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All High Courts Weekly Round-Up [May 2 - May 8, 2022]

Shrutika Pandey
9 May 2022 4:00 PM GMT
All High Courts Weekly Round-Up [May 2 - May 8, 2022]
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ALLAHABAD HIGH COURT Dr. Ayub v. State of U.P. and Another 2022 LiveLaw (AB) 222 Sushil Kumar And 6 Others v. State of U.P. and Another 2022 LiveLaw (AB) 223 Suresh Yadav v. State Of U.P. Thru Addl.Chief Secy Deptt. Of Home 2022 LiveLaw (AB) 224 Jitendra Kumar v. Anil Kumar And Another 2022 LiveLaw (AB) 225 Sunil v. State of U.P. and Another 2022 LiveLaw (AB)...

ALLAHABAD HIGH COURT

Dr. Ayub v. State of U.P. and Another 2022 LiveLaw (AB) 222

Sushil Kumar And 6 Others v. State of U.P. and Another 2022 LiveLaw (AB) 223

Suresh Yadav v. State Of U.P. Thru Addl.Chief Secy Deptt. Of Home 2022 LiveLaw (AB) 224

Jitendra Kumar v. Anil Kumar And Another 2022 LiveLaw (AB) 225

Sunil v. State of U.P. and Another 2022 LiveLaw (AB) 226

Ram Vilas Thru. Daughter Sarojani And Another v. State Of U.P. Thru. Prin. Secy. Home And Others 2022 LiveLaw (AB) 227

Phool Singh And Another v. State of U.P. and connected appeals 2022 LiveLaw (AB) 228

Rama Kant Dixit v. Union Of India Thru. Its Secy. Ministry Of Personnel, Public Grievances And Pensions And Another 2022 LiveLaw (AB) 229

Irfan v. State Of U.P. And 3 Others 2022 LiveLaw (AB) 230

Uphill Farms Private Limited v. UOI 2022 LiveLaw (AB) 231

Abdul Kayyum v. Sri Neeraj Gutpa Prin. Secy. Home Lko. And 3 Others 2022 LiveLaw (AB) 232

Sunny Yadav And Another V. State Of U.P. And 3 Others 2022 LiveLaw (AB) 233

Jahur Hasan v. R.M. Srivastava Prin. Sec. Home Lko. And 5 Others 2022 LiveLaw (AB) 234

Orders/Judgments of the Week

Allahabad HC Grants Pre Arrest Bail To Peace Party President For Allegedly Threatening To Kill CM Yogi Adityanath In 2016

Case Title - Dr. Ayub v. State of U.P. and Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 20301 of 2021]

Case Citation: 2022 LiveLaw (AB) 222

The High Court granted anticipatory bail to the National President of Peace Party, Dr. Ayub in a 2016 case registered against him for his alleged statement made at a public rally, threatening to kill the then Member Of Parliament from Gorakhpur and presently, the Chief Minister of Uttar Pradesh, Yogi Adityanath.

The case against Dr. Ayub was registered at the instance of the President of Hindu Yuva Vahini Sangathan alleging that from a public platform, Dr. Ayub had abused the then MP Yogi Adityanath by saying that he was a terrorist and would kill him wherever he had been found and would capture the Gorakhnath Temple.

"No Indian Lady Can Share Her Husband": Allahabad High Court Refuses To Discharge Man Accused Of Abetting Wife's Suicide

Case title - Sushil Kumar And 6 Others v. State of U.P. and Another [CRIMINAL REVISION No. - 1092 of 2022]

Case Citation: 2022 LiveLaw (AB) 223

The High Court upheld an order of the Trial Court dismissing a discharge application filed by a man who has been accused of abetting wife's suicide. The wife had died by suicide allegedly on account of the fact that without divorcing her, her husband was going to marry another lady.

Stressing that an Indian lady can't share her husband at any cost, the Bench of Justice Rahul Chaturvedi observed thus while dismissing the revision plea filed by the Husband:

"They (Indian wives) are literally possessive about their husband. It would be biggest jolt for any married woman that her husband is being shared by some other lady or he is going to marry some other lady. In such awkward situation, it would be impossible to expect any sanity from them. Exactly, same thing happen in this case too, where soon after coming to know that her husband got married in clandestine way with some other lady, by itself is more than sufficient reason to commit suicide."

"Heinous Crime Accused Can't Complain Of Violation Of Article 21 When He Isn't Cooperating In Trial": Allahabad HC Denies Bail

Case title - Suresh Yadav Opposite Party :- State Of U.P. Thru Addl.Chief Secy Deptt. Of Home

Case Title - 2022 LiveLaw (AB) 224

The High Court observed that a heinous crime accused can not complain of the violation of Article 21 of the Constitution of India when he himself is not cooperating in the early conclusion of the trial.

Denying bail to Suresh Yadav, the prime accused in the 2019 Raebareli-Aditya Murder Case, the bench of Justice Dinesh Kumar Singh further opined thus:

"When the accused are not cooperating in the trial and the accused-applicant is accused of heinous offence of a gruesome murder of a young man in a most dastardly manner, this Court does not find that it is fit case where the accused-applicant should be enlarged on bail."

Proceedings U/S 145 CrPC Has To Be Discontinued If Civil Suit For Possession Or Declaration Of Title Of Same Property Is Pending: Allahabad HC

Case title - Jitendra Kumar v. Anil Kumar And Another [CRIMINAL REVISION No. - 431 of 2000]

Case Citation: 2022 LiveLaw (AB) 225

The High Court (Lucknow Bench) has observed that where a civil suit for possession or declaration of the title in respect of the same property is pending, the proceedings under Section 145 CrPC are liable to be discontinued.

The Bench of Justice Karunesh Singh Pawar also ruled that a Magistrate exercising jurisdiction under Section 145 CrPC cannot withdraw the proceedings upon the application given by a party to it, rather, it can do so only after his subjective satisfaction.

"Victim Narrated Her Ordeal In Words & Signs": Allahabad High Court Denies Bail To 62 Y/O Man Accused Of Raping 3 Y/O Girl

Case title - Sunil v. State of U.P. and Another CRIMINAL MISC. BAIL APPLICATION No. - 29765 of 2021

Case Citation: 2022 LiveLaw (AB) 226

The High Court denied bail to a 62-year-old person accused of raping a 3-year-old girl as it noted that prima facie it was evident that the accused had committed an inhuman act of rape on a 3-year-old minor girl.

The Bench of Justice Saurabh Shyam Shamshery also noted that the 3-year-old victim girl had narrated her ordeal in words as well as in signs and had explained the entire incident of rape, allegedly committed by the accused.

No One Can Be 'Summoned' To Police Station Orally By Subordinate Police Officials Sans Station Incharge's Approval: Allahabad High Court

Case title - Ram Vilas Thru. Daughter Sarojani And Another v. State Of U.P. Thru. Prin. Secy. Home And Others [HABEAS CORPUS WRIT PETITION No. - 80 of 2022]

Case Citation: 2022 LiveLaw (AB) 227

In a significant direction issued to the State of UP and its instrumentalities, the High Court (Lucknow Bench) observed that no person, including an accused can be summoned to a police station orally by subordinate police officials without the consent/approval of the station in-charge.

The Bench of Justice Arvind Kumar Mishra-I and Justice Manish Mathur further directed the authorities thus:

"In case any application or complaint is given at any police station which requires investigation and presence of the accused then a suitable course of action as prescribed under provisions of Criminal Procedure Code are to be followed which contemplate a written notice being served upon such a person but that too only consequent to a case being registered."

The bench issued these directions while stressing that the life, liberty, and dignity of any person can not be thrown to the winds merely on verbal orders of police officials.

Life Sentence Means Imprisonment Till Last Breath; Court Can't Fix A Period Of Incarceration Of Life Convict: Allahabad High Court

Case title - Phool Singh And Another v. State of U.P. and connected appeals

Case Citation: 2022 LiveLaw (AB) 228

The High Court has clarified that the sentence of imprisonment of life is till the natural life of the accused which cannot be fixed in years by the High Court.

The Bench of Justice Sunita Agarwal and Justice Subhash Chandra Sharma observed thus while upholding the life sentence awarded to Five murder convicts by the Trial Court in a case that dates back to the year 1997.

Significantly, when it was argued that one of the convicts, Kallu, who has already served about 20-21 years in jail, be released after commuting his sentence for life imprisonment to the period undergone by him, the Court clarified that it is not permissible for the Court to fix the period of life sentence to certain years, in as much as, the legal position is that the period of life sentence is the natural life of a person.

Allahabad High Court Dismisses PIL Seeking Upgradation Of Overall Working Conditions, Pay Structure, Etc Of CBI Prosecution Cadre

Case Title - Rama Kant Dixit v. Union Of India Thru. Its Secy. Ministry Of Personnel, Public Grievances And Pensions And Another [PUBLIC INTEREST LITIGATION (PIL) No. - 201 of 2022]

Case Citation: 2022 LiveLaw (AB) 229

The High Court dismissed a Public Interest Litigation (PIL) plea seeking a direction to the Department of Personnel and Training (DOPT) and the Central Bureau of Investigation (CBI) to upgrade the overall working condition, pay structure, support staff, incentive, etc of CBI Prosecution Cadre.

The plea has been moved by one Rama Kant Dixit over the alleged discrimination being meted out to the officers of a particular cadre in the CBI, such as Assistant Public Prosecutors, Public Prosecutors, and Senior Public Prosecutors.

"Using Loudspeakers In Mosque Not A Fundamental Right": Allahabad HC Dismisses Plea Seeking Nod To Play Azan On Loudspeakers

Case title - Irfan v. State Of U.P. And 3 Others [WRIT - C No. - 12350 of 2022]

Case Citation: 2022 LiveLaw (AB) 230

The High Court has observed that the law has now been settled that the use of loudspeakers from mosques is not a fundamental right. The Bench of Justice Vivek Kumar Birla and Justice Vikas Budhwar said this while dealing with a writ plea filed by one Irfan.

Essentially, Irfan had moved to the High Court feeling aggrieved by an order passed by SDM Tehsil Bisauli, District Budaun rejecting his application seeking permission for playing loudspeaker/mike in a village Mosque at the time of azan.

Reassessment Order Not Valid If Notice By Assessing Authority Is Without Jurisdiction: Allahabad High Court

Case Title: Uphill Farms Private Limited Versus UOI

Case Citation: 2022 LiveLaw (AB) 231

The High Court bench of Justice Surya Prakash Kesarwani and Justice Jayant Banerji ruled that once the notice under Section 148 of the Income Tax Act, 1961, issued by the assessing authority was declared without jurisdiction, the subsequent proceedings, including the re-assessment order, cannot be sustained.

The petitioner/assessee submitted an objection to the "reason to believe" recorded by the assessing authority. In his objection, the petitioner has specifically stated that he has not entered into any transaction amounting to Rs. 45 lakhs during the year under consideration, which has been made the basis for recording the "reason to believe" and issuing a notice under Section 148 of the Income Tax Act, 1961. The petitioner has also produced documentary evidence to show that no transaction of Rs. 45 lakhs, as alleged, was entered into by the petitioner.

"Charges Not Specific": Allahabad HC Dismisses Contempt Plea Over Use Of Loudspeakers In Temples, Mosques Across UP

Case title - Abdul Kayyum v. Sri Neeraj Gutpa Prin. Secy. Home Lko. And 3 Others [CONTEMPT APPLICATION (CIVIL) No. - 5942 of 2014]

Case Citation: 2022 LiveLaw (AB) 232

The High Court dismissed a contempt plea filed against the State Government for its failure to confine the use of loudspeakers in Temples and Mosques within the permissible limit of decibels across the State.

Noting that the plea had not referred to any mosque or temple which was using microphones beyond the permissible limit of decibels, the bench of Justice Saral Srivastava dismissed the plea, initially with 25K Cost, however, the order regarding the imposition of the cost was, later on, withdrawn by the Court.

Obtaining Favourable Orders By Foul Means Like Back-Stabbing Solemn Court Proceedings: Allahabad High Court Imposes ₹50K Cost

Case title - Sunny Yadav And Another V. State Of U.P. And 3 Others

Case Citation: 2022 LiveLaw (AB) 233

The High Court recently imposed Rs. 50K cost on a revisionist/accused of attempting to extract favorable orders by adopting foul means. The Court termed such 'malpractices' as back-stabbing the solemn Court proceedings.

The Bench of Justice Rahul Chaturvedi further observed that the law courts should be beware of such types of unscrupulous and unethical litigants and their advising counsels and that they should be handled with iron hands by imposing exemplary costs upon such a litigant.

Influencing Court By Invoking Religious Sentiments Not Good For Temple Of Justice: Allahabad HC Dismisses Contempt Plea

Case title - Jahur Hasan v. R.M. Srivastava Prin. Sec. Home Lko. And 5 Others CONTEMPT APPLICATION (CIVIL) No. - 4901 of 2014

Case Citation: 2022 LiveLaw (AB) 234

The High Court deprecated the conduct of an advocate who tried to influence the Court by using such language so as to invoke religious sentiments. The Bench of Justice Saral Srivastava further remarked that such conduct is not good for the temple of justice.

Essentially, the Court was dealing with a contempt plea filed by one Jahur Hasan who alleged non-compliance and violation of the order of the High Court dated September 9, 2013, in Writ-C No.48093 of 2013.

Updates from Allahabad High Court/UP Courts

"Burning Issues Emerge From Madrasas": PIL In Allahabad HC Seeks Merger Of UP Madrasas With State's Secondary Education Board

A Public Interest Litigation (PIL) plea has been moved before the Allahabad High Court seeking a direction to merge all Madrasas of Uttar Pradesh with the Uttar Pradesh Madhyamik Siksha Parishad and the UGC so that the Madrasa students can come out of the rigid religious mindset.

The PIL plea has been moved by petitioner in person Saher Naqvi wherein she has stated that since common education is not being provided to the Madrasa students and only religious knowledge is imparted to them, therefore, it has the potential to harm the society.

Allahabad High Court Seeks UP Govt's Reply On Ex-MLA Mukhtar Ansari's Chargesheet Quashing Plea In Funds Misappropriation Case

Case title - Mukhtar Ansari @ Mokhtar Ansari v. State of U.P. and Another [APPLICATION U/S 482 No. - 9722 of 2022]

The High Court directed the State Government to file its counter affidavit within a period of six weeks on a petition filed by former MLA Mukhtar Ansari (presently in jail) seeking to quash a charge sheet filed against him by the Uttar Pradesh police in connection with a case of misappropriation of MLA Funds fund in the year 2012-13.

This order has been issued by the Bench of Justice Rahul Chaturvedi who was nominated by the Chief Justice to hear this plea after Justice Rajiv Gupta recused to hear the plea on April 20, 2022.

"Advocate General's Office Can't Be Left Vacant": Allahabad HC Directs UP Govt To Take A Decision To Appoint AG By May 16

Dealing with a Public Interest Litigation (PIL) plea concerned with the appointment of the Advocate General in the State of Uttar Pradesh, the High Court directed the State Government to take a decision in this regard by May 16, 2022.

The bench of Justice Devendra Kumar Upadhyaya and Justice Subhash Vidyarthi further stressed that the office of Advocate General cannot be permitted to be left vacant.

Allahabad High Court Issues Non-Bailable Warrant Against NOIDA CEO Ritu Maheshwari In Contempt Plea

The High Court issued a non-bailable warrant against the Chief Executive Officer of New Okhla Industrial Development Authority (NOIDA) and IAS Officer Ritu Maheshwari after she failed to appear in court in a contempt case related to land acquisition.

The Bench of Justice Saral Srivastava has directed the police to arrest her and present her in court for the next hearing on May 13. This order has been passed in a contempt plea filed by one Manorama Kuchhal and another person.

ANDHRA PRADESH HIGH COURT

1. Can't Exercise Writ Jurisdiction To Interfere In Election Process Once It Has Commenced: Andhra Pradesh High Court

Case Title: Yelamanchili Satya Krishna Versus The State of Andhra Prades

Citation: 2022 LiveLaw (AP) 76

The Andhra Pradesh High Court recently did not intervene in the election process of a Bank registered under the Andhra Pradesh Mutually Aided Co-operative Societies Act, 1995. The Election was alleged to be irregular and contrary to law but the Court held that it cannot stall the election process once it has commenced.

2. "Incumbent Upon Govt Servants To Promptly Comply With Judicial Orders": Andhra Pradesh HC Sentences 3 IAS Officers To One Month Jail For Contempt

Case Title: NMS Goud v. Punam Malakondaiah & Ors.

Citation: 2022 LiveLaw (AP) 77

The Andhra Pradesh High Court recently sentenced 3 IAS officers to one month jail for contempt of court while observing that it is incumbent on Government servants to ensure that the orders of this Court are complied with promptitude.

The observation came from Justice Battu Devanand:

"The contempt case is allowed and the contemnors are sentenced to undergo simple imprisonment for a period of one (1) month each and to pay fine of Rs.2,000/- (Rupees two thousand only) each in default of payment of fine, they shall undergo simple imprisonment for a period of one (1) week each. The contemnor Nos. 2 and 3, who are present before this Court, requested the Court to suspend the sentence. Considering their request, the sentence is suspended for a period of six (06) weeks. The 1st Contemnor is directed to surrender before the Registrar (Judicial) of this Court on or before 13.05.2022."

BOMBAY HIGH COURT

Nominal Index

Sanjeev Kumar Versus UOI 2022 LiveLaw (Bom) 170

Mohd. Luthpura Vajidali Shaikh vs State of Maharashtra 2022 LiveLaw (Bom) 171

Adv. Firoz Babulal Sayyed Vs. The Union of India & Anr. 2022 LiveLaw (Bom) 172

Dr P Varavara Rao & othrs vs State of Maharashtra and othrs 2022 LiveLaw (Bom) 173

Mubeen Kadar Shaikh Versus State of Maharashtra, and connected matters 2022 LiveLaw (Bom) 174

Indiabulls Housing Finance Ltd. and Ors. v. State of Maharashtra and Anr. , with connected matter 2022 LiveLaw (Bom) 175

Alnesh Akil Somji Versus The State of Maharashtra 2022 LiveLaw (Bom) 176

Govind Ramling Solpure and Ors. versus The State of Maharashtra and Ors. 2022 LiveLaw (Bom) 177

Omkar Mahadeo Supekar vs MCGM 2022 LiveLaw (Bom) 178

Armstrong Pure Water Services Pvt. Ltd. Versus Union of India and others 2022 LiveLaw (Bom) 179

Amol Kashinath Vyavhare Versus Purnima Chaugule Shrirangi And Others 2022 LiveLaw (Bom) 180

Orders/Judgments

Assessee Deprived Of Refund Due To Wrongful Withholding Of Amount By Income Tax Dept.:Bombay High Court Imposes 6% Interest

Case Title: Sanjeev Kumar Versus UOI

Citation: 2022 LiveLaw (Bom) 170

The Bombay High Court bench of Justice S.G. Mehare and Justice R.D. Dhanuka has allowed 6% interest to the assessee on wrongful withholding of the amount by the income tax department.

Based on orders passed by the Supreme Court and Delhi high Court the bench said that "the assessee who is deprived of refund of their amount in view of wrongful withholding of their amount by the authority cannot be refused to compensate for such wrongful deprivation of their amount lying with the authority for no fault of the assessees."

BombayHigh Court Decides Man's Appeal A Year After He Completed Punishment Of 10 Yrs Imprisonment, Reduces Sentence

Case Title: Mohd. Luthpura Vajidali Shaikh vs State of Maharashtra

Citation: 2022 LiveLaw (Bom) 171

The Bombay High Court decided a labour contractor's appeal, a year after the 30-year-old man had served his complete 10-year-sentence and was released from the central Prison.

The bench of Justice PD Naik upheld Luthpura Shaikh's conviction only for seven years regarding possession of counterfeit currency (489-B of IPC) and acquitted him for graver charges attracting the 10-year-sentence.

'No Legally Enforceable Right Infringed': Bombay High Court Dismisses Plea To Prohibit Newspapers From Publishing Pictures Of Gods & Goddesses

Case Title - Adv. Firoz Babulal Sayyed Vs. The Union of India & Anr.

Citation: 2022 LiveLaw (Bom) 172

The Bombay High Court dismissed an Advocate's PIL seeking directions for a policy restricting publication of photographs of gods and goddesses in the newspapers as they ultimately land up in the garbage bin.

The bench held that the matter was entirely within the domain of the legislature, or to a limited extent, within the domain of the executive. The bench restated, that a writ petition would lie only if a legally protected right, which is judicially enforceable, is abrogated or infringed or is threatened to be abrogated or infringed by arbitrary executive action.

Breaking: Bombay High Court Rejects Review Plea Seeking Default Bail To Varavara Rao, Vernon Gonsalves & Arun Ferreira

Case Title – Dr P Varavara Rao & othrs vs State of Maharashtra and othrs

Citation: 2022 LiveLaw (Bom) 173

The Bombay High Court held re-hearing of the matter on a point which was not at all urged, is impermissible in law, under the guise of review. Nor can review be claimed or asked for merely for a fresh hearing or canvassing a totally new submission.

The bench thus rejected a review application filed by three accused in the Bhima Koregaon – Elgar Parishad Case seeking default bail alleging factual corrections in the order refusing them default bail.

The fact that the accused had also filed for default was not argued before the court.

"We, therefore, find it difficult to accede to the submission on behalf of the applicants that a factual error had crept in… It is trite that disguised as a review, it is not permissible even for an erroneous decision to be, "re-heard and corrected".

2008 Indian Mujahideen Case: 14 Yrs On, Bombay High Court Orders Re-Adjudication Of Accused' Plea To Drop MCOCA Charges

Case Title: Mubeen Kadar Shaikh Versus State of Maharashtra, and connected matters

Citation: 2022 LiveLaw (Bom) 174

The Bombay High Court has directed the Special Court to re-adjudicate the plea of an accused seeking to drop charges under the Maharashtra Control of Organised Crime Act (MCOCA) against 23 men arrested over 13-14 years ago in the Indian Mujahideen Case.

A division bench observed that an application seeking to drop certain charges was pending before the trial court when charges were framed in 2013 and the court couldn't have framed charges before disposing of the application.

Continuity Of Proceedings Will Be 'Abuse Of Process': Bombay High Court Quashes Cheating FIR Against Indiabulls

Case Title: Indiabulls Housing Finance Ltd. and Ors. v. State of Maharashtra and Anr. , with connected matter

Citation: 2022 LiveLaw (Bom) 175

The Bombay High Court recently allowed a plea by Indiabulls Housing Finance Limited (IHFL) seeking to quash a FIR lodged by a shareholder against the company and its promoters, alleging cheating, criminal breach of trust. The Court also quashed a Magistrate Court's order, directing registration of FIR.

The bench was of the view that the Magistrate was influenced by the length of the complaint, and arrived at a conclusion that there was a diversion of huge monetary funds to the tune of Rs. 300 crores and the money was transferred to other country i.e., Mauritius.

"Admittedly, it was only allegations in the complaint and except bare words of the complainant there was no other material before the Magistrate to form such an opinion as such, there is merit in the submissions of learned Senior Counsel Mr. Rohatgi that the Magistrate without applying his mind passed mechanical order under Section 156(3) of Code of Criminal Procedure."

Section167(2) CrPC- Investigating Agency Can't Curtail Accused' Right To Default Bail By Invoking Graver Charges: Bombay High Court

Case Title: Alnesh Akil Somji Versus The State of Maharashtra

Citation: 2022 LiveLaw (Bom) 176

The Bombay High Court has clarified that an investigating agency cannot thwart the right to default bail of an accused by merely invoking graver charges.

It opined that the Court, while considering the plea for default bail, would be required to look into the generality of the allegations made and the material collected. In a given case where ex-facie the provision is not attracted, the Court may not be bound by the same.

NOC Not Mandatory For Registering Sale Of Fragmented Land: Bombay High Court Strikes Down Provision In Maharashtra Registration Rules, 1961

Case Title: Govind Ramling Solpure and Ors. versus The State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 177

The Bombay High Court has read down Rule 44(1)(i) of the Maharashtra Registration Rules, 1961 which imposed additional conditions on the person seeking registration of sale deeds for lands of certain size and therefore produce a No Objection Certificate for fragmentation of the land from the competent authority.

A circular issued by the Inspector General of Registration and Controller of Stamps (IGRCS), on July 12, 2021 based on Rule 44(1)(i), mandated enclosure of permission from the concerned authority in view of section 8B of the Maharashtra Prevention of Fragmentation and Consolidation of Holding (Amendment) Act, 2015. The circular barred Sub-Registrar's from registering any sale/transfer deed, if the no objection from the competent authority was not produced.

"SureIt Is Illegal": Bombay High Court Stops Work Of Powai Cycling &Jogging Track, Directs Restoration

Case Title -Omkar Mahadeo Supekar vs MCGM

Citation: 2022 LiveLaw (Bom) 178

In a huge setback for the civic body, the Bombay High Court held that the ongoing work for the cycle and jogging track around the Powai-lake is illegal and directed restoration of the reclaimed land.

The court held that the cycle track was a breach of Development Control Regulation 2034, [34 3.3 clause 7] mandating no construction for 100 meters from the periphery of the lake.

Bombay High Court Directs Assessee To Pay Rs.25,000 to Assessing Officer As The Stay Order Was Not Proactively Communicated

Case Title: Armstrong Pure Water Services Pvt. Ltd. Versus Union of India and others

Citation - 2022 LiveLaw (Bom) 179

The Bombay High Court bench of Justice N.R.Borkar and Justice K.R.Shriram held that the a litigant should have been proactive and promptly communicated the stay granted by the Court to the Assessing Officer.

Not Offence U/S 505(2) IPC: Bombay High Court Quashes FIR Against Journalist For Reporting On Differences Between Police Departments In Solapur

Case Title: Amol Kashinath Vyavhare Versus Purnima Chaugule Shrirangi And Others

Citation - 2022 LiveLaw (Bom) 180

Publishing news reports about friction between police officers from different departments doesn't amount to creating ill-will among classes as defined under section 505(2) of the IPC, the Bombay High Court has held.

The bench noted that ingredients of 505(2) of the IPC are that the publication of the article must be with the "intent to create or promote feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever."

CALCUTTA HIGH COURT

Nominal Index

Ideal Unique Realtors Private Limited & Anr. versus Union of India & Ors 2022 LiveLaw (Cal) 153

Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 154

Dipok Dinda v. State of West Bengal and Ors 2022 LiveLaw (Cal) 155

Future Market Networks Limited versus Laxmi Pat Surana & Anr 2022 LiveLaw (Cal) 156

In Re : State of West Bengal vs. Md. Younus @ Bilal & Ors 2022 LiveLaw (Cal) 157

Sekh Jamir and Others v. Central Bureau of Investigation and Others 2022 LiveLaw (Cal) 158

Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters 2022 LiveLaw (Cal) 159

Amrita Pandey v. The Union of India and others 2022 LiveLaw (Cal) 160

Kader Khan v. State of West Bengal 2022 LiveLaw (Cal) 161

Dr. Kunal Saha v. University of Calcutta & Anr 2022 LiveLaw (Cal) 162

Orders/Judgments

1. Spot Memos Issued By Audit Department Unenforceable, Since Earlier Proceedings On Same Issue Not Completed: Calcutta High Court

Case Title: Ideal Unique Realtors Private Limited & Anr. versus Union of India & Ors.

Case Citation: 2022 LiveLaw (Cal) 153

The Calcutta High Court has quashed the spot memos issued to the assessee by the audit department and ruled them unenforceable since earlier proceedings initiated by the revenue department on the same issue were not completed. The Bench, consisting of Justices T. S. Sivagnanam and Hiranmay Bhattacharyya, observed that different wings of the same department had been issuing notices and summons to the assessee without taking any of the earlier proceedings to a logical end. The appellant/ assessee Ideal Unique Realtors Private Limited filed an appeal before the Calcutta High Court challenging the jurisdiction of the Sr. Audit Officer in issuing a "spot memo" against the appellants. The appellants submitted before the High Court that the Director General of Goods and Services Tax, DGGI, Kolkata had issued summons to the appellants for which the appellants had submitted their reply. Thereafter, the DGGI had issued two more notices on the same issue. The appellants added that in response to the summons, the appellants had appeared before the authority and had submitted the requisite documents. The appellants contended that in spite of the same, the revenue officials had issued spot memos to the appellants on the same issue.

2. Calcutta High Court Orders DLSA & SALSA To Process Compensation Within 2 Weeks For Victims, Kin In 5 Recent Rape Cases

Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters

Case Citation: 2022 LiveLaw (Cal) 154

The Calcutta High Court directed the District Legal Services Authority (DLSA) and the State Legal Services Authority (SALSA) to expeditiously decide a representation seeking compensation for the victims and their family members pertaining to the 5 recent rape cases that have been reported in various districts of West Bengal last month. The counsel appearing for the petitioner apprised a Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj that a communication had been sent to the District Legal Services Authority (DLSA) and the State Legal Services Authority (SALSA) seeking compensation for the victims and their kin under the Witness Protection Scheme, 2018. Accordingly, the Court directed the authorities to take action on the representation as expeditiously as possible preferably within a period of 2 weeks. The Court also took on record the status report indicating the progress of the investigation into the cases as also the case diary.

3. 'Comprehensive Examination Required': Calcutta HC Appoints Amicus Curiae To Deal With Petitions On Illegal Encroachment Of Water Bodies In State

Case Title: Dipok Dinda v. State of West Bengal and Ors

Case Citation: 2022 LiveLaw (Cal) 155

The Calcutta High Court appointed an Amicus Curiae to deal with petitions pertaining to illegal encroachment of water bodies in the State. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed that several petitions are being filed before the Court alleging that water bodies in the State are being illegally filed up. Opining that a comprehensive examination is required, the Court remarked, "We find that several such petitions are filed before this Court with the allegation that the water bodies in the State either belonging to the government or to the private persons are being illegally filled up. Therefore, a comprehensive examination of the issue is required." Accordingly, the Court directed advocate Anindya Lahiri to act as an Amicus Curiae and assist the Court in examining the issue. The Court was adjudicating upon a Public Interest Litigation (PIL) alleging that the property situated at the District of Purba Medinipur, Block – Panskura-II, Mouza – Bangalur, J.L. no.317, Khatian no.1 and Dag no.17, which is a government property and a water body classified as Khal, is being illegally filled up by some unknown persons by encroaching upon the same.

4. Post-Award Interest Is Not Advisory But A Mandate Of The A&C Act: Calcutta High Court

Case Title: Future Market Networks Limited versus Laxmi Pat Surana & Anr

Case Citation: 2022 LiveLaw (Cal) 156

The Calcutta High Court has ruled that award of future or post-award interest is not advisory but a mandate of the Arbitration and Conciliation Act, 1996 (A&C Act) and it should be given its due weightage. The Single Bench of Justice Moushumi Bhattacharya reiterated that post award interest is a safeguard against delayed payment of the amount awarded to the award holder. An arbitral award was passed in the arbitral proceedings between the parties. The respondent no. 1/ award holder Laxmi Pat Surana filed a petition for execution of the award. The petitioner/award debtor filed an application before the Calcutta High Court for seeking a stay of the arbitral award under Section 36 of the A&C Act. The High Court ruled that as per the law laid down in Hyder Consulting (UK) (2014), the word "sum" means award plus interest taken as an indivisible whole in respect of Section 31(7)(a) of the A&C Act for grant of pre-award interest. The Court added that the same interpretation can be stretched to cover Section 31(7)(b) for post-award interest. The Court held that award of future/post-award interest is not advisory but a mandate of the A&C Act and is to be given its due weightage. The Court reiterated that it is a safeguard against delayed payment of the amount awarded to the award-holder.

5. LeT Terrorist On Death Row To Argue Appeal In Person: Calcutta HC Orders To Shift Him To Presidency Jail, Extends Police Protection, Appoints Amicus

Case Title: In Re : State of West Bengal vs. Md. Younus @ Bilal & Ors

Case Citation: 2022 LiveLaw (Cal) 157

A Lashkar-e-Taiba (LeT) terrorist was produced before the Calcutta High Court on Tuesday from Tihar Correctional Home in New Delhi as he has expressed his desire to argue in person his appeal against the order of conviction and death sentence imposed upon him. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi conducted a hearing on a vacation day considering the urgency of the matter. The convict, one Sk. Abdul Nayeem, was produced before the Bench under proper escort from the Tihar Correctional Home. He prayed before the Bench to supply him with copies of material exhibits in order to enable him to prepare his arguments in appeal. In order to enable the convict to effectively argue his appeal, the Court ordered that he should be kept in Presidency Correctional Home in Kolkata during the hearing of the appeal. "In order to enable the said convict to effectively argue his appeal before this court, we consider it imperative that the said convict be kept in a correctional home in Kolkata during the hearing of the appeal. Director General, West Bengal Correctional Services and Director General of Police, West Bengal is directed to make appropriate arrangements so that the said convict may be handed over to the custody of the Superintendent, Presidency Correctional Home, Kolkata by the police personnel who have escorted the said convict from Delhi", the Court ordered.

6. WB Post Poll Violence| Calcutta HC Allows CBI To Commence Investigation Afresh After Filing Of Chargesheet By State Police For Same Offence

Case Title: Sekh Jamir and Others v. Central Bureau of Investigation and Others

Case Citation: 2022 LiveLaw (Cal) 158

The Calcutta High Court upheld a Single Judge order allowing the Central Bureau of Investigation (CBI) to take up investigation afresh in respect of a case pertaining to the West Bengal post poll violence even after the charge sheet had already been filed by the State police for the same offence and the case had already been committed for trial. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon an appeal preferred against an order of a Single Judge dated March 21, 2022 wherein it had been held that interference under Article 226 of the Constitution is not warranted especially when an alternative effective remedy is available to the appellant under Section 482 of CrPC. Pursuant to the submissions of the parties, the Bench observed that the appellants are not entitled to any relief as they have not approached the writ court with 'clean hands' as they had not filed the last page of the chargesheet wherein the concerned Magistrate had given permission to conduct further investigation under Section 173(8) of CrPC. Accordingly, the appeal was dismissed by observing, "The view which is taken by the learned Single Judge is duly supported by the above judgments of the Hon'ble Supreme Court. Since, alternative efficacious remedy under Section 482 of the Cr.P.C. is available which the appellants may avail in accordance with law, therefore, we are not examining the issue on merit which has been argued before this Court by referring to several judgments."

7. Calcutta High Court Directs IPS Officer Amit P. Javalgi To Supervise Probe Into Moynaguri Sexual Assault Case

Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters

Case Citation: 2022 LiveLaw (Cal) 159

The Calcutta High Court vide order dated May 4, 2022 has directed IPS officer Amit P. Javalgi to oversee the investigation into the case of death by suicide by a class eight girl at Moynaguri, West Bengal following the commission of the offence of attempt to rape upon her. The minor victim girl who had set herself ablaze following a threat to withdraw a police complaint regarding the rape attempt on her, succumbed to her injuries in a state-run hospital on April 25. Consequently, a renewed prayer for a CBI probe had been made by the concerned petitioner. A Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj directed, "Having regard to the chain of events, which are reflected above as also the nature of allegations which have been made and the circumstances of the case, we are of the opinion that presently the investigation needs to be carried out under the supervision of Shri Amit P Javalgi, IPS, DIG, Jalpaiguri Range. Hence we direct accordingly." It may be noted that back in June 2017, IPS officer Amit P. Javalgi had been removed from his post of Superintendent of Police, Darjeeling following the protest against Chief Minister Mamata Banerjee by Gorkha Janmukti Morcha (GJM) cadres and the resultant violence that led to the resurrection of demand for Gorkhaland. The Bench further extended police protection to the family members of the deceased victim and other witnesses of the case and underscored that the Director General & Inspector General of Police, West Bengal will be made responsible to ensure that no threat is extended to them.

8. Calcutta High Court Orders Videographed Post Mortem Of Dead BJP Worker In Presence Of CJM, Grants Police Protection To Kin

Case Title: Amrita Pandey v. The Union of India and others

Case Citation: 2022 LiveLaw (Cal) 160

The Calcutta High Court on Friday directed that the post mortem examination of deceased BJP worker Arjun Chowrasia should be conducted at the Command Hospital, Kolkata by a team of experts and in the presence of Chief Judicial Magistrate, South 24-Parganas. Videography of the post-mortem examination was also ordered to be conducted. According to reports, the deceased, identified as Arjun Chowrasia, was found hanging inside a building in North Kolkata's Ghosh Bagan area. He was a functionary of the BJP Yuva Morcha. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition seeking judicial intervention into the incident of unnatural death on allegations of foul play. "Having regard to the circumstances which have been disclosed before us, we are of the opinion that the post- mortem of the body of deceased Arjun Chaurasia should be done at the Command Hospital which is stated to be only 5-6 kilometers away from R.G. Kar Medical College and Hospital", the Court ordered. Directing the Head of the Command Hospital to constitute a team of experts for conducting the post mortem examination, the Court underscored further, "The Head of the Command Hospital will constitute a team of experts for the purpose of the said post-mortem and at the time of post-mortem, expert from AIIMS, Kalyani as also the Head of the Department of Forensic Science, R.G. Kar Medical College and Hospital can remain present. The CJM, South 24-Parganas will also remain present at the time of the post-mortem. The videography of the post-mortem will be done." Granting police protection to the kin of the deceased, the Court ordered, "The Commissioner of Police, Kolkata is also directed to ensure that proper police protection is provided to the family members of the deceased."

9. 'Archaic Law': Calcutta HC Recommends Amendments To CrPC To Allow Trial In Absentia Of An Absconding Accused To Secure Rights Of Sexual Abuse Victims

Case Title: Kader Khan v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 161

The Calcutta High Court has recommended that appropriate amendments be made to the Code of Criminal Procedure (CrPC) for incorporating provisions for trial in absentia of an absconding accused for better administration of justice and to prevent the loss of valuable evidence due to death of a witness. It set aside, as per the existing law, a lower court order that allowed deposition of a gang rape victim recorded during the trial of three other accused in the same case to be used against two absconding accused, who were arrested later. A Bench comprising Justice Joymalya Bagchi and Justice Bivas Pattanayak observed. "Taking note of the pernicious impact of abscondence on speedy justice and rights of victims, this Court proposes that appropriate amendments be made to the Code of Criminal Procedure for incorporating provision for trial in absentia of an absconding accused for better administration of criminal justice." The directions were issued on a petition by Kader Khan, an accused in the infamous Park Street gangrape case of 2012, that challenged the trial court order allowing the prosecution to use deposition of the victim, who died in March 2015, against him during the trial. He had absconded following the incident and was arrested in September 2016. "No Court has jurisdiction to transfer evidence recorded in an earlier trial after its completion as evidence against an accused who had not been put up for trial in the earlier case even if both the trials are in respect of the self-same charge. This is against the fundamental principle of criminal jurisprudence that each criminal case has to be tried on the basis of evidence led in the said case and not by reference to evidence in other cases. Trial Court erred in law to hold such jurisdictional error was a curable irregularity and ought to be condoned under Section 465 Cr.P.C. in the interest of justice", the Court held further.

10. HC Dismisses Plea Against Calcutta University For Awarding Honorary Degree To Doctor Against Whom Scathing Criticism Was Made By Supreme Court

Case Title: Dr. Kunal Saha v. University of Calcutta & Anr

Case Citation: 2022 LiveLaw (Cal) 162

The Calcutta High Court dismissed a writ petition against the University of Calcutta for awarding a D.Sc.honorary degree to a doctor against whom the Supreme Court had made scathing remarks for medical negligence and had held him to be primarily responsible for the death of the petitioner's wife. The petitioner had apprised a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj that the University of Calcutta (respondent no.1) had committed a gross abuse of power by granting the concerned doctor one Dr. Sukumar Mukherjee (respondent no. 2) with a degree of Doctorate in Science (D.Sc.). Opining that the instant case does not warrant interference by a Constitutional Court, it was held, "It is further found that the selection of the respondent no. 2 by the respondent no. 1 has not undermined the sanctity or honour or dignity of the Hon'ble Supreme Court or violated Article 144 of the Constitution of India. The honorary degrees are awarded to achievers in their respective fields. This does not warrant the interference of the Constitutional Court. Thus, where the nature and subject matter of a decision is not amendable due to judicial process because the court is not competent to deal with the matter, the court should not intrude into such questions."

Important Developments

1. Moynaguri Sexual Assault: PIL In Calcutta High Court Seeks CBI Probe After Minor Victim Sets Herself Ablaze Over Threat To Withdraw Complaint, Dies

Case Title: Pallabi Chatterjee and Ors v. State of West Bengal and other connected matters.

A renewed prayer for a probe by the Central Bureau of Investigation (CBI) has been made before the Calcutta High Court on Monday with regards to an incident of attempted rape that took place at Moynaguri in West Bengal last month, in light of the fact that the minor victim had succumbed to her injuries. The minor victim girl who had set herself ablaze following a threat to withdraw a police complaint regarding the rape attempt on her, succumbed to her injuries in a state-run hospital on April 25. The Court was adjudicating upon a Public Interest Litigation (PIL) petition seeking a CBI probe into 5 recent rape cases that are reported in various districts of West Bengal last month. Incidents of rape have been reported to have taken place at Netra and Namkhana villages in South 24 Parganas district, at Pingla in West Midnapore district, at a village near Santiniketan in Birbhum district and at Mainaguri of Jalpaiguri district in West Bengal last month. The concerned counsel appearing for the petitioner apprised a Bench comprising Chief Justice Prakasha Shrivastava and Justice Rajarshi Bharadwaj that the prime accused who is purported to be a member of the ruling Trinamool Congress Party had been granted bail in the case despite the offence being cognisable and non-bailable. Taking note of the submissions, the Bench directed the counsel appearing for the petitioner to file an affidavit containing the additional materials in support of her plea within the course of the day. Accordingly, the matter was directed to be listed for further hearing on the next working day i.e. on May 3.

2. Hanskhali Gangrape & Murder: Plea In Calcutta High Court Seeks Transfer Of Trial From Nadia To Kolkata, CBI Files Status Report

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

The Calcutta High Court took on record the latest status report filed by the Central Bureau of Investigation (CBI) pertaining to 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. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj took on record the progress report filed by the CBI indicating the steps undertaken in the investigation. The Court also perused the progress report and handed it back to the CBI. Furthermore, a plea has been filed before the Court by one Anindya Sundar Das seeking transfer of the criminal case from Nadia district court to Kolkata for the sake of a free and fair trial. The concerned counsel submitted that such a transfer of the case is required considering the fact that the accused persons had been enlarged on bail. To this, the Chief Justice orally remarked that the counsel should first indicate some material to show that a free and fair trial is not possible without transferring the case from Nadia to Kolkata. Accordingly, the Court directed the petitioner to supply legible copies of the petition to all concerned parties. Response to the plea was also ordered to be filed before the next date of hearing which is slated to take on May 20.

3. Two Accused In Birbhum Massacre Granted Bail In 'Improper Manner': Plea Alleges In Calcutta High Court, Record Sought

Case Title: The Court on its own Motion In re: The Brutal Incident of Bogtui Village, Rampurhat, Birbhum

The Calcutta High Court took on record the second progress report filed by the Central Bureau of Investigation (CBI) pertaining to the investigation into the violence in Birbhum district of West Bengal, in which ten persons were killed allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh. The Court had earlier also transferred to the CBI the investigation the murder of local TMC leader Bhadu Sheikh that was followed by arson in Bogtui village, Rampurhat, Birbhum, that killed ten people, including two children. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Monday took on record the status report filed by the CBI which contained the steps undertaken pertaining to the investigation into the incident of arson and violence in Birbhum as well as the murder of TMC leader Bhadu Sheikh. Pertinently, an application was also filed before the Court alleging that two juvenile accused persons in the case had been granted bail in an improper manner and hence a prayer was made for the Court to take up the issue of cancellation for bail in exercise of its suo motu powers. Reliance was also placed on the Supreme Court judgment in R. Rathinam v. State in this regard. Pursuant to the submissions, the Court directed the petitioner to place on record the orders passed by the concerned Court granting bail as well as rejecting the application for cancellation of bail on the next date of hearing. The matter is slated to be heard next on May 10.

4. WB Election Commission Moves Supreme Court Against HC Order For Forensic Audit Of CCTV Cameras By CFSL For Contai Municipality Polls

Case Title: Mousumi Roy v. West Bengal State Election Commission and other connected matters

The Calcutta High Court was informed by the State Election Commission that a Special Leave Petition (SLP) has been filed before the Supreme Court against the order of the Court directing the Central Forensic Science Laboratory (CFSL), New Delhi to conduct a forensic audit of the CCTV cameras that were used during the recently concluded Contai Municipality elections. The High Court vide order dated April 26 had observed that notwithstanding the constitutional bar under Article 243-ZG (b) of the Constitution of India, such a direction is required in the 'larger public interest' and to uphold democratic principles. "..we are of the opinion that not only to ascertain the compliance of earlier orders of this Court but in the larger public interest and to uphold democratic principles, it is necessary to get forensic audit of CCTV footage of Contai Municipal Election done", the Court had underscored. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Monday while adjudicating upon connected matters was informed by the counsel appearing for the State Election Commission that a SLP has been filed against the earlier order of the Bench directing for a forensic audit by CFSL, Delhi. Accordingly, an adjournment was sought. Taking into consideration the prayer sought, the Court adjourned the hearing of the connected matters to June 14 after taking into consideration that the Supreme Court is set to hear the SLP shortly.

5. Calcutta HC Seeks State Gov's Response In PIL Seeking NIA Probe Into Crude Bomb Blasts In WB's Malda District Which Injured 5 School Children

Case Title: Arijit Majumdar v. State of West Bengal

The Calcutta High Court sought response from the State government in a Public Interest Litigation (PIL) petition seeking a probe by the National Investigation Agency (NIA) into the incident of crude bomb blast in West Bengal's Malda district last month. Five school children were reportedly injured after the crude bombs they were playing with, mistaking those for balls, exploded in Kaliachak's Gopalnagar village close to the India-Bangladesh border last month. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj was apprised by the counsel for the petitioner that the five school children have been critically injured in the incident. It was further averred that the incident falls within the category of a 'scheduled offence' under the National Investigation Agency Act, 2008 and thus a probe by the NIA was also sought. Taking cognisance of the grievance raised, the Court directed the State government to file an affidavit-in-opposition pertaining to the plea within a period of 2 weeks. The matter is slated to be heard next on July 12.

6. WB Heatwaves: PIL Filed In Calcutta High Court Against State's Decision To Prolong School Summer Vacations

A Public Interest Litigation (PIL) has been filed before the Calcutta High Court against the decision of the West Bengal government to declare a 45-day summer vacation for schools from May 2 to June 15 in view of the prevailing heatwave conditions. West Bengal Chief Minister Mamata Banerjee had last month recommended all educational institutions across West Bengal to take an early summer break. She had asked senior officials to communicate to schools that they should start the summer vacation from May 2. The appeal was extended to private institutions as well. Following the Chief Minister's advice, the West Bengal school education department on April 27 issued a letter to the West Bengal Board of Secondary Education (WBBSE) and the West Bengal Board of Primary Education (WBBPE), advising them to declare summer vacation from May 2 to June 15 in view of the prevailing heatwave condition in the state. The PIL filed by Bengal Primary Teachers' Association claimed that the long summer break will affect the school-going habit of students who had suffered a setback during two years of the COVID-19 pandemic when in-person classes could not be held adding that both the teachers and guardians are worried over the decision. The matter was mentioned before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Wednesday. The counsel urged the Bench to list the matter for hearing on Thursday and further submitted that the decision of the State government had been taken without paying adherence to any weather forecasts. The Chief Justice orally remarked, "Give your mentioning slip, mention your urgency, we will consider".

7. Hanskhali Gangrape & Murder: PIL Filed In Calcutta High Court Seeking ₹1 Crore Compensation For Victim's Kin

A Public Interest Litigation petition has been filed in the Calcutta High Court on Thursday seeking compensation to the tune of Rs 1 crore for the family members of the minor victim in the Hanshkhali gangrape and murder case which is currently being probed by the Central Bureau of Investigation (CBI). 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. The PIL filed by petitioner Anindya Sundar Das alleged that no compensation has yet been provided by the State government to the family members of the deceased victim. Accordingly, the petitioner prayed for the grant of compensation to the tune of Rs 1 crore to the victim's kin. The matter was mentioned before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Thursday and an early hearing of the petition was prayed for. The Chief Justice orally remarked that the Court would duly consider the prayer.

8. PIL Filed In Calcutta High Court Seeking Joint Probe By CBI & ED Into Alleged Irregularities In TET 2014

A Public Interest Litigation (PIL) petition had been filed in the Calcutta High Court on Wednesday seeking a joint probe by the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) into the alleged irregularities in the 2014 Teacher Eligibility Test (TET) in West Bengal. TET 2014 was conducted on October 11, 2015, with over 2.3 million candidates. Several TET 2014 candidates had approached the High Court in 2019, alleging discrepancy in the recruitment process. Thereafter, the Court had cancelled the entire selection process after hearing the matter. The PIL filed by petitioner Tapas Ghosh through advocate Tarunjyoti Tiwari alleged that eligible candidates had not been selected in the examination and that only candidates who had paid money to the members of the ruling party had been recommended for section by the concerned authority. "Time to time this Hon'ble High Court passed different orders exposing the irregularities but the Department did not cause any proper investigation. The Board did not publish any transparent merit list of candidates with sole intention to cover the cloud of corruption", the plea further avers. The plea further alleged that state education minister Bratya Basu in a public meeting had stated that only members if the ruling TMC party will get jobs and accordingly he had handed out more than 300 jobs to only selectively recommended candidates.

9. 'Larger Issue': Calcutta HC Directs WB Electricity Distribution Company To File Report On Street Lighting Facilities In Villages To Curb Rape Incidents

Case Title: Sumitra Bhattacharyya (Neogi) v. The State of West Bengal & Ors

The Calcutta High Court directed the West Bengal State Electricity Distribution Company (WBSEDCL) to file a report in respect of providing street light connections in the streets of villages in West Bengal in order to curb incidents of rape and molestation. A Bench comprising Chief Justice Prakash Srivastava and Justice Rajarshi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) pertaining to the recent rape cases in Deganga, Matia, Ingrejbazar and Banshdroni in West Bengal. The Court had earlier asked IPS officer Damayanti Sen to oversee the probe in the rape cases. The Bench had 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 Bench on Monday took on record a report filed by the WBSEDCL on providing street light connections in the streets of the villages in West Bengal, however the Bench recorded that the report only pertaining to the district of Malda. "The report in the form of affidavit by the respondent no.4 has also been placed on record in respect of providing street light connections in the streets of the villages which is stated to be one of the causes for increasing incidents of molestation and rape. The report only relates to Malda", the Court recorded in the order. The counsel for WBSEDCL further apprised the Court that street lights are provided in the villages as per the demand made by the local bodies and on payment of the requisite amount by them. Opining that inadequate street lighting in the villages is a 'larger issue', the Court directed the counsel for WBSEDCL to file a general report in this regard with respect to the entire State. "He is directed to file general report covering the entire State because it is a larger issue", the Court ordered.

10. 'Serious Prejudice To Safety Of Passengers': PIL In Calcutta High Court Against Public Buses Plying Without Valid Registration, Fitness Certificate

Case Title: Anindya Sundar Das v. State of West Bengal

A Public Interest Litigation (PIL) petition has been filed in the Calcutta High Court seeking directions to ensure that State-owned public transport buses are not allowed to operate in the State without proper documentation such as certificate of registration, certificate of fitness, insurance policy and others. The PIL filed by petitioner Anindya Sundar Das also made reference to a recent incident wherein after a bus owned by the South Bengal State Transport Corporation met a disastrous fate on May 2 at Kanaidanga crossing in Memari on the NH-19 highway. The speeding bus fell into a ditch after hitting the railing of a bridge injuring seven passengers. The bus bearing registration number WB – 39B/4590 was plying on Karunamoyee (Kolkata) – Asansol route. Opining that serious prejudice has been caused to the life and safety of the passengers, the plea further stipulated, "..the respondent no. 2 being a State Transport Undertaking is under statutory obligation to operate vehicle without all valid documents by securing the safety of the passengers in the vehicle. The petitioner states that the respondent no.2 during the course of operation of the vehicle WB – 39B/4590 having operated the said vehicle without any valid documents had caused serious prejudice to the life and safety of the passengers". The petitioner further sought directions to ensure that such State-owned public transport buses display in the Board of the respective vehicles documents such as certificate of registration, certificate of fitness, insurance policies including the driving license of the driver to secure the safety of passengers.

CHHATTISGARH HIGH COURT

1. A Document Can Be Treated As A Promissory Note Only When It Is Promissory Both In Form & Intent: Chhattisgarh High Court Reiterates

Case Title: Khemchand Jain v. Smr Bharti Moolwani and Ors.

Citation: 2022 LiveLaw (Chh) 37

The Chhattisgarh High Court has emphasized that a document can be treated as a promissory note only when it is promissory both in form and intent. Justice Narendra Kumar Vyas remarked that if the indebtedness is acknowledged in the document that any defined sum of money is payable on demand, only then the document can be said to be a promissory note.

A first appeal was filed under Section 96 of the Civil Procedure Code arising out of the judgment of Additional District Judge, Dhamatari, dismissing the suit filed for recovery of Rs. 3,00,000 against the defendants. In return for the amount given by the plaintiff, the defendant had handed over a cheque of the same amount and a written promissory note. However, owing to a sudden accident, the defendant died. After almost a month, the plaintiff requested the return of the money the deceased had taken, but since then, he has not gotten the money back.

Case title - Deepa Nayak v. Pitamber Nai [FAM No. 35 of 2016]

Case Citation: 2022 LiveLaw (Chh) 38

In a significant observation, the Chhatisgarh High Court has ruled that if a wife doesn't squeeze into the mold as per the desire of husband, it would not be a decisive factor to lose the custody of the child her.

The Bench of Justice Goutam Bhaduri and Justice Sanjay S. Agrawal further remarked that the character certificate given by a few of the society members, who might have an ostrich mindset, can't be the basis to decide the character of a woman.

Case Title: Smt. Jaanki Yadav and Anr. v. Shri Gorakhnath Yadav

Citation: 2022 LiveLaw (Chh) 39

The Chhattisgarh High Court recently while dealing with a challenge to an order in a declaratory suit observed that presumption of marriage is to be established by way of conduct; mode of life; and predilections of other persons.

A division bench of Justice Goutam Bhaduri and Justice Sanjay S. Agrawal observed:

"The law presumes in favour of marriage and against concubinage, when a man and a woman was cohabitate continuously for a number of years but the evidence would show that the appellant No.1 Smt. Jaanki Yadav only remained for few months, therefore, the said presumption of marriage also cannot be drawn.

4. Legitimate Expectation: Chhattisgarh High Court Restrains University From Replacing Guest Lecturer Except By Way Of Regular/ Contractual Appointment

Case Title: M. Jayshree Reddy v. State Of Chhattisgarh and Ors.

Citation: 2022 LiveLaw (Chh) 40

The Chhattisgarh high Court has reiterated that merely because a person is appointed as a "Guest Lecturer" at a college or a University, does not mean that he/she does not have any right.

Drawing analogy from the case of Manju Gupta & others v. State of Chhattisgarh & others, it held that such persons have a "legitimate expectation" of not being replaced, in the absence of any complaint against their performance, except by way of regular/ contractual appointments.

5. 'Every Wrong Has Remedy': Chhattisgarh HC Exercises Supervisory Jurisdiction, Grants Interim Custody Of Vehicle Transporting Illicit Liquor To Owner

Case Title: Shyam Bihari Yadav v. State Of Chhattisgarh and Anr.

Citation: 2022 LiveLaw (Chh) 41

The Chhattisgarh High Court recently made it clear that even though interim orders passed during confiscation proceedings under the State Excise Act, 1915, are not appellable, the High Court in exercise of its power vested in it under Article 227 can always test the propriety or legality of such orders.

Section 47-B of the Act provides for appeal against the order of confiscation. Therefore, it necessarily leads that order of confiscation can only be challenged when it reaches its finality and the statute do not give any space to challenge any other order except the final one.

6. Article 14 Does Not Envisage Negative Equality, Wrong Decisions Made In Earlier Cases Can't Be Perpetuated: Chhattisgarh High Court

Case Title: Lokesh Ahirwar and Ors. v. State of Chhattisgarh and Ors.

Citation: 2022 LiveLaw (Chh) 42

Chhattisgarh High Court recently dismissed a petition filed by an agriculture teacher seeking study leave at par with earlier persons holding the post, while observing that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases.

The Bench noted that study leave could not be granted in view of Chhattisgarh Civil Services (Leave) Rules, 2010 and thus, the petitioner could not seek "negative parity" with those wrongly granted the leave, in the teeth of Rules.

7. Election Petitioner Seeking Recounting Of Votes Must Provide Material Justifying Such A Direction: Chhattisgarh High Court

Case Title: Babli Sahu v. State Of Chhattisgarh and Ors.

Citation: 2022 LiveLaw (Chh) 43

The Chhattisgarh High Court recently set aside an order of an Election Tribunal whereby re-counting of votes in an election to the post of Sarpanch was ordered and the initial election result was interfered with.

Allowing the appeal preferred by the candidate who was initially declared successful but was later removed from the said post owing to the Tribunal's order, a bench of Justice Goutam Bhaduri and Justice N.K. Chandravanshi observed,

"The tribunal while ordering for recounting, primarily relied on the statement of one Hira Singh, Vinay Pandey and Vikas Burman. All the three people, who were examined by the election petitioner were the agents of the losing candidate i.e. Dharmin Bai Kashyap. The people who were in-charge of the recounting process and were the independent witness were not called for evidence. When the election petitioner was sanguine of the fact the counting of votes was not properly carried out, the independent witnesses should have been brought to remove all ambiguity and to avoid one side probe cry."

8. A Mahommedan Can't Execute Will For More Than 1/3rd Share Of His Property Without Consent Of All Legal Heirs: Chhattisgarh High Court

Case Title: Sulaxani & Anr v. Sattar Ali & Ors.

Citation: 2022 LiveLaw (Chh) 44

The Chhattisgarh High Court has recently held that a Mahommedan cannot by Will dispose of more than a third of his estate, after payment of funeral expenses and debts.

Justice Narendra Kumar Vyas observed that the following conditions must be filled up for a valid will to be executed by Mahomedan:

(a) A bequest may be executed by any Muslim to another, including an institution and a class of people;

(b) The persons entitled to make or take a Will must have the capacity to make or take a Will;

(c) A bequest must be made of some subject;

d) Formalities of making a Will must be fulfilled;

(e) Only one-third of property can be bequeathed;

(f) Bequest to heirs is restricted;

(g) Conditional contingent and future bequests are void.

The observation was made in a second appeal, whereby the Appellants had moved against the judgment and decree passed by District Judge, Korea, declaring that the Respondent herein is title holder of the suit property.

DELHI HIGH COURT

Citations 2022 LiveLaw (Del) 388 TO 2022 LiveLaw (Del) 424

NOMINAL INDEX

Case Title: V K VERMA v. CBI

2022 LiveLaw (Del) 388

Case Title: OYO HOTELS AND HOMES PVT. LTD. v. PARVEEN JUNEJA & ORS.

Citation: 2022 LiveLaw (Del) 389

Case Title: DR. SANJIV GUPTA & ANR. v. SH. S.S. VERMA

Citation: 2022 LiveLaw (Del) 390

Case Title: KV SAGAR v. GOVERNMENT OF NCT & ANR.

Citation: 2022 LiveLaw (Del) 391

Case Title: DELHI WAQF BOARD v. UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 392

Case Title: DELHI WAQF BOARD Through its Chairman v. GOVERNMENT OF NCT OF DELHI & ANR

Citation: 2022 LiveLaw (Del) 393

Case Title: ANIL KUMAR v. KISHAN SARRAF & ORS

Citation: 2022 LiveLaw (Del) 394

Case Title: x v. Y

Citation: 2022 LiveLaw (Del) 395

Case Title: ZAKIR KHAN v. UNION OF INDIA AND ORS. and other connected matter

Citation: 2022 LiveLaw (Del) 396

Case Title: AMIT KUMAR AND ORS v. STATE (GOVT OF NCT OF DELHI) AND ANR

Citation: 2022 LiveLaw (Del) 397

Case Title: DHL INTERNATIONAL GMBH v. DLH EXPRESS SERVICES PRIVATE LTD.

Citation: 2022 LiveLaw (Del) 398

Case Title: LUCINA LAND DEVELOPMENT LTD v. UNION OF INDIA & ORS

Citation: 2022 LiveLaw (Del) 399

Case Title: THE PR. COMMISSIONER OF INCOME TAX -2- AGRA v. MADHUR MITTAL

Citation: 2022 LiveLaw (Del) 400

Case Title: M/S. MOVIE TIMES CINEPLEX PVT. LTD. v. M/S. MRG DEVELOPERS PVT. LTD. & ORS.

Citation: 2022 LiveLaw (Del) 401

Case Title: Ankit Kaul Versus National Faceless Assessment Centre

Citation: 022 LiveLaw (Del) 402

Case Title: NEERAJ SHARMA v. VINAY SHEEL SAXENA & ORS.

Citation: 2022 LiveLaw (Del) 403

Case Title: DR. VIKRAM SAMPATH v. DR. AUDREY TRUSCHKE & ORS

Citation: 2022 LiveLaw (Del) 404

Case Title: SIRONA HYGIENE PRIVATE LIMITED v. PARULBEN NAVNATH CHOTHANI TRADING AS SHIV ENTERPRISE & ORS.

Citation: 2022 LiveLaw (Del) 405

Case Title: M/S GARG BUILDERS THROUGH SHRI MOHINDER PAL GARG v. HINDUSTAN PREFAB LTD. AND ANR

Citation: 2022 LiveLaw (Del) 406

Case Title: BABLU TIWARI @ JATA SHANKAR TIWARI v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 407

Case Title: SUCHIT GUPTA v. GAURAV SAINI & ANR.

Citation: 2022 LiveLaw (Del) 408

Case Title: SATISH SACHIV BABA v. CPWD (M.R.D.)

Citation: 2022 LiveLaw (Del) 409

Case Title: HT MEDIA LIMITED & ANR. versus DIPALI SANTOSH RAO & ORS

Citation: 2022 LiveLaw (Del) 410

Case Title: M/s Maspar Industries Private Limited & Ors. versus Chief Commissioner of Income Tax TDS & Anr.

Citation: 2022 LiveLaw (Del) 411

Case Title: UNIVERSAL CITY STUDIOS LLC & ORS. v. VEGAMOVIES.RUN & ORS.

Citation: 2022 LiveLaw (Del) 412

Case Title: HINDUSTAN UNILEVER LTD & ANR. versus UNILEVERR1.IN & ORS

Citation: 2022 LiveLaw (Del) 413

Case Title: ANISH DAS TALUKDAR (MINOR) THROUGH MS. SASMITA DAS TALUKDAR (LEGAL GARDINAN AND MOTHER) AND ANR v. UNION OF INDIA AND ORS.

Citation: 2022 LiveLaw (Del) 414

Case Title: K RAJAPANDIAN v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 415

Title: Vemika Verma and Others v. University of Delhi and Others

Citation: 2022 LiveLaw (Del) 416

Case Title: TOSHIAKI AIBA AS THE BANKRUPTCY TRUSTEE OF THE ESTATE OF VIPAN KUMAR SHARMA v. VIPAN KUMAR SHARMA & ANR.

Citation: 2022 LiveLaw (Del) 417

Case Title: PCJ SECURITIES PRIVATE LIMITED v. INCOME TAX OFFICER, WARD 19(1) DELHI & ORS

Citation: 2022 LiveLaw (Del) 418

Case Title: Director General Central Reserve Police Force versus Fibroplast Marine Pvt. Ltd.

Citation: 2022 LiveLaw(Del) 419

Case Title: North Delhi Municipal Corporation v. IJM Corporation Berhad

Citation: 2022 LiveLaw (Del) 420

Case Title: Manish Aggarwal and Anr v. RCI Industries and Technologies Ltd.

Citation: 2022 LiveLaw (Del) 421

Case Title: KINRI DHIR versus VEER SINGH

Citation: 2022 LiveLaw (Del) 422

Case Title: Union of India versus Indian Agro Marketing Co Operative Ltd

Citation: 2022 LiveLaw (Del) 423

Case Title: RAKESH @DIWAN v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 424

1. Revisional Jurisdiction Is Not Meant To Test The Waters Of What Might Happen In The Trial: Delhi High Court

Case Title: V K VERMA v. CBI

2022 LiveLaw (Del) 388

Delhi High Court recently observed that revisional jurisdiction is not meant to test the waters of what might happen in the trial.

The observation came from Justice Chandra Dhari Singh who also said that the revisional Court has to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of the court below:

"The revisional jurisdiction is not meant to test the waters of what might happen in the trial. The Revisional Court has to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of the court below. While doing so, the Revisional Court does not dwell at length upon the facts and evidence of the case, rather it considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence. In the instant case, the Petitioner has failed to make out a case for exercise of the revisional jurisdiction since there is no patent error in the impugned order on the face of record." court said.

2. S.11 Arbitration & Conciliation Act | Not Necessary To Go Into Merits Of Claim/ Counter-Claim For Appointment Of Arbitrator: Delhi High Court

Case Title: OYO HOTELS AND HOMES PVT. LTD. v. PARVEEN JUNEJA & ORS.

Citation: 2022 LiveLaw (Del) 389

The Delhi High Court has observed that in a petition under Section 11 of the Arbitration & Conciliation Act, 1996 for appointment of arbitrator, High Court is not to go into the merits of the claim or the counter-claim, if any, of the parties.

Justice Sanjeev Sachdeva observed that the High Court has to examine as to whether there is an arbitration agreement between the parties and there are any disputes unless ex-facie it is apparent from the record that the disputes are a mere deadwood.

The Court was dealing with a plea filed by Oyo Hotels and Homes Private Limited seeking reference of disputes to a Sole Arbitrator under a Lease Deed dated 23.10.2019.

3. Registration Of Family Arrangement Necessary Only If Terms Are Reduced Into Writing, Not Where Arrangement Is Oral: Delhi High Court

Case Title: DR. SANJIV GUPTA & ANR. v. SH. S.S. VERMA

Citation: 2022 LiveLaw (Del) 390

The Delhi High Court has observed that registration is not necessary where family arrangement is oral and that the same is necessary only if the terms of the arrangement are reduced into writing.\

"It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable" Justice Najmi Waziri reiterated.

4. Re-Agitation Of Same Issue Is Gross Abuse Of Court Process: Delhi HC Imposes 10K Cost On Litigant Seeking Transfer Of Investigation To CBI

Case Title: KV SAGAR v. GOVERNMENT OF NCT & ANR.

Citation: 2022 LiveLaw (Del) 391

The Delhi High Court has imposed a cost of Rs. 10,000 on a litigant seeking transfer of investigation to Central Bureau of Investigation (CBI) despite a similar plea being dismissed as withdrawn by the Court on earlier occasion.

Justice Anoop Kumar Mendiratta was dealing with a plea seeking transfer of investigation of FIR to C.B.I. A similar criminal writ petition with identical prayer was dismissed as withdrawn by the Court vide order dated March 22, 2022.

The facts of the case were that the petitioner had purchased a pair of shoes from Woodland. Since the shoes were found to be defective, an online complaint was made. After lot of communications, the pair of shoes was taken back for repairs. The petitioner did not receive any response from the shoe company and, as such, a complaint was filed but FIR was not registered.

5. 'Not Uncommon To Shift Graves When They Obstruct Development': Delhi HC On Waqf Board's Appeal Seeking Stay On Transfer Of Burial Ground To ITBP

Case Title: DELHI WAQF BOARD v. UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 392

The Delhi High Court has refused to entertain an intra-court appeal preferred by the Delhi Waqf Board, challenging a single judge order refusing to stay Centre's decision of transferring a portion of its purported property, said to be in use as a burial ground, to the Indo-Tibetan Border Police (ITBP).

A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla rejected the contention raised by the appellant that irreparable loss will be caused if the transfer is not stayed, inasmuch as the land in question was being used as a burial ground.

The bench further said that since the impugned order is only an interim order, it is not inclined to interfere with the same, especially in view of the fact that the rights of the Appellant have been "sufficiently protected".

6. Delhi High Court Extends Interim Order Allowing Reopening Of Masjid In Nizamuddin Markaz Till October 14

Case Title: DELHI WAQF BOARD Through its Chairman v. GOVERNMENT OF NCT OF DELHI & ANR

Citation: 2022 LiveLaw (Del) 393

The Delhi High Court this week allowed reopening of five floors, including Ground floor as well as four floors, of the masjid premises in Nizamuddin Markaz till October 14.

Justice Jasmeet Singh extended the operation of the interim order dated April 1, 2022 wherein the mosque was allowed to reopen for offering of prayers during the Ramzan month.

The said interim order shall continue to remain in force till October 14, the next date of hearing.

Public entry was banned at the Nizamuddin Markaz in the aftermath of Tablighi Jamaat members testing positive for Covid-19 in 2020.

This comes in a plea filed by Delhi Waqf Board seeking to ease restrictions at the Nizamuddin Markaz, which has been locked since March 31, 2020. The Court's permission was in continuation of its previous order dated March 16, 2022 wherein four floors of the masjid premises were allowed to remain open on Shab e-Barat.

7. Condonation Of Delay | Indolence Beyond A Point Results In Forfeiture Of Right To Secure Justice: Delhi High Court

Case Title: ANIL KUMAR v. KISHAN SARRAF & ORS

Citation: 2022 LiveLaw (Del) 394

In the context of condonation of delay, the Delhi High Court has observed that indolence, beyond a point, results in forfeiture of the right to secure justice.

Justice C Hari Shankar dismissed the appeal challenging the impugned order dated 30th November, 2015, which was initially challenged before the High Court after nearly three years in 2018.

The Court said that there was no explanation as to why the plea was filed in 2018 after three years of the passing of the impugned order.

"There being no reasonable explanation for the delay in preferring the present appeal, and learned Counsel being unable to assist the court in this regard, the appeal is dismissed on the ground of delay and non-prosecution," the Court said.

It added "Indolence, beyond a point, results in forfeiture of the right to secure justice. The process of the court cannot be held at ransom, awaiting the convenience of the appellant."

8. "Husband & Wife Two Pillars Of Family, Whole House Crashes Down If One Gets Weak": Delhi High Court Upholds Divorce Granted In Wife's Favour

Case Title: x v. Y

Citation: 2022 LiveLaw (Del) 395

The Delhi High Court has upheld an order passed by the Family Court granting divorce in favour of the wife under sec. 13(1)(ia) of the Hindu Marriage Act, 1955 observing that the wife had well established the ground of mental cruelty by the husband.

The Family Court had granted divorce to the respondent wife under sec. 13(1)(ia) of the HMA solely relying on ground of mental cruelty.

While upholding the same, a division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh observed thus:

"Husband and wife are two pillars of the family. Together they can deal with any situation, balancing the family in all circumstances. If one pillar gets weak or breaks, the whole house crashes down. The pillars can withstand all the abuses together, the moment one pillar gets weak or deteriorates, it becomes difficult to hold the house together. When one pillar gives up, and puts all the burden on the other pillar, then it cannot be expected that one pillar will single handedly hold the house together."

9. Failure To Supply Of "Legible Copies" Of Documents Relied Upon Despite Request By Detenu Renders Detention Order Illegal: Delhi High Court

Case Title: ZAKIR KHAN v. UNION OF INDIA AND ORS. and other connected matter

Citation: 2022 LiveLaw (Del) 396

The Delhi High Court has observed that a detention order passed by the Detaining Authority based on "illegible" copies of documents suffers from non-application of mind and is liable to be quashed.

It added that a further failure and non-supply of legible copies of all documents to the Detenu, despite request and representation, renders the order of detention illegal and bad in law.

A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar allowed the petitions filed by two detenus namely Zakir Khan and Sanjeev Kumar praying for quashing of detention orders dated November 26, 2021 issued under sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

10. Chhatrasal Stadium Murder: Delhi HC Refuses To Transfer Trial From Rohini Court, Directs Witnesses To Seek Recording Of Evidence Through Virtual Mode

Case Title: AMIT KUMAR AND ORS v. STATE (GOVT OF NCT OF DELHI) AND ANR

Citation: 2022 LiveLaw (Del) 397

The Delhi High Court has directed the prosecution witnesses in relation to the Chhatrasal Stadium murder case to approach city's Rohini Court seeking recording of their evidence through virtual mode.

The case relates to the death of former junior national wrestling champion Sagar Dhankhar. Wrestler Sushil Kumar is one of the accused in the matter.

Justice Jasmeet Singh disposed of a plea filed by victims and prosecution witnesses in the case who alleged being beaten mercilessly by more than 20 gangsters of various gangs of the city when the alleged incident took place, which resulted into death of one of victims namely Sagar Dhankar.

The plea had therefore sought transfer of trial in the case from Rohini Court to some other district court in the interest of safety of the victims and prosecution witnesses for a fair and impartial trial as also an 'in-camera' day-to-day hearing in the matter.

11. DHL International Courier: Delhi High Court Restrains Use Of Infringing Mark 'DLH'

Case Title: DHL INTERNATIONAL GMBH v. DLH EXPRESS SERVICES PRIVATE LTD.

Citation: 2022 LiveLaw (Del) 398

Delhi High Court recently granted permanent injunction in favour of DHL International, a well recognized courier service company, against DLH Express services, holding that the two trademarks are identical and deal in similar services.

Justice Prathiba M. Singh observed:

"Considering the fact that the Defendant has already changed the name DLH and the use of the impugned mark has also been stopped, this is a fit case for grant of permanent injunction in favour of the Plaintiff, by way of summary judgment. Accordingly, the suit is decreed in terms of the paragraphs 61(a) to 61(c)."

The Plaintiff - DHL International GmbH, a German company had filed the suit seeking permanent injunction restraining infringement of trademark, trade dress, dilution and tarnishment, passing off, damages etc., against the Defendant - DLH Express Services Private Ltd. It was claimed that DHL is a distinctive logo and trade dress, which was initially adopted in 1969, has evolved over the year.

12. Party Can't Exhaust Alternate Remedy In SC Before Approaching HC U/Art. 227; There Can Be No Appeal From 'Caesar' To 'Mark Antony': Delhi HC

Case Title: LUCINA LAND DEVELOPMENT LTD v. UNION OF INDIA & ORS

Citation: 2022 LiveLaw (Del) 399

The Delhi High Court has observed that a party cannot be directed to exhaust the alternate remedy available before the Supreme Court before approaching the High Courts under Article 226/227 of the Constitution.

Referring to Shakespeare's Julius Caesar, Justice C Hari Shankar said: "There can be no appeal from Caesar to Mark Antony."

The Court was dealing with a matter concerning a complaint filed before the National Consumer Disputes Redressal Commission (NCDRC) against the petitioner Lucina Land Development Ltd. and others by 51 allotees of flats in a project titled Indiabulls Greens Panvel.

13. ITAT Final Arbiter Of Facts, Its Order Can Be Interfered With Only If There Is Substantial Question Of Law, Manifest Illegality/ Perversity: Delhi HC

Case Title: THE PR. COMMISSIONER OF INCOME TAX -2- AGRA v. MADHUR MITTAL

Citation: 2022 LiveLaw (Del) 400

Observing that the Income Tax Appellate Tribunal (ITAT) is the final arbiter of the facts, the Delhi High Court has observed that the High Court can interfere with its order only if there is substantial question of law or there is manifest illegality or it suffers from perversity.

Justice Manmohan and Justice Dinesh Kumar Sharma was dealing with an appeal challenging the order dated 10.01.2019 passed by ITAT. The appellant had stated that the assessee had filed return of income for assessment year 2008-09 declaring an income of Rs.2,82,271 under sec. 139 (1) of the Income Tax Act, 1961.

On 28.09.2010, search and seizure operation under sec. 132 of the Act was carried out in Triveni Group and a search warrant under sec. 132 (1) of the Act was issued and executed in the name of the assessee as well. The assessee belonged to the Triveni Group. A notice under sec 153A of the Act was also issued to the assessee.

14. Factual/ Legal Errors In Arbitral Award Falling Short Of Perversity Do Not Merit Interference U/S 34 Or 37 Of Arbitration Act: Delhi High Court

Case Title: M/S. MOVIE TIMES CINEPLEX PVT. LTD. v. M/S. MRG DEVELOPERS PVT. LTD. & ORS.

Citation: 2022 LiveLaw (Del) 401

The Delhi High Court has observed that the Arbitrator or Tribunal is the final arbiter on facts as well as in law, and even errors, factual or legal, which stop short of perversity, do not merit interference under sec. 34 or 37 of the Arbitration and Conciliation Act, 1996.

A division bench comprising of Justice Mukta Gupta and Justice Neena Bansal Krishna was dealing with an appeal under sec. 37 of the Act challenging the order dated 12.07.2017 passed by the Single Judge of High Court which had dismissed the objections filed by the appellant under sec. 34 of the Act seeking setting aside of the arbitration award dated 01.06.2016.

Movie Times had filed a suit against the respondents seeking injunction and recovery of rent against the respondents in respect of the leased premises. The same was disposed of vide order dated 07.10.2009, directing Movie Times to take recourse to arbitration, resulting in the appointment of the sole arbitrator to adjudicate the disputes between the parties, who passed the Arbitral award dated 01.06.2016 in relation to the disputes in respect of the Lease deed.

15. Non Filing Of Response Due To Technical Glitch In E-Filing Portal: Delhi High Court Quashes The Order And Directs Fresh Hearing

Case Title: Ankit Kaul Versus National Faceless Assessment Centre

Citation: 022 LiveLaw (Del) 402

The Delhi High Court bench of Justice Manmohan and Justice Subramonium Prasad has held that the taxpayer could not file a response under the Faceless Scheme due to a technical glitch in the e-filing portal.

The petitioner/assessee has challenged the ex-parte order passed under Section 147 read with Section 144 of the Income Tax Act, 1961. The department passed the order under Section 147 read with Sections 144 and 144B of the Income Tax Act without taking the written submission of the petitioner on record.

16. Trees Only Hope Of Environmental Redemption In Commercialized Cities, Must Not Be Cut Needlessly: Delhi High Court

Case Title: NEERAJ SHARMA v. VINAY SHEEL SAXENA & ORS.

Citation: 2022 LiveLaw (Del) 403

The Delhi High Court has observed that trees hold out as welcome and assuring living entities of hope, sanity, environmental redemption and even companionship and that they must not be allowed to be cut needlessly or wantonly.

Justice Najmi Waziri observed thus:

"In this capital city with its ever-bourgeoning populating, the cacophony of voices and rampant commercialization of every other street – robbing the residents of the familiar ambience of their residential neighbourhood, the ever-increasing motor-vehicular traffic, the choking air-pollution and the ever-creeping concretization, trees hold out as welcome and assuring living entities of hope, sanity, environmental redemption and even companionship."

17. "Defamatory": Delhi High Court Directs Twitter To Take Down 5 More Tweets Posted By Historian Audrey Truschke Against Vikram Sampath

Case Title: DR. VIKRAM SAMPATH v. DR. AUDREY TRUSCHKE & ORS

Citation: 2022 LiveLaw (Del) 404

The Delhi High Court has directed micro blogging site Twitter to take down five more tweets posted by historian Audrey Truschke against historian Dr. Vikram Sampath over alleged plagiarism with respect to his two-volume biography of Vinayak Damodar Savarkar.

Justice Amit Bansal was of the view that the tweets in question were defamatory in nature and that there was a link posted in the said tweets to the letters, the publication of which was injuncted by the Court vide orders dated 18th February, 2022 and 24th February, 2022.

The Court was dealing with an application filed on behalf of Sampath under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 seeking a direction for taking down of further defamatory tweets posted by Truschke on Twitter.

18. Sale Of Counterfeit Products Has Become Prolific On Internet, Needs To Be Arrested To Protect Customers, Trademark Owners: Delhi High Court

Case Title: SIRONA HYGIENE PRIVATE LIMITED v. PARULBEN NAVNATH CHOTHANI TRADING AS SHIV ENTERPRISE & ORS.

Citation: 2022 LiveLaw (Del) 405

The Delhi High Court has observed that the sale of counterfeit or knock-off products has become prolific on the internet, which needs to be arrested in order to protect the owners of the trade marks as also the customers who purchase such products.

Justice Pratibha M Singh made the aforesaid observation while dealing with a trademark infringement suit filed by Sirona Hygiene Private Limited against M/s Parulben Navnath Chothani, trading as Shiv Enterprise.

Three e-commerce websites namely Snapdeal, Meesho and Amazon, through their companies were arrayed as Defendant No. 2, 3, and 4 respectively whereas Defendant No. 5 was a John Doe defendant.

19. What Are The Basic Principles Relating To Bank Guarantees, Their Invocation & Interdiction? Delhi High Court Answers

Case Title: M/S GARG BUILDERS THROUGH SHRI MOHINDER PAL GARG v. HINDUSTAN PREFAB LTD. AND ANR

Citation: 2022 LiveLaw (Del) 406

The Delhi High Court has settled down the basic principles relating to bank guarantees, their invocation and the interdiction of such invocation.

While observing that commercial contracts often contain clauses requiring the contractor to furnish bank guarantees, Justice C Hari Shankar said that such bank guarantees are either bank guarantees provided towards security for having been awarded the contract, or performance bank guarantees to guarantee performance of the contract, though, on occasion, other bank guarantees such as bank guarantees towards mobilization advance etc. may also be required to be provided.

The Court added that the contract, in such cases, also provides for the circumstances in which the bank guarantees could be invoked, as well as the purpose for requiring the bank guarantees to be provided in the first place.

20. Accused Can't Claim De Novo Trial As A Matter Of Right Unless Claim Of Counsel's Ineffectiveness Is Proved To Satisfaction Of Court: Delhi HC

Case Title: BABLU TIWARI @ JATA SHANKAR TIWARI v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 407

The Delhi High Court has observed that an accused cannot, as a matter of right claim de novo trial, except where he is able to show and prove his claim of ineffectiveness of counsel's assistance and his representation falling below an objective standard of reasonableness, to the satisfaction of the court.

Justice Rajnish Bhatnagar added that such a relief is to be granted sparingly, in exceptional circumstances, where it appears prima facie that the apprehension of the defendant is sincere and bonafide and the defence counsel has utterly failed to build any defence owing to his incompetence.

The facts of the case are that an FIR was registered against the petitioner on 02.09.2016 under sec. 354 and 354A of the Indian Penal Code, 1860 and sec. 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 alleging that on 31.08.2016, when the prosecutrix was returning from tuition, an unknown male person touched the breasts of the prosecutrix and attempted to flee.

21. Needless Hypersensitivity Not Expected Of Judicial Officers, Should Maintain Composure & Poise: Delhi High Court Sets Aside ₹5 Lacs Cost

Case Title: SUCHIT GUPTA v. GAURAV SAINI & ANR.

Citation: 2022 LiveLaw (Del) 408

Observing that needless hypersensitivity is not expected of Judicial Officers who are expected at all times to maintain composure and poise, the Delhi High Court has set aside Rs. 5 lacs cost imposed by a Additional Rent Controller with a 'word of advice'.

Unequivocally expressing its discomfiture at the manner in which the order was passed, Justice C Hari Shankar said:

"In order that the career of the learned ARC, who appears to be a fairly young Judicial Officer, is not prejudiced, I deem it appropriate to close this matter by setting aside the impugned order insofar as it imposes costs of ₹ 5 lacs to the petitioner, with a word of advice to the learned ARC to ensure that, in future, a great degree of temperance is exhibited by him in discharge of his judicial functions."

"Unwarranted and needless hypersensitivity is not expected of Judicial Officers, who are expected, at all times to maintain composure and poise, befitting the office they hold."

22. Acquittal On Failure To Prove Beyond Reasonable Doubt Does Not Oust Disciplinary Proceedings Where Test Is Preponderance Of Probabilities: Delhi HC

Case Title: SATISH SACHIV BABA v. CPWD (M.R.D.)

Citation: 2022 LiveLaw (Del) 409

The Delhi High Court has observed that an acquittal in criminal proceedings in which the guilt of a person has to be held to have been proved beyond a reasonable doubt, does not preclude the disciplinary proceedings in which the charges of misconduct have to be established on a preponderance of probabilities.

Justice Anu Malhotra observed that mere acquittal in the criminal proceedings does not prevent the management to proceed with the departmental proceedings against an employee.

"…the acquittal in criminal proceedings in which the guilt of a person has to be held to have been proved beyond a reasonable doubt, does not preclude the disciplinary proceedings in which the charges of misconduct have to be established on a preponderance of probabilities to continue and to consequentially result into a penalty inclusive of a penalty of termination of service in the event of an employee having been held to have violated the service rules," the Court observed.

23. Relief For HT Media: Delhi High Court Grants Ex-Parte Interim Injunction Against Infringing Website Hindustan Times Marathi

Case Title: HT MEDIA LIMITED & ANR. versus DIPALI SANTOSH RAO & ORS

Citation: 2022 LiveLaw (Del) 410

The Delhi High Court recently granted ex-parte interim injunction in favour of HT Media Limited which runs news publications in various languages in the name Hindustan Times, against a party using a deceptively similar logo and domain name.

Justice Jyoti Singh observed:

"Having heard the learned counsel for the Plaintiffs, this Court is of the view that Plaintiffs have made out a prima facie case for grant of ex parte ad-interim injunction. Balance of convenience lies in favour of the Plaintiffs and they are likely to suffer irreparable harm in case the injunction, as prayed for, is not granted."

The Plaintiff company operates with the domain names "hindustantimes.com" and "marathi.hindustantimes.com".

It has moved the High Court seeking injunction against domain name/ website "hindustantimesmarathi.com" primarily engaged in publishing, hosting, communicating, etc. news, articles, stories, columns, etc. in Hindi and Marathi to Indian readers and viewers, said to be using a deceptively identical logo to the plaintiff's name.

24. Delhi High Court Upholds Order Of Revenue Department Imposing Enhanced Compounding Charges On Subsequent Offences

Case Title: M/s Maspar Industries Private Limited & Ors. versus Chief Commissioner of Income Tax TDS & Anr.

Citation: 2022 LiveLaw (Del) 411

The Delhi High Court has upheld the order of the revenue department imposing enhanced compounding charges on subsequent applications for compounding of offences relating to late deposit of Tax Deducted at Source (TDS).

The Bench, consisting of Justices Manmohan and Dinesh Kumar Sharma, held that compounding of offences cannot be taken as a matter of right and it is for the law and authorities to determine as to what kind of offences should be compounded and under what conditions. The Court added that there is a rationale behind imposing a higher rate for subsequent offences as the revenue department wants to incentivize compliance.

The Chief Commissioner of Income Tax (TDS) had compounded the offence pertaining to late deposit of Tax Deducted at Source (TDS) committed by the petitioner M/s Maspar Industries Private Limited. The petitioner filed a writ petition in the Delhi High Court challenging the order passed by the Chief Commissioner.

25. Copyright Infringement: Delhi High Court Orders Blocking Of 12 Websites Illegally Streaming Content Of Universal City Studios

Case Title: UNIVERSAL CITY STUDIOS LLC & ORS. v. VEGAMOVIES.RUN & ORS.

Citation: 2022 LiveLaw (Del) 412

In a matter relating to copyright infringement, the Delhi High Court has ordered for blocking of 12 websites which were illegally streaming, hosting and making available to public the original content of Universal City Studios LLC, without its authorization.

Observing that Universal City Studios LLC had made out a prima facie case for grant of ex-parte ad-interim injunction, Justice Jyoti Singh restrained the 12 websites from hosting, streaming, reproducing, distributing, making available to the public or communicating to the public any cinematograph work or content in relation to which Plaintiffs had a Copyright.

The Court also directed Department of Telecommunications (DoT) and Ministry of Electronics and Information Technology (MEITY) to take immediate steps and issue requisite Notifications, calling upon various internet and telecom service providers registered under them to block the said websites.

26. Delhi High Court Grants Ex-Parte Interim Injunction In Favour Of Hindustan Unilever, Orders Blocking Of 5 Rogue Websites

Case Title: HINDUSTAN UNILEVER LTD & ANR. versus UNILEVERR1.IN & ORS

Citation: 2022 LiveLaw (Del) 413

The Delhi High Court recently granted ex parte interim injunction in favour of FMCG giant Hindustan Unilever Ltd. and against 5 rogue websites including "Unilever1.in" on ground that their trademark and website domain is deceptively similar to that of the plaintiff.

The injunction was granted by Justice Jyoti Singh:

"Having heard learned counsel for the Plaintiffs, this Court is of the view that Plaintiffs have made out a prima facie case for grant of ex parte ad-interim injunction. Balance of convenience lies in favour of the Plaintiffs and they are likely to suffer irreparable harm in case the injunction, as prayed for, is not granted."

The application was preferred by the Plaintiff- Hindustan Unilever under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure 1908 for grant of ex-parte ad-interim injunction.

27. "Sport Is Suffering": Delhi High Court Appoints Court Commissioner For Conducting Elections To Executive Committee Of Taekwondo Federation Of India

Case Title: ANISH DAS TALUKDAR (MINOR) THROUGH MS. SASMITA DAS TALUKDAR (LEGAL GARDINAN AND MOTHER) AND ANR v. UNION OF INDIA AND ORS.

Citation: 2022 LiveLaw (Del) 414

The Delhi High Court has appointed a Court Commissioner-cum-Returning Officer for the purpose of conducting elections for the executive committee of the Taekwondo Federation of India.

Observing that the sport of Taekwondo was suffering and the genuine Taekwondo players were not getting the opportunity to represent the country, Justice Rekha Palli said:

"It would, therefore, be in the interest of the sport to direct holding of fresh elections to the executive committee of the Taekwondo Federation of India so as to enable the Union of India to take expeditious steps for recognizing a suitable federation as the National Sports Federation for the sport of Taekwondo."

The Court thus appointed retired Justice Sistani as the Court Commissioner-cum- Returning Officer for holding the elections to the executive committee, while adding that the elections will be held within a period of two months.

28. Object Of Bail Merely To Secure Attendance: Delhi High Court Grants Bail To Law Student In Rash Driving Case

Case Title: K RAJAPANDIAN v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 415

The Delhi High Court has observed that the object of bail is to secure the attendance of the accused at the trial and is not to be withheld as a punishment.

A single judge bench comprising of Justice Anoop Kumar Mendiratta added that though the possibility of evidence being tampered or the witnesses being influenced has also to be kept in perspective, however, one single circumstance, cannot be treated as a universal validity or necessarily justifying the grant of refusal of bail which is largely influenced with the nature/seriousness of offence.

The Court thus granted bail to a 19 year old law student who was languishing in jail for a period of about two months, noting that the investigation was over, his custodial interrogation was not required and the chargesheet was also filed.

29. High Court Refuses To Interfere With Delhi University's Decision Of Holding Upcoming Examinations In Physical Mode

Title: Vemika Verma and Others v. University of Delhi and Others

Citation: 2022 LiveLaw (Del) 416

The Delhi High Court has refused to interfere with the decision of the Delhi University of holding the upcoming even semester examinations in May 2022 in the physical mode.

Justice Rekha Palli, who was of the opinion that it was not the stage to issue any directions, however granted liberty to the petitioners, who were students of the Delhi University, to approach the Court in case of further change in circumstances.

Accordingly, the plea was dismissed as withdrawn.

The plea had challenged a notice issued by the University dated February 11, 2022 whereby it was decided that the May examination of even semester will be held in physical mode.

30. Foreign Creditors Can't Be Treated Differently From Domestic Creditors In Modern Times Of Globalization: Delhi High Court

Case Title: TOSHIAKI AIBA AS THE BANKRUPTCY TRUSTEE OF THE ESTATE OF VIPAN KUMAR SHARMA v. VIPAN KUMAR SHARMA & ANR.

Citation: 2022 LiveLaw (Del) 417

"In the modern times of globalization, foreign creditors cannot be treated differently from domestic creditors," the Delhi High Court has observed.

Justice Amit Bansal observed thus while dealing with an application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) on behalf of the applicant (defendant no.2) seeking rejection of the plaint.

31. Re-Assessment Notice Issued To Wrong Assessee: Delhi High Court Directs National Faceless Assessment Centre To Be More Cautious

Case Title: PCJ SECURITIES PRIVATE LIMITED v. INCOME TAX OFFICER, WARD 19(1) DELHI & ORS

Citation: 2022 LiveLaw (Del) 418

The Delhi High Court has directed the Principal Commissioner of Income Tax of National Faceless Assessment Centre (NFAC) be more cautious while passing the Assessment Orders.

A division bench comprising of Justice Manmohan and Justice Dinesh Kumar Sharma also directed Central Board of Direct Taxes (CBDT) to ensure that any glaring mistakes do not occur in the future.

The Court was dealing with a plea challenging the assessment order dated 30th March, 2022 passed by National Faceless Assessment Center, Delhi under sec. 147 read with sec. 144B of the Income Tax Act, 1961 and demand notice dated 30th March, 2022.

The counsel for the petitioner had stated that the facts and figures mentioned in the impugned assessment order dated 30th March, 2022 did not pertain to the petitioner.

32. Inordinate And Unexplained Delay In Rendering Arbitral Award Is Against Public Policy Of India: Delhi High Court

Case Title: Director General Central Reserve Police Force versus Fibroplast Marine Pvt. Ltd.

Citation: 2022 LiveLaw(Del) 419

The Delhi High Court has ruled that inordinate and unexplained delay in rendering the arbitral award is in conflict with the public policy of India and is amenable to challenge under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act).

The Single Bench of Justice Vibhu Bakhru held that award of damages arbitrarily and without any basis also falls foul of the public policy of India.

The petitioner Director General of Central Reserve Police Force floated a tender inviting bids. The respondent Fibroplast Marine Pvt. Ltd. submitted its bid and was declared successful. Thereafter, the parties entered into an agreement. After certain disputes arose between the parties, the respondent invoked the agreement to refer the disputes to arbitration. The respondent filed a petition under Section 11 of the A&C Act before the Delhi High Court for appointment of an arbitrator. A sole arbitrator was appointed by the Court to adjudicate the disputes under the aegis of the Delhi International Arbitration Centre (DIAC). The arbitrator passed an award in favour of the respondent, along with costs and interest. The petitioner filed a petition under Section 34 of the A&C Act against the arbitral award before the Delhi High Court.

33. If The Contract Is Extended By The Employer, It Cannot Be Allowed To Reduce The Period Of The Extension Retrospectively: Delhi High Court

Case Title: North Delhi Municipal Corporation v. IJM Corporation Berhad

Citation: 2022 LiveLaw (Del) 420

The High Court of Delhi has held that when the employer has granted the contractor an extension of time for a specified period, it cannot turn around to contend that the extension was only provisional and it is allowed to reassess or reduce the number of days by which the execution of the contract was executed.

The Single Bench of Justice Sanjiv Sachdeva has held that once the period of the contract has been extended by the employer, it cannot be allowed to retrospectively reduce the period of the extension.

34. The Weak Financial Condition Of A Party Cannot Be The Sole Ground To Deposit Security Or Bank Guarantee: Delhi High Court

Case Title: Manish Aggarwal and Anr v. RCI Industries and Technologies Ltd.

Citation: 2022 LiveLaw (Del) 421

The High Court of Delhi has held that the weak financial condition of a party cannot be the sole ground to direct the party to deposit a security or bank guarantee to secure the amount involved in the arbitration.

The Single Bench of Justice Anup Jairam Bhambhani has held merely because a party is in financial distress, it cannot be the sole ground to direct it to deposit the security when the other party has failed to satisfy the arbitral tribunal that it has a prima facie case in its favour and that the party against whom such relief is sought is trying to transfer or dispose of its assets from the jurisdiction of the arbitral tribunal to obstruct or delay the enforcement of the award.

The Court held that the purpose of Section 17 of the A&C Act is not to securitise an unsecured and indeterminate sum, therefore, the tribunal would not allow an application for direction to a party to furnish security unless the party claiming such a relief satisfies the arbitrator that it is likely to succeed in arbitration and the other party is transferring its assets intending to render the award unenforceable.

35. Delhi HC Dismisses Plea Seeking Review Of Order Giving Visitation Rights To Father Only If He Resided In Same Building As That Of Child

Case Title: KINRI DHIR versus VEER SINGH

Citation: 2022 LiveLaw (Del) 422

The Delhi High Court recently dismissed a review petition seeking to challenge an order giving visitation rights to father only if he resided in the same building.

Justice Kameswar Rao observed:

"In any case, this Court, while modifying the impugned order of the Trial Court dated October 28, 2021, had noted the fact that the minor child is of tender age of less than three years and it is no denial to the fact that ultimately while giving visitation rights, it is the interest of the child, which is paramount. I see no reason to entertain the petition, the same is dismissed."

This Review Petition was filed by the respondent/applicant seeking review of the order dated March 24, 2022 whereby this Court granted him visitation rights to the minor child, subject to the respondent/applicant residing in the same property. He informed the Court that he had also filed an SLP previously before the Supreme Court challenging the order to the extent of the condition i.e. allowing visitation only when he's living in the same property.

36. Arbitrator Terminating The Arbitral Proceedings Under Section 25(A) Of The A&C Act, Challenge Maintainable Under Article 227 Of The Constitution Of India: Delhi High Court

Case Title: Union of India versus Indian Agro Marketing Co Operative Ltd

Citation: 2022 LiveLaw (Del) 423

The Delhi High Court has ruled that since no alternate remedy is available to the claimant to challenge the order of the arbitrator terminating the arbitral proceedings under Section 25(a) of the Arbitration and Conciliation Act, 1996 (A&C Act), hence, a petition under Article 227 of the Constitution of India against the said order of the arbitrator is ex facie maintainable.

The Single Bench of Justice C. Hari Shankar reiterated that the Arbitral Tribunal has the power to recall the order passed by it under Section 25(a) of the A&C Act terminating the arbitral proceedings.

37. Convict Under POCSO Act Not Barred From Seeking Parole, Discretion Vested In Competent Authority To Grant It Under 'Special Circumstances': Delhi HC

Case Title: RAKESH @DIWAN v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 424

The Delhi High Court has reiterated that a convict under the Protection of Children from Sexual Offences Act, 2012 is not barred from seeking parole, as discretion has been vested in the Competent Authority to grant parole to such a convict under "special circumstances".

Justice Asha Menon added that while there is no doubt true that the Legal Services Authorities at all levels endeavour to provide excellent legal assistance to those in prison, however, to deny the convict an opportunity to engage with other counsel to enable him to make up his mind freely, as to whom he would wish to engage, would violate his constitutional rights to legal representation.

The Court was dealing with a plea seeking release of the petitioner on parole for a period of eight weeks on the grounds of filing Special Leave Petition.

GAUHATI HIGH COURT

1. Consent Obtained By Threat Immaterial, Not Valid U/S 90 IPC: Gauhati High Court Upholds Conviction For Rape

Case Title: Sri Bhairab Das v. The State of Assam

Citation: 2022 LiveLaw (Gau) 30

The Gauhati High Court recently while dealing with a case of rape of a minor girl observed that if the victim was kept under threat and compulsion to stay with the accused petitioner, such consent cannot be termed as a consent within the purview of Section 90 IPC.

The observation came from Justice Rumi Kumar Phukan who said that even if she was a major, in the given circumstances the consent is immaterial:

"In the given case, the victim was kept under threat and compulsion to stay with the accused petitioner, which cannot be termed as a consent within the purview of Section 90 IPC. Even if she is held to be major also, such a consent itself immaterial."

Case title - Sital Mandal v. The Union of India and others along with connected petitions

Case Citation: 2022 LiveLaw (Gau) 31

Relying upon the Apex Court's Judgment in the case of Abdul Kuddus V. Union of India [(2019) 6 SCC 604], the Gauhati High Court has observed that the opinion of the Foreigners Tribunal regarding the citizenship of a person would operate as res judicata.

Here it may be noted that Res judicata is a principle of law that states that once a final decision has been given by a competent court on a matter between the same parties, the same shall be binding, and same parties and the same issues, cannot be put to litigation again. Section 11 of the Code of Civil Procedure explains this principle.

GUJARAT HIGH COURT

NOMINAL INDEX

Swaminathan Kunchu Acharya vs State Of Gujarat 2022 LiveLaw (Guj) 144

Messrs Aztec Fluids And Machinery Pvt. Ltd. Versus UOI 2022 LiveLaw (Guj) 145

Azaz S/O Ahmed Ibrahim Ishabhai vs Commissioner Of Police 2022 LiveLaw (Guj) 146

State Of Gujarat v. Arjanbhai Titabhai Baraiya 2022 LiveLaw (Guj) 147

Oriental Insurance Co. Ltd. Versus Chief Commissioner Of Income Tax (TDS) 2022 LiveLaw (Guj) 148

Shiv Garment Through Sole Prop. Rameshchandra Gigaji Maurya v. Suryaben Kantilal Mehta 2022 LiveLaw (Guj) 149

Nimesh Dilipbhai Brahmbhatt vs Hitesh Jayantilal Patel 2022 LiveLaw (Guj) 150

Rameshbhai Dalsangbhai Kuniya Versus State Of Gujarat 2022 LiveLaw (Guj) 151

Munjaal Manishbhai Bhatt Versus Union Of India 2022 LiveLaw (Guj) 152

Vijay Arvind Jariwala v. Umang Jatin Gandhi 2022 LiveLaw (Guj) 153

Orders/Judgments of the Week

'Child's Welfare Paramount': Gujarat High Court Grants Custody Of 5-Yr Old Orphan To Maternal Aunt Over Paternal Grandparents

Case Title: Swaminathan Kunchu Acharya vs State Of Gujarat

Citation: 2022 LiveLaw (Guj) 144

The High Court granted custody of a 5 years old child, whose parents had passed away during Covid-19 pandemic, to his maternal aunt, over the claim made by his paternal grandparents.

The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt observed,

"The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statues govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child."

Reassessment Should Only Be Done By Officer Or His Successor And Not By Any Officer Of The Same Rank : Gujarat High Court

Case Title: Messrs Aztec Fluids And Machinery Pvt. Ltd. Versus UOI

Citation: 2022 LiveLaw (Guj) 145

The High Court bench of Justice Sonia Gokani and Justice Rajendra M. Saraen, while invalidating the reassessment initiated by the DRI, held that the officer who did the assessment could only undertake reassessment.

The petitioner/assessee is a private limited company and is in the business of trading and manufacturing goods like inkjet printers, laser printers, and parts as well as accessories for printers. The petitioner has been importing goods like Continuous Inkjet Printers (CIJ Printers), Laser Marking Machines, parts and accessories for CIJ Printers, and other such goods from foreign countries. They are being imported from China during the period from 2014 to 2021.

Mere Registration Of FIRs By Itself Can't Have Nexus With Breach Of "Public Order": Gujarat High Court Quashes Preventive Detention

Case Title: Azaz S/O Ahmed Ibrahim Ishabhai vs Commissioner Of Police

Citation: 2022 LiveLaw (Guj) 146

Drawing a distinction between the term 'public order' and 'law and order'', the High Court has held that mere registration of FIR/s against an accused person does not mean he is a threat to the society or disturbs all social apparatus.

A Bench comprising Justice SH Vora and Justice Sandeep Bhatt observed,

"Simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order...no other relevant and cogent material exists for invoking power under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985."

High Court Directs State To Positively Consider Service Regularization Of Asst Engineer Appointed In Aftermath Of '2001 Gujarat Earthquake'

Case Title: STATE OF GUJARAT Versus ARJANBHAI TITABHAI BARAIYA

Citation: 2022 LiveLaw (Guj) 147

Affirming the view that regularly selected employees cannot be continued for long on contractual, adhoc or temporary basis and that they ought to be regularised, the High Court came to the rescue of an Assistant Engineer who was appointed in the aftermath of 2001 Gujarat Earthquake.

A Bench comprising Justice RM Chhaya and Justice Hemant Prachchhak upheld the order of a single judge directing the Revenue Department and Urban Development & Urban Housing Department of the State Government to "positively consider" the request for regularisation.

Income Tax Not Applicable On Interest Awarded By The Motor Accident Claim Tribunal: Gujarat High Court

Case Title: Oriental Insurance Co. Ltd. Versus Chief Commissioner Of Income Tax (TDS)

Citation: 2022 LiveLaw (Guj) 148

The High Court bench of Justice J.B. Pardiwala and Justice Nisha M. Thakore held that the interest awarded by the Motor Accident Claim Tribunal (MACT) under section 171 of the Motor Vehicles Act 1988 is not taxable under the Income Tax Act, 1961.

The writ applicant, Oriental Insurance Co. Ltd., is an insurance company. One Motor Accident Claim Petition was filed in the City Civil Court of Ahmedabad. The claim petition was allowed by the MACT.

Power Of Superintendence U/Art. 227 Limited, Can't Interfere Merely To Substitute View: Gujarat HC Refuses To Direct Repairs On Suit Property

Case Title: Shiv Garment Through Sole Prop. Rameshchandra Gigaji Maurya v. Suryaben Kantilal Mehta

Citation: 2022 LiveLaw (Guj) 149

Averring that the powers under Article 227 of the Constitution should be exercised sparingly, only with a view to keep the Tribunals/ subordinate Courts within the bounds of their authority, the Gujarat High Court has rejected a petition praying for a direction upon the Respondent to carry out necessary repairs in the suit property.

The petitioner had approached the High Court against the order passed by a City Civil Court, rejecting such prayer.

Bench comprising Justice Ashokkumar Joshi observed,

"High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised."

"Party Should Not Suffer Due to Inaction of the Advocate": Gujarat HC Condones Delay of 3330 Days In Filing Written Statement

Case Title: Nimesh Dilipbhai Brahmbhatt vs Hitesh Jayantilal Patel

Citation: 2022 LiveLaw (Guj) 150

"It is trite law that a party should not suffer due to the in action on the part of the advocate and that the matter should be decided on merits rather than on technical ground", the Gujarat High Court has affirmed while hearing a petition under Art 227 to open the right to file written statement which was closed on 1st May 2012.

The Petitioner herein submitted that the Respondent party had filed a civil suit in 2010 for declaration and permanent injunction. Pursuant to the summons, the Petitioners filed their appearance through their advocate. However, subsequently, there were no instructions from the advocate representing the Petitioners for filing the written statement owing to which the Petitioner's right to file the written statement was closed on 1st May 2012. The Respondent, thereafter, filed his affidavit in lieu of examination in chief and the Petitioners then learnt that their written statement had not been filed leading to a delay of 3,330 days.

Service Prior To Regularization To Be Counted For Seniority, Contrary Undertaking Given By Employee No Bar: Gujarat High Court

Case Title: Rameshbhai Dalsangbhai Kuniya Versus State Of Gujarat

Citation: 2022 LiveLaw (Guj) 151

The High Court CAME to the aid of some Forest Guards, who were denied the benefit of past service on the basis of an undertaking given by them that they have no objection of losing seniority for enabling their transfer.

The Petitioners had challenged a resolution that provided for a policy of considering the period of five years of the incumbents who were appointed on a fixed pay for the purposes of seniority, promotion, higher pay scale and terminal benefits from their initial date of engagement and not from the date of their regularization

GST Refund To Be Granted To The Entity Who Borne The Tax Burden: Gujarat High Court Allows GST Refund To Service Recipient

Case Title: Munjaal Manishbhai Bhatt Versus Union Of India

Citation: 2022 LiveLaw (Guj) 152

The High Court bench of Justice J.B.Pardiwala and Justice Nisha M.Thakore held that, as per Section 54 of the CGST Act, a claim of refund may be made directly by the recipient if he has borne the burden of tax.

The writ applicant is a practising advocate in the High Court. The writ applicant entered into an agreement with the respondent, Navratna Organisers & Developers Pvt. Ltd., for the purchase of a plot. The agreement encompassed the construction of a bungalow on the plot of land by the respondent for the writ applicant.

Interim Relief Under Section 9 Of The A&C Act Cannot Be Granted Against A Third-Party Unless Claiming Under A Party To The Arbitration Agreement: Gujarat High Court

Case Title: Vijay Arvind Jariwala v. Umang Jatin Gandhi, R/SPECIAL CIVIL APPLICATION NO. 16131 of 2021

Citation: 2022 LiveLaw (Guj) 153

The High Court held that a third party cannot be impleaded as a party to an application for interim reliefs under Section 9 of the A&C Actunless it is a party who is claiming under a party to the arbitration agreement.

The Division Bench of Justice N.V. Anjaria and Justice Samir J.Dave has held that the remedy under the Arbitration Act is between the parties to the arbitration agreement, therefore, the third party has no concern with the proceedings of Section 9 nor the said provision recognizes the inclusion of the third party, who may be independently claiming the rights against the parties to the arbitration and vice versa.

Updates From High Court/Gujarat Courts

Does Sending Reminders For Payment Of School Fees Amount To 'Cruelty To Children' U/S 75 Juvenile Justice Act? Gujarat High Court To Examine

The Gujarat High Court is set to examine whether the action of Schools sending reminders to parents for non-payment of fees amounts to an offence under Section 75 of Juvenile Justice (Care and Protection of Children) Act, 2015.

The provision provides punishment for cruelty to child, which may lead to physical or "mental suffering".

Justice Bhargav Karia has issued notice on a Special Civil Application filed by the Federation of Self-Financed Schools against an order issued by the Collector and District Magistrate of Surat, stating that harassment of school students for non payment of fees is a gross violation of Section 75 of the JJ Act.

Freedom Fighter's Descendant Alleges Harassment For Exposing Corruption In Gujarat Transport Dpt, Seeks High Court's Permission For "Active Euthanasia"

In a writ petition filed before the High Court under Article 226 of the Constitution, a man claiming to be a descendant of freedom fighter Namdev Nathu Mahajan has sought permission to commit Iccha Mrytyu i.e., active euthanasia.

The Petitioner, 56 years of age, says he was working as a driver in the Gujarat State Road Transport Corporation when he received information and documents regarding some corruption which was going on in the department. This corruption was allegedly being carried on with the support of high level officers of the department.

Gujarat MLA Jignesh Mevani Gets 3-Month Jail Term By Local Court For Holding Protest March In 2017 Disobeying Magistrate's Order

A Court in the Mehsana District of Gujarat sentenced Gujarat Independent MLA Jignesh Mevani and 9 others to 3 months of imprisonment while holding them guilty of committing offence punishable under Section 143 IPC.

Additional Chief Judicial Magistrate J.A. Parmar noted that all 10 were members of Mevani's Rashtriya Dalit Adhikar Manch and when they were asked to not go ahead with the processions, they disobeyed the orders of the executive magistrate, and therefore, the said assembly became an unlawful assembly.

Gujarat High Court Issues Notice To Centre On PIL Seeking Appointment Of Presiding Officer In DRT-I, Ahmedabad

A Public Interest Litigation (PIL) plea has been moved in the Gujarat High Court seeking a direction for filling up posts of Presiding Officer in the Debt Recovery Tribunal-I, Ahmedabad in terms of Section 4 of the Recovery of Debt and Bankruptcy Act, 1993.

Hearing the matter on Thursday the bench of Chief Justice Aravind Kumar and Justice Ashutosh J. Shastri issued the notice to the Centre and directed it to file a reply by June 10, 2022.

JAMMU & KASHMIR & LADAKH HIGH COURT

1. Cogent Cause & Strict Adherence To Constitutional Safeguards Must To Curtail Personal Liberty: J&K High Court Quashes Preventive Detention Order

Case Title: Anil Singh V/s UT of J&K and another

Citation: 2022 LiveLaw (JKL) 20

The Jammu & Kashmir and Ladakh High Court recently quashed a detention order passed by a District Magistrate, Samba while observing that the order was passed without keeping in mind the constitutional safeguards.

Justice Sindhu Sharma observed:

"The respondents have not adhered to the legal and constitutional safeguard while passing the impugned order of detention. Therefore, the order of detention is unsustainable. This petition is, accordingly, allowed and impugned detention order No. 03/PSA of 2021 dated 16.06.2021 passed by District Magistrate, Samba is quashed. The detenu is directed to be released from preventive custody forthwith, if he is not required in connection with any other case."

The Jammu and Kashmir High Court has dismissed a petition which challenged government land acquisition on ground that there is no need for constructing a new national highway as there already exists a highway which can be repaired and widened.

The petition was dismissed by a division bench of Justice Moksha Khajuria Kazmi and Justice Pankaj Mithal observing:

"The submission that there is no need for constructing a new national highway as there already exists a highway which can be repaired and widened, it may be pertinent to mention that the construction of a national highway is a policy decision, which is taken on the opinion of the experts. It is not for this Court to intervene in such matters on the simple saying of the petitioners that such road or a highway is not needed."

Case Title: Rovinder Singh V/s Union of India and others

Citation: 2022 LiveLaw (JKL) 22

Jammu and Kashmir High Court recently declared Rule 129 of Border Security Rules ultra vires the Constitution of India while observing that the parliament cannot curtail the Fundamental Rights of the Armed Forces unless it is required to ensure proper discharge of their duties.

Justice Sanjeev Kumar observed that after a bare reading of the Rule it doesn't seem that it is aimed to ensure proper discharge of duties by the members of the Border Security Force and maintenance of discipline among them and, therefore, could be saved on the strength of Article 33 of the Constitution of India.

Case Title: Javid Ahmad Mir Versus UT of J&K and another

Citation: 2022 LiveLaw (JKL) 23

The Jammu and Kashmir High Court recently set aside a detention order while differentiating between disturbance in public order and threat to security of State.

The order was passed by Justice Vinod Chatterji Koul who said that an act may affect public order, but not necessarily the security of the State:

"Every infraction of law must necessarily affect order, but an affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping in the same that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and security of the State."

Case Title: Mushtaq Ahmad Peer V/s University of Kashmir and others

Citation: 2022 LiveLaw (JKL) 24

Jammu & Kashmir and Ladakh High Court recently upheld an order where a person's pension was withdrawn by way of an order without affording him an opportunity of being heard.

Justice Sanjeev Kumar observed that the plea of the petitioner that he was not provided a prior opportunity of being heard is not tenable in law:

"The plea of the petitioner that he was not provided a prior opportunity of being heard is not tenable in law. This is so because had the petitioner been given an opportunity of being heard, the position would not have changed. The petitioner could not have, by any stretch of reasoning, demonstrated before the respondent-University that the offences for which he has been convicted are not serious or do not constitute grave misconduct. Therefore, issuance of notice of hearing to the petitioner before passing of the order impugned, in the given facts and circumstances would have been a useless formality."

Case Title: MUSHTAQ AHMAD AHANGAR Vs. UNION TERRITORY OF J&K & ANR.

Citation: 2022 LiveLaw (JKL) 25

The Jammu and Kashmir and Ladakh High Court recently observed that preventive detention orders can be passed even when a person is in police/ judicial custody or involved in a criminal case but for doing so, compelling reasons are to be recorded.

Justice Sanjay Dhar observed:

"It is trite law that the preventive detention orders can be passed even when a person is in police/judicial custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law."

Case Title: MOHAMMAD HANIEF BHAT Vs. UT OF J&K & ANR

Citation: 2022 LiveLaw (JKL) 26

Jammu and Kashmir High Court recently quashed a preventive detention order declaring it to be illegal on ground that all important documents related to the matter were not provided to the detenue.

Justice Sanjay Dhar observed:

"Contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record."

Case Title: Bindreshwar Ganju v. Union of India

Citation: 2022 LiveLaw (Jha) 42

The Jharkhand High Court recently observed that twin conditions for bail under Section 45 of the Prevention of Money Laundering Act, 2002 that were declared unconstitutional by the Supreme Court in the case of Nikesh Tarachand Shah v. Union of India, stand revived on account of the defects purportedly being cured by the Parliament by way of 2018 Amendment Act.

On the basis of the above, Justice Subhash Chand denied a bail application of an accused under the Act.

Case Title: Braj Kishore Sahu v. Tribhuwan Nath Sahdeo and other connected matters

Citation: 2022 LiveLaw (Jha) 43

The Jharkhand High Court has affirmed that term of mortgage placing embargo on the redemption of mortgage of property by shortening the period within which the redemption could be sought, is a clog on redemption and as such void.

Referring to L.K. Trust v. EDC Ltd., (2011) 6 SCC 780, it reiterated that a right of redemption is an incident of a subsisting mortgage and exists so long as the mortgage itself subsists. Justice Gautam Chaudhary remarked,

"The clause purporting to limit and restrict the period of limitation for redemption was in conflict with the provision of Article 61 (a) of the limitation and was a clog on the equity of redemption."

The appellants are in appeal against the judgment of affirmance arising out of the judgment and decree, out of common judgment delivered by Additional district Judge Lohardaga. The Mortgage Title Suits were filed by Ram Dayal Sahu against Lal Pashupati Nath Sahdeo for foreclosure and to debar the defendant from redeeming the mortgaged property comprising land measuring 1.28 acres fully detailed in both the plaints.

Case Title: M/s Modern Construction Company versus State of Jharkhand

Citation: 2022 LiveLaw (Jha) 44

The Jharkhand High Court has ruled that after an arbitral award has been set aside and quashed by the Court under Section 37 of the Arbitration and Conciliation Act, 1996 (A&C Act), an application under Section 11(6)(c) of the A&C Act for appointment of an arbitrator afresh is maintainable, even though no liberty has been granted by the Court while passing the order under Section 37.

The Single Bench of Justice Sujit Narayan Prasad held that if the second application filed by a party for appointment of an arbitrator afresh is held to be not maintainable then the dispute which is the subject matter of the contract between the parties, would remain undecided.

Case Title: Suresh Yadav Versus The State of Jharkhand

Citation: 2022 LiveLaw (Jha) 45

The Jharkhand High Court recently expressed its displeasure at the "appalling state of affairs" in the State due to improper investigations being carried out by Police officers in crimes, leading to several culprits going scot free.

Justice Subhash Chand thus ordered the Director, Judicial Academy (Jharkhand) to prepare a scheme to impart training to the Police Investigating Officers and to prepare the schedule programme of the same.

Case Title: Kaushar Ansari v. The State of Jharkhand & Anr.

Citation: 2022 LiveLaw (Jha) 46

The Jharkhand High Court recently held that the consent of the prosecutrix under Section 90 of the Indian Penal Code was not vitiated when her doubts in the relationship got cemented with the lapse of time. Setting aside the conviction of the accused under Section 376 of the Indian Penal Code, a Division Bench of Justices Rongon Mukhopadhyay and Rajesh Kumar noted that,

"If at all there was a misconception in the mind of P.W.4, the same was at an early stage of the relationship, but the belief of P.W.4 got cemented as even after being aware of the status of the appellant she never desisted in such physical relationship. Such fact circumstances, would not, therefore, attract Section 90 of the I.P.C."

Case Title: Md. Irshad Hussain & Ors v. The State of Jharkhand & Anr.

Citation: 2022 LiveLaw (Jha) 47

Referring to precedents set by the Supreme Court, the Jharkhand High Court reiterated that criminal cases which are not compoundable may be quashed, if: (i) the parties have settled the matter between themselves, (ii) there is no chance of conviction and (iii) there is no societal interest involved.

Justice Sanjay Kumar Dwivedi referred to the case of Narinder Singh & Ors v. State of Punjab & Anr., (2014) 6 SCC 466, in disposing off the petition filed for quashing the entire criminal proceeding and order passed by the CJM, Dhanbad taking cognizance of offences under Sections 498-A, 341, 323, 505, 506/34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act.

7. No Guidelines In IPC For Awarding Rigorous/ Simple Imprisonment, Discretion Must Be Exercised Based On Mitigating & Aggregating Factors: Jharkhand HC

Case Title: Gopal Malhotra v. The State of Jharkhand

Citation: 2022 LiveLaw (Jha) 48

The Jharkhand High Court recently held that though the Indian Penal Code does not provide any guideline as to when a person may be directed to undergo simple imprisonment or rigorous imprisonment, however, the Court while passing an award must exercise its discretion judiciously.

Justice Shree Chandrashekhar observed,

"Courts are required to decide quantum of punishment on the basis of the materials laid during the trial which would mean that the Courts should assess the mitigating as well as aggregating circumstances in the case and upon weighing the both types of circumstances should decide the mode and quantum of punishment to be inflicted upon the convict."

Case Title: Sukhlal Biruly v. The State of Jharkhand and Ors.

Citation: 2022 LiveLaw (Jha) 49

The Jharkhand High Court has recently observed that a Magistrate is not empowered to give effect to delivery of possession of the property under section 107 Cr.P.C.

The observation came from Justice Sanjay Kumar Dwivedi:

"Looking to section 107 Cr.P.C., it is crystal clear that the Magistrate can proceed if the person is within his jurisdiction or the place of the apprehended breach of the peace or disturbance is within the local limits of his jurisdiction and only to that effect the Magistrate can pass the order under section 107 Cr.P.C. Under section 107 Cr.P.C., the Magistrate is not empowered to put possession to any person and it is done by order dated 09.5.2017 which is not the spirit of section 107."

9. Pending Litigations Between Parties Can't Be Sole Ground To Quash Criminal Proceedings U/S 482 CrPC: Jharkhand High Court

Case Title: Chetan Adesera & Ors v. The State of Jharkhand

The Jharkhand High Court has held that merely because there is a case and a counter case between the parties or merely because there has been a title suit amongst the parties, the same is not sufficient to quash the criminal proceedings instituted by one of them against the other.

Justice Anubha Rawat Choudhary referred to the judgment of the State of Haryana and Ors. Vs. Bhajan Lal and Ors, which lays the foundational principle to interfere in the criminal proceedings under Section 482 of Cr.P.C. In the said case, an illustrative list has been given for exercise of power by the Court under Article 226.

KARNATAKA HIGH COURT

Nominal Index:

MOHAMED ARIF JAMEEL v. STATE OF KARNATAKA AND OTHERS, 2022 LiveLaw (Kar) 145

UNITED INDIA INSURANCE CO., LTD., v. NAGENDRA, 2022 LiveLaw (Kar) 146

Stanley Joseph v. State, 2022 LiveLaw (Kar) 147

Sathish N v. Ambika J, 2022 LiveLaw (Kar) 148

Chennaiah @Doddachennaiah and others v. Bylappa and others Case, 2022 LiveLaw (Kar) 149

B S PRAKASH v. THE STATE OF KARNATAKA AND ORS., and connected matters, 2022 LiveLaw (Kar) 150

Babu A Dhammanagi vs Union Of India, 2022 LiveLaw (Kar) 151

Xiaomi Technology India Private Limited v. Union of India, 2022 LiveLaw (Kar) 152

Judgments/orders

1. Karnataka High Court Dismisses Challenge To Law Validating Recruitment Of 362 KPSC Gazetted Probationers Of 2011 Batch

Case Title: MOHAMED ARIF JAMEEL v. STATE OF KARNATAKA AND OTHERS Case No: WRIT PETITION NO.6795 OF 2022 (S-RES-PIL)

Citation: 2022 LiveLaw (Kar) 145

The Karnataka High Court recently dismissed a petition filed seeking to declare the Karnataka Civil Services (Validation of Selection and Appointment of 2011 Batch Gazetted Probationers) Act 2022 as unconstitutional, illegal and void. Through the said Act, the government has validated the recruitment of 362 gazetted 'probationers' of the 2011 batch, selected by the Karnataka Public Service Commission.

2. Incapacity To Work Has To Be Determined With Reference To Sole Occupation Of Person As On Date Of Motor Accident: Karnataka High Court

Case Title: UNITED INDIA INSURANCE CO., LTD., versus NAGENDRA Case No: MFA NO.8801 OF 2018,

Citation: 2022 LiveLaw (Kar) 146

The Karnataka High Court has said that a person who is a driver by profession if loses complete vision of one eye in a motor accident, then he would not be able to continue his profession of driving, thus it would have to be considered as permanent physical disability and 100% loss of earning capacity.

3. Going Back On Promise To Marry Not Cheating But Failure To Repay Loan Will Attract S.420 IPC: Karnataka High Court On Film Director's Plea

Case Title: Stanley Joseph v. State Case No: Criminal Petition no 1172/2018

Citation: 2022 LiveLaw (Kar) 147

In a cheating case instituted by a woman against film director Stanley Joseph, the Karnataka High Court has said that though going back on a promise to marry will not amount to cheating in this case, but obtaining a loan and not repaying the same will amount to criminal intention to cheating, attracting Section 420 of IPC.

4. Wife Leaving Matrimonial House Not Ground To Deny Maintenance If She Moved Out Due To Ill-Treatment By Husband: Karnataka High Court

Case Title: Sathish N v. Ambika J Case No: CRIMINAL PETITION No. 474 OF 2022

Citation: 2022 LiveLaw (Kar) 148

The Karnataka High Court recently observed that if a wife moves out of the matrimonial house due to ill-treatment meted out by husband, he cannot claim that she moved out by mutual consent and thus he is not liable to pay maintenance amount.

5. Suit For Injunction In Respect Of Immovable Property Not Abated On Death Of Parties: Karnataka High Court

Case Title: Chennaiah @Doddachennaiah and others versus Bylappa and others Case No: RSA No 743/2011

Citation: 2022 LiveLaw (Kar) 149

The Karnataka High Court has said that in a suit relating to grant of injunction in respect of an immovable property, the right to sue is not personal to the plaintiff but survives to his legal representative and the suit for injunction would not therefore abate on the death of the parties.

6. Karnataka High Court Issues Guidelines For Making Or Continuing Entries In Rowdy Register /History Sheets In Light Of 'Privacy Jurisprudence'

Case title: B S PRAKASH versus THE STATE OF KARNATAKA AND ORS., and connected matters, Case No: W.P.NO.4504/2021

Citation: 2022 LiveLaw (Kar) 150

The Karnataka High Court recently issued guidelines to be followed by the police before entering the name of an individual to the Register of Rowdies, which is maintained by every police station.

7. Adjudicating Authority Is Not Bound By The Recommendation Of The Resolution Professional Under Section 99 Of The Insolvency And Bankruptcy Code, 2016 : Karnataka High Court

Case Title: Babu A Dhammanagi vs Union Of India

Citation: 2022 LiveLaw (Kar) 151

A division bench of the Karnataka High Court dismissed a writ petition challenging the constitutional validity of Sections 95, 99 and 100 of the Insolvency and Bankruptcy Code, 2016 ("the Code") as it found no merit to the challenge.

The Court held that the process contemplated under Sections 95 to 100 is a time bound process, which requires the Resolution Professional to firstly give reasons in support of his recommendation. Secondly, the role of the Resolution Professional is limited to giving his recommendation and there is no element of adjudication on the part of the Resolution Professional. It is Adjudicating Authority which takes the final decision on whether the application is to be admitted or rejected, and it is not bound by the recommendation of the Resolution Professional.

8: Karnataka High Court Stays ED Order Seizing Xioami India Assets

Case title: Xiaomi Technology India Private Limited v. Union of India Case No: WP 9182/2022

Citation: 2022 LiveLaw (Kar) 152

The Karnataka High Court on Thursday stayed the order issued by the Enforcement Directorate dated April 29, by which it has seized Rs.5551.27 Crore of M/s Xiaomi Technology India Private Limited under the provisions of Foreign Exchange Management Act,1999.

Other reports

1. High Court Directs Karnataka Examination Authority To Permit OCI Students To Appear In Exams & Counselling On Par With Indian Students

The Karnataka High Court has directed the state government to permit Overseas Citizens of Indian (OCI) students to appear in the examination and participate in the counseling process to be conducted by the Karnataka Examination Authority, on par with the Indian students.

2. Police Sub-Inspector Recruitment Scam: Candidates Move Quashing Petition Before Karnataka High Court

Case Title: RACHANA HANMANTH versus STATE BY HIGH GROUND P.S.

Case No: WP 9280/2022

Two accused named in the alleged Police Sub Inspector (PSI) recruitment scam have approached the Karnataka High Court, seeking to quash the First Information Report (FIR) registered against them on April 30.

KERALA HIGH COURT

Nominal Index [Citations 2022 LiveLaw (Ker) 201 - 212]

Shajeedha Beevi v. State of Kerala & Ors, 2022 LiveLaw (Ker) 201

X. v State of Kerala & Anr, 2022 LiveLaw (Ker) 202

Mithun T. Abraham v. Sub Court of Judicature & Ors, 2022 LiveLaw (Ker) 203

Sobhana v. President & Anr, 2022 LiveLaw (Ker) 204

Bhagavathiappan R. & Ors v. Bharathamani & Ors, 2022 LiveLaw (Ker) 205

Suo Motu v. State of Kerala, 2022 LiveLaw (Ker) 206

Binoy & Ors. v. State of Kerala & Ors., 2022 LiveLaw (Ker) 207

Arshika S. v. State of Kerala, 2022 LiveLaw (Ker) 208

M/S G&C infra Innovations v. Union of India, 2022 LiveLaw (Ker) 209

M/s Elstone Tea Estates Ltd. & Ors. v. Pius C. Mundadan & Anr, 2022 LiveLaw (Ker) 210

Bharat Petroleum Corporation Ltd. v. Kerala State Road Transport Corporation, 2022 LiveLaw (Ker) 211

Suo Motu v. State of Kerala, 2022 LiveLaw (Ker) 212

Judgments This Week:

1. Party Claiming Compensation For Illegal Acquisition Of Property Bound To Establish Its Title: Kerala High Court

Case Title: Shajeedha Beevi v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 201

The High Court has recently ruled that a party claiming compensation for illegal acquisition of some property allegedly possessed by him has to establish his title and possession over the same before the court. While allowing an appeal, Justice Mary Joseph observed that in the said case, the plaintiff who sought compensation had failed to produce the document to evidence his ownership over the land.

2. No Legal Embargo Against Superior Courts Intervening With Bail Orders: Kerala High Court

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

Citation: 2022 LiveLaw (Ker) 202

The High Court has recently observed that although an order granting bail would not generally be interfered with by the superior Courts, there is no legal embargo against such intervention. Justice Kauser Edappagath thereby observed that a High Court may invoke its inherent powers under S.482 of CrPC in the aid of an order required to secure the ends of justice and for preventing abuse of the process of any court.

3. Entire Court Fee Should Be Refunded When A Pending Civil Case Is Settled Through Lok Adalat: Kerala High Court

Case Title: Mithun T. Abraham v. Sub Court of Judicature & Ors.

Citation: 2022 LiveLaw (Ker) 203

The High Court has laid down that when a dispute in a pending civil case is referred to the Lok Adalat and settled thereafter, the entire court fee already paid by the party is liable to be refunded. Justice V.G Arun found that the 7% reduction of the court fee already paid was not sustainable since such cases were governed by the Legal Services Authorities Act and the Court Fees Act, and not the Kerala Court Fees and Suits Valuation (Board of Revenue) Rules.

4. Kerala Civil Courts Act| District Judge Can't Pass Judicial Orders Directing Subordinate Courts To Dispose Matters Expeditiously U/S.17: High Court

Case Title: Sobhana v. President & Anr.

Citation: 2022 LiveLaw (Ker) 204

The Court has recently established that the general supervisory power available under Section 17 of the Kerala Civil Courts Act does not empower the District Judge to pass judicial orders directing the civil courts in the district to dispose of matters pending before the subordinate courts in a time-bound manner. Justice A. Badharudeen held that the general control over all the civil courts given to the District Judge within the District is confined to matters of administration and not strictly on the judicial side to pass orders of such nature.

5. Court Fee In A Suit Seeking Cancellation Of Document To Be Computed Based On Value Shown In The Document: Kerala High Court

Case Title: Bhagavathiappan R. & Ors v. Bharathamani & Ors.

Citation: 2022 LiveLaw (Ker) 205

The High Court has ruled that when cancellation or declaration of a document as null and void is sought for, the court fee shall be paid valuing the same on the basis of the value shown in the document as long as the subject matter is capable of valuation. However, Justice A. Badharudeen reiterated that in a suit for partition seeking a declaration that a settlement deed is invalid or not valid, a separate court fee is not necessary for the said declaration.

6. Shawarma Food Poisoning Case: Kerala High Court Initiates Suo Motu PIL On Food Safety Concerns In State

Case Title: Suo Motu v. State of Kerala

Citation: 2022 LiveLaw (Ker) 206

The High Court took suo motu cognisance of the food poisoning incident in Kasargod after a 16-year-old girl died and over 50 people were hospitalised which, as per news reports, is a possible aftermath of consuming shawarma. A Division Bench comprising Justice Devan Ramachandran and Justice P.G Ajithkumar took up the case after media reports threw light on the appalling conditions of some shawarma-making joints in the state. The court later sent notices to the State Food Safety Commissioner, Health Director and other officials.

7. District Collector Can Be Notified As 'Appropriate Government' Under Right To Fair Compensation Act: Kerala High Court

Case Title: Binoy & Ors. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 207

The High Court has held that a District Collector can be notified as the 'appropriate government' mentioned in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Justice Devan Ramachandran found that as per Section 3E of the Act, the State Government can notify a District Collector to be the "appropriate Government" and he shall then be deemed to be such Authority therefrom.

8. RSS Worker's Murder: Kerala High Court Dismisses Wife's Plea For CBI Investigation

Case Title: Arshika S. v. State of Kerala

Citation: 2022 LiveLaw (Ker) 208

The Court dismissed the plea filed by the wife of deceased Rashtriya Swayamsevak Sangh (RSS) worker Sanjith, who was hacked to death in November last year, seeking the investigation to be transferred to the Central Bureau of Investigation (CBI). Justice K. Haripal pronounced the judgment after weeks of elaborate hearing, permitting the State Police to continue with their probe.

9. Kerala High Court Directs GST Dept. To Facilitate Revision Of Form GST TRAN-1 By Making Necessary Arrangements On The Portal

Case Title: M/S G&C infra Innovations v. Union of India

Citation: 2022 LiveLaw (Ker) 209

The bench of Justice Bechu Kurian Thomas has directed the GST department to facilitate the revising of Form GST TRAN-1 and filing of Form GST TRAN-2 by making necessary arrangements on the web portal. The petitioner/assessee was a registered dealer under the Kerala Value Added Tax Act, 2003 as well as the Central Sales Tax Act, 1956. The assessee is in the business of trading in iron and steel products and other accessories and allied items.

10. Condonation Of Delay | Courts Should Consider Relevant Aspects Like Conduct, Bonafide & Prejudice: Kerala High Court

Case Title: M/s Elstone Tea Estates Ltd. & Ors. v. Pius C. Mundadan & Anr.

Citation: 2022 LiveLaw (Ker) 210

The High Court has established that while taking a decision on an application for condonation of delay, the court should not merely consider the reasons stated in the application alone, but should also consider other attendant and relevant aspects. Justice V.G. Arun observed that having contested the case in a lackadaisical manner and having failed to offer an acceptable explanation for the delay, the petitioners cannot bank upon the elasticity of the term 'sufficient cause' to plead equity or seek permission to contest the suit on merits.

11. Kerala High Court Sets Aside Interim Order In Favour Of KSRTC In Bulk Diesel Price Case

Case Title: Bharat Petroleum Corporation Ltd. v. Kerala State Road Transport Corporation

Citation: 2022 LiveLaw (Ker) 211

The Court allowed the appeals moved by state-owned oil marketing companies (OMC) challenging the interim order issued in favour of Kerala State Road Transport Corporation (KSRTC) wherein the OMCs have been directed to levy the price of High Speed Diesel (HSD) at par with the price available at retail pumps temporarily. A vacation bench of Justice C.S Dias and Justice Basant Balaji thereby set aside the impugned interim order passed in a petition moved by KSRTC through Advocate Deepu Thankan citing that there was an arbitration clause in the agreement between the parties.

Also Read: 'Nothing But The Old Case With A New Docket': Kerala High Court While Refusing To Provide Diesel To KSRTC At Retail Price

12. Shawarma Food Poisoning: Kerala High Court Calls For Constant Monitoring & Enforcement Of Food Safety Standards

Case Title: Suo Motu v. State of Kerala

Citation: 2022 LiveLaw (Ker) 212

The Court urged the respective authorities to routinely inspect and monitor food safety standards across the State all year round while hearing a suo motu PIL launched after the food poisoning incident in Kasargod. A 16-year-old girl Devananda died and over 57 people were hospitalised which, as per news reports, is a possible aftermath of consuming shawarma from a particular restaurant.

Other Developments:

13. 'Don't Go By WhatsApp University': Kerala High Court Dismisses PIL Alleging Forced Vaccination Of Children

Case Title: Thampi VS v State of Kerala

The Court refused to entertain a Public Interest Litigation (PIL) petition that sought to prevent alleged forced vaccination of children across the State finding that the petitioner had moved the Court based on information received through social media. A Division Bench of Justice Devan Ramachandran and Justice Sophy Thomas dismissed the plea with interesting comments after the petitioner failed to place on record any specific instance of forced vaccination of minors.

14. Kerala High Court Seeks Clarification On Appointing New Supervisor For SIT Probing Actor Assault Case Before Expiry Of Tenure

Case Title: Kerala State Board of International Human Rights Council v. State of Kerala

The Court asked the State Police Chief (SPC) to clarify whether any order had been issued appointing the new Crime Branch chief as the supervising authority of the special investigation team (SIT) which is currently probing the 2017 actor sexual assault case. A Division Bench of Justice Devan Ramachandran and Justice Sophy Thomas passed the order in a petition filed by film director Baiju Kottarakara challenging the transfer of ADGP S. Sreejith from the post of Crime Branch chief and the supervising officer of the sexual assault case.

15. 'These Buses Are Your Assets': Kerala High Court Pulls Up KSRTC For Ditching Buses In Depots To Rust

Case Title: N. Raveendran v. State of Kerala & Ors.

Case Citation: 2022 LiveLaw (MP) 132

The Court directed the State and the Kerala State Road Transport Corporation (KSRTC) to file an affidavit detailing the measures taken for protecting the 'assets' of the Corporation. The Bench comprising Justice Devan Ramachandran and Justice Sophy Thomas issued the directive on a public interest litigation (PIL) which alleged that valuable assets of the KSRTC were being wasted away on account of negligence and insouciance of the corporation.

MADHYA PRADESH HIGH COURT

1. Hearsay Statements Made Contemporaneously With Act Or Immediately Thereafter Admissible U/S 6 Evidence Act: MP High Court

Case Title: BASANT v. THE STATE OF MADHYA PRADESH GOVT.

Case Citation: 2022 LiveLaw (MP) 133

The Madhya Pradesh High Court, Indore Bench recently held that a statement made by the deceased contemporaneously with the act or immediately thereafter would be admissible as dying declaration under Section 32 of the Indian Evidence Act.

Further, statements made by the complainants regarding words uttered by the deceased, though hearsay, are admissible under Section 6 of the Indian Evidence Act (Rule of res gestae).

Case Title: VISHAL PANDEY AND ANR. VERSUS FOOD CORPORATION OF INDIA AND ORS.

Case Citation: 2022 LiveLaw (MP) 134

The Madhya Pradesh High Court recently held that the child of the deceased government employee shall be considered as 'Dependant', despite the parent losing their custody, for the purpose of compassionate employment.

Deciding the writ petition, Justice Vivek Agarwal observed-

I am of the opinion that impugned order deserves to be quashed as it is arbitrary and has failed to take into consideration a comprehensive meaning of the word 'dependent'. Respondents have tried to supply a very restricted meaning to the clause 'dependents', vide Annexure P-10, whereas admittedly, by virtue of divorce of his mother, petitioner No.1 will not lose his status of being a son who is covered by definition of 'dependent family member'.3.

Case Title: M/s Om Sai RK Constructions Pvt. Ltd. versus M/s Forsight Infractech Pvt. Ltd.

Case Citation: 2022 LiveLaw (MP) 135

The High Court of Madhya Pradesh has ruled that once the appointment of arbitrator is void ab initio and the arbitrator is ineligible by virtue of Section 12 (5) of the Arbitration and Conciliation Act, 1996 (A&C Act), then the procedure prescribed under Sections 12, 13 and 14 of the A&C Act for challenging the appointment of an arbitrator are not applicable.

The Single Bench of Justice Anand Pathak held that if the arbitrator is appointment unilaterally by the opposite party, the ineligible appointment deserves to be set aside and the arbitrator can be removed at the stage of passing of the award. The Court reiterated that unless the appointment of an arbitrator is ex facie valid, it does not debar the jurisdiction of the Court in Section 11 of the A&C Act in appointing a new arbitrator.

Case Title: PREMSHANKAR VIJAYVARGIYA AND ANR. v. UNION OF INDIA AND ORS.

Case Citation: 2022 LiveLaw (MP) 136

The Madhya Pradesh High Court, Indore Bench recently directed the Union of India to release the amount of compensation awarded to Petitioners, senior citizens, for their Bungalow that was resumed by the Ministry of Defence for their own purposes.

The Court observed that the Union of India was dragging its feet in paying the amount to the Petitioners despite its specific directions to the executing court to dispose of the execution proceeding within 4 months.

Case Title: Chandresh Marskole Vs. The State of Madhya Pradesh

Case Citation: 2022 LiveLaw (MP) 137

The High Court of Madhya Pradesh recently set aside the conviction of a man for murder and further directed the State to pay him compensation worth Rs. 42 Lakhs, observing that his conviction was a result of a botch and maliciously motivated investigation by an 'outrightly partisan' police.

While directing the State to pay compensation, the division bench of Justice Atul Sreedharan and Justice Sunita Yadav further held that the Appellant was free to proceed against the State for an action in tort for malicious prosecution-

Case Title: AJAY SAHU v. THE STATE OF MADHYA PRADESH AND ANR.

Case Citation: 2022 LiveLaw (MP) 138

The Madhya Pradesh High Court recently directed the State Level Vigilance and Monitoring Committee to take appropriate action against the Police Officers concerned for tampering with forensic evidence in a rape case, to allegedly shield the Appellant/accused, who also happened to be a police officer.

Justice Vivek Agarwal further lamented that the Court would've directed that the case be handed over to the CBI for further investigation but the same, prima facie, would not help the victim as the delinquent officers had 'already played their role' by tampering with the evidence-

Case Title: ASHOK v. THE STATE OF MADHYA PRADESH AND ANR.

Case Citation: 2022 LiveLaw (MP) 139

Considering the categorical statement made by a 11-yr-old rape victim, the Madhya Pradesh High Court recently rejected the bail application of the accused stating that at the stage of consideration of bail, marshalling of the prosecution witnesses is not permitted.

Justice Anil Verma observed:

"At the stage of consideration of bail, marshalling of the prosecution witnesses is not permitted as per the judgment of Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of Chattisgarh & Ors. (Cr.A.No.651/2007) decided on 30/07/2007."

MADRAS HIGH COURT

Citations: 2022 LiveLaw (Mad) 192 To 2022 LiveLaw (Mad) 205

NOMINAL INDEX

Agavai (Name Changed) v. The State represented by Inspector of Police, 2022 LiveLaw (Mad) 192

Case Title: M.Ani v. The Government of Tamilnadu and others, 2022 LiveLaw (Mad) 193

Hema Jwaalini and others v. The Commissioner of Police and Others, 2022 LiveLaw (Mad) 194

Nakshatra Bind A.K v. State of Tamil Nadu and Others, 2022 LiveLaw (Mad) 195

The Project Director (LA), NHAI versus T. Palanisamy and Ors., 2022 LiveLaw (Mad) 196

The Deputy Superintendent of Police v. The Deputy Director Unique Identification Authority of India (UIDAI), 2022 LiveLaw (Mad) 197

Mrs. Noorjahan Versus The Deputy Commissioner of Income Tax, 2022 LiveLaw (Mad) 198

Suresh Rajan v. The State rep. by Inspector of Police, 2022 LiveLaw (Mad) 199

Thirumalai and Others v. Divisional Manager, The New India Assurance Company Limited, 2022 LiveLaw (Mad) 200

Sri Manakula Vinayagar Medical College & Hospital v. The Government of Puducherry and Others, 2022 LiveLaw (Mad) 201

M/s.Srinivasa Stampings Versus The Superintendent of GST and Central Excise, 2022 LiveLaw (Mad) 202

Lakshmi Ammal and Others v. Gejaraj (died) and others, 2022 LiveLaw (Mad) 203

Mrs. Noorjahan versus Deputy Commissioner of Income Tax and M/s. AMK Solutions Private Ltd. & Ors. versus Deputy Commissioner of Income Tax, 2022 LiveLaw (Mad) 204

Tvl.G.Sankar Timber Depot Versus The State Tax Officer (Adjudication), 2022 LiveLaw (Mad) 205

1. Juvenile Offenders Are Often "Victims" Of Society: Madras High Court Endorses Reformative Approach Under JJ Act, Quashes Detention Order

Case Title: Agavai (Name Changed) v. The State represented by Inspector of Police

Citation: 2022 LiveLaw (Mad) 192

The Madras High Court set aside the detention order passed by the Juvenile Justice Board, Thiruvallur against a 15 years old child in conflict with law, observing that the order was passed in a hasty manner without going into the genuineness of the matter.

Justice AD Jagadish Chandra also observed that a child offender should not be given punishment based on the kind of offense he/she has committed but should be given an individual treatment that is reformative in nature and which is based on his/her need, psychological and social background.

The court also opined that the parents, teachers, schools, community, and law enforcement agencies need to understand, prevent and reduce risk factors that may push children towards adopting behaviors that may harm them. The court further observed that no child is born criminal and it is his/her social factors that make them do acts against the law.

2. TET Not Mandatory For Teachers In Minority Institutions: Madras High Court Reiterates

Case Title: M.Ani v. The Government of Tamilnadu and others

Citation: 2022 LiveLaw (Mad) 193

The Madras High Court has reiterated that TET qualification cannot be made applicable to minority institutions. The bench of Justice V Parthiban further confirmed the legal position that the prescription of TET qualification in terms of the Right of Children to Free and Compulsory Education Act, 2009 was not applicable to minority institutions.

In light of the decision of the Constitution Bench in Pramti Educational and Cultural Trust and Ors. v. Union of India and ors. (2014), the court ordered the educational institutions to grant appropriate annual increment and medical benefits to the petitioner teacher and refund of any amount recovered from the teacher merely on the ground that she has not cleared the Teachers Eligibility Test (TET).

3. Procedure For Search Under Immoral Traffic (Prevention) Act Is Directory & Not Mandatory: Madras High Court

Case Title: Hema Jwaalini and others v. The Commissioner of Police and Others

Citation: 2022 LiveLaw (Mad) 194

The Madras High Court recently dismissed a criminal petition filed challenging the action taken by Police Authorities against the owners and manager of Willow & Spa and charging them under Sections 3(2)(a), 4(1), and 5(1)(a) of Immoral Traffic (Prevention) Act, 1956.

The bench of Justice AD Jagadish Chandira observed that the petition did not have any merits as the petitioners had suppressed material facts and had merely claimed that the respondent police had fabricated the case due to a cold war existing between them.

With respect to the search procedure to be followed under the Immoral Traffic (Prevention) Act, the court held that the procedures were directory and not mandatory and a mere violation of the same will not vitiate the entire proceedings.

4. Specific Marks Can't Be Awarded To Students When Exams Not Conducted Due To Covid-19:Madras High Court Upholds State Board's Decision

Case Title: Nakshatra Bind A.K v. State of Tamil Nadu and Others

Citation: 2022 LiveLaw (Mad) 195

The Madras High Court recently held that there was no illegality in the state government's decision promoting students and awarding secondary school marksheets, without awarding specific marks to each student, for the reason that the examinations could not be held due to Covid-19.

The court highlighted that the same is a policy decision and does not warrant any interference from the court.

The bench of Chief Justice Munishwar Nath Bhandari and Justice D Bharatha Chakravarthy was considering a writ appeal filed by a XIth standard student against the order of the single judge and to declare the Government Orders as illegal and arbitrary and to strike off the same.

5. Arbitral Award Not Providing Statutory Compensation On Land Acquired Under NHA Is Perverse: Madras High Court

Case Title: The Project Director (LA), NHAI versus T. Palanisamy and Ors.

Citation: 2022 LiveLaw (Mad) 196

The Madras High Court has held that an arbitral award that does not provide for payment of mandatory statutory compensation with respect to the land acquired under the National Highways Act, 1956 is perverse.

The Single Bench of Justice P.T. Asha held that an Arbitrator exercising jurisdiction under the National Highways Act has to be more vigilant in ensuring that the arbitral award is fair and that the land owner is compensated adequately as per his legal entitlement. The Court upheld the order of the District Judge that had set aside the arbitral award and had directed the competent authority to pay compensation to the land owner as provided under the statute.

6. Fake Indian Passports Held By Srilankan Nationals: Madras High Court Directs UIDAI To Share Details Of 35 Aadhaar Cards With 'Q' Branch-CID

Case Title: The Deputy Superintendent of Police v. The Deputy Director Unique Identification Authority of India (UIDAI)

Citation: 2022 LiveLaw (Mad) 197

The Madras High Court has recently directed the Deputy Director, UIDAI to furnish details of 35 Aadhaar Cards sought by the Deputy Superintendent of Police, "Q" Branch CID, Chennai City.

Justice G Jayachandran made the above order on a plea by the Deputy Superintendent following rejection of his request by the UIDAI, seeking information about the Aadhaar Card Numbers along with KYC documents submitted by the applicants of the concerned Aadhaar cards.

The relief sought by the petitioner was to direct the respondent to share the Aadhaar card information including the genuineness of the Aadhaar Cards, whether they were issued to the same person, and any updates from the date of issue to date done to these numbers(including name, address, date of birth and mobile number), and the details of the authorized person who can make/have made the corrections, the certified copied of the applications along with the KYC documents submitted by the applicants. The petitioner submitted that the same was necessary to complete the investigation with respect to a crime relating to fake Indian Passports possessed by Sri Lankan Nationals.

The court also held that the intention of the petitioners for obtaining the information was merely to ascertain whether the Aadhaar cards seized by them were genuine or not and if so, to ascertain on what basis these were issued to such Foreign Nationals. Thus, furnishing of such information does not amount to the disclosure of private details of any individuals but to determining the existence of such individuals, and as such is not prohibited by the Puttaswamy judgment.

7. Initiation Of Malicious Prosecution By Income Tax Dept. Abusing Power: Madras High Court

Case Title: Mrs. Noorjahan Versus The Deputy Commissioner of Income Tax

Citation: 2022 LiveLaw (Mad) 198

The Madras High Court bench of Justice G. Jayachandran has held that the suppression of material facts, the intentional suggestion of falsehood and the non-application of mind go to show that there was a malicious prosecution initiated by the Income Tax department by abusing its power. The petitioners need not be forced to undergo the ordeal of a trial, which has no legs to stand on.

The two petitions were filed to quash the complaint on the ground that there was a lack of ingredients to prosecute the petitioners under section 276 C (2), besides suppression of fact and non-application of mind.

The court said that a "culpable mental state" which can be presumed under section 278E of the Income Tax Act would come into play only in a prosecution for any offence under the Income Tax Act when the offence requires a "culpable mental state" on the part of the accused. Section 278 E is really a rule of evidence regarding the existence of mens rea by drawing a presumption, though rebuttable. That does not mean that the presumption would be applied even in a case in which the basic requirements constituting the offence are not disclosed. In particular, when the tax is paid much before the process for prosecution is set into motion. The presumption can be applied only when the basic ingredient that would constitute any offence under the Act has been disclosed. Then only, the rule of evidence under section 278 E of the Act regarding the rebuttable presumption as to the existence of a culpable mental state on the part of the accused would come into play.

8. Pledge Allegiance To Constitution, Swear That You Don't Believe In Maoist Ideology: Madras High Court Imposes Condition For Bail

Case Title: Suresh Rajan v. The State rep. by Inspector of Police

Citation: 2022 LiveLaw (Mad) 199

The Madras High Court recently granted bail to an alleged Maoist on a condition that he shall swear an affidavit, stating that he owes faith and allegiance to the Constitution of India and that he does not believe in the Maoist ideology or the ideology of the CPI(M). He shall also state that he does not believe in violence as an ideology and would do nothing to subvert the Constitution of India.

The order was passed by a bench of Justice P.N Prakash and Justice AA Nakkiran in a criminal appeal preferred seeking to set aside the order of Special NIA Court refusing bail to the Appellant, Suresh Rajan.

Along with the above conditions, the court also directed the Rajan to execute a bond for a sum of Rs. 25,000/- with two sureties (blood relatives of the petitioner) for a like sum each to the satisfaction of the Special Court. He shall also furnish his permanent address and shall inform the trial Court and the respondent about any change in his address. He was also directed to appear before the Special Court daily at 10:30 A.M and mark his signature.

The Special Court was given the liberty to cancel his bail and remand him to custody if he adopts any dilatory tactics during the trial or if any other situation so warrants. If he absconds, a fresh FIR shall be registered against him under Section 229-A IPC

9. MACT-Benefit Of Exemption From Payment Of Court Fees Can Be Claimed Only Before The Tribunals And Not On Appeals: Madras High Court

Case Title: Thirumalai and Others v. Divisional Manager, The New India Assurance Company Limited

Citation: 2022 LiveLaw (Mad) 200

The Madras High Court bench of Justice P.T Asha recently held that the benefit of exemption from payment of Court Fees can be claimed only before the Motor Accident Tribunals and not on appeals before the court.

Such exemption was at the discretion of the Judicial Officer and is available only before the Claims Tribunal.

The two issues that the court considered were whether the Provisions of Rule 24 of the Tamil Nadu Motor Vehicles Accident Claims Tribunal Rules, 1989 would apply to Appeals under Section 173 of the Motor Vehicles Act without giving proof of indigent circumstances and whether the claimants who have obtained exemption can withdraw the amounts deposited without paying the Court Fees.

10. 'Draconian, Disastrous': Madras High Court Quashes MCI Order Cancelling Admissions Of 778 Medical Students

Case Title: Sri Manakula Vinayagar Medical College & Hospital v. The Government of Puducherry and Others

Citation: 2022 LiveLaw (Mad) 201

The Madras High court recently set aside the order of the Medical Council of India (MCI) and the Government of Puducherry (GOP) cancelling the admissions of 778 students in the MBBS course on the ground that their admission to these course was made illegally, without following merit.

The bench of Justice Krishnan Ramasamy made the orders on a batch of writ petitions filed by the students and the colleges alleging that the order of the MCI was illegal, arbitrary and made without observing the principles of natural justice.

The court held that the order was made without considering the procedure of admission adopted by the colleges and that passing of such draconian directions was arbitrary. The court also observed that implementation of such directions would turn out to be disastrous for the students who were now pursuing their fifth year of the MBBS course. The court also observed that the students cannot be put in a disadvantage due to the inability of the concerned authorities to formulate a proper mechanism for admission.

11. No Excuse For Not Paying GST In Time From Its Electronic Cash Register: Madras High Court Upholds Interest Demand

Case Title: M/s.Srinivasa Stampings Versus The Superintendent of GST and Central Excise

Citation: 2022 LiveLaw (Mad) 202

The Madras High Court bench of Justice C. Saravanan held that the taxpayer is liable to pay interest if there is a belated payment of tax declared in the returns filed.

As per Section 50 (1) of the CGST Act, 2017, every person who is liable to pay tax in accordance with the provisions of this Act or the rules made thereunder, but fails to pay the tax or any part thereof to the government within the period prescribed, shall, for the period for which the tax or any part thereof remains unpaid, pay, on his own, interest at such rate as may be notified by the government on the recommendations of the Council.

The Central Board of Indirect Taxes and Customs has also clarified on 26.8.2020 that no recovery of interest shall be made for the past in the light of the decision taken by the GST Council in its 39th meeting on delayed payment of GST.

The court noted that interest has been demanded on the net tax liability of the petitioner on account of belated payment of tax during the aforesaid period under Section 50(1) of the CGST Act, 2017.

12. Unregistered Sale Agreement May Be Received As Evidence Of Contract In Suit For Specific Performance: Madras High Court

Case Title: Lakshmi Ammal and Others v. Gejaraj (died) and others

Citation: 2022 LiveLaw (Mad) 203

The Madras High Court bench of Justice Anand Venkatesh recently observed that an unregistered agreement for sale may be received as evidence for considering the relief of specific performance.

It was of the view that the inadmissibility of the unregistered document will only be with respect to the protection sought under Section 53-A of the Transfer of Property Act. Even though the sale agreement was not registered, it can be acted upon as evidence for deciding the relief of specific performance.

The court relied on the decision of the Supreme Court in Ameer Minhaj v. Dierdre Elizabeth(Wright) Issar and Others (2018) wherein it was observed that a document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance.

13. Prosecution By Revenue Department Malicious And Patently Malafide, Madras High Court Quashes Complaint

Case Title: Mrs. Noorjahan versus Deputy Commissioner of Income Tax and M/s. AMK Solutions Private Ltd. & Ors. versus Deputy Commissioner of Income Tax

Citation: 2022 LiveLaw (Mad) 204

The Madras High Court has quashed the complaints filed by the income tax department against the assessee for wilfully attempting to evade payment of tax under Section 276 C (2) of Income Tax Act, 1961 on the ground of malicious prosecution, non-application of mind and abuse of power.

The Single Bench of Dr. Justice G. Jayachandran ruled that to invoke the deeming provision of Section 140A (3) to hold the assessee as an assessee in default, there should be a default in payment of tax in true sense. The Court added that the income tax department had malafidely supressed material facts regarding payment of tax by the assessee while issuing sanction for prosecution of the offence under Section 276 C (2).

14. Form GST DRC-16 Merely Attaches Immovable Properties & Not Bank Account: Madras High Court Refuses To Quash Attachment Notice

Case Title: Tvl.G.Sankar Timber Depot Versus The State Tax Officer (Adjudication)

Citation: 2022 LiveLaw (Mad) 205

The Madras High Court bench of Justice C. Saravanan has held that form GST DRC-16 merely attaches immovable properties. There was no attachment to any bank accounts. The assessee appeared to be interested in dragging on the proceeding, though it appeared to be in arrears of huge amounts of tax.

OTHER DEVELOPMENTS

1. Engage Tribals & Local Residents Under MGNREGA To Remove Invasive Species In Western Ghats: Madras High Court Directs Centre, State

Case Title: M. Saravanan Malaichamy v. The Principal Secretary and Others

Case No: WMP (MD) No. 5461 of 2022 in WP(MD) No. 3633 of 2014

The Madras High Court directed the Union Government and the Tamil Nadu State Government to use the funds under the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGA) for the removal of invasive species by engaging the Tribal and local community people who are living co-existence with the wild life and living in and around the Forests, Sanctuaries, and National Parks.

The bench of Justice V. Bharatidasan and Justice N. Sathish Kumar made the order in a petition highlighting the struggle of the Forest Department of State of Tamil Nadu for the removal of invasive species from the forest areas all over Tamil Nadu due to the lack of funds and lack of human resources.

The court also observed that these invasive species are a threat to the entire ecosystem and if they are not controlled, the whole forest may die in a few years. The invasive species also suppressed the secondary growth in the forest which made the fodder scarcity which ultimately leads to the animals like elephants staying outside the forests and coming into conflict with the human population. The court observed how the services of the tribals have already been engaged in many ways in protecting the forest in the form of Anti Poaching Watchers. Thus, the services of these real foot soldiers of the forest can also be used in the removal of the weeds under the MGNREGA to provide livelihood security.

2. [Forced Religious Conversions In Govt Schools]What Is The Harm In Framing Guidelines? Madras High Court Asks TN Govt

Case Title: B. Jagannath v. The Chief Secretary and others

Case No: W.P 11086 of 2022

The Madras High Court asked the State Government what was the difficulty in framing guidelines against alleged forced religious conversions in government schools. It observed that though the Constitution gives a right to profess a religion of one's choice, it does not give any right to forcibly convert.

The bench of Justice R. Mahadevan and Justice S. Ananthi was hearing a petition filed by Advocate B Jagannath, seeking directions to the Educational Department to frame effective guidelines and take all necessary steps including corrective measures to prohibit/ prevent and ban proselytization and forced religious conversion in Government-run schools and educational institutions, both primary and Higher Secondary including aided schools coming under the direct control of the State Government, within a reasonable time frame.

3. Madras High Court Exempts Lawyer From Wearing Black Gowns During Summer Vacation

Chief Justice Munishwar Nath Bhandari of Madras High Court has dispensed with wearing black gown by lawyers while appearing in court during the Summer Vacation 2022. However, all the advocates were requested to wear collar bands and black coats. The Chief Justice made the above order on 5th May 2022 considering the request of the members of the bar. The Chief Justice had previously dispensed the lawyers of Madras High Court from wearing the black gown.

4. 'Do Not Notify Puducherry Local Body Elections': Madras High Court Directs Election Commission

Case Title: R. Siva v. Union Territory of Puducherry and others

Case No: WP No. 12115 of 2022

The Madras High Court on Friday ordered status quo in Puducherry and directed the Election Commission to not proceed with notifying the Local Body elections.

The bench of Justice R Mahadevan and Justice S. Ananthi was hearing a writ petition filed by R. Siva, Leader of Opposition in the Puducherry Legislative Assembly to quash the Government Orders wherein earlier notifications providing for reservation of seats for Backward Class (33.5%) and Scheduled Tribes (0.5%) were rescinded.

ORISSA HIGH COURT

1. CPC | No Prohibition On Third Party To Proceed Under O. 21 R. 97, 99 & 101 Even After Rejection Of Impleadment Under O. 1 R. 10: Orissa High Court

Case Title: Zobeda Khatun v. Md. Habibullah Khan & Ors.

Case Citation: 2023 LiveLaw (Ori) 57

The Orissa High Court has held that there is 'no prohibition' to bring an application under Order 21 Rules 97, 99 and 101 even after rejection of a similar application under Order 1 Rule 10, CPC.

Order 1 Rule 10 contemplates impleadment of parties.

Order 21 Rules 97 empowers a decree holder to move an application in Court against resistance to possession of an immovable property. Rule 99 states that a third party (not being the judgment debtor) may approach the Court over dispossession by a decree holder.

Case Title: Anjari Rout v. State of Odisha

Case Citation: 2023 LiveLaw (Ori) 58

The Orissa High Court has held that 'dying declaration' made to a doctor can neither be called to question nor should be doubted only because a certificate with regard to mental state of the deceased at the time of recording the declaration was not appended to it.

While holding doctor to be 'the best person' to assess mental state of a victim, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"…P.W.10 was able to understand the language of the victim and being a doctor, he was the best person to assess her mental state. It is not that somebody else recorded the dying declaration of the victim and its acceptance is hence suspected for want of certificate of a doctor. Absence of a certificate on Ext.4 with regard to the mental state of the deceased, according to the Court, is not of much concern, when it was recorded by none other than a doctor himself."

PUNJAB AND HARAYANA HIGH COURT

1. POCSO Act | Chargesheet Filed Without FSL Report Not Incomplete, No Ground For Default Bail U/S 167(2) CrPC: Punjab & Haryana High Court

Case Title : Kulwinder Singh v. State of Punjab

Citation: 2022 LiveLaw (PH) 91

The Punjab and Haryana High Court, while dealing with a case registered under provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO), held that, for an offense of sexual assault, final report would be complete on statement of the prosecutrix and FSL report can be used only to corroborate their version.

The bench comprising Justice Suvir Sehgal held that based on the challan filed by the Investigating Agency, the Court can take cognizance of the offense.

Case Title: Tata AIG General Insurance Company Limited Vs. Surjeet Kaur and others, with connected matters

Citation: 2022 LiveLaw (PH) 92

The Punjab and Haryana High Court recently while dealing with a matter related to compensation in a motor accident act claim observed that negligence of the driver is not, per se, the reason for inviting liability by such a vehicle.

The observation came from Justice Rajbir Sehrawat, who observed that it is the 'use of vehicle' on the road, which per se, invites liability for the owner of the vehicle; and thus it is for the insurer; to pay compensation; in case the vehicle is involved in accident.

Case Title: M/s Experion Developers Private Limited vs. State of Haryana and others

Citation: 2022 LiveLaw (PH) 93

The Punjab and Haryana High Court recently observed that obtaining of an occupancy certificate will not render anyone to be outside the purview of the jurisdiction of the State Real Estate Regulatory Authority.

Justice Amol Rattan Singh observed:

"There being a difference carved out in the Act itself as to what is a completion certificate and an occupancy certificate, unless the petitioner had obtained a completion certificate for the project in question, prior to the date that Section 3 of Act came into effect, i.e. 01.05.2017, it was necessarily required to get itself registered with the respondent authority; but with a completion certificate still not having been obtained, simply obtaining of an occupancy certificate or having applied for such certificate in terms of the Haryana Building Code, 2017, we would not consider the petitioner to be outside the purview of the jurisdiction of the respondent Authority and therefore, if the petitioner is aggrieved in any manner of the impugned orders passed on the merits thereof, obviously it has its remedy of appeal before the Tribunal constituted under the said Act."

Case title - Lovedeep Singh v. Gurpreet Kaur [CRR(F)-314-2022]

Citation: 2022 LiveLaw (PH) 94

The Punjab and Haryana High Court has observed that a wife cannot be denied maintenance on the grounds of being well-educated and that a husband is legally and morally responsible to look after his wife and children

The Bench of Justice Rajesh Bhardwaj observed thus in a petition filed by a husband challenging an order of the Principal Judge (Family Court), directing him to pay monthly maintenance of Rs 2,500 to her wife (from the date of filing of Section 125 CrPC application by the wife) and thereafter, Rs 3,600/- per month.

Case Title: Amir Kapoor Versus Nisha & another

Citation: 2022 LiveLaw (PH) 95

Punjab and Haryana High Court on April 28, 2022, while dealing with a revision petition, held that it is well-settled law that in light of statutory provisions under Section 41(h) of the Specific Relief Act, where a more efficacious remedy is available, the party is under a legal obligation to opt for that remedy.

The bench comprising Justice Fateh Deep Singh appreciated the submissions of the counsel that the husband is trying to seek a mere declaration and mandatory injunction with consequential relief of permanent injunction on the ground that judgment and order passed in an application under Section 125 CrPC is an outcome of fraud and so the other petitions under the cruelty, maintenance, alteration in the maintenance allowance and proceedings under the Protection of Women from Domestic Violence Act, 2005 are misuse of the process of Court.

Case Title: Simranjit Kaur @ Simarn Kaur Versus Bhinder Pal Singh

Citation: 2022 LiveLaw (PH) 96

Punjab and Haryana High Court on April 28, 2022, while dealing with a transfer plea by the wife in a divorce case has allowed the transfer on the ground that it is difficult for the wife who has a minor child to travel a distance of 55 km.

The bench comprising Justice Fateh Deep Singh held that it is certainly a case of undue hardship of exceptional nature, necessitating intervention by the Court.

Case Title: Sunita Devi Versus Amrit Lal

Citation: 2022 LiveLaw (PH) 97

Punjab and Haryana High Court on April 29, 2022, while dealing with a transfer application in relation to a matrimonial dispute, held that provisions of Section 24 of CPC cannot be construed so loosely to come to the aid of a party on "frivolous and flimsy" grounds.

Section 24 prescribes general power of transfer and withdrawal. Sub-clause (1)(a) states: On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same.

8. Time To Shift From Orthodox Society With Strong Strings Of Morality & Religion To One That Values Individual Life: P&H HC Grants Protection To Live-In Couple

Case Title: Resuna & Anr. v. State of Haryana and others

Citation: 2022 LiveLaw (PH) 98

In the ever-evolving society, evolving the law with it, the time is to shift perspective from didactics of the orthodox society, shackled with the strong strings of morality supported by religions to one that values an individual's life above all", the Punjab and Haryana High Court observed recently while hearing a protection plea filed by a live-in couple.

The court also remarked that the times are changing fast, even in those lands that were left behind and stuck with the old ethos and conservative social milieu. We are governed by the rule of law and follow the Constitutional dharma, added the court.

RAJASTHAN HIGH COURT

1. Rajasthan Judicial Service: High Court Dismisses Review Petition Challenging Answer Key Of 2021 Preliminary Exam As 'Misconceived'

Case Title: Sudarshan Purohit v. The Hon'ble High Court For Judicature Of Rajasthan & Anr.

Citation: 2022 LiveLaw (Raj) 154

The Rajasthan High Court on Thursday dismissed a review petition challenging the answer key of Preliminary Examination for selection to the post of Rajasthan Civil Judge.

The review petition was filed against the order dated 08.04.2022, whereby the division bench had dismissed a batch of writ petitions questioning the correctness and validity of the merit list prepared after Preliminary Examination in the matter .

Case Title: Bharat Sharma v. State Of Rajasthan

Citation: 2022 LiveLaw (Raj) 155

The Rajasthan High Court has dismissed a public interest litigation challenging the appointment of Dr. Anulya Morya as Vice Chancellor of Jagadguru Ramanandacharya Rajasthan Sanskrit University.

The petitioner argued that Dr. Morya does not possess statutorily prescribed experience of teaching the post graduate classes for a period of ten years, and therefore, has illegally usurped the public office of Vice Chancellor.

Case Title: Prem Chand Deshantri v. Union of India

Citation: 2022 LiveLaw (Raj) 156

"It cannot be assumed that a litigant would keep waiting for the adjudication of his disputes, if the competent Forum or the Authority is not functioning," the Rajasthan High Court observed recently.

The remarks were made by Justice Rekha Borana while hearing an application filed by the Centre seeking dismissal of a petition relating to recruitment in Civil Service, on the ground of alternate remedy. The petition was filed before the High Court due to admitted vacancy in Central Administrative Tribunal at the time.

4. Bar Expected To Advise Parties Against Pursuing "Lumber Litigation", Save Judicial Time: Rajasthan High Court

Case Title: Mahendra Yadav & Anr. v. Bhagwan Devi & Anr

Citation: 2022 LiveLaw (Raj) 157

The Rajasthan High Court has observed that if any litigation, with passage of time or due to prolonged life of the litigation has lost its merits, the parties should be advised not to pursue such lumber litigation unwarrantedly on merits, taking immense judicial time of courts for no good results.

Justice Sudesh Bansal, while dismissing the first appeal as it being devoid of merits, observed,

"There is nothing wrong to have a legitimate expectation from the learned Members of the Bar to convince such type of litigants not to pursue the unwarranted litigation before any court of law. If any litigation, with passage of time or due to prolonged life of the litigation have lost its merits, the parties should be advised not to pursue such lumber litigation unwarrantedly on merits, taking immense judicial time of courts for no good results. Prestigious and valuable time of judicial courts should be utilized for deciding bonafide and legitimate disputes instead of deciding superfluous litigation like present one."

Case Title: Kumar Indu Bhushan v. Union Of India and Ors.

Citation: 2022 LiveLaw (Raj) 158

The Rajasthan High Court recently affirmed the order passed by the Central Administrative Tribunal that upheld compulsory retirement of an IPS officer and observed that compulsory retirement is not a punishment and does not require observation of principles of natural justice.

A division bench of Justice Anoop Kumar Dhand and Justice Pankaj Bhandari observed:

"The order of compulsory retirement is not a punishment nor it attaches any stigma on an employee-petitioner. The subjective decision of the government in public interest arrived at after considering entire service record of the petitioner, where the principles of natural justice, are not required to be observed while passing the order of compulsory retirement because the order of compulsory retirement does not amount to a punishment."

Case Title: Azaz Khan v. N.I.A. through Special PP and other connected matters

Citations: 2022 LiveLaw (Raj) 159

The Rajasthan High Court observed that Customs Act is not included in Schedule-II of the UA(P)A and thus smuggling of gold and that too of a quantity which is bailable under the Customs Act cannot be treated as Terrorist act.

The court examined the question whether Section 15(1)(a)(iiia) of the UA(P)A, which was inserted in the year 2012, was meant to include the smuggling of gold in the category of 'other material'.

Case Title: M/s. M.S.R. Enterprises versus M/s. Pooja Enterprises

Citation: 2022 LiveLaw (Tel) 40

The Telangana High Court has ruled that in proceedings for execution of an arbitral award the whole gamut of CPC is not attracted, and a Court while dealing with an application under Section 36 of the Arbitration and Conciliation Act, 1996 (A&C Act) for enforcement of an award is not bound by the provisions of Section 47 of the Code of Civil Procedure, 1908 (CPC) and is not required to decide on the validity of the award before seeking its enforcement.

Case Title: Ajay Kumar v. Nagar Palika Parishad & Ors.

Citation: 2022 LiveLaw (Utt) 17

The Uttarakhand High Court has held that a Municipal Board has no power to review its own decision unless that is provided under the governing statute itself. A Single Judge Bench of Justice Sharad Kumar Sharma observed,

"Rather, this Court is of the view that the passing of the impugned resolution by way of exercising a power of review too will not fall to be within a zone of exercises of power which the municipalities could have exercised, because in an executive zone of decision, no power of review is vested until and unless it is statutorily created under the Act and by law."
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