living like a free citizen in the company of respondent No. 4 who are not allowing to have any kind of communication of their father with the petitioners in any manner or mode or not allowing him to visit at the house of the petitioner.
At the outset, the Division Bench of Justice Suresh Kumar Kait & Justice Manoj Jain remarked, “Curiously, though the father of the petitioners is very much alive, in prayer, to our astonishment, it is stated that he be produced either dead or alive.”
It was stated that the father of the petitioners had married twice. His first wife, i.e, the mother of the petitioners had already expired. It was further stated that the father of the petitioners suffered paralysis attack and since then petitioners had been taking his care.
The grievance of the petitioners was that on 10.03.2024, the respondent No.4 (second wife of the father of the petitioners) forcibly took him with her to her house in East Vinod Nagar and now the petitioner and his family members are not even being allowed to meet their father.
However, it was the case of the respondent that the petitioners have never been disallowed to meet their father but there is ruckus whenever they come to the house of respondent No.4 to meet their father.
The Status Report also showed that the petitioners visited the house of respondent No.4 and then they started arguing and abusing each other and despite the intervention of the beat staff, they came to blows and, therefore, as a preventive action parties were booked under Section 107/150 Cr.P.C.
“Taking broad overview of the matter, it becomes apparent that the present petition, which is in the nature of Habeas Corpus, is nothing but misuse of judicial process”, the Bench said.
It was noted by the Bench that the second marriage of the father of the petitioners had, reportedly, taken place way back in the year 1997 and there was nothing to suggest any sort of illegal detention, warranting the Court’s interference.
Thus, the Bench held, “The present petition amounts to misuse of judicial process and sheer wastage of public time, therefore, we, hereby, dismiss the present petition with cost of Rs.10,000/- to be paid/deposited in favour of Nirmal Chaya for the welfare of the destitute children. The cost be paid within two weeks from today, failing which the same shall be recovered as land revenue in accordance with law by the Registrar General of this Court.”
Read Order: STATE OF KARNATAKA BY GANDHINAGAR P.S v. M.N. BASAVARAJA & ORS [SC- CRIMINAL APPEAL NO.503 OF 2013]
LE Correspondent
New Delhi, April 18, 2024: While remitting a dowry death case back to the Sessions Court, the Supreme Court has observed that a woman facing harassment and cruelty owing to her or her family’s failure to meet dowry demands would more often than not confide in her immediate family members.
The first respondent along with the other respondents (second to fifth) stood trial for commission of offence punishable under sections 302, 498A and 201 of the Indian Penal Code, 1860 read with sections 3 and 4 of the Dowry Prohibition Act (DP Act) and they were acquitted. The State of Karnataka carried the judgment of acquittal in appeal before the High Court whereby the acquittal of the respondents for the offences under sections 302 and 201 of the IPC as well as sections 3 and 4 of the DP Act was confirmed however, the conviction of thr first respondent under section 498A, IPC was upheld.
On the question of sentence, it was represented on behalf of the first respondent before the High Court that he had been behind bars for four years during the period of trial. Considering that the maximum punishment that could be imposed under section 498A, IPC is three years, the High Court sentenced the first respondent to the period of incarceration already undergone and disposed of the appeal. This judgment was the subject matter of challenge in the appeal before the Top Court filed at the instance of the State of Karnataka.
The trial, in this case, stemmed from the unnatural death of Susheelamma within 7 years of her marriage. The first respondent happened to be her husband while the other respondents were her in-laws. After the First Information Report was registered under sections 498A and 304B, IPC read with sections 3 and 4 of the DP Act based on the complaint of Susheelamma’s brother (PW-1), police report under section 173(2), Code of Criminal Procedure Code was submitted before the relevant Court.
Bare perusal of the police report revealed that the materials collected during investigation pointed towards suicidal death of Susheelamma owing to harassment meted out to her by the respondents for not having brought with her requisite dowry at the time of marriage and even thereafter till her death. Despite the police report having been filed under section 304B, IPC and suggesting death of Susheelamma by suicide, charge against the respondents was framed by the Sessions Court under section 302, IPC.
At the outset, the Division Bench comprising Justice Dipankar Datta & Justice S.V.N. Bhatti observed, “This appears to us inexplicable in the absence of any material in the police report suggesting commission of offence under section 302, IPC. Assuming that the Sessions Court had reason to frame a charge under section 302, IPC, it is incomprehensible why no alternative charge under section 304B, IPC was framed.”
The Top Court was of the view that the testimonies of the relevant witnesses for the prosecution, left no manner of doubt that dowry death of Susheelamma could be and ought to have been presumed. “All the ingredients for framing of a charge under section 304B, IPC were present and quite mindlessly, an exercise appears to have been undertaken to nail the respondents for committing offence punishable under section 302, IPC overlooking the contents of the police report under section 173(2), Cr. PC suggesting suicidal death”, it added.
As per the Bench, the Sessions Court while framing charge under section 302, IPC did not apply its judicial mind resulting in non- framing of an alternative charge under section 304B, IPC. The High Court too failed to address the problem in the proper perspective and, thus, disabled itself from rendering justice to the parties.
“Merely because a charge under section 304B, IPC had not been framed and there had been lapse of time did not afford any ground to the High Court to distance itself from following the settled law and ordering a remand”, the Bench opined while also stating, “...we have found a specific finding in the judgment of the Sessions Court that both the first respondent and Susheelamma were residing together in a house in Suez Plot and that the dead body of the latter was found in such house.”
Rejecting the argument that the family members of the deceased were interested witnesses and their evidence is to be discarded, the Bench said, “A lady facing harassment and cruelty owing to her or her family’s failure to meet dowry demands would more often than not confide in her immediate family members. If the evidence of the family members in a case of dowry death is to be discarded on the ground that they are interested witnesses, we wonder who would be the reliable witness to testify for bringing the culprit to book.”
The Bench further observed that an opportunity is required to be extended as part of the assurance of a fair trial and reasonableness of the procedure established by law to enable the first respondent rebut the presumption of dowry death drawn in terms of the provisions contained in section 304B IPC read with section 113B of the Evidence Act. However, it was observed that notwithstanding the availability of evidence and materials on record sufficient to draw a presumption of dowry death of Susheelamma and such presumption is open to be rebutted if the first respondent adduces relevant evidence sufficient for a prudent man to believe the existence of circumstances put forward by him leading to the death of Susheelamma as probable without he being responsible in any manner. However, the Bench added that should such presumption be not rebutted, a conviction under section 304B, IPC could logically follow.
Thus, the Top Court held acquittal recorded by the Sessions Court, since affirmed by the High Court, qua the other respondents (second to fifth) would be maintained. The first respondent has also been adequately put on notice that unless he disproves the presumption of dowry death, he is liable to be convicted under section 304B. It was also clarified by the Bench that the Sessions Court would be free to decide on the sentence to be imposed on the first respondent for the conviction recorded against him by the High Court in respect of the offence under section 498A, IPC.
The Bench further ordered, “To facilitate the Sessions Court to dispose of the case against the first respondent in the manner that we have indicated above and to avoid delay, we direct the first respondent to appear before the Sessions Court on 3rd June, 2024 and also grant him the liberty to seek bail. Till 3rd June, 2024, he shall not be arrested.”
Read Order: SHAMIM KHAN vs. DEBASHISH CHAKRABARTY & ORS. [SC- Petition(s) for Special Leave to Appeal (Crl.)No(s).3567-3568/2017]
Tulip Kanth
New Delhi, April 18, 2024: Scanning through the provisions under Sections 156(3), 173(2), 190, 200, 202, 203 and 204 of the CrPC, the Supreme Court has, prima facie, observed that the Magistrate is not actually taking cognizance while directing for an investigation and forwarding the complaint. However, noting that this issue has been referred to a larger Bench, the Top Court tagged the matter in question along with Manju Surana vs. Sunil Arora & Ors.
The Division Bench of Justice C.T. Ravikumar & Justice Rajesh Bindal found that the question which was already referred to a larger Bench, as per the judgment in Manju Surana’s case (supra) was involved in the present case as well.
The question referred under the judgment in Manju Surana’s case (supra) is whether, while directing an investigation in terms of provisions under Section 156(3) of the CrPC, the Magistrate is applying his mind i.e. whether the Magistrate takes ‘cognizance at that stage’.
“We are of the considered view that scanning of the provisions under Sections 156(3), 173(2), 190, 200, 202, 203 and 204 of the CrPC would, prima facie, reveal that while directing for an investigation and forwarding the complaint therefor, the Magistrate is not actually taking cognizance”, the Bench said.
However, the Top Court stated that since the said question is referred as per the abovementioned judgment, judicial discipline and propriety would dissuade it from proceeding further with the case.“Hence, we order to tag the captioned matters also along with the matter(s) already referred”, the Bench held.
The judgment in Manju Surana (supra) revealed that the matters were referred to a larger Bench on 27.3.2018. Considering the fact that the question involved is a matter of relevance and such issues arises frequently for consideration before Courts, the Bench opined that an earlier decision on the question referred is solicited.
Thus, the Bench concluded the matter by observing, “Registry is directed to place these matters before the Hon’ble the Chief Justice of India for appropriate orders.”
Read Order: VIDESHI KUMAR AND ORS v. STATE [DEL HC- CRL.A. 304/2002]
LE Correspondent
New Delhi, April 17, 2024: While acquitting two men in a 27-year-old murder case, the Delhi High Court has opined that if the prosecution fails to prove motive in a case based on circumstantial evidence, then it would be a sort of advantage defence.
The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was considering the appeals filed by the appellants- Ram Nath and Videshi Kumar challenging their conviction and consequent order on sentence whereby they both had been held guilty for committing murder of Tuntun. Both the accused were sentenced to undergo life imprisonment.
Investigation, in this case, took off when on 31.07.1997, Key Man Tej Bahadur (PW8) informed the local police that body of a person, run over by the train, had been lying on EMU track. On the basis of such information, ASI Hazari Lal (PW12) along with police team rushed to the spot where they saw dead body of a male of 20-22 years lying on Railway track having two sharp cuts on the neck. The right ear of such person was found to be missing. The left hand was lying severed at some distance. Blood was noticed in the bushes situated at a distance of five steps from the dead body and one blood-smeared vegetable-cutting knife was also recovered. Severed hand was found lying at a distance of 195 steps away in the Southern direction.
The driving licence contained in his wallet led to his identity and the name of the deceased was ascertained as Tuntun. Police was of the view that somebody had killed him with knife and thereafter the perpetrator, with the intention of screening himself and to destroy the evidence, put the dead body on the railway track in order to give it a colour of train-accident and, therefore, case under Section 302/201 IPC was registered.Both the accused were eventually apprehended and their bloodstained clothes were also recovered and seized.
Noting that the case was based on circumstantial evidence, the Bench opined that in such cases there is no room for any missing link though it is not required that each such link must appear on the surface of the evidence as some of links can also be inferred automatically from the proven facts. “Circumstantial evidence, in order to furnish basis for conviction, requires sufficiently high degree of probability, clearly and discernibly, pinpointing that such accused is the perpetrator of the crime, and no one else…Motive, in a case of murder based on direct evidence, is of little importance but if the case is based on circumstantial evidence, then motive assumes larger proportion.”
The Bench further added, “Thus, if prosecution fails to prove motive in a case based on circumstantial evidence, it would be a sort of advantage defence.”
Circumstances on which the prosecution had built up its case included the theory of last seen together and the fact that there was motive to commit murder as accused Ram Nath was having illicit relationship with Babli. Tuntun (deceased herein) had come to know about such relationship and, therefore, he was killed by the accused.
On a careful perusal of the case of prosecution, the Bench could sense that both of these accused had been arrested in two other cases of murder and the victims therein were of the same vicinity. Said two cases and the present one seem intrinsically interwoven as the victim in one such case was Raju, son of one Babli and in the other case also, the victim was one Shambhu who appeared to be her relative. Both these victims were also allegedly eliminated by the accused persons as they too had learnt about the illicit relationship.
However, the Bench opined that from the testimony of Babli (PW15), motive had not been proved in any manner whatsoever. Babli (PW15) had categorically deposed that she did not know Tuntun and she did not know any of the accused. She also claimed that she had no illicit relationship with any person. As per the Bench, motive aspect had not been proved in the desired manner. In a criminal trial, it cannot be assumed on the basis of some guesswork or estimation, it added.
On the aspect of recovery of knife, the Bench observed that the knife did not stand connected to the accused and, therefore, it couldn't be taken as a circumstance against the accused. It was never recovered from the possession or at the instance of accused. Rather it was found lying near the dead body.
As regards the post-crime conduct, the Bench noted that there was nothing which would suggest that the accused had absconded. Even the Trial Court had observed in its judgment that they had never absconded and were rather arrested from their respective jhuggis.
Furthermore, the Police had not prepared any site plan depicting the place where the accused were last seen together with the deceased and the place of recovery of dead body. As per the Bench, this important detail couldn't be left for imagination. “Moreover, it is weak kind of evidence which can never be said to be sufficient in itself for holding someone guilty, particularly when motive is also not proved”, it held.
The Bench opined that the accused and deceased were working together and in such a peculiar situation, their being together couldn't be said to be unusual. Thus, extending the benefit of doubt to the accused-appellants, the Bench allowed both the appeals and acquitted both the accused of all charges levelled against them.
Read Order: PRAKASH VASANT AJGAONKAR & ORS v. THE STATE NCT OF DELHI & ANR [DEL HC- CRL.REV.P. 285/2021]
Tulip Kanth
New Delhi, April 17, 2024: In a cheque bounce case, the Delhi High Court has allowed the petitions filed by the accused Company’s Directors while clarifying that Section 143A of the NI Act empowers the Court to pass a direction for payment of interim compensation only against the “drawer of the cheque”.
The respondent no.2/complainant had filed the complaints under Section 138 of the NI Act against the petitioners alleging that M/s SVPL had entered into two agreements with respondent no.2 / Complainant, whereunder the respondent no.2 was to purchase built-up commercial and residential area for a total consideration of a sum of Rs 750 Crore. An advance amount of Rs 187.50 Crores was also paid by the respondent no.2 to M/s SVPL in terms of the agreements.
Due to certain disputes that arose between the parties on account of the non-fulfilment of the contractual obligations, the respondent no.2 filed two commercial suits before the Bombay High Court seeking specific performance of the two agreements entered into between the parties, and restraining the petitioners herein from creating any third-party rights in the subject property.
The said two suits were disposed of in view of the two Consent Terms whereby M/s SVPL agreed to return back the money invested with them by the respondent no.2 and further gave 300 flats as security to the respondent no.2. The said flats were to be released back to the petitioners / M/s SVPL on the basis of payment made by them to the respondent no.2, on pro-rata basis.
When M/s SVPL fell short on the schedule for repayment, the respondent no.2 filed contempt petitions and the repayment schedule for the remaining balance of Rs.93.50 Crores was revised. Thereafter, the parties, including M/s SVPL and the petitioners herein, and the respondent no.2, entered into fresh Consent which once again amended the schedule for repayment. M/s SVPL also issued postdated cheques in terms of the payment schedule.
In the meantime, the respondent no.2 filed the subject complaints under Section 138 of the NI Act before the Metropolitan Magistrate, complaining therein that the cheques that were issued by the company to the respondent no.2 in terms of the Consent, on presentation, were returned dishonored with the remarks “Fund Insufficient”. In spite of the receipt of the notice, the company or the petitioners-Directors had not paid the said amount.
The petitions before the Delhi High Court were filed challenging the Order passed by the Metropolitan Magistrate (Trial Court) allowing the application filed by the respondent no.2 / complainant under Section 143A of the Negotiable Instruments Act, 1881 (NI Act) and directing the petitioners to pay to the respondents no.2 interim compensation at 12% of the cheque amount, that is, Rs.2,71,52,880/- within 60 days.
At the outset, the Single-Judge Bench of Justice Navin Chawla opined that the Apex Court has already clarified that the exercise of power under Section 143A(1) of the NI Act is “discretionary”. In the present case, the Impugned Order reflected that the Trial Court was of the opinion that Section 143A is ‘mandatory’ in nature and interim compensation has to be granted to the complainant in terms of the same as a rule and not as an exception. The Bench observed that this view of the Trial Court couldn’t be upheld in view of the judgment of the Supreme Court in Rakesh Ranjan Shrivastava vs. State of Jharkhand.
The High Court was of the opinion that the Impugned Orders didnot reflect any consideration of the Trial Court to the plea of the petitioners that the respondent no.2 also held security in form of the flats and in form of a statement made in the course of the proceedings before the Bombay High Court that the said company will not be disposing of the flats or creating any third-party rights in the plot of land which is the subject property. As per the Bench, this was an important consideration which should have been taken into account by the Trial Court while deciding on the application filed by the respondent no.2 under Section 143A of the NI Act.
“What is also relevant is that Section 143A of the NI Act empowers the Court to pass a direction for payment of interim compensation only against the “drawer of the cheque”. In the present case, admittedly, the drawer of the cheques is the company and not the petitioners. The petitioners have been arrayed as accused invoking Section 141 of the NI Act”, it said.
According to the Bench, Section 141 of the NI Act contains a deeming provision wherein, though offence under Section 138 of the NI Act is committed by a company, the persons mentioned in the said Section are deemed to be guilty of that offence and are liable to be proceeded against and punished accordingly.
It was further observed that Section 143A still makes only the “drawer of the cheque”, and not the other persons, who may be deemed to have committed the offence under Section 138 of the NI Act due to Section 141 of the NI Act, liable to pay the interim compensation.
The High Court asserted, “The Impugned Order dated 11.03.2022, however, relies upon Section 141 of the NI Act to hold that a direction to pay the interim compensation under Section 143A of the NI Act can be made even against persons who, though are not the ‘drawer of the cheque', are still deemed to have committed the offence under Section 138 of the NI Act. This view of the learned Trial Court cannot be sustained.”
Thus, holding that the impugned Orders had ignored vital and relevant considerations for passing an order under Section 143A, the Bench allowed the petitions and set aside the orders under challenge.
Read Order: ASSOCIATION OF ENGINEERS AND OTHERS ETC v. THE STATE OF TAMIL NADU AND OTHERS ETC [SC- CIVIL APPEAL NOS. 4886-4888 OF 2023]
Tulip Kanth
New Delhi, April 17, 2024: While dismissing an appeal filed by the Association of Engineers challenging the appointment of Technical Assistant as Assistant Engineers in Tamil Nadu Government's Public Works Department, the Supreme Court has remarked that the attempt of the appellant Association was to grab all the posts available, even those apportioned for the candidates promoted from subordinate services.
The facts giving rise to present appeals were that on January 2, 1990, the Tamil Nadu Government's Public Works Department (PWD) issued an order accepting the recommendations of Chief Engineer, PWD (General) and the Tamil Nadu Public Service Commission (TNPSC) and directed that from the date of this order, Junior Draughting Officers, Draughting Officers, Overseers and Technical Assistants, who have completed 5 years of service and acquired B.E./A.M.I.E. qualification, will be entitled to be appointed as Assistant Engineers on transfer of service.
On January 22, 1991, Government Order being G.O. Ms. No. 88 of 1991 came to be issued wherein it was clarified that TNPSC need not be consulted for appointment of Junior Draughting Officers, Draughting Officers, Overseers and Technical Assistants.
A Writ Petition came to be filed before the Madras High Court by Engineering Graduates challenging G.O. No.1. The same were dismissed. Another was issued by the TNPSC for direct recruitment of Assistant Engineers. The Tribunal allowed the applications filed by Junior Draughting Officers and Draughting Officers, however, dismissed the applications filed by Technical Assistants. Thereafter, Association of Engineers, one of the appellants herein filed Writ Petition before the Madras High Court was dismissed and the appeal before the Top Court against the same was also dismissed.
From 1999 till 2002, a total number of 491 vacancies in the post of Assistant Engineers were notified to be filled up. The State Government, due to dearth of eligible candidates to fill the remaining 93 vacancies by transfer, issued directions directing appointment of persons in the category of Technical Assistant, who possessed B.E./A.M.I.E. qualification in Civil Engineering and rendered 5 years of service on a temporary basis.
Vide Proceedings conducted in the year 2006, 21 Technical Assistants were appointed as Assistant Engineers on temporary basis. The Association of Engineers challenged the above mentioned appointment order. Vide order dated December 23, 2014, the Single Judge restrained the official respondents from appointing Technical Assistants as Assistant Engineers by recruitment by transfer unless and until the statutory rules were amended making Technical Assistants as feeder category.
Being aggrieved by the order of the Single Judge, writ appeals were filed before the Division Bench by the respondents whereby the impugned order was quashed. Thus, the appellants approached the Top Court.
It was the case of the appellants that the appointment of Technical Assistants as Assistant Engineers was totally illegal, violative of Right to Equality under Article 14 of the Constitution of India and also violative of Article 335 which mandates efficiency in public administration. It was submitted that that the entry of Assistant Engineers is through competitive examination on the basis of merit whereas the entry of Technical Assistants is by appointment by the Superintending Engineer.
It was noticed by the Division Bench of Justice B.R. Gavai & Justice Sandeep Mehta that the Technical Assistants were not claiming against the 75% posts available for direct recruits. Their claim was only towards 25% posts which were required to be filled in from Junior Draughting Officers, Overseers and Technical Assistants who have put five years service and have acquired B.E./A.M.I.E. qualification.
“It is thus clear that the Technical Assistants are, in no way, encroaching upon the quota apportioned for directly recruited Assistant Engineers. Even if their contention is accepted that once they are brought in the cadre of Assistant Engineers, they would lose their birthmark, in view of the judgment of this Court in the case of B. Thirumal (supra), for the higher post, and there will be no competition amongst direct recruits and promotees. Whereas the direct recruits would be entitled to get promotional posts from 75% quota apportioned for them, the Technical Assistants along with other placed amongst them would be entitled to promotional posts only from 25% posts apportioned for them”, it held while placing reliance upon B. Thirumal v. Ananda Sivakumar and Others.
The contention of the appellants that, the services of the Technical Assistants were not regularized, was also contrary to record. Moreover, the State Government was required to take a decision to appoint Technical Assistants as Assistant Engineers on temporary basis as it was found that out of 122 vacancies apportioned to the post of Assistant Engineer to be filled up by recruitment by transfer, only 29 vacancies had been filled so far. It appeared that the attempt of the appellant association was to grab all the posts available even those apportioned for the candidates promoted from subordinate services. According to the Bench, said attitude was totally unequitable.
Referring to the judgement in Narpat Singh and Others v. Jaipur Development Authority and Another, the Bench said, “ In any case, any interference at this stage is likely to undo the settled position which has been prevalent almost for a period of last 18 years. As already held hereinabove, the continuation of the appellants as Assistant Engineers would not amount to encroaching upon the 75% posts apportioned for the members of the appellants’ association.”
Thus, observing that no interference was warranted, the Bench dismissed the appeal.
Read Order: RAMVIR @ SAKET SINGH v. THE STATE OF MADHYA PRADESH [SC- CRIMINAL APPEAL NO(S). 1258 OF 2010]
LE Correspondent
New Delhi, April 17, 2024: In a case involving a gruesome broad daylight double murder by repeated gun firing, the Supreme Court has upheld the judgment of the Trial Court imposing life imprisonment upon the appellant-convict.
The appellant, in this case, was tried for the murders of Kaptan Singh and Kalyan Singh which took place in two separate incidents and for the attempted murder of Indal Singh(PW-12) in the incident in which Kaptan Singh was killed. Both these incidents took place in village Bhajai, District Bhind of Madhya Pradesh on November 10, 1985.
Upon conclusion of the trial, the Trial Court acquitted the accused appellant from the charge of murder of Kalyan Singh holding that the two eyewitnesses who deposed against the appellant for the said incident, namely, Surajbeti(PW-5) and Hiraman(PW-6) were not reliable witnesses as they had not named the accused appellant in the statements made before the Investigating Officer (PW-18). However, placing reliance on the testimony of Raj Kumari(PW-7), Indal Singh(PW- 12)(injured eyewitness) and Ramraj Singh(PW-14), the Trial Court proceeded to convict the appellant for the commission of murder of Kaptan Singh and attempted murder of Indal Singh(PW-12).The appellant was sentenced to undergo life imprisonment and fine of Rs. 2000 u/s Section 302 of the Indian Penal Code, 1860 and five years rigorous imprisonment u/s 307. The appeal, before the Top Court, challenged this order on sentence.
The appellant was reported to have suffered more than 14 years of substantive imprisonment and nearly 22 years imprisonment with remission. However, his prayer for grant of premature release/remission was not being considered on account of pendency of appeal.
It was the appellant's case that the entire prosecution case was false and fabricated. It was submitted that the case of prosecution was fit to be discarded as the fatal injuries caused to two members of the accused side namely, Chutallu @ Ram Mohan and Shiv Singh were not explained by the prosecution witnesses and members of the complainant party having been convicted in the cross case, it was trite they were the aggressors. Thus, it was contended that the accused appellant deserved to be acquitted by giving him the benefit of doubt as well as by giving him the benefit of right of private defence.
The Division Bench of Justice B.R. Gavai & Justice Sandeep Mehta noted that insofar as the Sessions Case was concerned wherein six persons from the complainant side were convicted by the trial Court, it was stricto senso not a cross case because the charge against those who stood trial in the aforesaid case was for the offence punishable under Section 396 IPC registered with the allegation of snatching the gun from Chutallu @ Ram Mohan. Thereafter, Ramraj Singh(PW-14) fired gun shots at Chutallu @ Ram Mohan causing him fatal injuries. At that time, Govind Singh and Udai Singh had also fired gun shots at Shiv Singh, who was standing on the platform of the house of Chhutkan Singh. Shiv Singh fell down on the spot and died as a result thereof. These six persons were convicted by the trial Court for commission of offence under Section 396 IPC.
It was also not disputed that Chutallu @ Ram Mohan and Shiv Singh received injuries in the very same incident which resulted in their death. The defence case was that the gun held by Chutallu @ Ram Mohan was snatched by the members of the complainant party and thereafter, Ramraj Singh(PW-14) fired a gun shot at Chutallu @ Ram Mohan injuring him in the stomach and back.
The Bench observed that the trial Court as well as the High Court, after thorough appreciation of evidence available on record, discarded the prosecution case regarding the charge of murder of Kalyan Singh attributed to the appellant by holding that the testimonies of two eyewitnesses Surajbeti(PW-5) and Hiraman(PW-6) were not reliable.
The Bench also affirmed the decision of the High Court in discarding the evidence of Ramraj Singh(PW-14) holding it to be not trustworthy based on the reasoning that he did not state as to what had caused injuries to Chutallu @ Ram Mohan and Shiv Singh. Furthermore, even though this witness claimed to have received gunshot injuries at the hands of the accused appellant but he was not medically examined.
Moreover, having gone through the evidence of both the witnesses i.e.Raj Kumari(PW-7) and Indal Singh(PW-12), the Bench found that nothing could be elicited in their cross-examination which would create a doubt in the mind of the Court regarding presence of these witnesses at the crime scene.
The Top Court asserted, “The contention advanced by learned counsel for the appellant that these witnesses are partisan witnesses as being closely related to the deceased and hence their evidence should be discarded, does not for a moment, convince us because in a case involving gruesome broad daylight double murder by repeated gun firing, it is unlikely that any of the persons from the neighbourhood, would have the courage to step forward as witnesses.”
“The trivial contradictions sought to be highlighted by learned senior counsel for the appellant regarding absence of empty cartridges etc. at the place of incident and the plea of alibi is not tenable because we find that these contradictions are far too trivial so as to discard the entire prosecution case which is based on reliable and trustworthy set of eye witnesses whose evidence is corroborated by the evidence of the Medical Jurist and other attending circumstances”, it further added.
Thus, holding that the impugned judgments did not suffer from any infirmity warranting interference, 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.
Top of FormS
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.
Legitquest is a Legal-Tech venture run by a versatile team of tech-savvy attorneys, engineers and designers who aim to make the practice of law simpler for its end users. We have eminent jurist Mr. Ram Jethmalani as our patron
