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All High Courts Weekly Round-Up: April 11- April 17, 2022

Shrutika Pandey
20 April 2022 8:20 AM GMT
All High Courts Weekly Round-Up: April 11- April 17, 2022
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Allahabad High Court NOMINAL INDEX Chndra Prakash Sharma v. State Of U.P And Another, 2022 LiveLaw (All) 172 Govind v. State of U.P, 2022 LiveLaw (All) 173 Kumari Neha Chandra Vs. State Of U.P. And 3 Others, 2022 LiveLaw (All) 174 Mohd. Saleem Khan v. State of U.P, 2022 LiveLaw (All) 175 Charan Singh v. State of U.P., 2022 LiveLaw (All)...

Allahabad High Court

NOMINAL INDEX

Chndra Prakash Sharma v. State Of U.P And Another, 2022 LiveLaw (All) 172

Govind v. State of U.P, 2022 LiveLaw (All) 173

Kumari Neha Chandra Vs. State Of U.P. And 3 Others, 2022 LiveLaw (All) 174

Mohd. Saleem Khan v. State of U.P, 2022 LiveLaw (All) 175

Charan Singh v. State of U.P., 2022 LiveLaw (All) 176

Rajpal Singh v. State of U.P. along with two connected appeals, 2022 LiveLaw (All) 177

Shailesh Kumar Mishra v. State Of U P And Another, 2022 LiveLaw (All) 178

Razia v. State of U.P., 2022 LiveLaw (All) 179

Prem And Others v. State of U.P., 2022 LiveLaw (All) 180

Air Force Naval Housing Board Air Force Station v. U.P. Real Estate Regulatory Authority. 2022 LiveLaw (All) 181

Gaya Prasad v. State of U.P. and others, 2022 LiveLaw (All) 182

Judgments/Orders of the Week

Depth Of Penetration Is Immaterial In Offence Of Rape: Allahabad High Court Denies Bail To POCSO Accused

Case title - Chndra Prakash Sharma v. State Of U.P And Another

Case Citation: 2022 LiveLaw (All) 172

Stressing that the depth of penetration is immaterial in an offence of rape, the High Court denied bail to a man who committed rape on an 8-year-old girl.

The Bench of Justice Sanjay Kumar Singh further observed that little girls are worshipped in our country, but the cases of pedophilia are increasing.

The Court also said that a victim/female small child who experiences sexual abuse once in her life, tend to be more vulnerable to abuse in adult life, and in such cases, the healing is slow and systematic.

Can't Presume That 8 Yr Old Victim Made Allegations Of Oral Sex Under Parents' Influence: Allahabad HC Denies Bail To POCSO Accused

Case title - Govind v. State of U.P

Case Citation: 2022 LiveLaw (All) 173

The High Court denied bail to a man who has been accused of committing oral sex with a 8 year old girl as it noted that mere long detention in jail does not entitle an accused for bail.

The Bench of Justice Rajesh Singh Chauhan further noted that the victim/prosecutrix was about 8 years at the time of incident, and therefore, the Court said, at the stage of bail, it cannot be presumed that she gave the statement about oral sex under the influence of her parents.

"Recognizing Same-Sex Marriage Would Be Against Indian Culture, Laws & Indic Religions": UP Govt Submits Before Allahabad High Court

Case title - Kumari Neha Chandra Vs. State Of U.P. And 3 Others

Case citation: 2022 LiveLaw (All) 174

The Uttar Pradesh Government last week opposed the recognition of same-sex marriage on the ground that such marriages are against Indian culture and Indic religions and shall be invalid according to Indian laws, which have been designed keeping in mind the concept/existence of a man and a woman.

The submission was made before the Bench of Justice Shekhar Kumar Yadav which was hearing a Habeas Corpus plea filed by a mother seeking custody of her daughter (23 year old) alleging that she had been illegally detained by another woman, 22-year-old Sanjana (opposite party no. 4).

"Matter Pertains To National Security": Allahabad HC Denies Bail To Nepali Citizen Accused Of Being In Touch With Pakistani Nationals

Case title - Mohd. Saleem Khan v. State of U.P

Case Citation: 2022 LiveLaw (All) 175

The Allahabad High Court on Monday denied bail to a Nepali Citizen who has been accused of being in regular touch with 11 numbers pertaining to Pakistani nationals.

The Bench of Justice Krishan Pahal denied him bail on the ground that the matter pertains to national security and the applicant is not an Indian national and therefore, he doesn't deserve to be released on bail.

Bail Applicant-Mohd. Saleem Khan was arrested by UP Police on February 28, 2021, and from his possession, three fake aadhaar cards (having different dates of birth), a Passport of Nepal, and other documents were recovered. He was later on booked under Sections 419, 420, 467, 468, 469, 471 IPC

No Cogent Explanation Given For Chain Of Incriminating Circumstances: Allahabad HC Upholds Life Sentence Of Man Who Killed Wife

Case title - Charan Singh v. State of U.P. [CRIMINAL APPEAL No. - 1171 of 2006]

Case citation: 2022 LiveLaw (All) 176

Observing that no cogent explanation was given to explain the chain of incriminating circumstances by the appellant-convict, the Allahabad High Court recently upheld the life sentence awarded to a man who killed his wife in the year 2004.

The Bench of Justice Manoj Misra and Justice Sameer Jain specifically observed that nothing had come on record from the side of the convict-appellant that he resided elsewhere or worked for a gain elsewhere and was not present at the scene of the crime on the night of the incident.

"Conviction Based On Untrustworthy Last Seen Evidence": Allahabad High Court Acquits 3 Accused In A 30 Year Old Murder Case

Case title - Rajpal Singh v. State of U.P. along with two connected appeals

Case Citation: 2022 LiveLaw (All) 177

The High Court set aside the conviction of 3 murder accused in a 30 year old case as it found that the conviction recorded by the Trial court was based on untrustworthy last seen evidence.

The Court also opined that the accused had been seriously prejudiced on account of the non-examination of the Investigating Officer during the trial, and this omission had created a deep dent in the prosecution case.

Allahabad High Court Dismisses PIL Challenging Vires Of 'Uttar Pradesh Land Record Manual' With ₹10K Cost

Case title - Shailesh Kumar Mishra v. State Of U P And Another

Case Citation: 2022 LiveLaw (All) 178

The High Court dismissed a writ petition styled as a Public Interest Litigation (PIL) plea filed seeking a declaration of the Uttar Pradesh Land Record Manual as ultra-vires the Uttar Pradesh Revenue Code, 2006, and the Revenue Code Rules, 2016.

The Bench of Justice Pritinker Diwaker and Justice Ashutosh Srivastava also imposed a cost of Rs. 10,000/- on the petitioner (Shailesh Kumar Mishra) on account of the non-maintainability of the plea.

Divorced Muslim Woman Can Claim Maintenance From Husband U/S 125 CrPC As Long As She Doesn't Remarry: Allahabad High Court

Case title - Razia v. State of U.P. [CRIMINAL REVISION DEFECTIVE No. - 475 of 2008]

Case Citation: 2022 LiveLaw (All) 179

Reiterating the law laid down in the case of Shabana Bano vs. Imran Khan, the Allahabad High Court has observed that a divorced Muslim woman shall be entitled to claim maintenance from her husband under Section 125 Cr.P.C. even after the expiry of the period of iddat as long as she does not remarry.

The Bench of Justice Karunesh Singh Pawar observed thus while allowing a revision plea filed against the judgment and order passed by the Additional Sessions Judge, Pratapgarh in May 2008, modifying the order of trial Court passed in Janury 2007.

"Possibility Of False Implication Present": Allahabad High Court Acquits 4 Accused In 42 Year Old Dacoity Case

Case title - Prem And Others v. State of U.P. [CRIMINAL APPEAL No. - 1826 of 1983]

Case Citation: 2022 LiveLaw (All) 180

The Allahabad High Court last week acquitted 4 accused in connection with a 42-year-old Dacoity case as the bench of Justice Manoj Misra and Justice Sameer Jain suspected it to be a case of 'false implication' of the accused persons.

"...we have a strong suspicion, based on the facts of the case, the informant has taken the commission of dacoity in the village as an opportunity to falsely implicate persons with whom he had enmity i.e. the appellants along with other unknown dacoits," the bench remarked.

Compliance Of Pre-Deposit Under Section 43(5) Of The RERA Act Mandatory To Be Complied Before Entertainment Of Appeal In A Tribunal: Allahabad HC

Case Title:Air Force Naval Housing Board Air Force Station v. U.P. Real Estate Regulatory Authority

Citation: 2022 LiveLaw (All) 181

The High Court observed that the statutory compliance of a pre-deposit under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 ("the Act") by a 'promoter' before the entertainment of an appeal in an Appellate Tribunal is mandatory.

A Single-judge Bench comprising Justice Ranjan Agarwal, by an order dated 12.04.2022, rendered this observation while dismissing an appeal that sought to assail an order of the Uttar Pradesh Real Estate Appellate Tribunal ("the Appellate Tribunal") which had originally dismissed the appellant's appeal on grounds of non-payment of the mandatory deposit before entertainment of appeal as mandated under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 ("the Act").

Allahabad High Court Dismisses PIL Seeking Reorientation Of Teacher-Student Ratio In Schools Run By UP's Basic Education Dept

Case title - Gaya Prasad v. State of U.P. and others

Case Citation: 2022 LiveLaw (All) 182

The High Court dismissed a Public Interest Litigation (PIL) plea filed seeking a direction to the Uttar Pradesh Government to take a decision for reorientation of the teacher-student ratio in the Schools being run by the Department Of Basic Education in Uttar Pradesh

The Bench of Chief Justice Rajesh Bindal and Justice Jaspreet Singh perused the pleadings and noted that no particulars had been furnished by the petitioner, one Gaya Prasad.

Important Weekly Updates From the High Court/UP courts

Bar Council Of India Constitutes 5 Member Committee To Look Into The Issue Of Dress Code For Lawyers

The Bar Council of India has informed the Allahabad High Court that it has constituted a five-member committee to hold discussions and conduct deliberations with the bar and the judiciary on the issue of dress code for lawyers.

The BCI has made this submission responding to a notice issued to it by the HC on a plea moved before the Court seeking a ban on the existing dress code of black coats and robes prescribed for lawyers alleging that the same is against the climate conditions of India.

"Produce Him Or Exemplary Cost May Be Imposed": Allahabad High Court Warns UP Govt In Case Of 82 Year Old Missing Man

Case title - Rahul Yadav v. State Of U.P. And 4 Others [Habeas Corpus Writ Petition No. - 399 of 2021]

In what appears to be the last opportunity, the Allahabad High Court has directed the Uttar Pradesh Government to produce the 82-year-old man who went missing from TB Sapru Hospital in Prayagraj during COVID's second wave, around 11 months ago.

The Bench of Justice Surya Prakash Kesarwani and Justice Jayant Banerji has also taken a serious view of this matter and has directed the respondents to produce the corpus on the next date fixed, failing which, the Court added thus:

"...this Court may consider calling for the personal presence of all the concerned respondents and may also consider to impose exemplary costs considering the facts and circumstances of the case."

Kashi-Gyanvapi Dispute Case |"Lord Visheshwar's Temple Was Destroyed But Its Religious Character Didn't Change": Lord's Next Friend Argue In Allahabad HC

Case title - Anjuman Intazamia Masazid Varanasi Vs. Ist A.D.J. Varanasi And Others

In the ongoing hearing before the Allahabad High Court in connection with the Kashi Vishwanath temple-Gyanvapi mosque dispute, the next friend of Lord Vishweshwar, one of the contesting respondents in the case, today argued Lord Visheshwar has been in existence from ancient time, i.e., Satyug up till now.

Before the bench of Justice Prakash Padia, the next friend of Lord Vishweshwar further argued that if the temple (of the lord vishveshwar) had been destroyed by any means, its religious character never changed, and therefore, Section 4 of the Places of Worship (Special Provisions) Act, 1991 won't be applicable because the structure of old temple was built prior to the 15th Century.

Allahabad High Court Organises First Gender Awareness And Sensitization Workshop

The Internal Committee of the Allahabad High Court last week organized a one-day Gender Awareness and Sensitization Workshop in compliance with Section 19 of the Sexual Harassment of Women at the Workplace Act (Prevention, Prohibition and Redressal) 2013.

The workshop was inaugurated by the Chairperson of the Internal Committee (IC), Justice Sunita Agarwal, and the participants included 25 Senior Officers (Judicial Officers) of the Registry of the High Court at Allahabad.

UP Govt Discontinues Engagement Of An Add'l Advocate General Who Was Recently Reproved By High Court For Her Conduct

The Uttar Pradesh Government has canceled the engagement of Advocate Jyoti Sikka as the Additional Advocate General with immediate effect. The Secretary to the Government, Praful Kamal forwarded a letter to this effect to the office of the Advocate General of Uttar Pradesh yesterday.

The state government has also discontinued the engagement of standing counsel Amit Sharma. Both the government lawyers were engaged in the year 2017. Incidentally, both the government advocates were recently reproved by the Allahabad High Court for their conduct.

Allahabad High Court Emphasizes On Need To Maintain, Preserve Ecosystem & Biodiversity At Sandi Bird Sanctuary

Case Title - Inner Wheel Club D.O.D Thru. President Pooja Jain And Ors. v. State Of U.P. Thru. Prin. Secy. Forest Dept. And Ors

The High Court emphasized the need to maintain and preserve the ecosystem and biodiversity at the Sandi Bird Sanctuary, situated in the Hardoi district of the state.

The Bench of Justice Devendra Kumar Upadhyaya and Justice Subhash Vidyarthi observed this while dealing with a Public Interest Litigation (PIL) plea moved by Inner Wheel Club Through its President Pooja Jain

Essentially, the petitioner had moved to the Court pointing out the poor upkeep of the Sanctuary. The petitioner has alleged that due to authorities' neglect, the lake, as well as the bird sanctuary, are becoming a cause of concern so far as preserving the biodiversity and ecology in the area are concerned.

Allahabad HC Frowns Upon Law Students 'Flooding' Court With PILs Based On Internship Projects, Failure To Pursue Case Thereafter

Case title - Nishant Chandra and others v. Union of India and others

Referring to the practice of law students filing Public Interest Litigation (PIL) pleas in the High Court based on their internship projects and thereafter not pursuing the matters, the High Court frowned upon such students as it remarked that the Court can't be made a dumping ground for pushing all such internship reports.

The Bench of Chief Justice Rajesh Bindal and Justice Piyush Agrawal further opined that Universities - law colleges, that assign these kinds of projects to the law students, are equally responsible for such cases.

Andhra Pradesh High Court

1. NDPS Act | Commercial Quantity Of Contraband Seized, Mere Non-Mentioning Of Exact Weight In FIR Not Fatal To Prosecution Case: Andhra Pradesh HC

Citation: 2022 LiveLaw (AP) 54

The Andhra Pradesh High Court recently observed that mere non-mentioning of exact quantity of ganja in FIR will not render prosecution's case meritless, if the amount obtained from the accused is a commercial quantity.

Justice Cheekati Manavendranath Roy held that:

"In the said facts and circumstances of the case, mere non-mentioning of exact quantity of ganja in F.I.R by itself is not fatal to the case of the prosecution. As the quantity of ganja that was seized from the possession of the petitioners is a commercial quantity, the bar and rigour contained in Section 37 of the NDPS Act applies to the present facts of the case."

Case Title : CY.Pratap Reddy Versus State

Citation: 2022 LiveLaw (AP) 55

In a recent case, the Andhra Pradesh High Court reiterated that the matter can be remanded back to trial Court for trial of the case even if there is delay and the accused cannot be protected from all prejudicial effects under the right to speedy trial unless actual prejudice has been proved.

"Its core concern is impairment of liberty. Possibility of prejudice is not enough. Actual prejudice has to be proved."

The police filed charge sheet under various provisions of Indian Penal Code viz. Section 392 (punishment for robbery), Section 307 (punishment for attempt to murder), 341 (punishment for wrongful restraint), 506 (punishment for criminal intimidation).

The court of Judicial Magistrate of First Class had taken cognizance of the same. As the witnesses failed to undergo cross-examination, the Magistrate acquitted the accused for the offences charge sheeted.

Case Title : N. Appa Rao Versus The State Of AP

Citation: 2022 LiveLaw (AP) 56

The Andhra Pradesh High Court recently discontinued an investigation in a crime in which the First Information Report did not indicate any willful negligence of duties by public servant which were required to be performed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

4. 6 Kgs Ganja Not Commercial Quantity, Rigours Of Bail U/S 37 NDPS Act Not Applicable: Andhra Pradesh High Court

Case Title : Dinesh @ Dinesh Versus The State Of Andhra Pradesh

Citation: 2022 LiveLaw (AP) 57

The Andhra Pradesh High Court recently granted bail to a man accused of possessing 6 Kgs of Ganja, observing that the same is not a "commercial quantity" and thus the case for grant of bail will not be governed under Section 37 of NDPS Act.

Commercial Quantity in relation to narcotic drugs and psychotropic substances is defined under Section 2(viia) of the Act. It means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. Presently, commercial quantity of Ganja is 20 Kgs or more.

Case Title: Karampudi Vijay Pal v. The State of Andhra Pradesh and Ors.

Citation: 2022 LiveLaw (AP) 58

Andhra Pradesh High Court recently directed the State to consider the petitioner's request to conduct padyatra to the office of the Chief Minister.

Justice D. V. S. S. Somyajulu observed that Covid-19 is no longer a valid condition to stop him from the padyatra.

"Considering the submissions made, this Court has to agree the reason No.1 (COVID-19) is no longer a valid ground for rejecting the permission. The petitioner also agrees to furnish a route map and also the clear and categorical details of the participant along with Aadhar card and other documents of the identity of the people, who are going to accompany the petitioner. The learned counsel for the petitioner also that all the people, who are accompanying the petitioner, are law abiding citizens."

Case Title: NANDURKAR SATISH DOWLATHRAO v. STATE REP BY THE PUBLIC PROSECUTOR

Citation: 2022 LiveLaw (AP) 59

The Andhra Pradesh High Court recently granted bail to a person accused of illegal possession of 16 kgs of Ganja. Justice Cheekati Manavendranath Roy observed :

"The contraband involved in this case is 16 kgs of Ganja which is not a commercial quantity. Therefore, the bar under Section 37 of the Act is not applicable to the present facts of the case."

The petitioner was found to be in illegal possession of 16 kgs of Ganja that he was apprehended by the police and the contraband was seized from his possession.

Case Title: ARUN KUMAR MAHIPAL SINGH v. STATE

Citation: 2022 LiveLaw (AP) 60

The High Court of Andhra Pradesh recently granted bail to a person accused of illegally transporting 55 KGs of Ganja in his car. Justice Cheekati Manavendranath Roy observed that he has been languishing in jail for the last more than 240 days period of time. Since the entire investigation in this case is completed and charge sheet was also filed. Therefore, in the said facts and circumstances of the case, his further incarceration is not warranted.

Bombay High Court

Nominal Index

Shailendrasingh Shivmurtisingh Thakur and Ors. v. The State of Maharashtra, with connected matters, 2022 LiveLaw (Bom) 128

Maniar Associates LLP Vs. Vijay Niwas Co-op. Hsg. Soc. Ltd. & Ors, 2022 LiveLaw (Bom) 129

Dilip s/o. Bhavanji Shah versus Errol Moraes, 2022 LiveLaw (Bom) 130

Ramesh and ors v Smt. Prakashkaur and ors, 2022 LiveLaw (Bom) 131

Jeetendra Navlani vs State of Maharashtra, 2022 LiveLaw (Bom) 132

Concrete Additives and Chemicals Pvt Ltd versus S N Engineering Services Pvt Ltd, 2022 LiveLaw (Bom) 133

Wadhwa Group Holdings Pvt. Ltd. v. Homi Pheroze Ghandy and Anr., 2022 LiveLaw (Bom) 134

Aparna Abhitabh Chatterjee v Union of India, 2022 LiveLaw (Bom) 135

ABC v. UOI and others, 2022 LiveLaw (Bom) 136

Rajneesh Jaiswal vs Dil Raju & Ors, 2022 LiveLaw (Bom) 137

Ganesh Nivrutti Ghadge v State of Maharashtra and ors, 2022 LiveLaw (Bom) 138

Sushama Arun Patil v The State of Maharashtra and ors, 2022 LiveLaw (Bom) 139

The Commissioner of Customs II versus Axiom Cordages Ltd, 2022 LiveLaw (Bom) 140

J M Financial and Investment Consultancy Services Private Limited Versus Assistant Commissioner of Income Tax, 2022 LiveLaw (Bom) 141

Eknath Genu Pawar & ors V Dattu Santram Haral & ors, 2022 LiveLaw (Bom) 142

1. "Deserves No Sympathy": Bombay High Court Enhances Punishment, Sentences Watchman To Death For Employer's Dacoity & Murder

Case Title: Shailendrasingh Shivmurtisingh Thakur and Ors. v. The State of Maharashtra, with connected matters

Citation: 2022 LiveLaw (Bom) 128

The Bombay High Court awarded the death penalty to a watchman found guilty of dacoity and the "calculated and cold blooded" murder of his employers, a plan he executed with two of his friends and three former employees of the couple.

The bench upheld the life imprisonment awarded to five accused but enhanced watchman Shiv Kumar Saket's punishment on the State's appeal as he had "betrayed the trust of his employer."

2. Occupier Of Flat Entitled To Transit Rent For Period Of Dispossession During Redevelopment : Bombay High Court

Case Title: Maniar Associates LLP Vs. Vijay Niwas Co-op. Hsg. Soc. Ltd. & Ors

Citation: 2022 LiveLaw (Bom) 129

The person in possession of a tenement being re-developed will be entitled to transit rent in the absence of a court order stating otherwise, even if he or she doesn't own the premises, the Bombay High Court has held.

In the present case, the HC also asked the developer to put the occupant in possession of the redeveloped property if his dispute with the flat owner is not finally decided by then.

3. Court Does Not Have Adjudicatory Powers Under Section 27 Of The A&C Act: Bombay High Court

Case Title: Dilip s/o. Bhavanji Shah versus Errol Moraes

Citation: 2022 LiveLaw (Bom) 130

The Bombay High Court ruled that the Court does not have the jurisdiction under Section 27 of the Arbitration and Conciliation Act, 1996 (A&C Act) to consider the legality of the reasons set out by the arbitral tribunal in its order permitting the examination of a witness.

The Single Bench ruled that once the arbitral tribunal had formed a prima facie opinion that a particular witness is required to be examined by a party in the arbitral proceedings, the reasons laid down by the tribunal in its order cannot be revisited and scrutinized by the Court, since proceeding under Section 27 of the A&C Act are not in the nature of an appeal and the Court does not have any adjudicatory powers under Section 27.

The court observed, "The fact remains that as respondent no.3 (occupier) is in possession of the tenement in question and would now be handing over possession of such tenement to the petitioner/society… The party who is dispossessed, would be entitled to the transit rent as it is such party who is put to hardship."

4. Provision For Seeking Adjournment Under Order XVII Rule 1 CPC Is Rule Of Procedure, Directory In Nature: Bombay High Court

Case Title: Ramesh and ors v Smt. Prakashkaur and ors

Citation: 2022 LiveLaw (Bom) 131

The Bombay High court adjudicated how Rules of procedure (in this case provision of seeking adjournments under Order XVII Rule 1 CPC) are indeed "handmaids of justice" and are meant to advance ends of justice and not to thwart or obstruct the same.

Accordingly, the court agreed to grant more opportunities for evidence to a recalcitrant Petitioner at his own responsibility, on payment of heavy costs of Rs. 1 lakh.

5. FIR For Obstructing Public Servant Against Param Bir's Alleged Aide Jeetendra Navlani Quashed By Bombay High Court

Case Title: Jeetendra Navlani vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 132

The Bombay HC quashed an FIR against one Jeetendra Navlani who was alleged to be connected to the former Mumbai Police Commissioner Param Bir Singh by the investigating officer of the case, Anup Dange. Navlani is a developer and owner of a restaurant & bar in South Mumbai, was booked under Section 186 IPC for causing obstruction to a public servant from performing his duty in November 2019.

The bench quashed the FIR on the grounds of contradictory witness statements. Moreover, that after the incident the police officials had not brought the Applicant to the police station nor effected arrest and a notice was issued after two days of incident to the Applicant calling upon him to give his statement, as such Applicant bonafidely believed that he is treated as a witness in the incident.

6. Tax Invoices Containing Reference To Arbitration, Does Not Constitute An Arbitration Agreement: Bombay High Court

Case Title: Concrete Additives and Chemicals Pvt Ltd versus S N Engineering Services Pvt Ltd

Citation: 2022 LiveLaw (Bom) 133

The Bombay High Court has ruled that acceptance of tax invoices by the opposite party, containing a reference to arbitration, does not lead to the presumption that an arbitration agreement exists between the parties.

The Single Bench held that unilateral invoices cannot bring about an arbitration agreement between the parties.

7. Court Can Appoint An Arbitrator During The Pendency Of An Appeal Against An Award, Set Aside On Reasons Other Than Merit : Bombay High Court

Case Title: Wadhwa Group Holdings Pvt. Ltd. v. Homi Pheroze Ghandy and Anr.

Citation: 2022 LiveLaw (Bom) 134

The Bombay High Court held that when an award is set aside for other reasons and not on merit, the parties are well within their rights to initiate fresh arbitration in respect of the same claims and pendency of an appeal against such an order is not a ground to refuse the appointment.

The Single Bench of Justice A.K. Menon has further held that an objection as to the claims being barred by Res Judicata since an appeal is pending before the Court is outside the limited scope of judicial examination permissible under S. 11 of the A & C Act. The Court held that invocation of the arbitration cannot be subjected to the fate of the appeal.

8. S.29A Of Consumer Protection Act, 1986 Valid; Consumer Forums Can Pass Orders Without President: Bombay High Court

Case Title : Aparna Abhitabh Chatterjee v Union of India

Citation: 2022 LiveLaw (Bom) 136

The Bombay High Court recently regarded a challenge to the constitutional validity of Section 29A of the Consumer Protection Act, 1986 – whether the exercise of powers by the District Consumer Forum without the President being its party is illegal? A bench answered the question in the negative.

In light of the settled presumption of constitutionality in favour of Legislation unless the contrary is shown, the bench concluded that there is no merit in the challenge to the constitutional validity of Section 29A of the Consumer Protection Act,1986.

9. Right To Be Forgotten | Man Facing Difficulties In Getting Job Due To An Order By Which He Was Acquitted: Bombay HC Orders Its Removal From Court Website

Case title: ABC v. UOI and others

Case Citation: 2022 LiveLaw (Bom) 137

The Bombay High Court ordered the removal of an acquittal order from the Court's website on a plea moved by a person/accused who was facing difficulties in getting job due to the acquittal order passed in his favour.

Essentially, he had moved to the Court arguing that even though the order was one of acquittal, still it was descriptive, and it had the potential to put a bias in the minds of his prospective employers, customers, bankers & investors.

10. Bombay High Court Refuses To Stay Release Of Shahid Kapoor Starrer "Jersey"

Case Title: Rajneesh Jaiswal vs Dil Raju & Ors.

Citation: 2022 LiveLaw (Bom) 138

The Bombay High Court cited the delay on the petitioner's part in approaching the court while refusing interim relief. The court observed that "in the event prejudice is caused to the Defendant by delay of the Plaintiff in seeking ad-interim relief, Courts will not entertain such application and / or grant ad-interim relief."

11. Right to Fair Compensation Act | 'Land' Includes Things Attached, Benefits Arising Out Of It: Bombay High Court

Case Title : Ganesh Nivrutti Ghadge v State of Maharashtra and ors.

Citation: LiveLaw2022 (Bom) 139

The Bombay High Court dealt with a petition seeking directions to pay proper compensation in terms of the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

A bench of Justices S.V. Gangapurwala and Vinay Joshi noted that under the Act, 'land' includes everything that grows on it. It said,

"the term 'land' defined under Section 3(p) of the Act of 2013 includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Thus there is no gainsaying in contending that the factors which are not allegedly considered cannot be agitated before statutory authority."

12. Minister Can't Interfere In Zilla Parishad Administration and Order Teacher's Transfer Merely Because Complaint Was Also Made To Him: Bombay High Court

Case Title :Smt. Sushama Arun Patil v The State of Maharashtra and ors

Citation: 2022 LiveLaw (Bom) 140

A Rural Development Minister doesn't have the power to interfere with the affairs of the Zilla Parishad by cancelling the transfers orders of teachers merely because a teacher complained to him, the Bombay High Court ruled.

The court observed that the Minister's order directing the Zilla Parishad CEO to cancel the transfer of certain teachers was without jurisdiction, therefore the CEO's subsequent order complying with the Minister's direction would be bad-in-law.

13. Appeal Against CESTAT Order, On Classification Of Goods, And Determination Of Customs Duty Lies Before The Supreme Court: Bombay High Court

Case Title: The Commissioner of Customs II versus Axiom Cordages Ltd

Citation: LiveLaw2022 (Bom) 141

The Bombay High Court ruled than an appeal from an order passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), involving the question with respect to classification of goods under the Customs Act, 1962, would lie before the Supreme Court under Section 130E of the Customs Act, since it is primarily related to determination of the rate of customs duty applicable.

The Bench held that to determine whether there was a short levy of customs duty under Section 28 of the Customs Act, 1962, the revenue department has to decide the classification of goods in order to ascertain the rate of customs duty to be levied, therefore an appeal involving issues relating to Section 28 of the Customs Act was maintainable only before the Supreme Court.

14. Only PCIT Can Sanction Reassessment Notice After Expiry Of 4 Years, Not ACIT: Bombay High Court

Case Title: J M Financial and Investment Consultancy Services Private Limited Versus Assistant Commissioner of Income Tax

Citation: LiveLaw (Bom) 142

The Bombay High Court held that after four years of expiry from the end of the relevant assessment year, only the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner (PCIT) can accord the approval to the reassessment notice and not the Additional Commissioner of Income Tax (ACIT).

The court said, "even if for a moment we agree with the view expressed by the Principal Commissioner of Income Tax, it still applies to only cases where the limitation was expiring on March 31st, 2020. In the case at hand, the assessment year is 2015-2016 and, therefore, the six years limitation will expire only on 31st March 2022. Certainly, therefore, the Relaxation Act provisions may not be applicable. In any event, the time to issue notice may have been extended, but that would not amount to amending the provisions of Section 151 of the Act."

15. Jurisdiction U/S 100 CPC Is So Limited That Even Wrong Or Grossly Inexcusable Finding Of Fact Cannot Be Interfered With: Bombay High Court

Case Title : Eknath Genu Pawar & ors V Dattu Santram Haral & ors

Citation: 2022 LiveLaw (Bom) 143

The Bombay High Court adjudicated a challenge to a lower court order seeking re-appreciation of evidence. The single judge Mangesh S. Patil held that jurisdiction under Section 100 of the Code of Civil Procedure is so limited that even a wrong or grossly inexcusable finding of fact cannot be interfered with and hence refused to do so.

The case arose as Eknath Genu Pawar obtained a declaration from the trial court of his being the exclusive owner in possession of the suit properties on the basis of a will executed by one Laxmibai on 30.06.1956. Lower appellate court quashed and set aside the judgment and decree passed by the trial court and dismissed the suit.

Calcutta High Court

Nominal Index [Citations 115- 125]

1. Sumitra Bhattacharyya v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 115

2. Shaista Afreen and Others v. The State of West Bengal and Others 2022 LiveLaw (Cal) 116

3. Purnima Kandu & Anr v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 117

4. Dr. Santi Prasad Sinha v. Laxmi Tunga and Ors 2022 LiveLaw (Cal) 118

5. Ramesh Co. v. Imperial Tubes Pvt. Ltd 2022 LiveLaw (Cal) 119

6. Suvendu Adhikari v. Hon'ble Speaker, WB Legislative Assembly and Ors and other connected matters 2022 LiveLaw (Cal) 120

7. Rohit Pal v. The State of West Bengal 2022 LiveLaw (Cal) 121

8. Azizur Rahaman v. The State of West Bengal & ors 2022 LiveLaw (Cal) 122

9. Sambhu Das v. The State of West Bengal & Anr 2022 LiveLaw (Cal) 123

10. M/s. Satyen Construction versus State of West Bengal & Ors 2022 LiveLaw (Cal) 124

11. Dr. Papiya Mukherjee versus Aruna Banerjea and Anr 2022 LiveLaw (Cal) 125

Orders/Judgments

1. Calcutta High Court Directs IPS Officer Damayanti Sen To Oversee Probe Into 4 Recent Rape Cases In West Bengal

Case Title: Sumitra Bhattacharyya v. State of West Bengal and other connected matters

Case Citation: 2022 LiveLaw (Cal) 115

The Calcutta High Court on Tuesday asked IPS officer Damayanti Sen to oversee the probe in Deganga, Matia, Ingrejbazar and Banshdroni rape cases. A division bench comprising Chief Justice Prakash Srivastava and Justice Rajarshi Bharadwaj observed that considering the nature of the incidents and the allegations made, a responsible senior lady police officer should be appointed to supervise the investigation. The Court's remarks are believed to have been made in the wake of an investigation into the Park Street rape case a decade ago. "..considering the material pointed out to us, we direct that the investigation of the incidents at village Nehalpur, Nandipara, incident on Dol Purnima noted above as also the incident of rape at English Bazar will be done under the supervision of Smt. Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police. If Smt. Sen has any difficulty in supervising the investigation, she will be at liberty to indicate the same to this court on the next date of hearing", the Court directed. On the last date of hearing, the Court had granted leave to the petitioners to suggest the name of a high ranking police officer under whose supervision, the investigation can be carried out.

2. 'Attempt To Suppress Incident': Calcutta HC Orders CBI Probe Into Hanshkhali Gangrape & Murder Case, Report To Be Submitted By May 2

Case Title: Shaista Afreen and Others v. The State of West Bengal and Others

Case Citation: 2022 LiveLaw (Cal) 116

The Calcutta High Court on Tuesday ordered a CBI investigation into the Hanshkhali gangrape and murder case. According to reports, a 14-year-old girl belonging to the scheduled caste community died on April 5 after she was allegedly gangraped by the son of a panchayat member owing allegiance to the Trinamool Congress (TMC) and others in West Bengal's Nadia district. She was bleeding profusely when she returned home and died later that night, according to her parents who lodged a police complaint on April 10. Opining that a fair investigation is required to instil confidence in the family members of the victim and also the residents of the locality and the State, the Court underscored, "..we are of the opinion that in order to have fair investigation in the matter and to instill confidence in the family members of the victim and also the residents of the locality and the State, the investigation should be carried out by the CBI instead of the local police. Hence, we direct the State Investigating Agency to hand over the investigation to the CBI with immediate effect. The State Investigating Agency will hand over all the papers relating to the investigation along with the custody of the accused persons to the CBI forthwith."

3. 'Comprehensive Investigation Required': Calcutta HC Orders CBI To Probe Death Of Eye-Witness In Murder Case Of Congress Councillor Tapan Kandu

Case Title: Purnima Kandu & Anr v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 117

The Calcutta High Court ordered a CBI investigation into the unnatural death of Niranjan Baishnab, who was believed to be an eyewitness to the murder of Congress councillor Tapan Kandu in the Purulia district. The Court had earlier directed the CBI to probe into the the death of former Congress councillor of Jhalda Municipality in Purulia, Tapan Kandu who was reportedly shot dead by miscreants on March 13. Some motorcycle-borne persons had reportedly shot Tapan dead when he had gone for a walk near his residence. Justice Rajasekhar Mantha ordered that the case papers in the matter to be handed to the central agency, which is already probing the councillor's killing pursuant to the Court's earlier orders. "This Court as of now cannot find any fault with the investigation conducted by the State police. However, given the fact that the deceased Niranjan Baishnab, was an eye witness to a murder which has already been transferred to and investigated into by the CBI, in the fitness of things and for the purpose of comprehensive investigation, this Court is of the view that the investigation into the death of Niranjan Baishnab being, F.I.R. No.50 of 2022 dated 7th April, 2022, of Jhalda Police Station must also be transferred to the C.B.I. for the purpose of further investigation", the Court ordered.

4. SSC 'Group D' Recruitment Scam: Calcutta HC Extends Stay On Order Directing WB Minister Partha Chatterjee To Appear Before CBI

Case Title: Dr. Santi Prasad Sinha v. Laxmi Tunga and Ors

Case Citation: 2022 LiveLaw (Cal) 118

In a temporary relief to senior West Bengal minister Partha Chatterjee, a Division bench of the Calcutta High Court on Wednesday extended a stay for five weeks on an earlier order that directed him to appear before the CBI in connection with a petition alleging irregularities in appointment of assistant teachers in state government-aided schools. In the impugned order, Justice Abhijit Gangopadhyay had directed the then Education Minister Partha Chatterjee to appear before the CBI for interrogation by Tuesday evening. He had further granted liberty to the CBI to interrogate Chatterjee by taking him into custody if the CBI thinks that Chatterjee is not co-opertaing with the CBI. On Wednesday, a Division Bench comprising Justice Subrata Talukder and Justice A K Mukherjee extended a stay on the impugned order for a period of 5 weeks. "Since the Committee has been now requested to complete the enquiry into the Group-C appointments and submit its Report within four weeks, the Order of stay as granted by this Court on the 12th of April, 2022 shall continue for a period of five weeks from this date", the Court ordered.

5. Grant Of Leave For Dispensation Of Mandated Pre-Institution Mediation U/S 12-A Of Commercial Courts Act Is A Judicial Act: Calcutta HC

Case Title: Ramesh Co. v. Imperial Tubes Pvt. Ltd

Case Citation: 2022 LiveLaw (Cal) 119

The Calcutta High Court has recently held that the grant of leave for dispensation of the mandatory requirement of pre-institution mediation as prescribed under section 12-A of the Commercial Courts Act, 2015 would constitute a judicial act. Section 12-A of the Commercial Courts Act provides that a suit which does not contemplate any urgent interim relief, shall not be instituted unless the plaintiff exhausts the remedy of pre- institution mediation under the prescribed rules. Justice Moushumi Bhattacharya was adjudicating upon an application for the recalling of two orders passed by the Master under the Original Side Rules of the High Court granting leave to the plaintiff under section 12-A of the Commercial Courts Act. "It must be recognized that the practice adopted and continued is that of a Single Judge sitting in the Commercial Division passing a judicial order for grant of leave for dispensing with the statutory requirement of exhausting the remedy provided under section 12A of the Act. This practice is being followed from the time the courts familiarized themselves with the new regime under the Commercial Courts Act. Granting leave under section 12-A has now been accepted as judicial business within the exclusive domain of the Court / Commercial Division", the Court underscored

6. 'Perverse Order': Calcutta HC Sets Aside WB Speaker's Order Dismissing Suvendu Adhikari's Plea To Disqualify Mukul Roy, Remits Plea Back To Speaker

Case Title: Suvendu Adhikari v. Hon'ble Speaker, WB Legislative Assembly and Ors and other connected matters

Case Citation: 2022 LiveLaw (Cal) 120

The Calcutta High Court on Monday set aside West Bengal Assembly Speaker Biman Banerjee's order dismissing a petition by Leader of Opposition Suvendu Adhikari which sought disqualification of TMC lawmaker Mukul Roy as a member of the House on the ground of defection and restored the matter for fresh consideration. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj set aside the impugned order after coming to the conclusion that it is perverse. "..the impugned order of the Speaker is clearly a perverse order and perversity being one of the grounds of judicial review available against such an order, this Court finds that the order impugned cannot be sustained", the Court ordered. The Court noted that the Speaker had refused to admit electronic evidence by stating that it was not accompanied by certificate in terms of Section 65-B of the Evidence Act. The Court underscored that it is necessary for the Speaker to duly take into account the certificate given by the petitioner under Section 65-B of the Act before rejecting the electronic evidence as inadmissible which he has failed to do in the present case.

7. 'Immaterial Whether Breasts Of 13 Yr Old Girl Were Developed Or Not': Calcutta HC Upholds Conviction For Sexual Assault U/S 7 Of POCSO Act

Case Title: Rohit Pal v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 121

The Calcutta High Court has recently held that it is immaterial whether the breasts of a 13 year old girl are developed or not for the commission of the offence of sexual assault under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as long as it is proved that the accused had touched the specific part of the body of the girl with sexual intent. During the proceedings, it was alleged on behalf of the appellant that since the the concerned Medical Officer had deposed that the breasts of the victim girl was not developed, the question of touching breasts by the accused did not arise at all. Dismissing such a contention, Justice Bibek Chaudhuri observed, "In the instant case, the victim girl stated in clear term before the Learned Magistrate as well as during trial that the accused touched her breasts and kissed her. It is absolutely immaterial whether breasts of a 13 years old girl were developed or not. The specific part of the body of a girl of 13 years of age shall be held and term as breast for the purpose of Section 7 of the POCSO Act even if her breasts are not developed due to certain medical grounds".

8. Legality Of The Policy, Not Its Wisdom Or Soundness Is Subject Of Judicial Review U/A 226: Calcutta High Court

Case Title: Azizur Rahaman v. The State of West Bengal & ors

Case Citation: 2022 LiveLaw (Cal) 122

The Calcutta High Court on Wednesday has observed that policy decisions of the State are not to be disturbed unless they are found to be grossly arbitrary or irrational. While examining the scope of judicial review of an administrative action, Justice Shampa Sarkar observed, "The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or is manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review."

9. No Marks Of Violence On Any Part Of Victim's Body, Accused Entitled To Benefit Of Doubt: Calcutta High Court Sets Aside Conviction For Rape

Case Title: Sambhu Das v. The State of West Bengal & Anr

Case Citation: 2022 LiveLaw (Cal) 123

The Calcutta High Court has recently set aside the conviction for the offence of rape under Section 376 of the IPC after observing that since no marks of injury had been found on the body or private parts of the victim, the allegation of 'forcible rape' is not sustainable. Justice Bibek Chaudhuri noted that the victim had been examined by the concerned Medical officer after 12 days of the occurrence of the incident. Noting that no marks of violence had been found on the body of the victim, the Court remarked, "The prosecutrix was examined by the Medical Officer after 12 days of occurrence. She did not find any marks of violence in her private part or any portion of her body. Had it been a case of forcible rape where the prosecutrix tried her best to resist the accused, there is every possibility of having some kind of injury on different parts of her body. The medical officer did not find any injury in any part of the body of the prosecutrix.". Opining further that it would be 'highly risky' to sustain the conviction of the accused in the absence of medical evidence, the Court underscored, "..the evidence of the prosecutrix is not supported by the medical evidence and in such a case it would be highly risky to sustain conviction of the accused. For the reasons stated above, this Court is of the view that the accused is entitled to get benefit of doubt."

10. Scope Of Section 9 Of The A&C Act Cannot Be Extended To Enforcement Of The Arbitral Award: Calcutta High Court

Case Title: M/s. Satyen Construction versus State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 124

The Calcutta High Court has ruled that the scope of Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) cannot be extended to enforcement of the arbitral award or granting the fruits of the award to the award holder as an interim measure. The Single Bench of Justice Ravi Krishan Kapur held that the right to withdraw the amount deposited by the award debtor, pursuant to an application filed for stay of operation of the award under Section 36(2), does not constitute as an interim protection under Section 9 of the A&C Act since it transgresses into the domain of enforcement of the award. The Court held that the scope of Section 9 of the A&C Act cannot be extended to enforcement of the arbitral award or granting the fruits of the award to the award holder as an interim measure. The Court ruled that the relief sought by the petitioner of withdrawal of the amount deposited by the respondent/ award debtor went beyond the scope of Section 9. The Court added that even under Section 9(ii)(e) of the A&C Act, where the court is guided by purely equitable considerations, the Court cannot permit withdrawal of the amount deposited by the award debtor. "Accordingly, even after the amended Section 36 of the Act, the right to withdraw the deposited amount by the judgment debtor cannot be stretched as an interim protection under Section 9 of the Act. The order sought for in this petition transgresses beyond the pale of protection in aid of enforcement into the exclusive domain of enforcement of an award. Thus, the prayer sought for cannot be granted in an application under Section 9 of the Act", the Court ordered.

11. Arbitration Agreement Not Discharged By Death Of A Party And Is Enforceable Against The Legal Representatives: Calcutta High Court

Case Title: Dr. Papiya Mukherjee versus Aruna Banerjea and Anr

Case Citation: 2022 LiveLaw (Cal) 125

The Calcutta High Court has ruled that an arbitration agreement will not be discharged by the death of a party and it will be enforceable by or against the legal representatives of the deceased party. The Single Bench of Chief Justice Prakash Shrivastava held that though the legal representatives were not signatories to the arbitration agreement, but being the legal representatives of the signatory to an arbitration agreement, they were bound by the agreement. The Court noted that the respondents were the legal heirs / successors of the deceased co-partner. The Court held that Section 40 of the A&C Act clearly provides that an arbitration agreement will not be discharged by the death of a party and it will be enforceable by or against the legal representatives of the deceased party. The High Court ruled that though the respondents were not signatories to the arbitration agreement executed between the applicant and the deceased co-partner, but being the legal representatives of the co-partner, they were bound by the arbitration agreement. The Court thus held that an arbitration agreement in the form of partnership deed existed and after the death of the co-partner, who was a signatory to the agreement, the respondents being his legal representatives were bound by the agreement to the extent provided by law.

Important Developments

1. YJ Dastoor Resigns As Additional Solicitor General At Calcutta High Court

Additional Solicitor General (ASG) at Calcutta High Court YJ Dastoor has resigned from his post. In a letter written to Law Minister Kiren Rijiju on Monday, he said that he is resigning from the post. However, the letter does not contain any reasons for the resignation. Dastoor had been appointed as the Additional Solicitor General on June 30, 2020 for a period of 3 years. He has been recently involved in various high profile cases wherein several Benches of the High Court have ordered for investigations to be conducted by the Central Bureau of Investigation (CBI).

Case Title: Hariom Ingots and Power Pvt. Ltd. Versus The Principal Commissioner of Income Tax | WPT No. 56 of 2022

Citation: 2022 LiveLaw (Chh) 25

The Chhattisgarh High Court bench of Justice Parth Prateem Sahu has quashed the income tax reassessment notice, which was issued after 4 years without stating any valid reason. The petitioner has challenged the notice under Section 148 of the Income Tax Act. According to Section 148 of the Income Tax Act, any income tax computation that has not been recomputed or reassessed will receive a notice from the Income Tax department.

Case title - Besahu Lal Yadav v. State Of Chhattisgarh

Case Citation: 2022 LiveLaw (Chh) 26

The Chhattisgarh High Court has observed that when a witness is examined/questioned under Section 165 of the Indian Evidence Act in a given case, then he/she is required to be cross-examined to elicit further truth/other relevant facts.

The Bench of Justice Goutam Bhaduri observed thus while allowing a plea filed by a rape accused whose application moved to summon and cross-examine the prosecutrix/victim (who was earlier questioned by Court under Section 165 of Evidence Act) was dismissed by the trial Court.

Case title - Mirza Dawood Baig v. State Of Chhattisgarh and others

Case Citation: 2022 LiveLaw (Chh) 27

The Chhattisgarh High Court has observed that in cases where a further investigation has been carried out then irrespective of its outcome, such further investigation report is required to be placed before the Court of Magistrate.

The Bench of Justice Goutam Bhaduri observed thus while relying upon the ruling of Supreme Court recent ruling in the case of Luckose Zachariah @ Zak Nedumchira Luke and Ors. Vs. Joseph Joseph and Ors 2022 LiveLaw (SC) 230.

Case Title: SEW Infrastructure Ltd. v. Micro & Small Enterprises Facilitation Council and Anr. WPC NO. 4235/2021

Case Citation: 2022 LiveLaw (Chh) 28

The High Court of Chhattisgarh has observed that the bar under S. 80 of the A&C Act which prevents the conciliator acting as the arbitrator does not apply to MSME Facilitation Council. The Single Bench of Justice Rajendra Chandra Singh Samant has observed that provisions of S.80 of the A&C Act cannot override the provision of the MSMED Act to prevent the council from acting as arbitrator. It has been held that combined reading of Section 18 and 24 of the Act, 2006, show that there is an overriding effect over provision under Section 80 of the Act 1996.

5. If The Agreement Stipulates For Reference To Dispute Resolution Committee (DRC), The Claimant Must Exhaust That Remedy Before Seeking Arbitration : Chhattisgarh High Court

Case Title: Devanshi Construction v. CPWD and others, ARBR No. 28 of 2020.

Case Citation: 2022 LiveLaw (Chh) 29

The High Court of Chhattisgarh has observed that a S. 11 application is not maintainable if the Petitioner before invoking the jurisdiction of the Court has not complied with the pre-condition of referring the dispute to the Dispute Resolution Committee as provided under the Agreement.

The Chief Justice Mr. Arup Kumar Goswami held that the remedy of arbitration would only come into the picture after the Petitioner has successfully exhausted the other dispute resolution remedy provided in the agreement. Failure of the Petitioner to comply with a contractual stipulation would render the application for appointment of an arbitrator as pre-mature.

Delhi High Court

CITATIONS 2022 LiveLaw (Del) 298 TO 2022 LiveLaw (Del) 332

NOMINAL INDEX

Case Title: ANJANA GOSAIN v. GOVERNMENT OF NCT AND ANR. 2022 LiveLaw (Del) 298

Case Title: HTC CORPORATION v. MR. LV DEGAO & ORS. 2022 LiveLaw (Del) 299

Case Title: Aarin through her next friend and natural father Sh. Pawan Kumar v. Kendriya Vidyalaya Sangathan& Ors 2022 LiveLaw (Del) 300

Case Title: Red Bull AG v PepsiCo India Holdings Pvt Ltd & Anr 2022 LiveLaw (Del) 301

Case Title: Commissioner of Income Tax (Exemptions) Delhi versus Hamdard National Foundation (India) 2022 LiveLaw (Del) 302

Case Title: Mahek Maheshwari v. Union of India & Ors. 2022 LiveLaw (Del) 303

Case Title: MANSI GUPTA v. PREM AMAR & ANR 2022 LiveLaw (Del) 304

Title: RAJENDER KUMAR SETHI & ANR. v. M/S V.G. MARKETING PVT LTD & ORS. 2022 LiveLaw (Del) 305

Case Title: Dr. M. K. Shah Medical College and Research Centre v. Union of India & Anr. 2022 LiveLaw (Del) 306

Case Title: Ministry of Youth Affairs & Sports versus Agility Logistic Pvt Ltd 2022 LiveLaw (Del) 307

Case Title: NASTOR FARIRAI ZISO v. NCB 2022 LiveLaw (Del) 308

Case Title: SUNIL TOMAR v. THE STATE OF NCT OF DELHI & ANR 2022 LiveLaw (Del) 309

Case Title: Richie Rich Exim Solutions versus Commissioner of CGST Delhi South 2022 LiveLaw (Del) 310

Case Title: Alstom Systems India Pvt. Ltd. v. Zillion Infraprojeccts Pvt. Ltd. 2022 LiveLaw (Del) 311

Case Title: Orissa Concrete and Allied Industries Ltd. v. Union of India 2022 LiveLaw (Del) 312

Case Title: SAVE NIMISHA PRIYA INTERNATIONAL ACTION COUNCIL THROUGH ITS CHAIRMAN v. UNION OF INDIA & ANR. 2022 LiveLaw (Del) 313

Case Title: SUN PHARMA LABORATORIES LTD v. HETERO HEALTHCARE LTD & ANR. 2022 LiveLaw (Del) 314

Case Title: COURT ON ITS OWN MOTION v. GNCT OF DELHI AND ORS 2022 LiveLaw (Del) 315

Case Title: SUNNY v. STATE OF N.C.T. OF DELHI and other connected matters 2022 LiveLaw (Del) 316

Case Title: SURENDER KUMAR v. STATE OF NCT OF DELHI 2022 LiveLaw (Del) 317

Title: MRS OMITA MAGO & ORS. v. AHLCON PUBLIC SCHOOL & ANR. 2022 LiveLaw (Del) 318

Case Title: PARDEEP KUMAR v. UNION OF INDIA & ORS 2022 LiveLaw (Del) 319

Case Title: SH VIVEK CHAUHAN v. GOVT OF NCT OF DELHI THROUGH ITS STANDING COUNSEL CRIMINAL 2022 LiveLaw (Del) 320

Case Title: SHERRY GEORGE v. GOVT. OF NCT OF DELHI 2022 LiveLaw (Del) 321

Case Title: MUKESH KHURANA v. STATE OF NCT DELHI 2022 LiveLaw (Del) 322

Case Title: Parsvnath Developers Ltd versus Future Retail Limited 2022 LiveLaw (Del) 323

Case Title: SH PRADEEP KUMAR SHARMA v. SMT DEEPIKA SHARMA 2022 LiveLaw (Del) 324

Case Title: AARIN THROUGH HER NEXT FRIEND AND NATURAL FATHER SH PAWAN KUMAR v. KENDRIYA VIDYALAYA SANGATHAN & ORS 2022 LiveLaw (Del) 325

Title: DR. REDDYS LABORATORIES LIMITED & ANR. v. THE CONTROLLER OF PATENTS & ORS. 2022 LiveLaw (Del) 326

Title: DR RAMESH CHANDER MUNJAL & ORS. v. DR SURAJ MUNJAL & ORS. 2022 LiveLaw (Del) 327

Case Title: Fada Trading Private Limited Versus Commissioner Goods and Service Tax 2022 LiveLaw (Del) 328

Case Title: Cement Corporation of India versus Engineering Industries Limited 2022 LiveLaw (Del) 329

Case Title: SAIF II MAURITIUS COMPANY LIMITED v. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE INT TAX 3(1)(2) DELHI & ANR. and other connected matters 2022 LiveLaw (Del) 330

Case Title: National Highways Authority of India v. Continental Engineering Corporation (CEC) 2022 LiveLaw (Del) 331

Case Title: Pulkit Versus State 2022 LiveLaw (Del) 332

JUDGMENTS THIS WEEK

1. High Court Seeks Status Report From Delhi Govt Over Implementation Of 'Single Window System' For Clearing Fee Memos Of Govt Counsel

Case Title: ANJANA GOSAIN v. GOVERNMENT OF NCT AND ANR.

Citation: 2022 LiveLaw (Del) 298

The Delhi High Court has sought status report from the Delhi Government over further progress in the implementation of 'Single Window System' (SWS) for clearing fee memos of its Government counsel.

Justice Pratibha M Singh was dealing with a matter concerning outstanding bills of Advocate Anjana Gosain and the non-payment of the outstanding fee by the Delhi Government.

While Gosain submitted that all her outstanding fee memos have been cleared by the GNCTD, a status report was filed by the Delhi Government regarding Single Window System for the payment of fee to Government counsels appearing for the GNCTD.

2. Concurrent Registration Of Same Or Similar Trademark By Two Or More Persons Not Per Se Barred: Delhi High Court

Case Title: HTC CORPORATION v. MR. LV DEGAO & ORS.

Citation: 2022 LiveLaw (Del) 299

The Delhi High Court has observed that if two Trade Marks are validly registered, both the registered proprietors can use the Trade Marks to the exclusivity of third parties, but cannot assert their rights against each other.

Justice Asha Menon was of the view that concurrent registration of the same or similar Trade Mark by two or more persons is not per se barred under the Trademark Act, 1999.

"When a challenge is raised to the registration, ordinarily till the Register is rectified and such registration is cancelled, both the proprietors would be entitled to claim a right to its use," the Court said.

3. Delhi High Court Dismisses Pleas Challenging Minimum 6 Yrs Age Criteria For Admission In Class 1 At Kendriya Vidyalayas

Case Title: Aarin through her next friend and natural father Sh. Pawan Kumar v. Kendriya Vidyalaya Sangathan& Ors

Citation: 2022 LiveLaw (Del) 300

The Delhi High Court has dismissed a bunch of pleas challenging the minimum age criteria of 6 years for admission in class 1 in Kendriya Vidyalayas for the academic year 2022-23.

While dismissing the petitions, a single judge bench comprising of Justice Rekha Palli observed thus:

"No doubt, the policy which was formulated in 2020 is yet to be implemented across schools in Delhi, despite the same having been already implemented in 21 states but once the statute i.e., the RTE Act, 2009 in itself places the KVS in a separate category coupled with the fact that all branches of KVS across the country, being run by the same management are obliged to follow the uniform criteria, the anxiousness of the KVS to introduce the age criteria of 6 years in accordance with the NEP, 2020 is well understandable."

4. Pepsi's Tagline "Stimulates Mind, Energizes Body" Is Prima Facie Not Similar To Redbull's "Vitalizes Body And Mind": Delhi High Court

Case Title: Red Bull AG v PepsiCo India Holdings Pvt Ltd & Anr

Citation: 2022 LiveLaw (Del) 301

The Delhi High Court has dismissed Red Bull AG's (Red Bull/plaintiff) application for interim injunction against PepsiCo India, holding that prima facie, the latter's tagline "STIMULATES MIND. ENERGIZES BODY" on their energy drink "Sting" does not infringe the former's Trademark in tagline "VITALIZES BODY AND MIND". It held that both the taglines are descriptive and laudatory in nature.

A single judge bench of Justice Amit Bansal did not accept Red Bull's contention that Pepsi has been using the impugned mark in a manner that is likely to be taken as being used as a trademark. The court ruled that the Pepsi has not committed infringement under Section 29 (infringement of registered trademarks) of the Trade Marks Act 1999.

5. Scholarship By Hamdard Foundation, Exemption Under Income Tax Act Can't Be Denied: Delhi High Court

Case Title: Commissioner of Income Tax (Exemptions) Delhi versus Hamdard National Foundation (India)

Citation: 2022 LiveLaw (Del) 302

The Delhi High Court has upheld the factual findings made by the CIT (A) and ITAT that the merit-cum scholarship/financial assistance provided by Hamdard National Foundation was not confined to students of a particular religious community, and therefore exemption under Section 11 of Income Tax Act, 1961 cannot be denied to it.

The Bench, consisting of Justices Manmohan and Dinesh Kumar Sharma, while noting that similar factual findings were made by the appellate authorities with respect to previous assessment years, held that though the principle of res-judicata and estoppel are not applicable to taxation matters, a consistency of approach must be maintained.

6. Delhi High Court Disposes PIL Against Hinduja Group As IndusInd Bank Promoters, Directs RBI To Consider Representation

Case Title: Mahek Maheshwari v. Union of India & Ors.

Citation: 2022 LiveLaw (Del) 303

The Delhi High Court has directed the Reserve Bank of India (RBI) to treat as representation a PIL seeking to reconsider the decision to increase the stakes held by Hinduja Group as the promoters of IndusInd Bank.

A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla directed the RBI to examine the petition, highlighting the criminal antecedents of the promoters and seeking probe into its "fit and proper" status.

The petition was filed by Advocate Mahek Maheshwari, appearing in person, as an upshot of recommendations made by RBI's Internal Working Group for raising shareholding of promoters in private banks from 15 percent to 26 percent.

7. Order VII Rule 11 CPC | Existence Of Cause Of Action Cannot Be Equated With Merits Of Suit Filed: Delhi High Court

Case Title: MANSI GUPTA v. PREM AMAR & ANR

Citation: 2022 LiveLaw (Del) 304

The Delhi High Court has observed that existence of the cause of action cannot be equated with the merits of the suit filed.

Justice Asha Menon was dealing with an application moved under Order VII Rule 11 read with sec. 151 of CPC on behalf of the defendants in a suit seeking rejection of the plaint.

The suit was filed for recovery of a sum of Rs.5 crores, by the plaintiff, daughter-in-law of the defendants. Her case was that the defendants had, by their words and actions, including a press-conference addressed by them, openly accused her of being guilty of and conniving and conspiring to have her husband murdered.

8. "This Is Not What Article 227 Is Meant For": Delhi High Court Imposes 11K Cost On Party Seeking Expeditious Disposal Of Civil Suit By Trial Court

Title: RAJENDER KUMAR SETHI & ANR. v. M/S V.G. MARKETING PVT LTD & ORS.

Citation: 2022 LiveLaw (Del) 305

The Delhi High Court has imposed a cost of Rs. 11,000 on a party seeking directions to the Trial Court to expeditiously decide a civil suit, remarking that the petition was an abuse of process of court.

Justice C Hari Shankar said that the petition is a means to try and use the High Court as an avenue to pressurise the trial court in dealing with the matter.

"This is not what Article 227 of the Constitution of India is meant for," the Court observed.

Accordingly, the Court dismissed the plea with costs of Rs. 11,000 to be paid by way of a crossed cheque favouring the Delhi High Court Legal Services Committee (DHCLSC).

9. Medical Assessment & Rating Board Entrusted To Regulate Medical Education In India, Must Show Prima Facie Justification For Its Orders: Delhi HC

Case Title: Dr. M. K. Shah Medical College and Research Centre v. Union of India & Anr.

Citation: 2022 LiveLaw (Del) 306

The Delhi High Court has observed that the Medical Assessment & Rating Board (MARB) is an authority entrusted with an important task of regulating medical education in India. Thus, it is expected to at least prima facie show some justification for its decisions.

It added that MARB cannot be given unbridled power to routinely overrule the assessors' inspection reports pertaining to medical institutes, merely on suspicions.

It stated that such arbitrariness on part of MARB cannot be countenanced as it is antithetical to Article 14 of the Constitution of India.

10. Claims Raised Before The Arbitral Tribunal Cannot Be Rejected Even If Not Mentioned In The Notice Issued Under Section 21 Of The A&C Act: Delhi High Court

Case Title: Ministry of Youth Affairs & Sports versus Agility Logistic Pvt Ltd

Citation: 2022 LiveLaw (Del) 307

The Delhi High Court has ruled that it is not necessary that a notice issued under Section 21 of the Arbitration and Conciliation Act, 1996 (A&C Act) should quantify the amounts that are claimed by the claimant before the Arbitral Tribunal.

The Single Bench of Justice Vibhu Bakhru held that a notice under Section 21 is required to set out the disputes between the parties, and upheld the view of the Arbitral Tribunal that the claims raised by the claimant before the Arbitral Tribunal cannot be rejected only on the ground that they were not mentioned in the notice issued under Section 21.

11. Mere Apprehension That Accused May Flee Can't Be Sole Factor For Denying Benefit Of S.445 CrPC: Delhi High Court

Case Title: NASTOR FARIRAI ZISO v. NCB

Citation: 2022 LiveLaw (Del) 308

The Delhi High Court has held that a mere apprehension expressed by the prosecution that the accused may flee the course of justice, cannot be the sole determinative factor for denying benefit of Section 445 Code of Criminal Procedure.

Sec. 445 of CrPC states that "where any person is required by any Court or officer to execute a bond with or without sureties, the Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond."

Justice Anoop Kumar Mediratta thus granted relief to a woman and a foreign national, observing that she cannot be forced to undergo incarceration till the conclusion of trial merely because she was unable to furnish a local surety bond.

12. Partial Quashing Of FIR Only Qua Accused With Whom Complainant Has Settled Matter Permissible: Delhi High Court

Case Title: SUNIL TOMAR v. THE STATE OF NCT OF DELHI & ANR

Citation: 2022 LiveLaw (Del) 309

The Delhi High Court has observed that partial quashing or part quashing of FIR only qua the accused with whom the complainant has compromised or settled the matter can be allowed.

Justice Rajnish Bhatnagar quashed an FIR registered under sec. 406, 420 and 34 of Indian Penal Code and the proceedings emanating therefrom qua a man who had approached the Court seeking quashing of the same.

The matter was registered on the basis of a complaint filed against the petitioner and two other persons alleging that accused No. 2 was an old friend and well aware about financial position of the complainant.

It was alleged that in August, 2013 accused No. 2 had hatched a criminal conspiracy with accused No. 1 and 3 to cheat the complainant and accused No. 1 showed him a villa which was allotted in name of accused No. 2 for a total consideration of Rs. 2.33 Crores.

13. Revenue Fails To Discharge Onus Of Grant Of Personal Hearing, Delhi High Court Quashes Order Rejecting Refund Application Under GST Act

Case Title: Richie Rich Exim Solutions versus Commissioner of CGST Delhi South

Citation: 2022 LiveLaw (Del) 310

The Delhi High Court has quashed the order rejecting an applicant's refund application under GST Act on the ground that the revenue authority had breached the principles of natural justice by not affording a reasonable opportunity to the applicant before rejecting its refund application

The Bench, consisting of Justices Rajiv Shakdher and Poonam A. Bamba, ruled that the authority had failed to discharge its onus that a date for grant of personal hearing had been fixed before rejecting the applicant's refund application.

14. Time Spent In Mediation Would Be Excluded For The Purpose Of Calculating The Period Of Limitation For Invoking Arbitration: Delhi HC

Case Title: Alstom Systems India Pvt. Ltd. v. Zillion Infraprojeccts Pvt. Ltd.

Citation: 2022 LiveLaw (Del) 311

The High Court of Delhi has observed that when the agreement between the parties provides for mandatory mediation, the time spent in the mediation process shall be excluded from the period of limitation.

The Single Bench of Justice C. Hari Shankar held that the notice invoking arbitration as well as the substantive claims of a party would not become time-barred if the parties were undergoing the mediation process contemplated in the arbitration clause and the time consumed in an unfruitful mediation process shall be excluded for the purpose of calculating the limitation period.

The Court further observed that the breaking point at which any reasonable party would have abandoned efforts in arriving at the settlement and contemplated referral of the dispute to arbitration would be the date when the mediation fails and the period of limitation would begin from that day only.

15. The Dispute Between The Parties Which Arises Subsequently Can Be Proceeded In A Separate Arbitration: High Court of Delhi

Case Title: Orissa Concrete and Allied Industries Ltd. v. Union of India

Citation: 2022 LiveLaw (Del) 312

The High Court of Delhi has observed that a subsequent dispute arising from the same transaction can be referred to a separate arbitration and the arbitration agreement cannot be said to be a one-time measure that cannot be invoked after an award is made in the earlier reference.

The Single Bench of Justice Mukta Gupta observed that the word "all disputes" in an arbitration agreement means all the existing disputes at the time of invocation of arbitration and the disputes that arise subsequently can be decided in a separate arbitration. There is no legal impediment that proscribes the invocation of the arbitration agreement if there is a pending arbitration or an award is made in an earlier arbitration.

16. [Nimisha Priya Case] 'Can't Get Into Nitty-Gritties': Delhi HC Dismisses Appeal Seeking Centre's Assistance In Negotiating With Victim's Family

Case Title: SAVE NIMISHA PRIYA INTERNATIONAL ACTION COUNCIL THROUGH ITS CHAIRMAN v. UNION OF INDIA & ANR.

Citation: 2022 LiveLaw (Del) 313

The Delhi High Court has dismissed an appeal seeking directions upon the Indian Government to facilitate the family of Nimisha Priya, an Indian citizen who killed a Yemen national and has been sentenced to death there, to negotiate with the family of the deceased victim.

The Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla remarked,

" Learned Single Judge has granted all the reliefs that could have been granted. Court has said Union of India shall take all steps to pursue remedy of further appeal...provide consular support for all assistance in travelling…what more do you need?"

The Bench added that it cannot command the Central Government to be party to any intervention. "You go and negotiate. Thereafter if you need any help, then…it's very premature to say. We can't get into these nitty-gritties."

17. Continuing Cause Of Action In Trademark Suits No Defence To Multiple Proceedings, Principles Of Res Judicata, Forum Shopping Applicable: Delhi HC

Case Title: SUN PHARMA LABORATORIES LTD v. HETERO HEALTHCARE LTD & ANR.

Citation: 2022 LiveLaw (Del) 314

The Delhi High Court has observed that a trademark owner cannot drag a Defendant to multiple fora, being a higher court or before a court of coordinate jurisdiction, when the matter is pending before the first Court, especially when the matter is part heard before the first Court, merely to find a forum where it is able to get relief.

Justice Pratibha M Singh added that principles such as res judicata, res subjudice, bar under Order II Rule 2 of CPC, forum shopping, which apply in general to civil and criminal proceedings would also be applicable to trademark suits as well.

The Court was dealing with a suit seeking permanent injunction restraining the Defendant from infringement of trademark, passing off, unfair competition, rendition of accounts of profits/damages, delivery up and other reliefs. It was the Plaintiff's case that the defendant was infringing upon its registered trademark 'LETROZ' by using the mark 'LETERO' in respect of its medicinal and pharmaceutical preparations.

18. "Situation Has Undertaken A Sea Change": Delhi High Court Closes Suo Moto Case Concerning Horrific Handling Of Dead Bodies Amid COVID-19

Case Title: COURT ON ITS OWN MOTION v. GNCT OF DELHI AND ORS

Citation: 2022 LiveLaw (Del) 315

Observing that the situation has undertaken a "sea change" since the country witnesses the second wave of Covid-19 pandemic, the Delhi High Court has closed the suo moto case registered by it concerning the way bodies were being handled by the mortuary as well as crematoriums back then.

A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla said:

"The situation has undertaken a sea change with the passage of time and the present petition has, therefore, lost its relevancy in today's context. We, accordingly, close these proceedings at this stage."

19. "Continued Detention Not Required For Investigation": Delhi High Court Grants Bail To 8 Accused Of Vandalizing CM Arvind Kejriwal's Residence

Case Title: SUNNY v. STATE OF N.C.T. OF DELHI and other connected matters

Citation: 2022 LiveLaw (Del) 316

The Delhi High Court has granted bail to 8 men accused of vandalising Chief Minister Arvind Kejriwal's official residence recently, observing that their continued detention in judicial custody was not required for proper investigation of the offences.

Justice Asha Menon further noted that there was no possibility of the applicants tampering with the evidence or inducing or threatening any witness and that nothing was brought on the record by the State to suggests that they would not appear before the court when required.

"As to proper investigations, the witnesses are the policemen who were on duty and the staff of the CM Residence and the CCTV footage, which has been preserved. There is no dispute that others have been issued notices under Section 41A Cr.P.C., pursuant to which, they are joining investigations," the Court said.

20. Undesirable For Courts To Make Remarks Censuring Action Of Police Officers Unless Strictly Relevant For The Case: Delhi High Court

Case Title: SURENDER KUMAR v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 317

The Delhi High Court has observed that it is undesirable for Courts to make remarks censuring the action of police officers unless such remarks are strictly relevant for the case.

Justice Jasmeet Singh expunged the remarks made against the Investigating Officer by a Trial Court in a criminal revision case. The plea was filed by the IO seeking setting aside the direction of the Trial Court for initiating inquiry against him.

The Investigating Officer had conducted investigation in a murder case and the Additional Sessions Judge of city's Karkardooma Court in his order dated 25.10.2021 had set aside the order passed by the Metropolitan Magistrate.

21. Employees Of Unaided Private School Entitled To Benefits Given To Employees Of Government Run Schools: Delhi High Court

Title: MRS OMITA MAGO & ORS. v. AHLCON PUBLIC SCHOOL & ANR.

Citation: 2022 LiveLaw (Del) 318

The Delhi High Court has observed that the employees of an unaided private school are entitled to the benefits as being given to the employees of the government run schools.

Justice V Kameswar Rao thus granted relief to the petitioners who were working as Teachers including pre-primary, Librarian, TGT and PGT in city's Ahlcon Public School.

The Court allowed the plea which had sought directions on the school to pay to petitioners the amounts wrongfully deducted from their salaries from the month of June 2020 and onwards till date. The plea also sought directions on the school to fix their pay terms of the 7th central pay commission along with allowances and other benefits including arrears of salaries.

22. "Banks Are Also Commercial Ventures": Delhi High Court Refuses To Increase Insurance Coverage For Depositors

Case Title: PARDEEP KUMAR v. UNION OF INDIA & ORS

Citation: 2022 LiveLaw (Del) 319

The Delhi High Court has refused to issue directions to the Deposit Insurance and Credit Guarantee Corporation (DICGC) to increase the insurance coverage for depositors in insured banks. The current maximum limit of insurance against deposits in insured banks is Rs. 5 lakh.

A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla observed that the Banks are also "in business" and it would be "impractical" for the Court to pass such a direction.

23. Delhi High Court Calls For Sensitization Of Newly Recruited Judges Regarding Proclamation/ Attachment Proceedings Under S.82/ 83 CrPC

Case Title: SH VIVEK CHAUHAN v. GOVT OF NCT OF DELHI THROUGH ITS STANDING COUNSEL CRIMINAL

Citation: 2022 LiveLaw (Del) 320

The Delhi High Court has said that it shall be appropriate that newly recruited officers of the Delhi Judicial Service may be sensitized by holding of appropriate sessions at Delhi Judicial Academy with reference to proceedings under sec. 82/83 of Code of Criminal Procedure.

Section 82 contemplates procedure for issuing proclamation against a person absconding. Section 83 talks about attachment of property of person absconding.

Justice Anoop Kumar Mendiratta was dealing with a plea challenging an order passed by Metropolitan Magistrate of Dwarka Courts, which had dismissed the exemption application filed on behalf of the petitioner and directing issue of process under sec. 82 Cr.P.C. against him.

24. Investigation Into Reason For Judge's Recusal By Litigant Would Be Interference With Course Of Justice: Delhi High Court

Case Title: SHERRY GEORGE v. GOVT. OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 321

The Delhi High Court has observed that an investigation into the cause or reason for recusal by a judge, particularly, by a litigant, would itself be an interference with the course of justice.

Justice Asha Menon added that the discretion of the concerned judge in the matter of disclosure is absolute.

"When a judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt-out in detail or not. Had a judge refrained from giving a reason for recusal, no one can insist on the judge making such disclosures," the Court said.

25. Custodial Interrogation An Effective Method Of Crime Solving But Personal Liberty Has To Be Balanced: Delhi HC Grants Pre-Arrest Bail In Cheating Case

Case Title: MUKESH KHURANA v. STATE OF NCT DELHI

Citation: 2022 LiveLaw (Del) 322

The Delhi High Court has observed that while custodial interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.

Justice Asha Menon was dealing with a plea seeking anticipatory bail in connection with an FIR registered under sec. 420, 406 and 34 of IPC.

The FIR was lodged by an authorized representative of M/s Vaishali Infratech (Pvt.) Ltd., on the allegations of cheating and misappropriation. The applicant was a builder and had a project, namely, Rudra Palace Heights, in which, the complainant Company booked 11 flats. Large sums of money had also been paid for the flats amounting to Rs.1,33,87,500 towards 75% of the consideration.

26. Sufficiency Of Stamp Duty On Agreement And Nature Of Contract Cannot Be Adjudicated By Court Under Section 11 Of A&C Act: Delhi High Court

Case Title: Parsvnath Developers Ltd versus Future Retail Limited

Citation: 2022 LiveLaw (Del) 323

The Delhi High Court has ruled that the Court cannot adjudicate on the issue whether the claims made by the petitioner are barred by limitation while dealing with a petition filed under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) for referring the parties to arbitration.

The Single Bench of Justice Vibhu Bakhru held that the dispute as to whether the contract containing the arbitration clause is sufficiently stamped or not, and the nature of the contract, are contentious issues which cannot be decided by the Court in a petition filed under Section 11.

27. Wife's Right To Maintenance Forfeited U/S 125(4) CrPC Only When Acts Of Adultery Are Committed Repeatedly: Delhi High Court

Case Title: SH PRADEEP KUMAR SHARMA v. SMT DEEPIKA SHARMA

Citation: 2022 LiveLaw (Del) 324

The Delhi High Court has reiterated that only continuous and repeated acts of adultery or cohabitation in adultery would attract the rigours of the provision under Section 125 (4) of the Code of Criminal Procedure.

Sec. 125(4) of the CrPC states that no Wife shall be entitled to receive an allowance from her husband if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

Justice Chandra Dhari Singh also observed that law on maintenance is a welfare law that exists to ensure that the wife, children and parents of an able and capable man are not left to become destitute in cases when they themselves are not capable of maintaining themselves.

28. "Nothing Sudden About Implementation Of Policy": Delhi High Court Dismisses Appeal Against Minimum 6 Yrs Age Criteria For Class 1 Admission In KVS

Case Title: AARIN THROUGH HER NEXT FRIEND AND NATURAL FATHER SH PAWAN KUMAR v. KENDRIYA VIDYALAYA SANGATHAN & ORS

Citation: 2022 LiveLaw (Del) 325

Noting that there was nothing sudden about the implementation of the policy, the Delhi High Court has refused to interfere with minimum age criteria of 6 years for admission in class 1 in Kendriya Vidyalayas for the academic year 2022-23.

A bench comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla dismissed an appeal against a single judge order which had dismissed a bunch of pleas challenging the minimum age criteria.

The appeal was moved by a minor girl, born on June 3, 2016, who was 5 years 9 months and 28 days old as on March 31, 2022. It was thus the case of the appellant that the KVS had all of a sudden made change in the minimum age criteria for admission in class I from 5 years to 6 years by uploading the impugned guidelines, just 4 days before admission process started.

Due to the increase of age from five to six years, the appellant who was not six years as on 31.03.2022, could not secure admission in a KVS School.

29. Filing Of Revocation Petition Can Be Done At Any Time When Such Person's Interest Either Arises Or Continues During Term Of Patent: Delhi High Court

Title: DR. REDDYS LABORATORIES LIMITED & ANR. v. THE CONTROLLER OF PATENTS & ORS.

Citation: 2022 LiveLaw (Del) 326

The Delhi High Court has observed that filing of a revocation petition could be done at any point in time when such a person's interest either arises or continues during the life or term of the Patent.

Justice Pratibha M Singh was dealing with a plea raising a question as to whether revocation petitions are subject to any limitation period under the Limitation Act?

The Court held that since there is no limitation which is prescribed either in the Patents Act or under the Patents Rules, a limitation period cannot be read it into the provision.

30. Suit Cannot Be Rejected Partially Under Order VII Rule 11 Of CPC: Delhi High Court

Title: DR RAMESH CHANDER MUNJAL & ORS. v. DR SURAJ MUNJAL & ORS.

Citation: 2022 LiveLaw (Del) 327

The Delhi High Court has observed that there cannot be a partial rejection of a suit under Order VII Rule 11 of Code of Civil Procedure.

Justice Amit Bansal was dealing with two applications filed under Order VII Rule 10 and Order VII Rule 11 of the CPC in a trademark infringement suit.

The suit was filed seeking mandatory and permanent injunction against the defendants restraining them from passing off and violating the registered trademark and trade names of the defendant no. 4 Company, which owned and ran a famous eye hospital by the brand and trade name of 'Spectra Eye'.

31. Show Cause Notice Completely Deficient In Material Particulars: Delhi High Court Quashes GST Registration Cancellation Order

Case Title: Fada Trading Private Limited Versus Commissioner Goods and Service Tax

Citation: 2022 LiveLaw (Del) 328

The Delhi High Court bench of Justice Rajiv Shakdher and Justice Poonam Bamba has quashed the order cancelling the GST registration as the Show Cause Notice was completely deficient in material particulars.

The petitioner/assessee has challenged the order passed by the Appellate Authority (Delhi GST) on the grounds that the show cause notice gave no details as to the date and time on which the petitioner's authorised representative was to present himself for a personal hearing before the adjudicating authority.

The petitioner submitted that neither the show cause notice nor the subsequent order cancelling the petitioner's GST registration was received by the petitioner.

32. Petition Under Section 9 Of The A&C Act Is Not Maintainable Against The Order By Arbitral Tribunal On Arbitration Fees: Delhi High Court

Case Title: Cement Corporation of India versus Promac Engineering Industries Limited

Citation: 2022 LiveLaw (Del) 329

The Delhi High Court has ruled that a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (A&C Act) for interim measures of protection, is not maintainable before the Court against the procedural orders passed by the Arbitral Tribunal.

The Bench, consisting of Justices Mukta Gupta and Neena Bansal Krishna, held that the procedural orders passed by the Arbitral Tribunal fixing the arbitration fees does not fall within the ambit of Section 9 of the A&C Act, and rejected the contention that the petition was maintainable under the residuary clause of Section 9(1)(ii)(e) of the A&C Act.

33. 'Reason To Believe' Sufficient To Issue Notice U/S 148 Income Tax Act, Sufficiency/ Correctness Of Material Not Considered At This Stage: Delhi HC

Case Title: SAIF II MAURITIUS COMPANY LIMITED v. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE INT TAX 3(1)(2) DELHI & ANR. and other connected matters

Citation: 2022 LiveLaw (Del) 330

The Delhi High Court has observed that the sufficiency or correctness of the material is not a thing to be considered at the stage of issue of notice for reassessment under Section 148 of the Income Tax Act.

A division bench comprising of Justice Manmohan and Justice Dinesh Kumar Sharma was dealing with a bunch of pleas challenging the notices dated 30th March, 2021 issued under sec. 148 and the orders disposing of the objections dated 11th February, 2022 for the Assessment Years 2016-17 and 2017-18.

The notices dated 30th March, 2021 were issued to the petitioner under sec. 148 on the ground that the assessee's transactions for the Financial Years 2015-16 & 2016-17 were flagged in the Non-Filers Monitoring System (NMS). As per Form 15CA, the assessee had made a remittance to its head office without deducting TDS thereof and claimed the same to be tax free as per DTAA between India and USA.

34. Failure To Issue Notice For Additional Payment Does Not Preclude The Contractor From Later Claiming It In Arbitration: Delhi High Court

Case Title: National Highways Authority of India v. Continental Engineering Corporation (CEC)

Citation: 2022 LiveLaw (Del) 331

The High Court of Delhi has observed that the failure of the contractor to issue notice under the contract does not deprive him of his right to claim additional payment before the arbitral tribunal.

The Single Bench of Justice Bakhru also observed that such a stipulation in the contract is not a mandatory provision but only directory in nature and must be examined with reference to the other clauses and the contemporary records.

The Court further held that ground of patent illegality as provided under S. 34(2-A) would not be available when the Respondent is a company incorporated outside India as the arbitration would be an International Commercial Arbitration.

35, Delhi High Court Grants Bail To Person Accused Of Fraudulently Claiming ITC

Case Title: Pulkit Versus State

Citation: 2022 LiveLaw (Del) 332

The Delhi High Court bench of Justice Prateek Jalan has granted bail to the person accused of fraudulently claiming an input tax credit (ITC) under the CGST Act who has already undergone 9 months in custody.

The applicant, Pulkit, has sought bail in respect of the offence of setting up a number of fictitious companies, which were being used for the purposes of defrauding the government. The accused have allegedly opened bank accounts in fictitious names and provided their telephone numbers and email addresses.

The FIR alleged cheating and fraud by Saraswati Enterprises, of which Sanjay Garg is the proprietor, causing a loss to the government for the sum of Rs. 9.97 crores. The applicant was an employee of Saraswati Enterprises.

Gauhati High Court

1.  S.313 CrPC | Trial Court Should Avoid Posing Long & Arduous Queries To Accused: Gauhati High Court

Case Title: Gobind Singhal v. State of Assam and other connected matters

Case Citation: 2023 LiveLaw (Gau) 25

The Gauhati High Court observed that under Section 313 CrPC, the trial court should avoid posing long and arduous queries to the accused and instead bring to his notice, in a concise form, only the incriminating evidence available on record against him. A Division Bench of Justices Suman Shyam and Malasari Nandi remarked that section 313 CrPC is to afford a fair opportunity to the accused to explain each incriminating evidence available against him.

Gujarat High Court

NOMINAL INDEX

Indian Hume Pipe Company Ltd Versus Gujarat Industrial Development Corporation & 1 other(s) 2022 LiveLaw (Guj) 116

Ishwarlal Kasturlal Pandya vs Ibrahimbhai Farukdin Vohra 2022 LiveLaw (Guj) 117

Sultana Jahangirbhai Mirza vs State Of Gujarat 2022 LiveLaw (Guj) 118

M/S M N Trapasia versus Divisional Railway Manager (WA) 2022 LiveLaw (Guj) 119

Botad Taluka Sahkari Kharid ... vs Bhagirathbhai Kanubhai Khachar 2022 LiveLaw (Guj) 120

Aryan Siris Garange (Arayan Shirish Garange) Versus State Of Gujarat 2022 LiveLaw (Guj) 121

Alok Kistuchand Agarwal vs Sub Registrar 2022 LiveLaw (Guj) 122

Arya Metacast Pvt. Ltd. Versus State of Gujarat 2022 LiveLaw (Guj) 123

M/s Wipro Ltd. Versus State of Gujarat 2022 LiveLaw (Guj) 124

Modern Syntex (I) Limited vs Assistant Commissioner Of CGST 2022 LiveLaw (Guj) 125

I-Tech Plast India Pvt. Ltd vs State Of Gujarat 2022 LiveLaw (Guj) 126

Richa W/O Kushal Mistry And D/O Hemantkumar Adhvaryu Versus State Of Gujarat 2022 LiveLaw (Guj) 127

Hiren Dahyabhai Rathod vs State Of Gujarat 2022 LiveLaw (Guj) 128

Aveshbhai @ Avalo Ganibhai Ghoniya Through Brother Azimbhai Ganibhai Ghoni V/S The District Magistrate And Collector & 2 Other(S) 2022 LiveLaw (Guj) 129

Judgments/Orders of the week

'Sufficient Cause' Paramount Consideration For Delay Condonation, Can't Be Imbibed With Laxity & Mala Fides: Gujarat High Court

Case Title: Indian Hume Pipe Company Ltd Versus Gujarat Industrial Development Corporation & 1 other(s)

Citation: 2022 LiveLaw (Guj) 116

The High Court reiterated that sufficient cause is the paramount consideration while dealing with application for delay condonation and if sufficient cause is shown, the Court should generally condone the delay.

The Bench comprising Justice AC Joshi however added,

"If the sufficient cause is imbibed with the laxity and mala fides on the part of the delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay."

Gujarat High Court Increases Motor Accident Compensation; Includes Loss of Amenities, Functional Disability In Computation

Case Title: Ishwarlal Kasturlal Pandya vs Ibrahimbhai Farukdin Vohra

Citation: 2022 LiveLaw (Guj) 117

The High Court enhanced the compensation granted by the Motor Vehicles Tribunal to the Applicant, working in an agricultural land, computing his "functional disability" to be 100%, after he sustained fracture injuries on both the legs, on head and right hand on being dashed by a Truck while riding his scooter.

The Bench comprising Justice Sandeep Bhatt observed that the Tribunal had awarded compensation towards future loss of income. However, considering Applicant's 100% functional disability in terms of the Supreme Court decision in v. Ram Avtar Tomar, the amount of compensation is required to be enhanced.

Gujarat High Court Orders Protection For Inter-Faith Couple, Reiterates SC Guidelines For Preventive & Remedial Action

Case Title: Sultana Jahangirbhai Mirza vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 118

The High Court yet again came to the rescue of an inter-faith couple, by directing the State Police to protect the couple from their families who are opposed to their relationship.

The Bench comprising Justice Sonia Gokani and Justice Mauna M. Bhatt ordered that initially, the protection be provided for four months. Whichever place they attempt to settle, the SP/ACP of the concerned Zone shall look into the matter. Thereafter, if the couple continues to be at Ahmedabad, Commissioner of Police, Ahmedabad City shall take a call after four months whether to continue such protection or not.

There Cannot Be A Deemed Waiver Of Section 12(5) Of The A&C Act By Issuing A Letter To The Opposite Party: Gujarat High Court

Case Title: M/S M N Trapasia versus Divisional Railway Manager (WA)

Citation: 2022 LiveLaw (Guj) 119

The High Court ruled that unless the embargo placed under Section 12(5) of the Arbitration and Conciliation Act, 1996 (A&C Act) is waived by the parties, the provisions of Section 12(5) would continue to be attracted.

The Single Bench of Chief Justice Aravind Kumar held that there cannot be a deemed waiver of Section 12(5) by merely issuing a letter or communication calling upon the opposite party to waive the embargo.

Oral Termination Of Workman Violates S.25F Of Industrial Disputes Act: Gujarat High Court Orders Lumpsum Compensation

Case Title: Botad Taluka Sahkari Kharid ... vs Bhagirathbhai Kanubhai Khachar

Citation: 2022 LiveLaw (Guj) 120

The High Court has recently granted relief to a workman who was terminated from his services via an oral communication, in violation of mandatory provisions pertaining to retrenchment under Sections 25F and 25G of the Industrial Disputes Act, 1947.

Justice Vipul Pancholi ordered that the aggrieved workman be paid Rs.2,50,000/- towards lump-sum compensation to Respondent No.1-Workman, in lieu of reinstatement with continuity of service and 20% back-wages.

"The First Step Of Turning Him Into A Hardcore Criminal Will Be Sending Him Behind Bars": Gujarat HC Grants Bail To Applicant Accused Under POCSO Act

Case Title: Aryan Siris Garange (Arayan Shirish Garange) Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 121

The Bench comprising Justice AS Supehia has recently granted bail to the Applicant accused of offences under Sections 363, 366, 376(2)(n), 376(3) of the IPC and Sections 4,6 and 12 of the POCSO Act. Justice AS Supehia observed:

"The first step of turning him into a hardcore criminal will be sending him behind bars. The moment he is allowed to go behind bars, the efforts to make him a good and law abiding citizen will get dented. The applicant is a young student studying in First Year college and it is expected from him to observe and follow the fundamental duties of a good citizen as enshrined in Article 51-A of the Constitution of India."

Dues Of Secured Creditor Have Preference Over Crown DebtsUnless Otherwise Provided By Statute: Gujarat High Court

Case Title: Alok Kistuchand Agarwal vs Sub Registrar

Citation: 2022 LiveLaw (Guj) 122

"Once any immovable property is mortgaged / hypothecated towards secured creditors then having regard to the provisions contained in Section 2(zc) to (zf) of the SARFAESI Act, 2002 read with the provisions contained in Section 13 of the SARFAESI Act, 2002, the secured creditor will have the first charge on the secured assets", the High Court has affirmed recently.

The Bench comprising Justice JB Pardiwala and Justice Nisha Thakore was hearing a writ petition filed by a secured creditor, aggrieved by a letter issued by the Sub-registrar, imposing charges and encumbrances over the secured assets.

Provisional Attachment Not To Hamper Normal Business Activities: Gujarat High court Quashes Attachment Order

Case Title: Arya Metacast Pvt. Ltd. Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 123

The High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has held that the provisional attachment should not hamper normal business activities of the taxable person.

The writ petitioner/assessee is in the business of manufacturing and selling ingots, having a factory situated near Rajkot, Gujarat State. The assessee is duly registered under the GST Act.

The assessee claimed to have regularly paid output tax for three financial years. The assessee entered into business transactions only with genuine dealers who were registered taxable persons under the GST Act. In support, the assessee has placed on record, regularly maintained records of the purchase transactions, which include invoices, e-way bills, weighment slips, photographs of material being unloaded, material received inspection report etc.

Gujarat High Court Condemns Coercive Steps Taken By Dept. For Recovery Of Dues From Wipro While Appeal Was Pending

Case Title: M/s Wipro Ltd. Versus State of Gujarat

Citation: 2022 LiveLaw (Guj) 124

The High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore has condemned the coercive steps of the department for recovery of dues from Wipro when the appeal was pending before the first appellate authority as well as the Tribunal.

The writ petitioner, Wipro Ltd. is in the business of information technology services, including the sale of hardware and software, the sale of consumer products, and the supply and installation of solar power generation plants. The writ petitioner was registered under the VAT Act and the Central Sales Tax Act, 1956 for the relevant period.

Gujarat High Court Directs Assistant Commissioner Of CGST To Finalise Assessment Proceedings Within 2 Months On Account Of Severe Delay

Case Title: Modern Syntex (I) Limited vs Assistant Commissioner Of CGST

Citation: 2022 LiveLaw (Guj) 125

The High Court has recently issued a writ directing the Assistant Commissioner of CGST and Central Excise to initiate and complete the final assessment proceedings concerning the Applicant company and further release the Bank Guarantees in favour of the Applicant within two months. The Applicant company had also showed monetary losses worth INR 96,87,616 due to the bank guarantee charges and claimed compensation for the same in its writ application.

If The Authorities Acknowledge The Error And Accepts Repayment Of Erroneous Refund, It Is Logical To Restore The ITC In The Electronic Tax Ledger : Gujarat High Court

Case Title: I-Tech Plast India Pvt. Ltd vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 126

The High Court has directed the revenue to re-credit/restore the Input Tax Credit (ITC) to the tune of INR 1,39,49,810 in the electronic tax ledger of the writ petitioner . The Bench comprising Justice JB Pardiwala and Justice Nisha Thakore was hearing a writ petition which sought from the Respondent-authorities to re-credit the ITC of INR 139,49,810 in the electronic credit ledger along with interest.

Couple Held Two Marriage Ceremonies, Saptapadi Performed In Latter: Gujarat High Court Orders Registrar To Consider Application For Change In Date

Case Title: Richa W/O Kushal Mistry And D/O Hemantkumar Adhvaryu Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 127

The High Court has allowed a writ seeking a direction upon the Registrar of Marriages to consider the petitioners' application for issuance of a fresh marriage certificate, mentioning the date on which a pompous wedding was held with 'saptapadi', rather than a former date on which the couple had exchanged varmala in presence of a small gathering.

Due to pandemic of COVID-19 and the restrictions imposed by the Government on public gathering, the writ applicants entered into marriage with a very small number of relatives attending the marriage. The marriage invitation was not prepared and the couple only performed the ceremonies of exchanging garlands, tying mangalsutra and applying sindhoor. However, the ceremony of "datta homa" and "Saptapadi" (i.e. taking seven steps around the sacred fire) were not performed.

'Stigmatic': Gujarat High Court Directs Reinstatement Of Employee Terminated Without Inquiry Following Allegations Of Corruption

Case Title: Hiren Dahyabhai Rathod vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 128

The High Court quashed and set aside the order of termination issued against the Petitioner, sans any inquiry, merely on the basis of a FIR registered against him under the Prevention of Corruption Act.

It directed that the Petitioner be reinstated however, it refused to grant back-wages considering the principle of no work, no pay, as also applied by a Division Bench in similar facts in State of Gujarat vs Chetan Jayantilal Rajgor.

When Legality Of A Preventive Detention Order Is In Question, Courts Must Determine If The Ordinary Law Can Deal With The Offence: Gujarat HC

Case Title: Aveshbhai @ Avalo Ganibhai Ghoniya Through Brother Azimbhai Ganibhai Ghoni V/S The District Magistrate And Collector & 2 Other(S)

Citation: 2022 LiveLaw (Guj) 129

"Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal", the High Court affirmed.

The Bench comprising Justice Nirzar S Desai was hearing a petition against the order of detention passed by the Respondent authority under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985. The Petitioner herein was detained and categorised as a 'dangerous persons' as defined under Section 2(c) of the Act.

Jharkhand High Court

1. MV Act | Mere Assertion By Witness That Vehicle Was Being Driven Rashly Not Conclusive, Must Emerge From Evidence: Jharkhand High Court

Case Title: M/s Oriental Insurance Company Ltd., Ranchi v. Smt. Kalwati Devi & Ors and other connected matters.

Case Citation: 2022 LiveLaw (Jha) 34

The Jharkhand High Court has recently held that a mere assertion by a witness that a particular vehicle was being driven rashly and negligently cannot be the last word based on which a Court will draw its conclusions of composite negligence in a motor vehicle accident case.

Justice Gautam Kumar Choudhary held that the courts must piece together the evidence and draw an inference on the manner of an accident. The Bench remarked,

"Different factors to be considered are the speed of vehicle, the type of vehicle, whether it was loaded or not, road conditions, the place of occurrence i.e. whether it was a high way or a crowded area, the side of road on which the accident took place etc. Inquiry under M. V. Act, being civil and summary in nature, the onus of proof is lighter and based on preponderance of probability than that in criminal cases."

Case Title: Ugni Bibi v. Gobind Ram Hathampuria

Case Citation: 2022 LiveLaw (Jha) 35

The Jharkhand High Court recently held that a Motor Accident Tribunal cannot deny compensation to the wife of the deceased, merely for non-joinder of his remaining heirs, i.e. sons and daughters.

Justice Gautam Kumar Choudhary observed,

"Compensation is assessed on the basis of dependency and not on heirship. Only those who are the dependents shall be entitled to compensation. The entire concept of computation of compensation arising out of the death is based on calculation of the amount on dependency."

Karnataka High Court

Nominal Index:

M/S. A. SEATING & Others v. M/S. NANDINI MODULARS 2022 LiveLaw (Kar) 113

J P I Dass School Of Nursing V State Of Karnataka 2022 Livelaw (Kar) 114

BABU S v. STATE BY KENGERI POLICE STATION 2022 LiveLaw (Kar) 115

D V VENKATESHAPPA v. THE COMMISSIONER, BRUHAT BENGALURU MAHANAGARA PALIKE 2022 LiveLaw (Kar) 116

Master Pavan S v. State Of Karnataka 2022 Livelaw (Kar) 117

Letzkit Foundation v. The State of Karnataka 2022 LiveLaw (Kar) 118

SOHO PUB AND GRILL And STATE OF KARNATAKA 2022 LiveLaw (Kar) 120

Zuhab Hameed Shakeel Manna @ Zohib Manna v. The National Investigation Agency 2022 LiveLaw (Kar) 121

Judgments/Orders/Reports

1. If Ground Of Delay In Filing S.138 NI Act Complaint Is Raised For First Time In Appeal, Case May Be Remanded Back For Consideration U/S 142(b): Karnataka HC

Case Title: M/S. A. SEATING & Others v. M/S. NANDINI MODULARS Case No: CRIMINAL REVISION PETITION NO.1242/2021

Citation: 2022 LiveLaw (Kar) 113

The Karnataka High Court has said that if a party, opposing the proceedings instituted under Section 138 of the Negotiable Instruments Act, fails to raise the ground of delay in filing the complaint before the court of first instance, the Court in Appeal is empowered to remand the matter back for fresh consideration on the issue of condonation of delay under Section 142(b) of the Act.

2. High Court Orders Karnataka Govt, State Nursing Council To Decide Pleas For Starting General Nursing & Midwifery Courses In 8 Weeks

Case Title: J P I Dass School Of Nursing V State Of Karnataka Case No: Writ Petition No.4980 Of 2022

Citation : 2022 Livelaw (Kar) 114

The Karnataka High Court has directed the state government and the Karnataka State Nursing Council to consider and take final decision on the proposal forwarded by 25 nursing schools seeking to start fresh courses in General Nursing and Midwifery (GNM) for the academic year 2021-22.

3. Customer Found In Brothel At Time Of Raid Can't Be Hauled Into Criminal Proceedings: Karnataka High Court Reiterates

Case Title: BABU S v. STATE BY KENGERI POLICE STATION Case No: CRIMINAL PETITION No.2119 OF 2022

Citation: 2022 LiveLaw (Kar) 115

The Karnataka High Court has reiterated that a customer found in a brothel at the time when it is raided cannot be prosecuted. A single judge bench of Justice M Nagarpasanna allowed the petition filed by one Babu S and quashed the proceedings pending against him under sections 3, 4, 5 and 6 of the Immoral Traffic Prevention Act, 1956 and section 370 (Trafficking of person) of the IPC.

4. State Forfeiting Private Property Without Giving Compensation Or TDR Certificates Violates Art. 300A Of Constitution: Karnataka High Court

Case Title: D V VENKATESHAPPA v. THE COMMISSIONER, BRUHAT BENGALURU MAHANAGARA PALIKE. Case No: W.P.NO.1402/2021

Citation: 2022 LiveLaw (Kar) 116

The Karnataka High Court has directed the State government and Bruhat Bengaluru Mahanagara Palike (BBMP) to grant Transferable Development Rights (TDR) Certificates to a group of petitioners who surrendered their land to the corporation few years ago and still haven't received the TDR in-lieu of compensation.

5. Karnataka High Court Grants Bail To Juvenile Incarcerated For 2.5 Yrs; Maximum Punishment If Found Guilty Would Be 3 Yrs

Case Title: Master Pavan S v. State Of Karnataka Case No: Criminal Revision Petition No.195/2021

Citation: 2022 Livelaw (Kar) 117

Observing that whereas the maximum punishment in respect of the alleged offence for which the accused, who was 17 years old at the time, is booked is of 3 years and he has already spent about 2½ years in custody, the Karnataka High Court passed an order granting bail.

The petitioner who was aged about 17 years, along with other accused persons, who are 21 in number, are said to have committed murder of two persons. Hence, the police have investigated the matter and filed the charge-sheet. The Petitioner herein was booked under Sections 143, 144, 147, 148, 341, 302, 120-B, 427 read with Section 149 of IPC and Section 3(2) of PDPP Act.

6. Notified Draft Rules For Inquiry & Counselling In Cases Of Surrender Of Children By Parents: State Tells Karnataka High Court

Case Title: Letzkit Foundation v. The State of Karnataka Case No: WP 10092/ 2021

Citation: 2022 LiveLaw (Kar) 118

The Karnataka government on Wednesday informed the High Court that it has published the draft rules which provide for the procedure for inquiry and counselling to be followed by Child Welfare Committees, in cases of surrender of a child by parents/ guardians to the Committee.

7. Smoking In Public Places Is Prohibited: Karnataka High Court Directs Restaurant To Earmark Hookah Smoking Area, Obtain License

Case Title: SOHO PUB AND GRILL And STATE OF KARNATAKA Case No: WRIT PETITION No.6971 OF 2022

Citation: 2022 LiveLaw (Kar) 120

The Karnataka High Court has directed a restaurant, Soho Pub & Grill, to earmark a separate area in its premises, after obtaining a licence, for allowing its patrons to smoke hookah. "Smoking of hookah should not cause inconvenience to other customers since smoking has been prohibited in public places, an exclusive area with separate enclosure is required to be reserved for hookah bar," Justice SG Pandit observed.

8.S.43D UAPA: Karnataka High Court Denies Default Bail To Man Allegedly Having Links With ISIS, Upholds Extension Of Judicial Custody To 180 Days

Case Title: Zuhab Hameed Shakeel Manna @ Zohib Manna v. The National Investigation Agency Case No: Writ Petition No.5913 OF 2022

Citation: 2022 LiveLaw (Kar) 121

The Karnataka High Court recently rejected a petition seeking default bail filed by an accused alleged to be having links with banned terrorist organizations. The applicant allegedly entered into criminal conspiracy to radicalize and motivate gullible Muslim youths to join Islamic State in Iraq and Syria ('ISIS'). A single judge bench of Justice M Nagaprasanna while rejecting the plea filed by Zuhab Hameed Shakeel Manna @ Zohib Manna said, "I do not find any error or reason rendered by the Investigating Officer as put forth by the SPP to be contrary to Section 43D(2) of the Act."

Other reports:

1.Gauri Lankesh Murder Trial To Commence From May 27, Sister Kavitha Lankesh To Be First Prosecution Witness

Case Title: Raja Rajeshwari Nagara PS Versus Amola Khale

Case No: SPL.C 872/2018

More than four years after journalist and activist Gauri Lankesh was shot dead in front of her residence in south Bengaluru, the City Civil and Sessions Court is set to begin trial in the case on May 27. Her sister, Kavitha Lankesh will be the first prosecution witness to be examined in the case.

2.Karnataka High Court Grants Permission For Bengaluru Karaga Festival, Procession

Case Title: Suo-Motu v. The State Of Karnataka

Case No: WP 5781/2021

The Karnataka High Court on Wednesday permitted the organisers to hold the night long processions on April 16, at the Karaga Mahotsava popularly known as Bengaluru Karaga festival. A division bench of Chief Justice Ritu Raj Awasthi and Justice S R Krishna Kumar modified its interim order dated March 3, by which it had directed that processions, protests etc., should not be conducted/held by any group, political or non-political organisations or any other organisations except at a park known as Freedom Park, Bengaluru.

Kerala High Court

Nominal Index [Citations 2022 LiveLaw (Ker) 171 - 180]

Santosh Kumar K. v. The Commissioner, 2022 LiveLaw (Ker) 171

X. v. State Of Kerala & Anr., 2022 LiveLaw (Ker) 172

Aneeshkutty v. State of Kerala, 2022 LiveLaw (Ker) 173

Dr. Abdul Haleem PP v. State of Kerala & Ors., 2022 LiveLaw (Ker) 174

Kerala State Road Transport Corporation v. Union of India & Ors., 2022 LiveLaw (Ker) 175

T. Anjana v. J.A Jayesh Jayaram, 2022 LiveLaw (Ker) 176

Minor v. Ministry of Education, 2022 LiveLaw (Ker) 177

Lloyed Insulations (India) Ltd versus Foremexx Space Frames, 2022 LiveLaw (Ker) 178

Suryansh Broadcasting Pvt Ltd & Anr v. Zee Entertainment Enterprises Ltd & Anr., 2022 LiveLaw (Ker) 179

Annamma & Ors v. P.V. Varkey & Ors., 2022 LiveLaw (Ker) 180

Judgments This Week

1. Cannot Waive The Statutory Mandate of Pre-Deposit Merely On The Plea Of Financial Hardships: Kerala High Court

Case Title: Santosh Kumar K. v. The Commissioner

Citation: 2022 LiveLaw (Ker) 171

The High Court bench of Justice Bechu Kurian Thomas has ruled that the high court cannot waive the statutory mandate of pre-deposit merely on the plea of financial hardships. The court observed that the amendment to section 35F of the Central Excise Act, read with Section 86 of the Finance Act, 1994, clearly manifests the intention of the legislature that the waiver of pre-deposit, which was being resorted to quite often by the courts of law, needed to be amended to make the pre-deposit mandatory. Thus, after the Amendment Act came into force, no discretion is available to the courts of law to waive the mandatory requirement of a pre-deposit of 7.5% even if it is assumed to be onerous.

2. Promise To Marry Made To Married Woman Not Legally Enforceable, Offence Of Rape Not Attracted: Kerala High Court

Case Title: X. v. State Of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 172

The Court has established that the promise alleged to have been made by the accused to a married woman that he would marry her before engaging in sexual relations with her is not enforceable in law and thus it cannot be a ground for the prosecution to argue that the woman had consented due to a misconception of fact. Holding so, Justice Kauser Edappagath quashed all proceedings against the accused observing that according to the sequence of events and the survivor's statement, it appeared to be a consensual act.

3. Forensic Science Labs Need Resuscitation: Kerala High Court Asks State To Upgrade System, FSL Reports To Be Submitted Within 3 Weeks

Case Title: Aneeshkutty v. State of Kerala

Citation: 2022 LiveLaw (Ker) 173

The Court while releasing a man on bail observed that the forensic science laboratories (FSL) in the State were collapsing and required an upgrade upon noticing that the FSL report in the case was not submitted to the Sessions Court despite the passage of two years. Justice Raja Vijayaraghavan V, therefore, suggested that the State government take immediate note of the same and make sure that the system is equipped to submit FSL reports within three weeks of the samples being furnished.

4. Right Of State To Provide Reservations Unaffected By UGC Regulations: Kerala High Court

Case Title: Dr. Abdul Haleem PP v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 174

The Court has established that the regulations notified by the University Grants Commission (UGC) that determine qualifications for selection to various posts in universities in a State do not impact the right of the State government to provide reservations for backward classes. A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P stated that it did not see how the UGC Regulations can affect the reservation policy of a State.

5. Kerala High Court Grants Interim Relief To KSRTC, Directs Oil Companies To Supply High Speed Diesel At Retail Prices

Case Title: Kerala State Road Transport Corporation v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 175

A vacation bench of the Court granted interim relief in the plea moved by the Kerala State Road Transport Corporation (KSRTC) challenging the decision of State-owned Oil Marketing Companies to increase the price of diesel sold to the Corporation, which is allegedly much higher than the market price. Justice N. Nagaresh directed the respondents to levy the price of High Speed Diesel (HSD) at par with the price available at retail pumps while clarifying that this relief was subject to the outcome of the petition.

6. Party May Not Press Relief But Can't Prevent Family Court From Finding The Truth: Kerala High Court

Case Title: T. Anjana v. J.A Jayesh Jayaram

Citation: 2022 LiveLaw (Ker) 176

The Court recently held that the master of the proceedings before the Family Court is the presiding officer of the Family Court and not the parties while reiterating that the Family Court is competent to undertake any enquiry to find the truth. A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that a party may be able to not press the relief sought, but they cannot refrain the Family Court from the finding of truth.

7. Court Can't Suggest Alternatives When An Educational Agency Has Already Taken A Policy Decision: Kerala High Court

Case Title: Minor v. Ministry of Education

Citation: 2022 LiveLaw (Ker) 177

The Court has established that where a policy decision has been given effect to through a scheme announced by an educational agency, it would not interfere or suggest alternate policies for adoption by the said educational agency. A Division Bench of Justice A.K.Jayasankaran Nambiar and Justice Mohammed Nias C.P. however permitted a student who attended an urban school to be accommodated in the rural quota of Jawahar Navodaya Vidyalaya since several seats in the quota was found to be vacant despite the admission process being complete, and the student as found meritorious for admission otherwise.

8. Dissenting Views Of Minority Members Does Not Constitute An Arbitral Award: Kerala High Court

Case Title: Lloyed Insulations (India) Ltd versus Foremexx Space Frames

Citation: 2022 LiveLaw (Ker) 178

The Court has ruled that the Arbitral Tribunal can pass only one arbitral award and not multiple awards. The Bench, consisting of Justices P.B. Suresh Kumar and C.S. Sudha, ruled that the dissenting views of the minority member(s) of an Arbitral Tribunal do not constitute an Arbitral Award, and the dissenting views cannot be made the basis of a proceeding under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act) for setting aside the arbitral award or proceedings under Section 36 for its enforcement.

9. Mere Similarities Do Not Attract S.14 Of Copyright Act: Kerala High Court Dismisses Appeal Moved By Broadcasters Of Sitcom 'Uppum Mulakum'

Case Title: Suryansh Broadcasting Pvt Ltd & Anr v. Zee Entertainment Enterprises Ltd & Anr.

Citation: 2022 LiveLaw (Ker) 179

The Court has dismissed an appeal moved by the broadcasting team of the popular Malayalam sitcom 'Uppum Mulakum' seeking an injunction on the telecasting of another programme which was allegedly an imitation of the appellant's programme. Justice P. Somarajan observed that although copyright is intended to protect one's work, that does not stop others from adopting the very same theme so long as the theme has an individual quality of its own with an element of innovation from the creator apart from the general theme and its natural sequences.

10. If A Claim Of Tenancy Appears To Be Prima Facie Baseless, Civil Court Can Refuse Reference To Land Tribunal: Kerala High Court

Case Title: Annamma & Ors v. P.V. Varkey & Ors.

Citation: 2022 LiveLaw (Ker) 180

The High Court while dealing with a tenancy case, established that simply because a contention was raised in the written statement, there is no necessity for the court to refer it to the Land Tribunal if it prima facie appears to be a baseless assertion. Justice A. Badharudeen held that a civil court is only bound to refer a tenancy matter to the Land Tribunal if it finds sufficient force in the contention raised by the parties.

Other Developments

11. 19 Year Old Allegedly Dies Post Covishield Vaccination: Kerala High Court Seeks Centre's Response On Parents' Plea

Case Title: Jean George & Anr v. Serum Institute Of India & Ors.

The parents of a 19-year-old student have moved the High Court seeking justice alleging that their daughter died due to the compulsory administration of the Covishield vaccine and they have sought Rs 1 crore as compensation for the death of their only daughter. Justice N Nagaresh has sought the view of the central government on the petition.

Madhya Pradesh High Court

1. 'Prosecutrix Was Aware Of His Religion': MP High Court Grants Bail To Man Accused Of Hiding Religious Identity & Committing Rape

Case Title: AHMED FAIZ v. THE STATE OF MADHYA PRADESH

Case Citation: 2022 LiveLaw (MP) 104

The Madhya Pradesh High Court, Indore Bench recently granted bail to the Applicant accused of hiding his religious identity, rape and further sending 'objectionable video clips' of the Prosecutrix to her fiance, which 'led to cancellation of her marriage'.

Justice Subodh Abhyankar was hearing a bail application under Section 439 CrPC moved by the Applicant accused of offences punishable under Section 376, 376(2)(n), 328 IPC and under Section 3, 5 of M.P. Freedom of Religion Act and under Section 66 (e) of I. T. Act.

Case Title: Alok Lodhi & Ors. Vs. State of MP & Anr.

Case Citation: 2022 LiveLaw (MP) 105

The Madhya Pradesh High Court, Gwalior Bench recently quashed the FIR filed by a wife against her in-laws under Section 498-A IPC, observing that the same was filed 'to wreak vengeance' and 'with a revengeful intent in order to pressurize and harass' her in-laws.

Justice R.K. Shrivastava was dealing with an application under Section 482 CrPC moved by the Applicants seeking directions of the Court to quash the FIR registered against them for offences punishable under Section 498A, 506, 34 IPC and the consequential criminal proceedings against them.

3. 'Requisition Of Record From Arbitral Tribunal Not Akin To Remanding Matter': Madhya Pradesh High Court

Case Title: Anil Kumar Tripathi Vs. Doorsanchar Nigam Ltd. (BSNL)

Citation: 2022 LiveLaw (MP) 106

The High Court of Madhya Pradesh, Gwalior Bench recently held that a court can direct requisition of record from arbitral tribunal and that the same would not be akin to remanding the matter to the tribunal but to ascertain the exact nature of dispute through record of case

Justice Anand Pathak was essentially dealing with a writ petition moved by the Petitioner who was aggrieved by the order of the commercial court, whereby it sought for original record of arbitrator before considering the application U/S 34 of the Arbitration and Conciliation Act, 1996.

4. PG Medical Admission | Unfilled Reserved Category Seats For In-Service Candidates To Be Filled Category-Wise In Totality And Not Vertically As Within Compartment Only: MP HC

Case Title: Dr. Mohita Pandey v. State of Madhya Pradesh and Ors., with connected matters

Citation: 2022 LiveLaw (MP) 107

The High Court of Madhya Pradesh recently held that the unfilled reserved category seats within the 30 percent reserved quota for in-service candidates, for admission in Post-Graduation in Medical Courses, shall be filled by reserved category students. The Court rejected the contention raised by the Petitioners that since the 30 percent quota of seats were reserved for in-service candidates, the unfilled reserved category seats ought to be offered first to in-service candidates belonging to unreserved/general category

5. Madhya Pradesh High Court Warns Lower Court Judge For Allegedly Denying Bail On Caste Lines

Case Title: INDRAJEET PATEL v. THE STATE OF M.P.

Citation: 2022 LiveLaw (MP) 109

The Madhya Pradesh High Court recently warned an Additional Sessions Judge for allegedly showing bias by denying bail to the Applicant whose case was on a better footing than his co-accused who was granted bail despite recovery of stolen property

Taking strong exception to the conduct of the lower court judge, Justice Vivek Agarwal held-

Let warning be issued to the concerned Judge Shri Prashant Shukla, First Additional Session Judge, Maihar, District Satna and copy of this order and warning be placed in his service book to be more cautious and judicious in his approach in future so that image of the judiciary can be saved and such allegations of casteism and bias are not allowed to be levied so to tarnish collective image of judiciary.

6. Man Can't Run Away From Responsibility Towards Son & Wife By Simply Seeking Divorce To Serve His Parents: Madhya Pradesh High Court

Case Title: Parag Pandit V Smt.Sadhana

Citation: 2022 LiveLaw (MP) 110

The Madhya Pradesh High Court, Indore Bench recently dismissed the appeal preferred by Appellant/husband for grant of divorce, holding that being a husband and a father, he could not run away from the responsibility by simply taking divorce on the ground that he wants to serve his mother and father for the remainder of his life or that he and his wife were not living together for many years.

Elucidating the concept of marriage as per Hindu Laws, the division bench of Justice Vivek Rusia and Justice A.N. Kesharwani observed-

"Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman."

Madras High Court

A weekly round-up of important cases from Madras High Court and its subordinate courts.

Citations: 2022 LiveLaw (Mad) 147 To 2022 LiveLaw (Mad) 162

NOMINAL INDEX

Dr. P. Vijayan v. The Union Of India and Ors., 2022 LiveLaw (Mad) 147

S.V Ramamurthy v. The Secretary, Government of TN, 2022 LiveLaw (Mad) 148

A Pitchaiah v. The Managing Director and Ors, 2022 LiveLaw (Mad) 149

S.Sakthivel & Anr v. The State rep. by the Food Safety Officer, 2022 LiveLaw (Mad) 150

Sivakumar v. A Radhakrishnan, 2022 LiveLaw (Mad) 151

M/S.Smart Roofing Private Limited Versus The State Tax Officer, 2022 LiveLaw (Mad) 152

V. Senthilbalaji and Ors v. State rep. By Inspector of Police and Another, 2022 LiveLaw (Mad) 153

High Court of Madras v. R.D Santhana Krishnan, 2022 LiveLaw (Mad) 154

P. Vijayabharathy v. The District Collector-cum- District Magistrate and Others, 2022 LiveLaw (Mad) 155

Murugan @ Panni Murugan v. The State rep. by Sub Inspector of Police and Anr.,2022 LiveLaw (Mad) 156

K.J Sumathy and Ors v. The Chairman, Bar Council of Tamil Nadu and Puducherry and Ors, 2022 Live Law (Mad) 157

I Nisha v. State of Tamil Nadu and ors, 2022 LiveLaw (Mad) 158

M/s.RKS Agencies Versus State Tax Officer-I, 2022 LiveLaw (Mad) 159

Madurai Kamraj University v. The Chairman, Micro & Small Enterprises Facilitation Council and Anr, 2022 LiveLaw (Mad) 160

D. Nagarathinammal v. The Project Director, National Highways Authority of India and Anr, 2022 LiveLaw (Mad) 161

The Deputy Commissioner of Income Tax Versus Saint Gobain India Private Limited, 2022 LiveLaw (Mad) 162

1.Removal From Service For Alleged Past Misconduct Is Unsustainable: Madras HC Orders Reinstatement Of Campus Director Of Indian Maritime University

Case Title: Dr. P. Vijayan v. The Union Of India and Ors.

Citation: 2022 LiveLaw (Mad) 147

The Madras High Court has held that a past misconduct of the employee cannot be a reason for imposing a major penalty (under Indian Maritime University Teaching and Non-Teaching Employees (Terms and Conditions of Services) Rules), such as removal from service.

The bench of Justice C Saravanan was considering the petition filed by the former director of the Indian Maritime University, Dr. P Vijayan against the order of the Executive Council of the Indian Maritime University, dismissing him from services and imposing penalty of Rs. Rs. 22,65,469.

The court held that there was no scope for either suspending the Mr. Vijayan or imposing the penalty under the provisions of Chapter VII - The Conduct of the Employees of the University Teaching and Non-Teaching Employees (Terms and Conditions of Service) Rules and therefore such suspension and imposition of penalty was unsustainable. With regard to using of perks and privileges unauthorizedly, the court held that the same could not be recovered from Mr. Vijayan as he was not an "employee" of the university.

2. All Auto Rickshaw Holders Should Have Operating Electronic Meters: Madras High Court

Case Title: S.V Ramamurthy v. The Secretary, Government of TN

Citation: 2022 LiveLaw (Mad) 148

The Madras high court bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy recently considering a writ petition for implementation of the Government Order mandating installation of electronic meters in all auto rickshaws.

The court directed that all autorickshaws be fitted with electronic meters which should be operated while transporting passengers. The court also ordered that checks should be conducted by the Police and Transport Departments to find out as to whether the auto-rickshaw is being operated with meters or not, and for that, if any complaint is made, then immediate action should be taken on it.

The court also directed the State to revise the fares/rates of the auto-rickshaws, periodically, looking to the fluctuation of the rates of petrol/diesel. This system would take into account the fluctuations of the rates of petrol/diesel without evolving the long drawn process but by using the software in such a manner where the rates may be revised, thereby, upgraded the system/mechanism automatically on the meters.

3. Disputed Facts Cannot Be Adjudicated In Writ Proceedings: Madras High Court

Case Title: A Pitchaiah v. The Managing Director and Ors

Citation: 2022 LiveLaw (Mad) 149

The Madras High Court recently disposed of a writ petition filed by a workman for terminal and pensionary benefits observing that the appropriate authority to address his grievance was the labour court.

During the course of the hearing the court also discussed the present situation where the litigants directly approach the High Court under article 226 without exhausting the remedies provided under the statutes. The petitioners seek for a direction to direct the respondent to pay entire pensionary and service benefits. However, the High Courts powers are limited in such cases and these leads to multiplicity of proceedings. The court also opined that litigant should not be made to suffer by way of multiplicity of proceedings.

It was further observed that all writ petitions are maintainable under Article 226 of the Constitution but its entertainability is to be decided with respect to the rights of the parties or its infringement. Therefore, the parties must be allowed to exhaust the alternate remedies provided under the statutes and service rules and then if they are further aggrieved, approach court under Article 226 of the Constitution.

4. 14 Days Time Limit For Analyzing Sample & Issuing Report U/S 42 Of Food Safety Act Is Mandatory: Madras High Court

Case Title: S.Sakthivel & Anr v. The State rep. by the Food Safety Officer

Citation: 2022 LiveLaw (Mad) 150

The Madras High Court has recently allowed a petition for quashing proceedings under the Food Safety and Standards Act, 2006 observing that the Designated Officer had not sent his recommendations on the food sample within a period of 14 days, as mandated under Section 42 of the Act.

Justice K. Murali Shankar observed that the respondent had violated the "mandatory requirement" contemplated under Section 42 of the Act and therefore, the very launching of the complaint itself is not proper. The court also observed that when the authorities have not followed mandate, it is not reasonable to direct the petitioners to face the trial.

Sub-section 3 of Section 42 (Procedure for launching prosecution) states that the Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety.

5. Giving False Info In Court Interferes With Administration Of Justice, Amounts To Contempt: Madras HC Sends Litigant To 4 Weeks In Prison

Case Title: Sivakumar v. A Radhakrishnan

Citation: 2022 LiveLaw (Mad) 151

The Madras High Court has recently sentenced a litigant to undergo simple imprisonment for four weeks for filing false affidavit in Court, thereby attempting to interfere with the course of administration of justice, punishable under Contempt of Courts Act, 1971.

The bench of Justice P.N Prakash and Justice A.A Nakkiran passed the orders on a Contempt Petition filed under Section 15 of the Contempt of Courts Act 1971 against A Radhakrishnan to prosecute him for his illegal activities. The petition was filed after obtaining the consent of the Advocate General.

The court also observed that contempt proceedings are between the court and the contemnor. Hence, motive, which is normally alleged in criminal cases for false implication, does not apply to contempt cases.

6. Wrong Declaration In E-Way Bill: Madras HighCourt Quashes Penalty Under GST As There Was No Intention Of Tax Evasion

Case Title: M/S.Smart Roofing Private Limited Versus The State Tax Officer

Citation: 2022 LiveLaw (Mad) 152

The Madras High Court bench of Justice C. Saravanan has quashed the penalty under GST for a wrong declaration in an e-way bill as there was no intention of tax evasion. The court observed that there was only a technical breach committed by the petitioner and there was no intention to evade tax.

The court noted that the authorities were justified in detaining the goods inasmuch as there was a mistake in the E-way bill. However, the facts indicate that the consignor and the consignee are one and the same entity, namely, the Head Office and the Branch Office. In this case, the petitioner has a new place of business, but has not altered the GST registration. However, steps have been taken to ex post facto include the new place of business in the GST registration. The registration certificate was also amended.

7. Protests During Covid Lockdown: Madras High Court Quashes Proceedings Against DMK Minister Senthilbalaji

Case Title: V. Senthilbalaji and Ors v. State rep. By Inspector of Police and Another

Citation: 2022 LiveLaw (Mad) 153

Justice A D Jagdish Chandra of the Madras High Court on Monday quashed the criminal proceedings instituted by Minister of Electricity of Tamil Nadu- V. Senthil Balaji and other DMK party members, for participating in protests against Farm Laws during the Covid-19 lockdown in 2020.

In the petition, Mr Balaji along with four others sought to quash the chargesheet filed before the Karur Judicial Magistrate for the alleged offences under Sections 143 (punishment for unlawful assembly) and 270 (Malignant act likely to spread infection of disease danger­ous to life) of IPC r/w. Section 4A(1a) of Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959.

It was contented that the protest was for a public cause and apart from that there was no material evidence to show that the petitioners have committed offences as alleged. There was also no material to show that the petitioners were acting negligently to spread the infection of any disease dangerous to life without following COVID 19 guidelines issued by the State.

8. Lawyer Seen Canoodling Lady During VirtualCourt: Madras High Court Sentences Lawyer For Two Weeks Imprisonment With Fine

Case Title: High Court of Madras v. R.D Santhana Krishnan

Citation: 2022 LiveLaw (Mad) 154

The Madras High Court bench of Justice P.N Prakash and Justice A.A Nakkiran recently sentenced Mr. R.D Santhana Krishnan, a lawyer practicing in the Bar Council of Tamil Nadu and Puduchery to Simple Imprisonment for Two Weeks and a fine of Rs. 6000.

Mr R.D Santhana Krishnan was seen canoodling a lady, on 20.12.2021 while attending the virtual court proceedings. The video clipping of the said incident had gone viral and the court had taken suo moto cognizance of the issue. The court had charged Santhana Krishnan under Section 2 read with Section 12 of the Contempt of Courts Act, 1971

9. Madras High Court Grants Compensation To Victim Under SC/ST Amendment Act 2016 For Offence Committed In 2014

Case Title: P. Vijayabharathy v. The District Collector-cum- District Magistrate and Others

Citation: 2022 LiveLaw (Mad) 155

The Madras High Court has allowed a petition filed by a victim belonging to Scheduled Caste Community claiming compensation under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Rules, 2016, for an offence committed against her in the year 2014.

While passing orders Justice G. Ilangovan observed that as per the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Rules, 2016, the victim is entitled for the relief and compensation of Rs. 5,00,000/-. Out of this, 50% of the amount must be disbursed soon-after the completion of the medical test. 25% must be disbursed at the time of filing the final report.

The court also observed that A beneficial piece of legislation must be interpreted in a purposive manner which would effectuate the object of the welfare legislation and the Court must always lean in favour of applying the beneficial measures that have been given to victims, even in cases where the incident had happened before 2016.

10. High Court Can Exercise Jurisdiction U/S 482 CrPC & Direct That Sentence Imposed By Trial CourtShall Run Concurrently: Madras HC

Case Title: Murugan @ Panni Murugan v. The State rep. by Sub Inspector of Police and Anr.

Citation: 2022 LiveLaw (Mad) 156

The Madras High Court recently held that the scope of Section 427 CrPC is that, in respect of conviction to undergo the sentence of imprisonment passed on subsequent cases for the offence of same nature, the sentence shall run concurrently. The court also made it clear that it can exercise of its jurisdiction under Section 482 of CrPC and issue direction that the sentence imposed by the trial court shall run concurrently.

Justice G.K Ilanthiraiyan also relied on decisions of various high court where it was held that the inherent powers of the High Court is not in any way fettered by the provisions of Section 427(1) and it can be invoked at any stage even if there is no such order passed under Section 427(1) by the Trial Court or Appellate or Revisional Court and even though the conviction has become final.

11. Legal Heirs Of Deceased Complainant Can Pursue Disciplinary Proceeding Before Bar Council: Madras High Court

Case Title: K.J Sumathy and Ors v. The Chairman, Bar Council of Tamil Nadu and Puducherry and Ors.

Citation: 2022 Live Law (Mad) 157

The Madras High Court has observed that in criminal proceedings, the legal heirs of the original complainant can apply for continuation of proceedings against the accused upon the death of the original complainant.

The court further quashed the order passed by the disciplinary committee of Bar Council of Tamil Nadu and Puducherry which had held that the legal heirs cannot step into the shoes of the original complainant and cannot carry on disciplinary proceedings against the advocates.

The bench of Justice P.N Prakash and Justice AA Nakkiran opined that the Disciplinary Committee was swayed by the fact that the proceedings before it were quasi-criminal, and the view that legal heirs of the complainant cannot be substituted in place of the original complainant amounts to woeful ignorance of the settled position in criminal law.

12. Statutory Time Limit For Filing Final Reports Must Be Strictly Complied With: Madras High Court Directs Police To File All Final Reports Online

Case Title: I Nisha v. State of Tamil Nadu and ors

Citation: 2022 LiveLaw (Mad) 158

Observing that there is a trend of delay in filing of the Final Report after the statutory time limit, the Madras High Court has directed the Police to file all final reports On-line. Such On-line filing of final reports by the Police, will be in compliance with the requirements of Rule 25 of the Criminal Rules of Practice, 2019. The court further clarified that the mandatory period for filing the final report shall apply even in cases where the accused has already been detained. Further, the court also directed that the Judicial Magistrates / Criminal Courts shall not return the final reports for such non-enclosure of the reports which are listed out as Nos.(vii) to (x) & (xxix) of Sub Rule 7 of Rule 25 of the Criminal Rules of Practice.

The bench of Justice R Subramanian and Justice N Sathish Kumar further directed the Director General of Police to issue required Circulars to respective Police Stations to ensure compliance of the orders. The court further directed the registry to place the order before the Chief Justice to enable the Registry to issue appropriate circulars to the criminal courts.

13. Madras High Court Directs GST Dept. To Release Detained Vehicle On Payment Of 25% Of Penalty

Case Title: M/s.RKS Agencies Versus State Tax Officer-I

Citation: 2022 LiveLaw (Mad) 159

The Madras High Court bench of Justice R. Suresh Kumar has directed the GST department to release the detained vehicle on the payment of 25% of the penalty.

The petitioner/assessee purchased cement from Andhra Pradesh, whereas, the petitioner has a branch office at Coimbatore, which is the destination where the purchased goods have to reach. When the goods were transported, the vehicle was intercepted by the respondent revenue squad, and they found that there was a violation in the invoice because the full address of the buyer was not mentioned.

The petitioner submitted that the absence of the full address of the buyer was not such a major offence or violation that the goods in question could not be detained by the department.

The department contended that the full address of the petitioner, being a buyer, had not been mentioned in the documents like invoices, etc.

14. Provisions Of The MSMED Act Overrides The Arbitration Agreement Between The Parties: Madras High Court

Case Title: Madurai Kamraj University v. The Chairman, Micro & Small Enterprises Facilitation Council and Anr.

Citation: 2022 LiveLaw (Mad) 160

The High Court of Madras has observed that S. 18 of the MSMED Act will override the arbitration clause between the parties. The Court observed that since S. 24 of the MSMED Act is a non-obstante clause, it gives overriding effect to the provisions of S. 15 -23 of the Act.

The Bench of Justice Pushpa Sathyanarayan and Justice P. Velmurgan observed that once a reference is filed before the MSME Council under S. 18 of the Act, the provisions of the arbitration clause must yield to the provisions contained under S. 18 of the Act.

15. Writ Petition Is Not Maintainable To Enforce The Arbitral Award: Madras High Court

Case Title: D. Nagarathinammal v. The Project Director, National Highways Authority of India and Anr.

Citation: 2022 LiveLaw (Mad) 161

The High Court of Madras observed that a writ petition cannot be filed to enforce an arbitral award when an alternative remedy is available under S. 36 of the A&C Act.

The Single Bench of Justice G.K. Ilanthiraiyan observed that the A&C Act is a complete code in itself and envisages minimum judicial intervention. If further observed that if the Courts are allowed to interfere beyond the permissible lines, then the efficacy of arbitration as an expeditious method of dispute resolution would be diminished.

16. TPO To Mandatorily Pass Order Determining Arm's Length Pricing Within 60 Days:Madras High Court

Case Title: The Deputy Commissioner of Income Tax Versus Saint Gobain India Private Limited

Citation: 2022 LiveLaw (Mad) 162

The Madras High Court bench of Justice R.Mahadevan and Justice J.Sathya Narayan Prasad has held that the transfer pricing officer (TPO) must mandatorily pass the order determining arm's length pricing within 60 days.

In the writ petition, the appellant/department has disputed the judge's order. The judge ruled that the TPO's decision or inability to issue an order within 60 days will have an influence on the order issued by the Assessing Officer, for which an outer time limit has been specified under Sections 144C and 153 of the Income Tax Act.

The court held that, as per the proviso to Section 92CA (3A), if the time limit for the TPO to pass an order is less than 60 days, then the remaining period shall be extended to 60 days. This implies that not only is the time frame mandatory, but also that the TPO has to pass an order within 60 days.

The court observed that when an order is passed on time, the procedures under 144C and 92CA(4) are to be followed. When the determination is not made in time, it cannot be relied upon by the assessing officer while concluding the assessment proceedings.

Other Developments

1. NEET-PG: Madras High Court Issues Notice On Doctors' Plea To Cancel TN State Mop-Up Round Counselling

Case Title: Dr Bharat Kannan and others versus State of Tamil Nadu and others

The Madras High Court has issued notice in a petition filed by five doctors seeking cancellation of the State Mop-Up Round Counselling held by the State of Tamil Nadu for NEET-PG admissions, on the basis of the Supreme Court's order cancelling the Mop Up rounds for All India Quota(AIQ).

A single bench of Justice Anita Sumanth issued notice to the State and posted the matter next on April 20.

2. Madras High Court To Hear Appeal Against Single Judge Order Allowing HR&CE To Take Over Ayodhya Mandapam

Case Title: Sri Ram Samaj v. The Commissioner and Others.

Case No: WA 1057 of 2022

The Madras High Court will hear on April 21 the appeal filed against the single judge order allowing takeover of the Ayodhya Mandapam by the Hindu Religious and Charitable Endowments Department (HR&CE) and appointing a "Fit Person" to take over the administration of the temple.

A Division Bench of Justice M Duraiswamy and Justice TV Thamilselvi of the Madras High Court were considering the appeals filed by Sri Ram Samaj claiming that the Mandapam is not a temple and cannot be taken over by the HR & CE.

3. IIT-M Professors Move Madras High Court Seeking Anticipatory Bail In Sexual Harassment Case

Case Title: Prof. Edamana Prasad and Anr v. State rep. By Inspector of Police

Case No: Crl OP 7776 of 2022

Two professors of the Indian Institute of Technology, Madras (IIT-M) have approached the Madras High Court seeking anticipatory bail in connection with a case for sexually harassing a PhD candidate of the University. They have been arraigned as accused number nine and ten.

Justice G. Jayachandran has listed the matter for hearing on April 18.

Orissa High Court

1. S.138 NI Act | Court Can Take Cognizance Of Complaint Based On Notice Pursuant To 'Re-Presentation' Of Cheque: Orissa High Court

Case Title: Sri Gadadhar Barik v. Sri Pradeep Kumar Jena & Anr.

Citation: 2022 LiveLaw (Ori) 39

The Orissa High Court has held that Court can take cognizance of a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 for 'cheque bounce' on the basis of a notice issued pursuant to presentation of a cheque for encashment for the second time and its subsequent dishonour.

A Single Judge Bench of Justice Radha Krishna Pattanaik observed,

"...if the entire purpose underlined Section 138 of the N.I. Act is to compel the drawers to honour their commitments made in course of business or other transactions, there is no reason why a person who has issued a cheque which is dishonoured and who failed to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque had not rushed to the court with a complaint based on such default or for the reason that the drawer has made the holder defer prosecution promising to make arrangements for funds or on account of any other similar situation."

Case Title: Asha Hans v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 40

The Orissa High Court has held that orders obtained through fraudulent means can be set aside even if fraud is detected after the limitation period. While refusing to set aside an order cancelling leases on detection of fraud, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"Regard being had to the above facts and the circumstances under which the lands were settled with the lessees in clear violation of the provisions of the OGLS Act with the fraud being played upon the authority concerned, who again failed to follow the procedures and as a result, the illegality was committed, the Court is of the considered view that since the fraud was detected in the year 1998 and thereafter, OP No.2 promptly took action and proceeded to cancel the leases, such action cannot be held as unfair and unjustified."

Case Title: Krushna Prasad Sahoo v. State of Orissa & Ors.

Citation: 2022 LiveLaw (Ori) 41

In a significant order, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik of the Orissa High Court has issued certain directions to the Director General, Prisons to ensure food, hygiene and health facilities in all the jails/sub-jails of the State. It has also directed all the District Legal Services Authorities (DLSAs) to inspect the above-noted basic amenities in all the jails and sub-jails of Odisha.

4. "Too Harsh To Send Them To Prison": Orissa HC Extends Benefits Of Probation Of Offenders Act To Convicts In '18 Years Old' Grievous Hurt Case

Case Title: Rohita Mirdha & Ors. v. State of Orissa

Citation: 2022 LiveLaw (Ori) 42

In a recent judgment, the Orissa High Court has upheld conviction of three accused persons in an '18 years old' grievous hurt case and at the same time extended the benefits of the Probation of Offenders Act to exonerate them from any further imprisonment.

While taking the view that sending them to prison would be 'too harsh', a Single Judge Bench of Justice Sashikanta Mishra observed

"The case record reveals that after being arrested, the petitioners have spent some days in custody. Undoubtedly, 18 years have passed in the meantime. Therefore, taking into consideration the social background of the petitioners and lack of any criminal antecedents to their names, this Court also feels that it would be too harsh to send them to prison at this distance of time to serve the remaining part of the sentence. As such, it is deemed proper to extend the benefit of the P.O. Act to the petitioners."

5. Pre-Payment Charges Can't Be Imposed By Bank Without Giving Prior Information Of The Same: Orissa High Court

Case Title: M/s. Salubrity Biotech Ltd. & Anr. v. Bank of Baroda, Vadodara & Ors.

Citation: 2022 Live Law (Ori) 43

The Orissa High Court has held that 'pre-payment charges' cannot be imposed by the banks without furnishing prior information about the same. While striking down such an imposition, a Single Judge Bench of Justice Arindam Sinha observed,

"…there is also no evidence that the referred circular was disclosed as attachment to the sanction letter. In facts and circumstances above, Court is satisfied that the object of transparency in grant of credit facilities, required to be fulfilled by the guidelines issued by the Reserve Bank of India, were not fulfilled in this case. Imposition of pre-payment charges therefore cannot be sustained."

6. On Procedural Aspects The Arbitration Act Must Yield To The Provisions Of The Commercial Courts Act: Orissa High Court

Case Title: M.G. Mohanty and Anr v. State of Odisha and others, W.P.(C) Nos. Nos. 3523, 5491 & 5494 of 2022 and W.P.(C) Nos. 28644 & 30554 of 2021.

Citation: 2022 LiveLaw (Ori) 44

The High Court of Orissa has observed that the Court for the purpose of deciding all the applications arising out of the arbitration agreement between the parties would be the Commercial Court as defined under the Commercial Courts Act which need not necessarily be the Principal Civil Court as provided under the Arbitration Act.

The Court observed that the jurisdiction of the Commercial Court can be conferred on a judicial officer subordinate to the rank of a District Judge, i.e., the Principal Civil Judge notwithstanding anything contained in S. 2(1)(e) of the Arbitration Act.

7. Writ Petition Is Maintainable Against The Award Of The MSME Council Which Failed To Give A Hearing On Limitation : Orissa High Court

Case Title: M/s Bajaj Electricals Ltd. v. Micro Small and Enterprises Facilitation and Anr. W.P.(C) No. 7216 of 2020

Citation: 2022 LiveLaw (Ori) 45

The High Court of Orissa has observed that a writ petition is maintainable against an award rendered by the MSME Council under S. 18 of the MSMED Act wherein the petitioner was not given a hearing on a material issue regarding the limitation of the substantive claims.

The Single Bench of Justice Arindam Sinha has observed that in cases where an award is passed without hearing a party, the availability of an alternative remedy to challenge the award under S. 19 of the MSMED Act r/w S. 34 of the Arbitration Act shall not be a ground to dismiss the writ petition as compelling the petitioner to challenge the award would require him to comply with the requirement of deposit of 75% of the amount awarded.

8.  Writ Court Can't Bestow Legal Right On A Consumer To Receive Compensation: Orissa High Court

Case Title: Pramod Kumar Rout v. The Superintending Engineer Electrical Circle & Ors.

Citation: 2022 LiveLaw (Ori) 46

A Single Judge Bench of Justice Arindam Sinha of Orissa High Court has held that a writ Court like High Court cannot exercise its jurisdiction to pronounce on a legal right of a person to receive compensation, especially when there is no policy available to that effect.

The petition was filed for direction upon the electricity supply company to deal with grievance petition dated 2nd July, 2020 as per order dated 29th May, 2020 of a coordinate Bench in a writ petition. The petitioner had prayed for compensation to the tune of one crore rupees and also to take action against the respondents for wrongful disconnection of electricity. On query from the Court, the respondent company stated that it does not have any policy on compensation.

Case Title: Pradeep Kumar Pattnaik v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 47

The Orissa High Court has dismissed challenge to a notification which notified the decision to compulsorily retire a former Additional District & Sessions Judge (AD&SJ) of the Odisha Superior Judicial Service (OSJS). While upholding the said notification, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held,

"While it is true that the decision to compulsorily retire a judicial officer cannot be taken arbitrarily, and should be based on some material, it cannot be said that there has to be some particular instance of misbehaviour by an Officer that could warrant such a decision."

Patna High Court

Case title - Dinesh v. State of Bihar

Case Citation: 2022 LiveLaw (Pat) 6

The Patna High Court on Friday granted bail to an advocate who has been accused of posting several scandalous, shocking, and derogatory posts tarnishing the image of the judiciary.

The Bench of Justice A. M. Badar took into account the fact that the advocate had repentance for the act alleged against him, and his wife had sworn an additional affidavit to the effect that he shall not post similar content on social media.

Case Title: Umesh Kumar vs The State Of Bihar

Citation: 2022 LiveLaw (Pat) 7

The Patna High Court has ordered an enquiry, to be conducted by the Additional Director General of Police, into the "casual" and "flimsy" investigation conducted by the Police in an honour killing case, whereby a young boy was allegedly hung to death.

The bench of Justice Sanjeev Prakash Sharma noted that the body of the boy was cremated without the presence of his mother and father. Further, the Investigating Officer had also in his affidavit admitted that it appeared to be a case of honour killing. Yet, no steps were taken to catch the criminals.

Case Title: Smt. GGSS Sitara v. The State of Bihar & Ors.

Citation: 2022 LiveLaw (Pat) 8

The Patna High Court has held that custody of a child aged below five years with the father cannot be said to be "illegal". Justice Ashwani Kumar Singh remarked,

"Proviso to clause (a) of Section 6 of the Guardians and Wards Act of 1956 though carves out an exception but it does not render the custody of a minor child aged below five years with his/her father illegal."

Section 6(a) says that it is the father who is the natural guardian of a boy or an unmarried girl and according to this Section 6 clause (a), after the father, the mother is the natural guardian but there is an exception by way of proviso to this clause which says that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

Case Title : Miss K v The State of Bihar

Citation: 2022 LiveLaw (Pat) 9

The Patna high Court recently allowed termination of pregnancy of a minor victim of sexual abuse. Justice Anil Kumar Sinha observed that a plain reading of the provisions of the Medical Termination of Pregnancy Act, 1971, shows that with the consent of pregnant woman or the guardian in case of minor, the pregnancy can be terminated by two registered Medical Practitioners, where the length of pregnancy does not exceed 24 weeks.

"From a plain reading of the provisions of the Medical Termination of Pregnancy Act, 1971, particularly, Section 3 of the Act, it appears that with the consent of pregnant woman or the guardian in case of minor, the pregnancy can be terminated by two registered Medical Practitioners, where the length of pregnancy does not exceed 24 weeks. The petitioner being the mother of the victim girl claims that the victim girl is a minor and she is ready and willing to give her written consent for termination of pregnancy."

Case Title: Bikram Singh VERSUS Charanjit Singh

Citation: 2022 LiveLaw (PH) 67

The Punjab and Haryana High Court has held that when there in an agreement to sell to the effect that possession has been delivered, stamp duty is leviable on such document.

Justice Alka Sarin observed,

"It is trite that the document that is required to be registered and which contains a recital of delivery of possession would also require to be stamped as per the provisions of the Indian Stamp Act, 1899, as amended by the State of Punjab."

Case Title: National India Insurance Co. Ltd. versus Smt. Fajari & Others

Citation: 2022 LiveLaw (PH) 68

The Punjab and Haryana High Court has held that an insurance company cannot be absolved from its liability from compensating the third party merely by claiming that the terms of insurance contract were breached as the vehicle insured was being driven by a person not holding a valid licence.

The bench comprising Justice Alka Sarin held that the insurer must show that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. It observed,

"The appellant-insurance company has failed to prove that the insured (owner) was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. In this scenario, the appellant-insurance company cannot absolve itself from it's liability of paying the compensation."

Case Title. : Noor Paul vs Union of India and others

Citation : 2022 LiveLaw (PH) 69

The Punjab and Haryana High Court has held that a Look Out Circular (LOC), which prevents one from travelling abroad, must be supplied to the person at the time of being stopped at the airport and that the reasons should be communicated to the affected party. The Court further stated that the person must be given an opportunity of post-decisional hearing against the LOC.

Noting that the Office Memorandum issued by the Ministry of Home Affairs is silent about these requirements, the Court read these safeguards into the OM.

Case Title: Kishan Chand and others v State of Haryana and Others

Citation: 2022 LiveLaw (PH) 70

Punjab and Haryana High Court has held that any acquisition made by the government for public use cannot be disputed by landowner at the drop of the hat.

The observation came from a division bench of Justice Ritu Bahri and Justice Ashok Kumar Verma:

"In the present case, land vests in the State and the same is being utilized for allotment of plots. Moreover, while dismissing the earlier writ petition (CWP-13332-2007), it was observed that 236 plots were less, which could not be offered to the allottees. Hence, keeping in view the judgment passed by Hon'ble the Supreme Court in Ram Swaroop's case (supra), the impugned order dated 12.11.2021 (Annexure P-17), whereby representation for release of land under Section 101-A of 2013 Act, has been rejected, does not require any interference by this Court."

Case Title : Vikrant Singh v. State of Punjab

Citation: 2022 LiveLaw (PH) 71

The Punjab and Haryana High Court has held that mere call details would not be considered to be corroborative material in absence of substantive material found against the accused.

Holding thus, it granted bail to three petitioners in absence of substantive material found against them.

The bench comprising Justice Vikas Bahl disposed of three criminal miscellaneous applications filed under Section 439 Cr. P.C for grant of regular bail in FIR registered under Narcotic Drugs and Psychotropic Substances Act, 1985.

Case Title : Asha and others v. State of Punjab and another

Citation: 2022 LiveLaw (PH) 72

The Punjab and Haryana High Court recently granted bail to three women allegedly involved in a case of siphoning off approximately Rs. 31.5 crore from the State Exchequer, by creating bogus firms.

The bench comprising Justice Gurvinder Singh Gill observed,

"Without commenting anything as regards the merits of the case but while keeping in view that all the three petitioners are ladies and have been behind bars for a substantial period of about 8 months whereas the maximum sentence as may be imposed is 5 years, further detention of the petitioners will not be justified."

Case Title : Manpreet Kaur v. State Of Punjab And Ors.

Citation: 2022 LiveLaw (PH) 73

The Punjab and Haryana High Court has held that duration of marriage is not a ground to discard the willingness of one of the spouse, to donate kidney in favour of other spouse, particularly when the case has been verified on all legal parameters.

The observation was made while dealing with a writ petition for the issuance of an appropriate writ in the nature of mandamus directing the respondent to conduct surgery of renal transplant of the petitioner's husband by receiving the organ from the petitioner-wife without further delay.

Case Title : Ms Shree Bhagwati Road Lines and Another v. MS GBTL Limited and Others

Citation: 2022 LiveLaw (PH) 74

Punjab and Haryana High Court has reiterated that a plaintiff enjoys the status of dominus litis and thus, has every right to pursue his claim against anyone he thinks fit. Dominis litis means "master of the suit".

Accordingly, it dismissed the revision petition filed by the petitioners (original defendants) challenging the order of the Trial Court, rejecting their application for impleadment of a company, as per them a necessary party, to the suit instituted against them by the respondent (original plaintiff).

9. "Section 89 CPC Extends To Compromises Entered Outside Court Also": Punjab & Haryana High Court Allows Refund Of Court Fees

Case Title : Banwari Lal v. Mool Chand and Others 

Citation: 2022 LiveLaw (PH) 75

Punjab and Haryana High Court has reiterated that parties are entitled to refund of court fees even in case of compromise entered into outside the Court.

The Court was dealing with a revision petition under Article 227 of the Constitution of India challenging the order of the Trial Court that dismissed the Petitioner's application for refund of the court fees.

The bench comprising Justice Alka Sarin while setting aside the order passed by the Trial Court allowed the petition and held the petitioner entitled to get the refund of court fees.

10. Irreversible Loss Will Be Cause If Allegations Of Threat To Life Are True: Punjab & Haryana High Court Grants Protection To Live-In Couple

Case Title : Gulafsha and another v. State of Punjab and others

Citation: 2022 LiveLaw (PH) 76

The Punjab and Haryana High Court has come to the rescue of a live-in couple, allegedly facing threat to their lives from their families.

The bench comprising Justice Anoop Chitkara allowed their plea by stating that if the allegations of apprehension turn out to be true, it might lead to an "irreversible loss". It ordered,

"It shall be appropriate that the concerned Superintendent of Police, SHO, or any officer to whom such powers have been delegated or have been authorized in this regard, provide appropriate protection to the petitioners for one week from today."

11. High Courts Are Empowered To Extend The One Time Settlement Time Period: Punjab & Haryana High Court

Case Title: Amrik Singh vs DCB Bank Ltd. and Another, CWP-4631-2021.

Citation: 2022 LiveLaw (PH) 77

A Division Bench comprising of Justice M.S. Ramachandra Rao and Justice Jasjit Singh Bedi of the Punjab and Haryana High Court, in the matter of Amrik Singh v DCB Bank Ltd. and Anr., has held that the High Court, in the exercise of its powers under Article 226 of the Constitution of India, can grant an extension of time for completion of the payment under the One Time Settlement (OTS), if the guidelines given in the case of Anu Bhalla and another v District Magistrate, Pathankot, 2021 (1) RCR (Civil), are met. The order was passed on 06.04.2022.

12. Ordinarily, Court Does Not Interfere In Compassionate Appointment Matters Of Contractual Employee In Absence Of Any Policy: Punjab And Haryana High Court

Case Title : Sunita Devi v. State Of Haryana and Another

Citation: 2022 LiveLaw (PH) 78

Punjab and Haryana High Court on April 07, 2022, while dealing with a writ petition filed by the petitioner to quash an order denying her request for service benefits and compassionate appointment on account of her husband's death, the court held that a decision needs to be taken as expeditiously as possible since the petitioner and her four minor children continue to live in penury.

The bench Comprising Justice Arun Monga held that ordinarily, this court would not have interfered in such a matter of contractual employee in the absence of any policy but in the mitigating circumstances of this case, it is expected from the State to have a compassionate outlook and try to accommodate the petitioner on any suitable post in any class subject to the requirement of services.

13. Person Not Being A Complainant Cannot Ask For Addition Of Offences In FIR: Punjab & Haryana High Court

Case Title : Mohan Lal v. State of Haryana and Others

Citation: 2022 LiveLaw (PH) 79

Punjab and Haryana High Court has held that a no-complainant cannot seek directions of addition of particular offences in a FIR lodged by another person.

The bench comprising Justice H.S. Madaan therefore dismissed one such petition filed under Section 482 Cr.P.C., stating that the petitioner is not the complainant in that case, therefore, he cannot ask for the addition of particular offenses.

14. Dependant Parents Entitled To Family Pension After Wife & Children Of Deceased Lose Eligibility: Punjab & Haryana High Court

Case Title : Swaran Kaur v. State of Punjab and others

Citation: 2022 LiveLaw (PH) 80

Punjab and Haryana High Court has held that entitlement for the grant of family pension to the dependent parents needs to be seen after the widow or the children loose their eligibility for the grant of the said benefit.

The Court was dealing with a case where the petitioner who is the mother of the deceased armed police personnel and the sole survivor of the family as well as the claimant for the grant of family pension is denied the benefits on the ground that rules governing the service of the deceased do not allow such benefit to his mother after being extended to his widow.

Rajasthan High Court

Nominal Index

Suresh Sharma & Anr. v. Dhanwanti Sharma 2022 LiveLaw (Raj) 126

Avadesh Kumar Purohit v. State Of Rajasthan 2022 LiveLaw (Raj) 127

Trehan Apna Ghar Buildwell Private Limited through its Director/Authorised Signatory v. Munish Ranjan Sahay 2022 LiveLaw (Raj) 128

Master Arjun Choudhary Through His Father Mr. Bhanwar Lal v. Chairman, Army Public School, Jodhpur & Anr. 2022 LiveLaw (Raj) 129

Deepak Kumar Gupta & Ors. .v. State Of Rajasthan 2022 LiveLaw (Raj) 130

Shri Bhanu Pratap Singh v. State Of Rajasthan & Anr. 2022 LiveLaw (Raj) 131

Kamalkant & Ors. v. State Of Rajasthan 2022 LiveLaw (Raj) 132

Shri Mandar Jain Sangh, Mandar, Through Its Trustee Bhanwarlal Doshi v. Gram Panchayat, Mandar, Through Its Sarpanch, TehsilReodar, District Sirohi & Anr. 2022 LiveLaw (Raj) 133

Judgments/ Orders of the Week

  1. 'Land Where Vasudhaiva Kutumbakam Manuscripted, Ill-Treatment To Parents Is Alarming & Disturbing', Rajasthan HC Directs Son & His Wife To Vacate House

Case Title: Suresh Sharma & Anr. v. Dhanwanti Sharma

Citation: 2022 LiveLaw (Raj) 126

The Rajasthan High Court observed that the land where Vasudhaiva Kutumbakam was manuscripted, which considers the whole world a single family, the ill- treatment meted out to parents by their own children is both alarming and disturbing. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was formulated to redress the said grievance in a simple, inexpensive and speedy manner qua maintenance of the parents and senior citizens, added the court.

Justice Sameer Jain, while dismissing the petition filed by son and his wife, ruled,

"Therefore, the petitioners along with their family are directed to honor the impugned order dated 08.03.2019 and vacate the premises within a period of 30 days from the date of pronouncement of the judgment on their own cost and restore the house in vacant manner and in appropriate condition to the respondent-mother with due respect. The SHO of the concerned Police Station may be provided a copy of this judgment by the Registrar (Judicial) for carrying out the directions, within the stipulated time, giving full security to the respondent. The respondent will be at liberty to permit the petitioner and his family to visit or live in the disputed property in future, if she so chooses."

  1. Rajasthan High Court Closes Advocate's Missing Daughters Case After Girls Traced In Lucknow, Express Desire To Stay There To 'Pursue Dreams'

Case Title: Avadesh Kumar Purohit v. State Of Rajasthan

Citation: 2022 LiveLaw (Raj) 127

The Rajasthan High Court has recently disposed of the Advocate's missing daughters case, after the daughters were produced before the court. The court observed that it is expected from the petitioner-father to comply with the wishes of his daughters and take them to Lucknow.

The court was hearing the habeas corpus petition filed by Jaipur-based Advocate Avdesh Kumar Purohit, whose two minor daughters were missing from Lai C. M. Senior Secondary School, Kartarpura, Jaipur since Feb 3, 2022. An FIR was also lodged on the same day.

A division bench of Justice Pankaj Bhandari and Justice Birendra Kumar, observed,

"Petitioner who is present in person in the Court has agreed to help his daughters in fulfilling their dreams and has agreed to take them to Lucknow on 07.04.2022. It is expected from the petitioner that he would comply with the wishes of his daughters and take them to Lucknow on 07.04.2022."

  1. Appeals U/S 58 RERA Act To Be Filed With Rs. 5,000 Court Fees, Will Be Heard By Single Bench: Rajasthan High Court

Case Name: Trehan Apna Ghar Buildwell Private Limited through its Director/Authorised Signatory v. Munish Ranjan Sahay

Citation: 2022 LiveLaw (Raj) 128

The Rajasthan High Court observed that where there is no specific provision available for payment of Court fees on appeals filed under Section 58 of the RERA Act, 2016 before the High Court, as a general principle of law, the Court fees of Rs.5000/- as required to be paid before the Appellate Tribunal under Rule 37 of the RERA Rules, 2017, be paid on appeal before the High Court.

Justice Sudesh Bansal directed the Registry to register these appeals in the manner as mentioned hereinabove and make a report about the payment of Court fees accordingly. The court also directed to circulate this order to the Stamp Reporters to follow the same for registering the appeals filed under Section 58 of RERA Act, 2016 in future before the Rajasthan High Court.

  1. 'Contemptuous': Rajasthan High Court Expresses Displeasure Over Counsel Insisting Judge To Recuse From Hearing, Places Matter Before CJ

Case Title: Master Arjun Choudhary Through His Father Mr. Bhanwar Lal v. Chairman, Army Public School, Jodhpur & Anr.

Citation: 2022 LiveLaw (Raj) 129

The Rajasthan High Court has opined that no counsel can insist a Judge to recuse from hearing a case, even if during the course of hearing, the court has commented on the merits of the case, which in the counsel's opinion are not favourable.

The remarks were made by Justice Vijay Bishnoi after a counsel, appearing for the petitioner in the matter, insisted that the case be transferred to another Bench.

The court opined that the conduct of the counsel, who sought the Judge's recusal and kept interrupting to prevent it from passing the order, is "highly objectionable and contemptuous".

  1. Employer-Employee Relationship Can't Be Established My Mere Averment In Petition, Must Be Supported By Cogent Evidence On Record: Rajasthan HC

Case Title: Deepak Kumar Gupta & Ors. .v. State Of Rajasthan

Citation: 2022 LiveLaw (Raj) 130

The Rajasthan High Court recently dismissed the writ petitions filed by persons who were appointed under Deendayal Antyodaya Yojana National Urban Livelihood Mission, claiming themselves to be the employees of the State Government and seeking regularisation, regular pay-scale, and salary directly from the State Government and not from the placement agency.

Justice Inderjeet Singh dismissed the writ petitions on the following grounds:

"Firstly, the petitioners have failed to establish their relationship of employee and employer with the respondent-State and only narration in the petition cannot be considered to be a justifiable ground to grant the relief prayed for, unless it is supported by cogent evidence on record as has been held by the Hon'ble Supreme Court in the matter of K.K. Suresh (supra); secondly, as per own version of the petitioners, they were appointment by the placement agency but failed to implead the placement agency as party respondent in the writ petitions; thirdly, the salary/ remuneration was also paid to the petitioners by the placement agency and not by the State Government; and lastly claim of the petitioners for regularisation in the State cannot be approved by this court as the petitioners were never appointed by the State Government against sanctioned post on regular basis, rather, as already observed above they were appointed by the placement agency."

  1. 'Filed Without Any Research': Rajasthan High Court Dismisses PIL Challenging De-Registration Of 10 Yrs Old Diesel Vehicles Alone & Not Petrol Vehicles

Case Title: Shri Bhanu Pratap Singh v. State Of Rajasthan & Anr.

Citation: 2022 LiveLaw (Raj) 131

The Rajasthan High Court has dismissed a public interest litigation filed praying that notification dated 22.01.2018 be declared ultra vires as direction is confined to deregistration of the diesel vehicles only, which are 10 years more and upto 15 years and not for petrol vehicles.

The public interest litigation was filed by one Bhanu Pratap Singh.

The court observed that the petition is devoid of any merit. The court added that no material has been placed on record as to on what basis the petitioner claims that the diesel vehicle and petrol vehicle both have similar combustion value and degree of pollution with the same age.

A division bench of Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain, while dismissing the petition, observed,

"This petition is devoid of any merit. No material has been placed on record as to on what basis the petitioner claims that the diesel vehicle and petrol vehicle both have similar combustion value and degree of pollution with the same age."

  1. Citizens Don't Have Vested Right To Carry On Mining Operations, State Has Absolute Dominion To Decide Areas & Manner To Grant Permit: Rajasthan HC

Case Title: Kamalkant & Ors. v. State Of Rajasthan

Citation: 2022 LiveLaw (Raj) 132

The Rajasthan High Court has observed that the right to carry on mining operations is not a vested right of any citizen. The court added that the State Government has absolute dominion to decide as to the areas and manner in which the mining permits will be granted.

A division bench of Justice Sandeep Mehta and Justice Farjand Ali, observed,

"At the outset, we may note that the right to carry on mining operations is not a vested right of any citizen. The State Government has absolute dominion to decide as to the areas and manner in which the mining permits will be granted."

  1. Panchayat Has No Authority To Decide Question Of Revenue Entries As It Lies In Domain Of Revenue Authority Of State Of Rajasthan: High Court

Case Title: Shri Mandar Jain Sangh, Mandar, Through Its Trustee Bhanwarlal Doshi v. Gram Panchayat, Mandar, Through Its Sarpanch, TehsilReodar, District Sirohi & Anr.

Citation: 2022 LiveLaw (Raj) 133

The Rajasthan High Court observed that Panchayat has no authority to decide the question of the revenue entries as the same lies in the domain of the revenue authority of the State of Rajasthan.

Justice Vineet Kumar Mathur, observed,

"Thus, the revenue entries in the name of petitioner as stand today creates no doubt with respect to the title of the land in question. It is also noted that the Panchayat has no authority to decide the question of the revenue entries as the same lies in the domain of the revenue authority of the State of Rajasthan."

Essentially, the Gram Panchayat, Mandar passed an interim order refusing to grant permission for raising construction of a building. The interim order was passed in the application preferred by the petitioner being the Khatedar owners of the land located in Gram Mandar. It was stated in the interim order that the petitioner may submit the documents to show how the land was converted from "Mafi Dharmada Po Bharayi Panch Mahajan Khatedar" to "Panch Mahajanan Khatedar".

Other Important Updates

  1. Rajasthan High Court Issues Show Cause To District Collector, Jail Superintendent Over Delay In Deciding Convict's Emergent Parole

Case Title: Girdhari Singh Versus State of Rajasthan

The Rajasthan High Court recently issued show cause notice to the Jail Superintendent and the District Collector in Bikaner, seeking their explanation over one month's delay in deciding the emergency parole application of a convict, whose mother had passed away.

The bench comprising Justice Sandeep Mehta and Justice Rameshwar Vyas observed that Court has time and again directed the jail as well as parole authorities to remain vigilant while deciding the emergent parole applications and to ensure that orders are passed thereupon within 7 days of presentation.

Further, under Rule 23 of the Rajasthan Prisoners Release on Parole Rules, 2021, an application for emergent parole is required to be decided within 4 days of presentation.

In this backdrop, te Bench remarked,

" Apparently, the Superintendent, Central Jail, Bikaner as well as District Collector, Bikaner have acted in contempt of this Courts' directions as also in gross non-compliance of Rule 23 of the Rules of 2021. "

  1. Govt Jobs: PIL In Rajasthan High Court Seeks Source Of Answer Keys Used In Recruitment Exams, Suggests Overall Reforms In Process

Case Title: M/s Utkarsh Classes v. State Of Rajasthan & Ors.

The Rajasthan High Court has recently issued notice on a public interest litigation filed by Utkarsh Classes seeking disclosure of detailed syllabus and issuance of source of reference from which the question has been asked and the answer of the same has been relied upon in various recruitment examinations conducted by the state.

Justice Vijay Bishnoi and Justice Rekha Borana, observed,

"Issue notice of writ petition, returnable within a period of four weeks and be given 'dasti' to learned counsel for the petitioner for service."

Telangana High Court

1. Arbitral Award A Nullity If Passed Beyond Prescribed Period: Telangana High Court

Case Title: Roop Singh Bhatty and others versus M/s. Shriram City Union Finance Limited

Citation: 2022 LiveLaw (Tel) 24

The Telangana High Court has held that the provisions of Section 29A of the Arbitration and Conciliation Act, 1996 (A&C Act) are cast in mandatory terms and the mandate of the arbitrator terminates under Section 29A(4) after the expiry of the prescribed period, making the arbitrator functus-officio and the award passed by him a nullity.

The Bench, consisting of Justice P. Naveen Rao and Dr. Justice G. Radha Rani, ruled that substitution of Section 29A(1) of the A&C Act by the Amendment Act of 2019, amending the time limit for making an award, does not operate retrospectively, and merely because the word substitution is used the amended provision does not relate back to the date of the original provision.
Tripura High Court

Case title - Sanju Tanti v. The State of Tripura

Citation: 2022 LiveLaw (Trip) 10

The Tripura High Court recently acquitted a man booked and convicted under, inter alia, Section 8 of the POCSO Act [Punishment for sexual assault] for allegedly touching a minor's hand as the Court noted that the prosecution and the victim had said nothing about the intention of the accused to molest.

The Bench of Justice Arindam Lodh, which was hearing an appeal filed by the accused against the order of conviction passed by the Special Judge (POCSO), Khowai, Tripura, observed thus:

"After careful perusal of the record it is found that the offence under Section 8 of the POCSO Act has not been established beyond a reasonable doubt. The prosecution witnesses including the victim has not specifically stated anything that there was any intention of the accused to molest her. However, though she stated that the accused had touched her hand, in this situation, in my opinion, the ingredients of Section 8 have not been fulfilled and conviction and sentence under Section 8 of the POCSO Act stand quashed and set aside."
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