Read Order: Abhimanyu Jena v. State of Odisha
Tulip Kanth
Bhubaneswar, October 29, 2022: Placing reliance on section 313 of CrPC, the Orissa High Court has opined that the questions put and the answers given have great use and the purpose of examination is to bring the substance of accusation to the notice of the accused which is based on the fundamental principle of fairness.
Justice S.K. Sahoo asserted, “...law is well settled that examination of an accused under section 313 of Cr.P.C. is for the purpose of enabling him to explain any circumstance appearing in evidence against him. It is not a mere formality.”
In this case, the appellant-Abhimanyu Jena faced trial for the offences punishable under sections 363, 354(A)(i)/511 of the Indian Penal Code and section 8 of the Protection of Children from Sexual Offences Act, 2012 on the accusation that in 2016 at village Kusapangi (Mundamala Sahi), he kidnapped the victim (first witness), who is a girl aged about twelve years, from the lawful custody of her mother guardian (second witness) without her consent and committed sexual assault on her by forcibly dragging her by holding her hands towards the bush and also committed sexual assault on the victim.
The Trial Court sentenced the appellant to undergo rigorous imprisonment.Challenging such order, this appeal was filed.
The Bench noted that there was no substantive evidence regarding identification of the appellant in Court and no test identification parade had also been conducted in the case. Thus, the evidence of the other witnesses, who stated to have caught hold of the appellant in village Gotamara Kusajhari became irrelevant in view of the non-identification of the appellant during trial by the witnesses like the victim and her mother, the Bench opined.
Referring to section 313 CrPC, the Bench reaffirmed the settled law that the questions which may be put to the accused should not be long, complicated and involved and confusing.
According to the High Court, the second question put to the appellant was long, complicated and confusing one and it contained so things like raising hullah by victim, her parents coming to the spot, the appellant decamping from the place, chasing by other local persons to the appellant, his apprehension at a distance of about 3 kms away from their village at village Gotamara Kusajhari and also handing over the appellant to the police.
Even though the appellant stated that out of fear, he was fleeing away, the Court opined that there was no substantive piece of evidence in Court regarding identification of the appellant and the answer given by him couldnot be held to be sufficient to prove the charges.
Thus, allowing the appeal, the Bench acquitted the appellant of the charges under sections 363, 354(A)(i)/511 of the I.P.C. and section 8 of the POCSO Act.
Read Judgment: SOUTH DELHI MUNICIPAL CORPORATION V. FEDERATION OF RESIDENTS WELFARE ASSOCIATION, VASANT KUNJ (REGD.) AND ORS
Mansimran Kaur
New Delhi, October 25, 2022: Under Section 42(f) of the Delhi Municipal Corporation Act, 1957 it is the duty cast upon the Municipal Corporation to make provision for regulation of places for the disposal of dead and the provision of maintenance of said places is an obligatory function of Municipal Corporation, the Supreme Court has held.
The Division bench of Justice M.R. Shah and M. M. Sunderesh allowed the appeal instituted by the appellant by stating that while taking into consideration the fact that the Municipal Corporation needs to modernize the crematorium and to shift it to a modern electric crematorium which shall be in the larger public interest of the village people as well as residents of the neighborhood area.
Feeling aggrieved and dissatisfied with the impugned judgment passed by the High Court of Delhi by which, the Division Bench dismissed the said application preferred by the South Delhi Municipal Corporation and refused to modify the earlier order dated December 3, 2003 passed by the High Court in Writ Petition of 1995, the Municipal Corporation preferred the present appeal.
The dispute in the present case was with respect to the cremation ground at Masoodpur, New Delhi which as such was in existence for more than 100 years and the same was for the benefit of village people of village Masoodpur, New Delhi.
The original writ petitioner – Residents Welfare Association, Vasant Kunj approached the High Court by way of Writ Petition of 1995 for appropriate orders inter-alia not to permit the use of land in question as cremation ground.
It was the case on behalf of the original writ petitioner that Delhi Development Authority (DDA) had already provided cremation ground at another place in the same area.
Taking into consideration communication dated December by DDA calling upon the Municipal Authorities to issue notification for closure of cremation ground at Masoodpur Village and for shifting it to enlarge cremation ground at Kishangarh Village and taking note of the provisions of the Delhi Municipal Corporation Act, 1957 more particularly, Sections 390 and 391 of the Act, 1957, and observing that it was for the Standing Committee of the Municipal Corporation to take an appropriate decision, the High Court while disposing of the aforesaid writ petition directed the Municipal Corporation to take an appropriate decision under Section 391 of the Act, 1957.
The Division Bench of the High Court also directed that the Municipal Corporation shall take possession of the land offered at Kishangarh and shall make all necessary arrangements to use the same as a crematorium.
Pursuant to the directions issued by the High Court in order dated December 3, 2003 in Writ Petition of 1995, the Standing Committee in exercise of powers under Section 391 of the Act, 1957 had taken a conscious decision not to close the crematorium at Masoodpur Village, by observing that it is not in the public interest to close the crematorium at Masoodpur Village and that the crematorium at Masoodpur Village is being used for the village since long.
The Municipal Corporation filed the present application before the High Court for modification of order dated December 3, 2003 passed in Writ Petition of 1995. By the impugned order the High Court dismissed the said application hence; the present appeal was instituted at the instance of the Municipal Corporation.
After hearing the submissions from both the sides, the Court noted that the dispute was with respect to the crematorium at Village Masoodpur. The crematorium at Village Masoodpur was used for the village people for a long time and it appeared that the same was being used much prior to the Act, 1957 came into force. It was further stated by the Court that merely because subsequently the residents of Vasant Kunj/locality have started residing, it cannot be a ground to shift the crematorium and/or not to use the crematorium at Village Masoodpur.
“Therefore, until and unless the conditions as mentioned in Section 391 of the Act, 1957 are satisfied and it is specifically found that any burning or burial ground has become offensive, or dangerous to the health of the persons residing at neighborhood, the burning and burial ground can be ordered to be closed with the previous sanction of the Standing Committee”, the Court observed.
In furtherance of the same, the Court noted that if request made on behalf of first respondent was accepted, in that case on the settlement of the residents subsequently every crematorium in the city/town will have to be shifted outside the town/city, which shall not be in the interest of the residents of the village/city/town. Therefore, the High Court ought to have modified its earlier order dated December 3, 2003 by which it was directed to shift the crematorium at Village Masoodpur to Kishangarh.
However, at the same time taking into consideration the need of the day, the Municipal Corporation has to modernize the crematorium and to shift it to a modern electric crematorium which shall be in the larger public interest of the village people as well as residents of the neighborhood area,the Bench held while allowing the appeal.
Read Order: SATBIR KAUR V. UNION OF INDIA AND OTHERS
Monika Rahar
Chandigarh, October 22, 2022: While dealing with a writ petition challenging the reservation of 27 out of 30 posts for male candidates in Army Dental Corps by the Indian Army,, the High Court of Punjab and Haryana has issued notice to Union of India in this matter and has also directed the respondents to provisionally interview the petitioner as well.
The Bench of Justices G.S. Sandhawalia and Jagmohan Bansal also held that the recruitment process shall be subject to final decision of the writ petition.
The matter is now listed for December 13, 2022.
The petitioner approached the High Court with the grouse that out of the 30 vacancies which were advertised for post of Army Dental Corps by the Indian Army, 27 were reserved for males and 3 for females. The attention of the Court was invited to an earlier advertisement (May, 2021) wherein 37 vacancies were advertised and there was no such categorization.
It was thus submitted that restricting the number to 3 for female candidates would be against the provisions of the Constitution of India.
It was further pointed out from the information brochure that candidates were called for an interview in the ratio of 1:10 and the final merit-list for grant of Short Service Commission in the Army Dental Corps would be passed on the basis of performance in the interview. It was accordingly submitted that only 30 female candidates were being called for the interview as against 270 male candidates.
It was also highlighted that the merit which was based on the National Eligibility Entrance Test (NEETMDS), 2022 would go on to depict that for male candidates, merit would dip to 2934 and for the female candidates it would be at 235.
The Counsel for the respondents-UOI submitted that 14 women candidates were appointed for the earlier advertisement of May, 2021 and she further submitted that 3 vacancies for women were fixed, keeping in view various factors including retirement of female officers.
After hearing the parties, the Court listed the matter on December 13, 2022.
Further, the directed that the petitioner shall also be provisionally interviewed by the respondents. Also, the Bench held that the recruitment process shall be subject to final decision of the writ petition.
Read Order: M/S M. SONS GEMS N JJEWELLERY PRIVATE LIMITED & ORS v. RESERVE BANK OF INDIA & ORS
Mansimran Kaur
New Delhi, October 17, 2022: The Delhi High Court has reiterated that the remedy u/s 17(1) of the SARFAESI Act allows the borrower to challenge the actions of the secured creditor on all such grounds which would render the action of the secured creditor illegal.
The Division Bench of Justice Satish Chandra and Justice Subramonium Prasad disposed of the instant petition instituted by the petitioner in the present case by observing that it is always open for the RBI to consider and decide the representation and pass appropriate orders in accordance with law even when the petitioners had already approached the DRT.
Facts relevant for adjudication of the present appeal were that the State Bank of Bikaner and Jaipur (SBBJ) granted cash credit (hypothecation) to the petitioners with a limit to the sum of Rs. 10 crores and a sub-limit of Rs.4 crores. The petitioners were also granted a Bank Guarantee loan of Rs.5crores. In order to secure the cash credit (hypothecation) and the Bank Guarantee granted by SBBJ, the petitioners gave an equity mortgage of two properties.
It was further stated that Laxmi Vilas Bank i.e., the fifth respondent gave cash credit (hypothecation) to the petitioners with a limit for the sum of Rs.5 crores and sub-limit of Rs.2 crores. The Bank Guarantee for the sum of Rs.10 crore was also given to the petitioners and the two properties i.e. Bharat Nagar and Lajpat Nagar property were made by the Petitioners by way of pari passu to secure the said amount.
The cash credit (hypothecation) was enhanced by SBBJ to Rs.10 crores with sub-limit of Rs.4 crores and Bank Guarantee was enhanced to Rs.10 crore.
However, on account of a survey conducted by the Income Tax Department, the bank accounts of the petitioners were frozen. The loan accounts of the petitioners were also frozen by the Income Tax Department. The Bank Guarantees issued by LVB were removed by MMTC Ltd. and the accounts of the petitioners were categorised as Non-Performing Assets (NPA) by SBBJ.
Notices under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 were issued by SBBJ and the LVB demanding outstanding amount of Rs.19.90 crores and Rs.14.94 crores respectively. It was stated that LVB also declared the accounts of the petitioners as NPA. The petitioners subsequently approached the RARC for an OTS Scheme on June 30, 2016 and another OTS Scheme was proposed to RARC by the petitioners on July 30, 2020.
The OTS proposal of the Petitioners was rejected by RARC and the RARC issued a notice under Section 13(2) of the SARFAESI Act demanding a sum of Rs.39 crores.
Thereafter, the petitioners sent a letter to the RBI i.e., the first respondent for cancellation of certificate of registration of RARC under Section 4 of the SARFAESI Act alleging that the provisions of the SARFAESI Act read with Securitisation Companies and Reconstruction Companies (Reserve Bank) Guidelines and Directions, 2003 were violated. Stating that no action was taken by the Reserve Bank of India, the petitioners approached this Court by filing the instant writ petition.
After hearing the submissions from both the sides, the Court noted that, the principal contention of the petitioners was that absence of any judicial remedy by a borrower in case of a flagrant violation of the guidelines/provisions under Chapter II of the SARFAESI Act by an Asset Reconstruction Company renders the entire Chapter ultra vires the Constitution of India. In view of the same, the Court noted that any action by an instrumentality of State is subject to judicial scrutiny under Article 226 of the Constitution of India. It is always open for any borrower to approach the High Court under Article 226 of the Constitution of India contending that the Reserve Bank of India is not exercising due and adequate control over any Asset Reconstruction Company and that the provisions of Chapter II of the SARFAESI Act is being violated.
Further the Court took into consideration the provision of SARFAESI Act. In pursuance of the same, the Court noted that under the SARFAESI Act, powers have been given to the Reserve Bank of India to determine policy and issue directions to the Asset Reconstruction Companies to regulate their affairs. In fact, if the Asset Reconstruction Companies do not follow the guidelines, the Reserve Bank of India has been given power to revoke the certificate of registration granted to them under Section 4 of the SARFAESI Act.
The Court took into account Section 17 of the SARFAESI Act, which pertains to right to appeal. In furtherance of the same, the Court noted that it is well settled that the remedy u/s 17(1) of the SARFAESI Act allows the borrower to challenge the actions of the secured creditor on all such grounds which would render the action of the secured creditor illegal. The DRT while exercising its powers under Section 17 of the SARFAESI Act is not restricted to the compliance of provisions of the Act alone and can get into violations of other provisions such as mandatory guidelines of RBI and other incidental questions.
In addition to the same, the Court noted the DRT under Section 17(3) of the SARFAESI Act has the power to examine whether the actions of the secured creditor are in accordance with the provisions of the SARFAESI Act and the rules made thereunder. The remedy under Section 17 of the SARFAESI Act is not restricted to Chapter III of the SARFAESI Act and the DRT has power to look into the compliance of the secured creditor with other provisions of law, and not just provisions of the SARFAESI Act and rules framed thereunder.
The petitioners failed to establish how the legislature has acted in a capricious or irrational manner or how any of these provisions are excessive or disproportionate. The provisions of the SARFAESI Act as a whole have been made to give effect to its purpose and object and the legislature has enacted the legislation on rational and determined principles, the Court observed.
In light of the foregoing, it was held that Chapter II of the SARFAESI Act is not manifestly arbitrary and is not in violation of Article 14 of the Constitution of India. Accordingly, the prayer of the Petitioners seeking a writ to strike down Chapter II of the SARFAESI Act was rejected.
It was further brought to the notice of this Court that petitioners had already approached the DRT by raising objections regarding the modus adopted by the third respondent- RARC for sale of the property.
In pursuance of the same, the Court stated that it is not going into those issues at this juncture. It was left to the petitioners and the third respondent to raise all the contentions available to them before the DRT. It was also stated by counsel for the petitioners that representations were pending before the RBI, in that respect the Court stated that it is always open for the RBI to consider and decide the representation and pass appropriate orders in accordance with law even when the petitioners had already approached the DRT, the Court opined. The petition was disposed of with such observations.
Read Order: Gaurav Dhir v. Central Goods and Services Tax
While dealing with an application Section 439 of the Cr.P.C. for the grant of regular bail to a Chartered Accountant (CA) who allegedly borrowed UDIN from his colleague (co-accused) for uploading and issuance of the CA certificate, the High Court of Punjab and Haryana has granted regular bail to the accused-petitioner.
In allowing the petition, the Bench of Justice Aman Chaudhary considered the fact that the investigation was completed and the challan was presented, as also the fact that the petitioner lacked criminal antecedents and in the present case, he was in custody since May 2022, was taken note of.
The present petition was filed for the grant of regular bail to the petitioner in a case registered under Section 132(1)(i) read with Section 132(1)(b)(c)(e)(f) of the Central Goods and Services Tax Act, 2017.
The facts as stated by the petitioner’s counsel were such that the petitioner, a Chartered Accountant (CA) who subsequently gave up his practice, was paid a professional fee for uploading the refund of the Input Tax Credit. The petitioner borrowed UDIN from his colleague (co-accused) for uploading and issuance of the CA certificate. By a notice, the petitioner was summoned. In response, he appeared to join the investigation but was arrested there and then. Thereafter, he was sent to the judicial remand and no request for police remand was sought by the respondent-Department.
The Counsel for the petitioner submitted that the recovery of the laptop and other relevant documents was already effected from the petitioner and after the completion of the investigation, the challan was already presented. The Counsel added that from the challan it was apparent that before the disbursal of the amount, the Range Officer had submitted the report after conducting physical verification marked on the system and recommended that a refund may be sanctioned.
The Counsel further referred to the statement of the co-accused who had stated that he had engaged the petitioner to render professional service against payment of the fee. It was further his submission that there was no allegation against him that he in any way was the beneficiary of the excess Input Tax Credit, allegedly received by the companies.
Per contra, the counsel for the respondent-Department submitted that a huge loss was caused to the department, though, certain bank accounts have already been frozen and certain companies have voluntarily refunded the amount due towards them. The Counsel stated that the department was still trying to figure out who else was involved in the case and proceedings against certain officials were also initiated.
Considering the fact that the investigation was completed and the challan was presented as also the fact that the petitioner was not involved in any other case, and in the present case, he was in custody since May 2022, the Court held that further incarceration of the petitioner behind bars would not serve any useful purpose. Further, in granting regular bail to the petitioner, the Court also considered the fact that further incarceration of the petitioner behind bars would not serve any useful purpose.
Thus, the present petition was allowed. However, the petitioner was directed not to tamper with the evidence during the trial and to surrender his passport, and not to leave the country without the permission of the Trial Court. He (the petitioner) was also directed not to change his residence without prior intimation to the Department and the trial Court and also not to pressurize/intimidate the prosecution witnesses.
The petitioner was also required to furnish an undertaking by way of his affidavit before the trial Court that he will appear on each and every date fixed unless his presence is exempted by a specific order of the Court. The Trial Court was given the liberty to impose any other condition that it may deem appropriate.
Read Order: GURJEET SINGH V. STATE OF PUNJAB
Monika Rahar
Chandigarh, October 8, 2022: While dealing with a petition for the grant of anticipatory bail to the petitioner whose bail was cancelled for default in appearance, the Punjab and Haryana High Court has held that right of personal liberty granted by Article 21 of the Constitution of India is one of the most pious and important fundamental right guaranteed by our Constitution.
"Arrest not only deprives right of personal liberty but also causes mental agony, stress and tarnish reputation of entire family", held Justice Jagmohan Bansal.
Through instant petition, the petitioner sought anticipatory bail in an FIR registered under Sections 22 and 29 of the NDPS Act.
The petitioner contended that after being granted the concession of interim anticipatory bail, the petitioner joined the investigation when he was called upon to do so. When he joined the investigation, the Investigating Officer allegedly stated that custodial interrogation was not required for further investigation. Accordingly, the bail application was allowed and interim protection was made absolute.
The Trial Court, on account of absence of petitioner, cancelled his bail order and bail bonds. The Trial Court further ordered to summon the petitioner through non-bailable warrants.
It was the petitioner's case that he could not appear before the Trial Court on the date fixed because he was not aware about the date fixed and his wife was not keeping good health. The petitioner being sole bread earner was taking care of his ill wife and children. In these circumstances, the petitioner contended that he failed to appear on the dates fixed, however, he undertook to appear before the Trial Court on each and every date.
After hearing the parties and considering the case of the petitioner, the Court opined that Right of personal liberty granted by Article 21 of the Constitution of India is one of the most pious and important fundamental rights guaranteed by our Constitution.
"Arrest not only deprives the right of personal liberty but also causes mental agony, stress and tarnishes the reputation of entire family", opined the Bench.
Further, the Court added that there was certainly lapse on the part of petitioner and reasons advanced were not much convincing, however, keeping in view facts and circumstances, the Court deemed it appropriate to extend concession of anticipatory bail to the petitioner, subject to furnishing of fresh bail bonds to the satisfaction of the Trial Court.
Read Order: DINESH KUMAR & ORS v. HIGH COURT OF DELHI & ORS
Mansirman Kaur
New Delhi, September 29, 2022: The Delhi High Court has reaffirmed that once seniority of appointees has been fixed and is in force, it should not be disturbed.
The Division bench of Justice Suresh Kumar Kait and Justice Chandra Dhari Singh disposed of the instant petitions by observing that the selection process pertaining to the year 2016 cannot be permitted to go on and on, affecting the harmony of colleagues due to conflicts of seniority.
The High Court of Delhi through Notice dated June 2, 2016 invited applications from the eligible officers of this Court and subordinate courts to fill up 27 vacant posts of Private Secretaries in the pay band of Rs.16,800-Rs.39,100 + Grade Pay Rs.6,600/- against 75% test quota as per Clause- b(i) of Item No.6 of Schedule II to Delhi High Court Establishment (Appointment and Conditions of Service) Rule, 1972.
The written examination and skill tests were held on July 4, 2016 and July 5, 2016 respectively and the result thereof was declared on December 22, 2016. The final merit wise result of successful 27 candidates was uploaded on the intranet of this Court on January 30, 2017.
The petitioner in writ petition of 2022 and of 2019was appointed Private Secretary in terms of recommendations of the “Final Merit List of the Private Secretary Examination-2016 dated January 30, 2017 having secured his place at Serial No.25.
Petitioner No.1-Mr.Kunal Muggu and petitioners No.2 to 21 in the were also appointed as Private Secretaries having secured their respective places in terms of recommendations of the “Final Merit List of the Private Secretary Examination-2016.
During pendency of recruitment process and pursuant to declaration of the results of the written examination and skill test and prior to declaration of ‘Final Merit List of the Private Secretary Examination-2016 a few candidates obtained copies of their answer sheets under the Right to Information Act, 2005 and requested for re-evaluation of their answer sheets by filing representations.
The petitioners in the above captioned three petitions, who were the appointee as per the original ‘Final Merit List of the Private Secretary Examination-2016 challenged the revised merit lists dated October 23, 2018 and December 17, 2021 in these petitions.
Facts in brief were that this Court through Notice dated June 2, 2016 invited applications from the eligible officers of this Court and subordinate courts for recruitment to the post of Private Secretaries for filling up 27 vacant posts and conducted the written examination and skill tests in respect thereof. Prior to declaration of final merit wise result of 27 successful candidates on January 30, 2017, three candidates, namely, Ms.Sangeeta Anand, Ms.Garima Madan and Mr.Amit Arora, filed their representations seeking rechecking of their answer sheets, which was rejected by the competent authority vide order dated January 18, 2017 observing that “there was no provision for rechecking of answer sheets in the Delhi High Court (Appointment and Conditions of Service) Rules, 1972.
Thereafter, Ms.Garima Madan obtained a copy of her answer sheet under the RTI Act and made a representation requesting the competent authority to re-evaluate /re-check certain answers; grant her opportunity to appear in the interview and to put on hold the final result of the subjection examination.
However, as noted above, the results were declared on January 30, 2017. Soon after declaration of the final result, Ms. Garima Madan, Ms.Sapna Sethi, Mr.Sumit Ghai and Ms.Sheetu Nagpal, after obtaining their copies of answer sheets under the RTI Act, filed representations seeking re-evaluation of their answer sheets. These representations were considered by the Selection Committee for Appointment of Officers of the High Court and District Courts in the meeting held on February 20, 2017 wherein representation filed by Mr.Sumit Ghai was rejected, whereas Ms.Garima Madan & Ms.Sapna Sethi were awarded 04 additional marks and Ms.Sheetu Nagpal was awarded 02 additional marks.
Three out of the above four named representationists, preferred writ petitions .The then Hon’ble the Acting Chief Justice on May 23, 2017 constituted a Special Committee to decide the issues pertaining to the evaluation of certain questions in respect of the examination.
In the light of observations of the Special Committee in the meeting held, this Court disposed of the afore-noted eight writ petitions. Thereafter, the “Re-evaluated Result of Candidates Already Selected and Not Earlier Selected” was declared.
Subsequently, the Establishment of this Court through Order bearing dated September 17, 2018 notified the names of 26 officers who had successfully completed their probation in the post of Private Secretary pursuant to their appointments on January 30, 2017.
In the meanwhile, some other successful candidates, who had already been appointed to the Post of Private Secretary through original Merit Wise Result, filed representations seeking re-evaluation of their answer sheets, however, the Special Committee through its meetings dated July 23, 2018 and October 1, 2018 rejected those representations.
Aggrieved against the Revised Merit List dated October 23, 2018, petitioner- Dinesh Kumar preferred a writ petition being W.P.(C) 949/2019 praying for issuance of a direction to the respondent No.1 to quash the revised merit list and to issue a fresh merit wise list of candidates in respect of Private Secretary Examination -2016 in terms that the ranks awarded to candidates in terms of result declared January 30, 2017 are not unsettled and also that the candidates who were later selected, be placed below the last selected candidate as per Notification No. 198/Estt/E-2/DHC dated March 14, 2018.
Similarly, the petitioners- Kunal Maggo and others have preferred writ petition being W.P.(C) 7893/2019 praying for quashing of Notification dated January 15, 2019 as well as Revised Merit List dated and have sought their appointments as per merit list dated Janauary 30, 2017.
After considering the submissions from both the sides and after persuing the material available on record, the Court noted that the question that was posed for consideration before this Court was whether the merit position of 27 candidates, who were originally appointed on the post of Private Secretary by virtue of ‘Final Merit List of the Private Secretary Examination-2016’ dated January 30, 2017 can be disturbed subsequent upon appointment of seven candidates who were appointed and also as to whether inter se seniority of already appointed 27 candidates can be unsettled in the light of the fact that re-evaluation of answer sheets was permitted and restricted to only 13 candidates and thereby, declaring the Revised Merit List dated December 17, 2021 as final and binding upon the parties.
In view of the same, the Court noted that it is a matter of fact and record that during the entire process of selection, appointment, re-evaluation, representation and writ petitions, none of the candidate, whether successful or unsuccessful, had challenged the selection and appointment and the only relief sought is that they should be placed in the list according to their merit. Perhaps all the candidates feared losing their appointments. It is not misplaced to assume here that they were aware that once the selection and appointment process is over, they being unsuccessful have no right to challenge it.
However, in the present case an unfortunate situation had arisen and therefore, the Special Committee, to give quietus to the issue in hand, appointed the 07 unsuccessful candidates against the then 22 available vacancies under 75% test quota, but refrained to unsettle the merit of already appointed 27 candidates, the Court noted.
In the interest of justice and in the peculiar facts of this case, and also the fact that none of the candidates had ever sought quashing of the appointment process,the Court refrained itself from taking coercive measures. However, the selection process pertaining to the year 2016 cannot be permitted to go on and on, affecting the harmony of colleagues due to conflicts of seniority, the Court further remarked. In the present case, besides 05 selectees and 07 non-selectees, other candidates did not get the benefit of re-evaluation at all. This Court while sitting in writ jurisdiction cannot permit further ir-regularities if at all it has happened once, the Court stated.
As far fixation of notional seniority of candidates was concerned, the Court noted that these candidates had appeared in the examination pertaining to the year 2016, whose merit list was declared on January 30, 2017 and pursuant to re-evaluation, vide Notification dated March 12, 2018, they were appointed Private Secretarie.
In view of the same, the Court stated that it found that the decision dated October 1, 2018 passed by the Special Committee granting notional appointment to them from January 30, 2017 is just and proper.
The settled legal position is that once seniority of appointees has been fixed and it is in force, it should not be disturbed. It has been already held in a catena of decisions that seniority list in any government department is an incident of service which is of critical importance to the individual and the department. A seniority list depicts the current status and future prospects of an official and therefore, cannot be unsettled without putting it in the knowledge of the affected parties.
In view of the above, the revised merit lists dated October 23, 2018 and December 17, 2021 were set aside and the petitions were accordingly disposed of.
Read Order: Gurjant Singh and Another v. Baljeet Singh and Others
Monika Rahar
Chandigarh, September 29, 2022: The High Court of Punjab and Haryana has held that once the plaintiffs who were in ownership of the suit land through their father on the basis of sale deed, were illegally ousted from possession of the suit property, they had the right to assert their possession and take it back by filing a suit for possession.
“There is no illegality or irregularity about the same”, added Justice Tribhuvan Dahiya.
The facts in brief are that the plaintiffs claimed to be owners of the plot in question. They argued that their grandfather purchased the plot in 1987 and later, the ownership of the plot got transferred to the plaintiffs. It was further pleaded that appellants-defendants illegally occupied the plot/property in question in 2006 being trespassers. It was contended that even after repeated requests, the defendants did not vacate the land in question, thus leading to the filing of the present suit.
The defendants pleaded the suit on the ground that the plaintiffs intentionally gave wrong dimensions and sides of the plot in order to grab the defendants’ plot. The defendants also claimed themselves to be the owner in possession of the plot while arguing that since the plot fell within the village, there was no record of ownership in the shape of a revenue record. Even the plot mentioned in the sale deed and in the site plan attached with the sale deed, did not tally with the defendants’ plot.
The Trial Court decreed the suit for possession of this vacant plot. The appeal against the same was also dismissed by the lower Appellate Court. Hence, the present second appeal was filed.
The Counsel for the appellants, while stating that the normal rule of ownership of land within abadi deh is ownership follows possession, argued that the plaintiffs were not in possession, therefore, ownership could not be claimed by them and the suit was liable to be dismissed. Also, it was argued that in the absence of any revenue document like rapat roznamcha with respect to land situated within lal lakeer or lal dora, no valid sale of the suit land could be said to have taken place. He also argued that the suit filed by the plaintiffs was beyond limitation, as they did not assert their possession of the suit land from 2006 till 2015, therefore, the suit was barred by time.
After hearing the parties, the Court observed that the normal rule of ownership of land within abadi deh of the village or within the village, that ownership follows possession, cannot be invoked to non-suit the plaintiffs. Further, the Court also observed that the plaintiffs had the possession as well as the ownership.
“Once, they were illegally ousted from possession of the suit property, they had the right to assert their possession and take it back by filing a suit for possession, and that is what was done by the plaintiffs. There is no illegality or irregularity about the same. The normal rule of ownership of land within abadi deh of village, relied upon by the learned counsel, therefore, does not work to the plaintiffs’ disadvantage in any manner”, the Court held.
Addressing the next argument that the suit was time barred, the Court observed that it was only on account of assurance given by the defendants to vacate the suit land and hand-over possession to the plaintiffs by March 2015, that the suit could not be earlier filed.
“Besides, the plaintiffs have sought possession over the suit property being owners on the basis of the sale deed. As per the limitation Act, the limitation for seeking relief of possession on the basis of ownership is 12 years. Therefore, finding on this issue also is without exception, and needs no interference”, the Court held.
Thus, the appeal was dismissed.
Read Order: Yusuf Masih v. State of Punjab
Monika Rahar
Chandigarh, September 19, 2022: While setting aside the conviction of the accused in case of free fight wherein the complainant side lodged an FIR against the accused side after an unexplained delay of eight days, the Punjab and Haryana High Court has held that the delay is always looked down upon with suspicion by the Courts since it leaves a wide room open where the possibility of false implication after due deliberation and consultation can easily creep in.
“When an incident is promptly reported to the police it gives a spontaneous and blemish free version and with passage of time the element of truth in the version gets diluted with chances of coloured version being introduced after due deliberation and consultations”, asserted the Bench of Justice H.S. Madaan.
In a case of a free fight (as per the Trial Court’s verdict), accused Tarsem Singh Beldar was convicted for an offence under Section 324 IPC for causing simple hurt to the complainant while accused Yusuf Masih and Manga Masih were convicted under Sections 324/34 IPC. Aggrieved, two appeals were filed before the High Court.
Essentially, the Counsel for the appellants argued that there was an ‘unexplained’ delay of more than 8 days in reporting the matter to the police. Secondly, it was argued that there was also an unexplained delay of 24 hours on part of the injured in approaching the hospital. Thirdly, it was argued that the injuries on the person of the accused side were not explained, thus, showing the fact that the origin and genesis of the incident was not as suggested by the prosecution in this case rather the prosecution tried to suppress the role played by the complainant party in the incident.
Lastly, the factum of the compromise which was entered into between the parties was highlighted and in this respect, the appellants’ counsel submitted that the High Court has the power to quash proceedings emanating from non-compoundable offences which have no impact or depraving effect on the society at large.
After hearing the parties, the Court opined that the basic principles of law are that the prosecution must prove its charge against the accused beyond a shadow of reasonable doubt and that such onus to prove the guilt of the accused to the hilt is stationary on the prosecution and it never shifts.
“The accused is not expected to prove his defence with the same exactness and rigor, with which the prosecution is required to prove guilt of the accused. The accused is required to render only a reasonable and plausible explanation, which may cast a doubt in the mind about the truthfulness of the prosecution story. Furthermore, as per our jurisprudence, hundreds of guilty persons may go scot-free but even one innocent should not be punished”, the Court opined.
Coming to the present case, the Court observed that the appellants successfully proved that the impugned judgement of conviction and sentence were not sustainable. Firstly, the Court was of the opinion that there was a gross and unexplained delay of 8 days in reporting the matter.
“The delay is always looked down upon with suspicion by the Courts since it leaves a wide room open where the possibility of false implication after due deliberation and consultation can easily creep in. When an incident is promptly reported to the police it gives a spontaneous and blemish free version and with passage of time the element of truth in the version gets diluted with chances of coloured version being introduced after due deliberation and consultations”, asserted the Bench while holding that here, the explained delay in reporting the matter to the police proved fatal and prosecution story was liable to be rejected on that score alone.
Secondly, it was opined that no explanation was coming with regard to the injuries on the person of the accused. Admittedly, it was observed that an F.I.R was registered against the complainant party with regard to the occurrence on that very day. But, it was stated by the Court that the prosecution having not explained the injuries to the accused showed that the incident did not take place in the manner suggested by the prosecution and an attempt was made to suppress its origin and genesis.
“Thus for the reasons mentioned above a reasonable doubt arises in the mind about the truthfulness of the prosecution story. As per law the benefit of such doubt is to go to the accused”, the Court held.
Also, it was held by the Bench that even otherwise the parties buried their differences by entering into a compromise.
Therefore, both appeals were accepted.
Read Order: DASHRATHBHAI DAHYABHAI CHAVDA v. STATE OF GUJARAT
Mansimran Kaur
Ahmedabad, September 14, 2022: The Gujarat High Court has affirmed that the no-bailable warrant could be issued when the person will not voluntarily appear in Court or police authorities are unable to find the person to serve him with a summon.
The Single Judge Bench of Justice Niral R. Mehta disposed of the instant petition preferred by the petitioner – original accused seeking quashing of a non-bailable warrant issued by the Judicial Magistrate First Class, in Criminal Case of 2018 in connection with the pending complaint filed under Section 138 of the Negotiable Instruments Act.
The Single Judge bench while bearing in mind the facts of the present case was of the opinion that it was apposite in the present case to convert the non-bailable warrant into a bailable warrant.
After considering the submissions of the parties, the Court noted that it is settled law that non-bailable warrants should normally not be issued if presence of the accused could be secured. The warrant could be issued when the person will not voluntarily appear in Court or police authorities are unable to find the person to serve him with a summons. The Court should avoid issuance of non-bailable warrants in the first instance to secure the presence of the accused and it should be applied as a last resort.
Considering the facts and circumstances of the present case, this Court was of the opinion that non-bailable warrant deserves to be converted into bailable warrant.
Accordingly, the non-bailable warrant issued by the Trial court was converted into bailable warrant on the condition that the petitioner shall execute a personal bond of Rs.05,000/- and one surety of the like amount to the satisfaction of the trial court and further conditions that the petitioner shall, remain present before the Trial Court within a period of one week from the date of receipt of the writ of this order; submit an undertaking before the Trial court stating that he will remain present on each date of the proceedings and cooperate with the proceedings and shall not take any unnecessary adjournment in the proceedings; not change his residential address without prior permission of the learned trial court and also shall provide his mobile number.
In light of the above stated observations, the instant petition was disposed of.
Read Order: Dalbir Singh v. Indian Overseas Bank and Others
Monika Rahar
Chandigarh, September 14, 2022: The Punjab and Haryana High Court, while dealing with a writ petition challenging the transfer of an employee of Indian Overseas Bank, has held that the petitioner cannot claim to be posted at any particular place as a matter of right.
The Bench of Justice Rajbir Sehrawat upheld the impugned transfer order on the ground that it was in accordance with the transfer policy of the respondent-bank as also on the ground that the petitioner could not have been adjusted at Patiala because there is no vacancy available at that place.
Essentially, the petitioner was transferred from Rajpura Branch to Kharar Branch of the respondent-Bank, which was at a distance of about 45 kilometres. The mother of the petitioner, a resident of Patiala was stated to be suffering from a heart problem. Therefore, the petitioner made a prayer to the authorities for transferring him to Patiala, where he could ensure better treatment for his mother's medical ailment. However, instead of accepting that prayer, the respondents transferred him to a distant place at Kharar Branch.
Hence, the present petition under Articles 226/227 of the Constitution of India seeking the quashing of the afore-said transfer order was filed. Apart from seeking directions to the respondents to allow the petitioner to serve in Patiala, a stay order against the impugned transfer order was also sought during the pendency of the petition.
The counsel for the respondents submitted that the petitioner completed five years' tenure at Rajpura. Under the policy of the respondent-Bank, the petitioner could be transferred within a maximum distance of 50 kilometres of his present posting, hence, with the transfer order under challenge, the petitioner was adjusted within the distance prescribed under the policy. It was pleaded that the petitioner could not have been adjusted at Patiala because there was no vacancy available at that place.
Having heard the counsel for the parties, the Court did not find any substance in the arguments raised by the counsel for the petitioner. The Court observed that it is not even in dispute that the petitioner completed five years of posting at Rajpura Branch and that he was transferred only in terms of the transfer policy of the respondent-Bank.
“Therefore, there is nothing inherently illegal in the action of the respondents. There is not even an allegation of mala fide against any person involved in the process”, held the Bench while also asserting that the petitioner cannot claim to be posted at any particular place as a matter of right.
Therefore, the present petition was dismissed.
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.
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