All High Courts Weekly Round-Up [April 25 - May 1, 2022]

Nominal Index

Nominal Index

1. Bengal State Table Tennis Association & Ors. v Malda District Table Tennis Association & Ors 2022 LiveLaw (Cal) 141

2. Soumendu Adhikari v. State of West Bengal 2022 LiveLaw (Cal) 142

3. In the matter of: Parimal Barui 2022 LiveLaw (Cal) 143

4. Madhu Singh v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 144

5. Indranil Mukherjee v. State of West Bengal and Ors 2022 LiveLaw (Cal) 144

6. Subrata Kumar Samanta v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 145

7. Bidyut Kumar Mondal v. Pankaj Sarkar & Anr 2022 LiveLaw (Cal) 146

8. Rupa Das v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 147

9. Snigdha Datta (Basu) v. The State of West Bengal & Ors 2022 LiveLaw (Cal) 148

10. In the matter of Kapil Raj 2022 LiveLaw (Cal) 149

11. Sanat Kumar Ghosh & Ors. v. Rajesh Kumar Sinha & Ors 2022 LiveLaw (Cal) 150

12. Nur Afsar Mandal v. Visva Bharati and Ors 2022 LiveLaw (Cal) 151

13. Ideal Unique Realtors Private Limited & Anr. versus Union of India & Ors 2022 LiveLaw (Cal) 152

Orders/Judgments

1. Calcutta High Court Imposes ₹25K Cost On Party For Seeking Repeated Adjournments

Case Title: Bengal State Table Tennis Association & Ors. v Malda District Table Tennis Association & Ors

Case Citation: 2022 LiveLaw (Cal) 141

The Calcutta High Court on Friday imposed costs to the tune of Rs 25,000 on a party for seeking repeated adjournments. A Bench of Justices Moushumi Bhattacharya and Kesang Doma Bhutia noted that the appellants had sought several adjournments. But despite the accommodating orders the Court had passed, they again sought an adjournment for the fourth time. "This is the fourth occasion when adjournment has been sought for by the appellants. We have passed several orders from 18.04.2022 to accommodate the appellants. At the time of third call today, adjournment is again sought for on behalf of the appellants. Since today is the last date of the Circuit bench, we are unable to keep the matter after recess owing to our respective Single Bench lists," the Court observed. Accordingly, the Bench imposed costs and ordered the appellants to pay Rs 25,000 to the District Legal Services Authorities, Jalpaiguri within a period of seven days.

2. Contai Municipality Polls: Calcutta HC Orders CFSL To Conduct Forensic Audit Of CCTV Cameras, Report To Be Submitted Within 6 Weeks

Case Title: Soumendu Adhikari v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 142

The Calcutta High Court on Tuesday directed 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. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj while reading out the operative portion of the order on Tuesday 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 underscored. Accordingly, the Court directed the State Election Commission to send the CCTV footage of Contai Municipal Election for forensic audit to CFSL, Delhi within 10 days

Also Read: Contai Municipality Polls| Calcutta HC Raps SEC For Its Changed Stance Over Forensic Audit Of CCTV Cameras By CFSL

3. 'Requires Attention Of Superiors': Calcutta HC Raps Investigating Officer For Allegedly Demanding Money, Refusing To Examine Petitioner Without Identification Proof

Case Title: In the matter of: Parimal Barui

Case Citation: 2022 LiveLaw (Cal) 143

The Calcutta High Court came down heavily on an Investigating Officer while adjudicating upon an anticipatory bail application in connection with a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). A Bench comprising # expressed strong reservations over the conduct of the concerned Investigation Officer after being apprised that the officer had refused to examine the petitioner in response to a notice under Section 67 of the NDPS Act in the absence of the petitioner's identification proof. "An investigation is in progress. It is intriguing that the Investigating Officer requires the identification proof of the person appearing before him in response to a notice under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He is not aware of the person who is required to be interviewed thereunder in absence of his identification proof", the Court underscored. Further opining that the conduct of the Investigating Officer requires the attention of his superiors, the Court remarked, "The conduct of the Investigating Officer, requires attention of his superiors".

4. 'Misleading The Court': Calcutta HC Directs DGP To Initiate Departmental Proceedings Against Police Officers, Orders CID Probe

Case Title: Madhu Singh v. The State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 144

The Calcutta High Court directed the Director General of Police, West Bengal to initiate departmental proceedings against concerned police officers for misleading the Court and further handed over the investigation to the Criminal Investigation Department (CID), West Bengal. Justice Rajasekhar Mantha was adjudicating upon a case involving serious offences under Section 365 (kidnapping or abducting with intent secretly and wrongfully to confine person), Section 354B (Assault or use of criminal force to woman with intent to disrobe) and other provisions of the IPC. The Court further expressed reservations over the fact that the concerned report had not been Superintendent of Police, Baruipur Police Station himself and accordingly remarked, "It is not however understood as to why the Superintendent of Police, Baruipur Police Station has not signed the report himself. If the Additional Superintendent of Police was signing the report on behalf of the Office of the Superintendent of Police, the same shall have to be indicated." Opining that departmental proceedings must be ignited against the Investigating Officer and other officers responsible for such a lapse in investigation, the Court ordered, "This Court is, therefore, of the view that the entire file as regards the conduct of investigation by ASI, Arnab Chakraborty must be looked into by a higher authority..The Director General of Police, West Bengal shall call for the records and consider drawing up of appropriate departmental proceeding against the ASI, Arnab Chakraborty and any other person that the Director General of Police, West Bengal may feel is responsible for misleading this Court."

5. Interim Compensation Awarded U/S 143A Of NI Act Cannot Be Recovered From Estate Of Deceased Accused: Calcutta HC

Case Title: Indranil Mukherjee v. State of West Bengal and Ors

Case Citation: 2022 LiveLaw (Cal) 144

The Calcutta High Court has recently held that an order of interim compensation awarded under Section 143A of the Negotiable Instruments Act, 1881 (Act) cannot be recovered from the estate of a deceased accused, who died before the conclusion of the trial. Justice Kausik Chanda observed that the order of interim compensation is dependent on the outcome of the trial and accordingly underscored, "There is no finality attached to such interim order of compensation and no right is crystallised in favour of the complainant by dint of such interim order of compensation. The order of interim compensation, which is passed in the aid of final compensation, will cease to exist when the trial comes to an end due to the death of the accused since in such eventuality there cannot be any scope to adjudicate the innocence or the guilt of the accused in the trial." The Court further opined that in the event of the death of an accused, compensation awarded under Section 138 of the Act can be recovered from the estate of a deceased accused however an interim compensation awarded under Section 143A of the Act cannot be recovered from the estate of a deceased accused.

6. Electricity Distribution Company Can Install Electric Poll On Private Land, Shifting Charges To Be Paid By Aggrieved Person: Calcutta HC

Case Title: Subrata Kumar Samanta v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 145

The Calcutta High Court observed that West Bengal State Electricity Distribution Company Limited has the right to install electric polls on private land and can also take necessary action in respect of any property in the event it is not possible to take the electric connection in-question over an alternative passage. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj observed, "..this Court is of the view that the respondent no.5 is under no obligation to not install electric poles and can take necessary action in respect of any property in the event it is not possible to take the electric connection in-question over an alternative passage." However leave was granted to the appellant to approach the Distribution Company with a formal application for shifting the electric pole and it was further underscored that in such an event the appellant should be willing to deposit the entire shifting charges for installation of a new electric pole.

7. 'Malaise In System': Calcutta HC Raps Gov Authorities For Not Complying With Orders For Years Despite Not Filing Appeal, Imposes Rs 25K Costs

Case Title: Bidyut Kumar Mondal v. Pankaj Sarkar & Anr

Case Citation: 2022 LiveLaw (Cal) 146

The Calcutta High Court imposed costs to the tune of Rs 25,000 on an alleged contemnor for not taking steps for compliance of an earlier order for a period of 7 years despite a contempt application being filed back in 2015. Justice Shekhar B. Saraf also came down heavily on the practice of government authorities of not complying with orders of the Court for years on end and thereafter informing the Court that an appeal is to be filed whenever the Court presses for compliance of the order. "The malaise in the system of not challenging the orders, accepting the same and thereafter not complying with the same is seen in hundreds of matters that are being filed. The Authorities of the State choose not to comply with the order in blatant disregard of the orders passed by the High Court and drag their feet in the matter for years on end. When the Court presses for compliance of the order, the Court is informed that an appeal has either just been filed a few days back or is going to be filed immediately", the Court underscored. Depreciating the conduct of the government pleader for seeking an adjournment on this ground, the Court observed, "The present situation is akin to the above and the prayer of the Government Pleader seeking an adjournment in this matter is deprecated by this Court. The system requires change and unless costs are imposed upon the present alleged contemnor, I do not see any improvement taking place."

8. Calcutta High Court Allows 17 Yr Old Rape Victim To Undergo Medical Termination Of Pregnancy

Case Title: Rupa Das v. The State of West Bengal & Ors

Case Citation: 2022 LiveLaw (Cal) 147

The Calcutta High Court permitted a 17 year old rape victim to undergo medical termination of pregnancy after taking into consideration the report filed by the Child Welfare Committee (CWC) and the report of the concerned Medical Board. Justice Rajasekhar Mantha took on record the report filed by the CWC addressed to the concerned Public Prosecutor, West Bengal wherein it had been averred that the minor victim girl had expressed her desire to undergo medical termination of pregnancy. The veracity of the desire of the minor girl had also been confirmed by six officials including the Chairperson of the Child Welfare Committee, Nadia. Permitting the minor victim to undergo medical termination of pregnancy, the Court directed, "In that view of the matter, subject to the verification of her health, afresh by the required number of qualified medical practitioners, the minor girl shall be permitted to undergo medical termination of pregnancy, under the care and guidance of her mother." The Court had previously directed the Chief Medical Officer of Health (CMOH), Nadia to constitute a medical board to ascertain the physical and mental condition of the victim girl and also determine whether the continuation of pregnancy would in any way harm the victim or the foetus.

9. 'Can't Risk Her Life': Calcutta High Court Says Govt Teacher Can Seek Transfer To Nearer School Owing To Medical Condition

Case Title: Snigdha Datta (Basu) v. The State of West Bengal & Ors.

Case Citation: 2022 LiveLaw (Cal) 148

The Calcutta High Court allowed a government school teacher to seek a transfer to a school nearer to her residence after taking into account the report filed by a Medical Board which had advised her to avoid long journeys owing to her health condition. Opining that the school teacher cannot be made to risk her life, Justice Abhijit Gangopadhyay underscored, "..it is observed that a lady teacher with specific advice of the doctors of a Medical Board of a Government Hospital to avoid journey, cannot be compelled to attend the school which is at a distance of 142 kilometers. To and fro journey is 284 kilometers. Even if the petitioner arranges an accommodation nearer to the school, it cannot be said that she will never come to her in-laws' house or her father's residence from the rented house in school area. At the same time going against the advice of the doctors of the Medical Board means taking risk of her life." Opining that her service period being less than 5 years cannot stand as an impediment in the way of her transfer, the Court observed, "In such a situation when the Medical Board in their report dated 25.08.2021 advised her to avoid journey, it is immaterial whether the petitioner is short of some months service from five years as on date. The petitioner has not been transferred till date and that is why I am considering the present tenure of her service, it is slightly below five years. However, when advise is to avoid journey after medical test by not an individual doctor but a Medical Board the service period cannot stand in the way for transfer."

10. Abhishek Banerjee Audiotape Leak: ED Alleges Kolkata Police Forged Order Requiring Voice Sample Of Its Official; Calcutta High Court Grants Stay

Case Title: In the matter of Kapil Raj

Case Citation: 2022 LiveLaw (Cal) 149

The Calcutta High Court imposed a stay for 3 weeks on orders of Chief Judicial Magistrate, Alipore, South 24 Parganas wherein the Joint Director of Enforcement Directorate (ED) Kapil Raj had been directed to provide a voice sample to the Kolkata Police in connection with an audiotape leak case involving Trinamool Congress MP Abhishek Banerjee. Pertinently, Additional Solicitor General (ASG) S.V. Raju appearing on behalf of Raj submitted that the Kolkata Police had allegedly forged a copy of the impugned order before sending it to him. He apprised the Court that the impugned order had clearly stated that the voice sample of the concerned ED Official could be taken subject to consent given by the officer. Opining that the matter needs to be heard at length since a serious allegation has been levelled, Justice Jay Sengupta observed, "A perusal of the application for collection of voice sample of the ED Official renders it necessary to determine whether a case was made out for allowing such a prayer. Besides, a serious allegation has been leveled by the petitioner that an order passed by the learned Magistrate was forged. Therefore, the matter needs to be heard at length." Granting a stay on the impugned orders for a period of 3 weeks, the Court further directed, "The operation of the impugned orders, so far as they relate to the direction to collect voice sample of the ED Official, shall remain stayed till three weeks after the ensuing summer vacation."

11. Calcutta HC Issues Contempt Notice To State Chief Secretary & Other Authorities For Non-Compliance With Order On Pension Scheme Implementation

Case Title: Sanat Kumar Ghosh & Ors. v. Rajesh Kumar Sinha & Ors.

Case Citation: 2022 LiveLaw (Cal) 150

The Calcutta High Court issued notices to the Chief Secretary, Principal Secretary of the Transport Department and the Principal Secretary of the Finance Department of the Government of West Bengal in a petition seeking initiation of civil contempt in a matter pertaining to the implementation of a Pension Scheme for employees of the South Bengal State Transport Corporation (SBSTC). Justice Arindam Mukherjee ordered, "I direct issuance of Rule against Rajesh Kumar Sinha, the Principal Secretary, Transport Department, Government of West Bengal, Paribahan Bhawan, 12, R.N. Mukherjee Road, Kolkata-700001; H.K. Dwivedi, the Chief Secretary, Government of West Bengal, having his office at "NABANNA", 325, Sarat Chatterjee Road, P.O. Shibpur, Howrah – 711102; and, Dr. Manoj Pant, the Principal Secretary, Finance Department, Government of West Bengal, having his office at "NABANNA", 325, Sarat Chatterjee Road, P.O. Shibpur, Howrah – 711102."

12. 'Subverting Rules Of Natural Justice': Calcutta HC Quashes Visva-Bharati University Order Discontinuing Service Of Casual Labourer

Case Title: Nur Afsar Mandal v. Visva Bharati and Ors

Case Citation: 2022 LiveLaw (Cal) 151

The Calcutta High Court set aside an order passed by the Registrar (Acting) of Visva-Bharati University discontinuing the services of a casual labourer on the ground of breach of the principles of natural justice. Justice Moushumi Bhattacharya ordered, "The facts in the present case do not justify the impugned action. It is vigilante-justice without the factual bulwark to support it. This Court, being equally in the dark (as the petitioner) on the material forming the basis of the charge and the perceived exigency, is therefore unable to accept that the University had good grounds to summarily discontinue the services of the petitioner." Highlighting the need to preserve the principles of natural justice in order to protect constitutional ethos, the Court underscored, "Fair play in action is the law's most recognizable face, it evens the scales of injustice and strengthens its moral core. Subverting the rules of natural justice unsettles the very bedrock on which laws are built and shakes the constitutional foundation of equal protection of the laws. Attractive as it may sound, rough and ready justice serves only those who mete it out and not the person at the receiving end. Fair play is all about points and counter-points between two opposing parties and not a volley of unidirectional projectiles, ricocheting and bouncing in the dark echo- chamber of procedure."

13. 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) 152

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.

Important Developments

1. Birbhum Violence | PIL In Calcutta High Court Alleges CM Mamata Banerjee "Influenced Witnesses" By Offering Jobs To Victims' Kin, Notice Issued

Case Title: Rokan Ali Molla v. State of West Bengal and Ors.

The Calcutta High Court sought the State government's response in a Public Interest Litigation (PIL) petition questioning the conduct of Chief Minister Mamata Banerjee in extending compensation and government jobs for the kin of the victims of the violence that erupted in Birbhum district of West Bengal. The incident, allegedly in retaliation to the murder of local All India Trinamool Congress (TMC) leader Bhadu Sheikh, claimed 8 lives including that of two children. The Court vide order dated March 25 had ordered a CBI investigation into the incident of violence. Thereafter, on April 8, the Court had also directed the CBI to probe into the murder of TMC leader Bhadu Sheikh, opining that the material on record prima facie suggests that there is a close relationship and linkage between the two incidents. Senior advocate Bikash Ranjan Bhattacharya appearing for the petitioner submitted before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj that the Chief Minister had attempted to 'influence witnesses' by handing over government jobs and compensation to the family members of the victims. Taking cognisance of the grievance raised, the Court directed the State government to file an affidavit-in-opposition within 4 weeks. Any reply to such an affidavit-in-opposition was ordered to be filed by the petitioner within 2 weeks.

2. Calcutta High Court Seeks WB Speaker's Response Over Suspension Of Suvendu Adhikari & 4 BJP MLAs From State Assembly

Case Title: Suvendu Adhikari v. The Hon'ble Speaker, West Bengal Legislative Assembly

The Calcutta High Court sought sought response from West Bengal Assembly Speaker Biman Bandyopadhyay in a writ petition challenging his decision to suspend BJP MLA and Leader of the Opposition Suvendu Adhikari from the Assembly for future sessions this year. Five BJP MLAs, including Suvendu Adhikari, were suspended by the West Bengal Assembly Speaker on March 28 for their alleged unruly conduct in the House. Adhikari, along with BJP legislators Dipak Burman, Shankar Ghosh, Manoj Tigga and Narahari Mahato, were suspended by the Speaker for future sessions this year. The Assembly had witnessed pandemonium on the day as ruling TMC and BJP MLAs scuffled after saffron party legislators demanded a statement by Chief Minister Mamata Banerjee over the "worsening" law and order situation in the state. Justice Rajasekhar Mantha was apprised by senior counsel Jaydip Kar appearing for Adhikari that Adhikari and 5 other BJP MLAs were communicated vide an order on March 31 that they had been suspended by the Speaker from the Assembly for the remaining period of this session. Taking cognisance of the grievance raised, the Court directed Advocate General S.N Mookherjee to file an affidavit-in-opposition on or before May 2. Any reply was directed to be filed on or before May 4. The matter has been listed for further hearing on May 5 at 10:30 am.

3. Anis Khan's Father Says SIT Report Declaring Death As Non-Homicidal 'Ridiculous', Calcutta High Court Seeks Objection Affidavit

Case Title: Salem Khan v. The State of West Bengal & Ors.

The Calcutta High Court directed the father of deceased student leader Anis Khan to file an affidavit raising objections to the report filed by the Special Investigation Team (SIT) pertaining to the investigation into the death of student activist Anis Khan. Anish Khan was found dead at his home in Amta block in Howrah district in the early hours of Saturday, February 19, 2022 under mysterious circumstances. Justice Rajasekhar Mantha on the last date of hearing had taken on record a detailed 82-page report filed by the State government indicating the steps taken by the SIT towards the investigation. Senior advocate Bikash Ranjan Bhattacharya appearing for the petitioner apprised the Court that the SIT report can best be described as an enquiry report and is not an investigation report. The Court opined that the State must be notified as to the exact grounds on which the investigation report is being challenged and accordingly directed the petitioner to file an affidavit seeking exception to the investigation report filed by the SIT within a period of 1 week. "Let a formal exception be taken on affidavit by Mr. Bhattacharya's client in respect of the investigation report and the same should be filed within a period of one week from date with prior service on the learned Advocate General", the Court directed.

4. Centre Says 'No Conspiracy' Behind Mamata Banerjee's Flight Turbulence, Calcutta High Court Seeks Sealed Cover Report

Case Title: Biplab Kumar Chowdhury v. Union of India and Ors

The Calcutta High Court directed the Centre to file a report in a sealed cover on the investigation into the incident of mid-air turbulence experienced by Chief Minister Mamata Banerjee's chartered flight on March 4. On March 4, Banerjee was returning to Kolkata from Varanasi after an election campaign. She boarded a chartered flight but faced air turbulence just before landing at the Netaji Subhas Chandra Bose International airport. The Chief Minister reportedly suffered injuries in her back after the incident subsequent to which the doctors had advised her to take rest. A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajrashi Bharadwaj was adjudicating upon a Public Interest Litigation (PIL) petition seeking a probe into the incident.Accordingly, the Court directed the Centre to file a report of the Central Security Agency in a sealed cover containing details of the probe into the alleged incident on the next date of hearing which is slated to take place on July 18.

5. PIL Filed In Calcutta High Court Seeking NIA Probe Into Crude Bomb Blasts In WB's Malda District Which Injured 5 School Children

A Public Interest Litigation (PIL) petition has been filed in the Calcutta High Court seeking a probe by the National Investigation Agency (NIA) into the incident of crude bomb blast in West Bengal's Malda district on Sunday. 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 on Sunday. The concerned counsel mentioned the matter before a Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Tuesday seeking leave to file the PIL. The Court was also apprised that the affected children are merely 4-5 years old and that they have been critically injured as a result of the blast. 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. Pursuant to the submission, the Chief Justice orally remarked, "Give your mentioning slip, we will consider". The matter is likely to be heard sometime this week.

6. 'Salary Stagnant For Last Six Years': Law Clerks Of Calcutta High Court Judges Write To Chief Justice For Enhanced Pay

Law Clerks-cum-Research Assistants of the Calcutta High Court have written to Chief Justice Prakash Shrivastava seeking enhanced pay structure. The letter averred that prices of essential commodities are on a steep hike and that they do not receive anything by way of inflation rebate. It was also underscored that as contractual employees, they have to sustain on their salaries that have remained stagnant for the past 6 years. It may be noted that the pay structure for Law Clerk-cum-Research Assistants at the Calcutta High Court currently stands at Rs 35,000 per month. "Your Lordship is well aware that prices of essential commodities are on a steep hike and that we do not receive anything by way of inflation rebate. As contractual employees we have to subsist only on our salary which is fixed/stagnant for the last six years", the letter reads.

7. Centre Notifies Appointment Of Five Additional Judges Of Calcutta High Court As Permanent Judges

The Central Government on Wednesday notified the appointment of five Additional Judges of Calcutta High Court as Permanent Judges of the Court. They are as follows- Justice Kesang Doma Bhutia, Justice Rabindranath Samanta, Justice Sugato Majumdar, Justice Bivas Pattanayak and Justice Ananda Kumar Mukherjee. The Supreme Court Collegium had approved the proposal for appointing the five Additional Judges of Calcutta High Court as Permanent Judges of the Court vide notification dated 19th April, 2022.

8. Autistic Minor Tortured In Safe Home: Calcutta HC Directs State To File Report On Progress Of Investigation

Case Title: XYZ, the victim minor and disabled child through his father v. The State of West Bengal & Ors

The Calcutta High Court directed the concerned State authorities to apprise the Court about the steps taken in the investigation of a case pertaining to the torture inflicted upon an autistic minor child while he was in the care and custody of a safe home in Durgapur, West Bengal. Justice Rajasekhar Mantha was apprised by the father of the minor victim that despite a complaint being registered dated June 12, 2019 addressed to Aurobindo Police Station, Durgapur, the FIR has not been registered nor have any consequent steps been taken. In the complaint, the father had alleged that his minor autistic child had been tortured and had also faced atrocities while he was in the care and custody of the Happy Home for Handicapped, Durgapur. Directing the concerned authorities to apprise the Court about the steps taken so far in addressing the complaint, the Court observed, "Let instructions be taken on behalf of the respondents to indicate what are steps taken pursuant to the complaint of the writ petitioner."

CITATIONS 2022 LiveLaw (Del) 361 TO 2022 LiveLaw (Del) 387

NOMINAL INDEX

Title: RAZIA BEGUM v. COMMISSIONER EMPLOYEES COMPENSATION & ORS. 2022 LiveLaw (Del) 361

Case Title: COSCO INTERNATIONAL PVT. LTD. v. JAGAT SINGH DUGAR 2022 LiveLaw (Del) 362

Case Title: SUSHIL ARORA v. GOVERNMENT OF NCT OF DELHI AND ORS. 2022 LiveLaw (Del) 363

Case Title: SAURABH BHARDWAJ v. DELHI POLICE & ANR 2022 LiveLaw (Del) 364

Case Title: GOVERNMENT E MARKETPLACE v. UNILEX CONSULTANTS & ORS. 2022 LiveLaw (Del) 365

Case Title: ANIL KUMAR SETH v. LALIT KUMAR SETH AND ANR 2022 LiveLaw (Del) 366

Case Title: SH. DINESH SHARMA v. MRS. KRISHNA KAINTH 2022 LiveLaw (Del) 367

Case Title: Religare Finvest Ltd v. Asian Satellite Broadcast Pvt. Ltd. 2022 LiveLaw (Del) 369

Case Title: SUN PHARMACEUTICAL INDUSTRIES LTD. AND ANR. v. KINETIC LIFESCIENCE (OPC) P. LTD. AND ANR. 2022 LiveLaw (Del) 369

Case Title: THE BRITISH SCHOOL SOCIETY v. SANJAY GANDHI EDUCATIONAL SOCIETY & ANR. 2022 LiveLaw (Del) 370

Case Title: ALKA GHALOT v. GOVT. OF NCT OF DELHI & ORS. 2022 LiveLaw (Del) 371

Case Title: DUMPALA MEENAVATHI AND ANR. v. UNION OF INDIA AND ORS. 2022 LiveLaw (Del) 372

Case Title: NAVIN SONI v. MUNISH SONI & ORS 2022 LiveLaw (Del) 373

Case Title: JITENDRA KUMAR GARG v. MANJU GARG 2022 LiveLaw (Del) 374

Case Title: Jan Sewa Welfare Society v. Union of India & Ors. 2022 LiveLaw (Del) 375

Case Title: Jindal Realty Limited versus National Faceless Assessment Centre, Delhi 2022 LiveLaw (Del) 376

CaseTitle: GOVT. OF WEST BENGAL v. ARSH VERMA & ORS. 2022 LiveLaw (Del) 377

Case Title: Bharat Heavy Electricals Limited Versus PCIT 2022 LiveLaw (Del) 378

Case Title: Hunch Circle Pvt. Ltd. v. Futuretimes Technology India Pvt. Ltd. 2022 LiveLaw (Del) 379

Case Title: TARUN PREET SINGH v. UNION OF INDIA & ANR. 2022 LiveLaw (Del) 380

Case Title: DEEPAK v. RAMESH SETHI 2022 LiveLaw (Del) 381

Case Title: BHARTI ANAND v. SUSHANT ANAND AND ORS 2022 LiveLaw (Del) 382

Case Title: SHADAB v. STATE 2022 LiveLaw (Del) 383

Case Title: MAKEMYTRIP INDIA PRIVATE LIMITED v. BOOKING.COM B. V. & ORS. 2022 LiveLaw (Del) 384

Case Title: NEETA BHARDWAJ & ORS. v. KAMLESH SHARMA 2022 LiveLaw (Del) 385

Case Title: RAMESH KUMAR BANGA v. KAILASH MAKKAR AND ANR 2022 LiveLaw (Del) 386

1. "Police Authorities Of Three States Simply Dragging Their Feet": Delhi High Court Hands Over Investigation Of Missing Man To CBI

Title: RAZIA BEGUM v. COMMISSIONER EMPLOYEES COMPENSATION & ORS.

Citation: 2022 LiveLaw (Del) 361

The Delhi High Court has handed over investigation of a missing man, a truck driver, to the Central Bureau of Investigation (CBI) observing that police authorities of three States including Rajasthan, Haryana and Uttar Pradesh were "simply dragging their feet."

Justice Pratibha M Singh was dealing with a plea filed by Razia Begum, widowed mother of the missing truck driver namely Mohd. Parvez who was missing for months. The truck was spotted for the last time on 19th February 2018, when the CCTV captured its movement in Shahjahanpur, District Bhiwadi, Rajasthan.

In the meantime, considering the financial status of the Petitioner whose son was missing, the Court directed that a sum of Rs.3 lakhs is released in her favour as interim compensation.

2. Filing Written Statement In Prescribed Time Without Affidavit Of Admission/ Denial Of Documents Not 'Non-Est' Filing: Delhi High Court

Case Title: COSCO INTERNATIONAL PVT. LTD. v. JAGAT SINGH DUGAR

Citation: 2022 LiveLaw (Del) 362

The Delhi High Court has observed that the filing of a written statement within the prescribed time but without an accompanying affidavit of admission or denial of documents, does not amount to non-est filing since it cannot be said that nothing was filed at all.

Justice Anup Jairam Bhambhani further added that the same would however amount to a defect, that is required to be cured after it is brought to the attention of the party by the Registry.

"Chapter VII Rule 3 only bars taking on record a written statement that is filed without an accompanying affidavit of admission/denial of documents. Filing of the written statement and it being taken on record are two separate and distinct matters," the Court said.

The Court was dealing with an appeal filed under Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018 read with sec. 151 of the Civil Procedure Code, seeking setting aside of order dated 23.10.2020 passed by the Joint Registrar, declining to take the defendant's written statement on record.

3. Delhi High Court Dismisses Challenge To Notification Conferring Powers Of Special Courts Under Prevention Of Corruption Act To Officers Of DHJS

Case Title: SUSHIL ARORA v. GOVERNMENT OF NCT OF DELHI AND ORS.

Citation: 2022 LiveLaw (Del) 363

The Delhi High Court has dismissed a plea challenging the notification conferring powers of Presiding Officer of the Designated Court and Special Court constituted under the Prevention of Corruption Act, 1988, to each and every Officer of the Delhi Higher Judicial Service (DHJS) in pursuance of the transfer or posting orders made by the Chief Justice of the Delhi High Court.

The impugned notification dated September 15, 2010 issued by the Lieutenant Governor of Delhi conferred the said power to be exercisable by each of such officer of the DHJS with effect from the date of assumption of charge of the post of Presiding Officer or Judge of the Designated Court or Special Court.

A bench comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla observed that it is entirely for the High Court, headed by the Chief Justice to decide on the aspect of transfer and posting of the Officers of the Judicial Service of the State.

4. 'We Are Not Satisfied With Your Bandobast': High Court Directs Delhi Police Commissioner To Look Into Security Lapse At CM Residence

Case Title: SAURABH BHARDWAJ v. DELHI POLICE & ANR

Citation: 2022 LiveLaw (Del) 364

The Delhi High Court has expressed dissatisfaction at the report filed by the Delhi Police with respect to the security arrangement made outside Chief Minister Arvind Kejriwal's residence, which was attacked by an "unruly mob" on March 30.

" This kind of incident happening at residence of a constitutional functionary is very disturbing state of affairs. What kind of bandobast did you have? You need to look into your functioning. It could have been anybody, any Minister, Judge," the Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla observed at the outset.

It has therefore directed the Commissioner of Delhi Police to look into the aforesaid lapse and inquire into: firstly, whether bandobast was adequate; secondly, the reasons for failure of arrangements; and thirdly, fix responsibility for the admitted lapse.

5. Nominative Fair Use Permissible If It Does Not Depict Sponsorship By Trademark Owner & Use Is "Reasonably Necessary": Delhi High Court

Case Title: GOVERNMENT E MARKETPLACE v. UNILEX CONSULTANTS & ORS.

Citation: 2022 LiveLaw (Del) 365

The Delhi High Court has observed that the nominative fair use is permissible in so far as the use is such that it does not depict sponsorship by the trademark owner and the use is "reasonably necessary".

Normative use refers to use of another's trademark to identify one's own goods or services. This defence has following three requirements: First, the product or services in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

Justice Pratibha M Singh was dealing with a suit filed by Government E Marketplace (GeM), a National Public Procurement portal and end to end online marketplace from where both Central and State Government Ministries or Departments, CPSUs and SPSUs effect the procurement of goods and services. The mark used by the Plaintiff is 'GeM' along with the logo.

6. High Court's Supervisory Jurisdiction Over Orders Passed Under Order 39 Rules 1&2 Restricted, Can Be Exercised In Case Of Palpable Error: Delhi HC

Case Title: ANIL KUMAR SETH v. LALIT KUMAR SETH AND ANR

Citation: 2022 LiveLaw (Del) 366

The Delhi High Court has observed that the scope of interference by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India would be even more restricted with an order passed by the court below under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908.

"If, therefore, the courts below are functioning in a manner which calls for correction in the exercise of the supervisory jurisdiction vested in the court under Article 227 of the Constitution of India, the court would interfere; else, the court would hold its hands," Justice C Hari Shankar observed.

On the question of whether to grant, or not to grant, injunctive relief under Order XXXIX Rules 1 and 2 CPC, is discretionary, the Court said that there is no right that inheres, in any party, to interim injunction under Order XXXIX.

7. Order XII Rule 6 CPC | Judgment On Admission Can Be Passed If Defence Set Up By Party Is So Weak That It Is Impossible To Succeed: Delhi HC

Case Title: SH. DINESH SHARMA v. MRS. KRISHNA KAINTH

Citation: 2022 LiveLaw (Del) 367

The Delhi High Court recently affirmed a judgment on admission, passed by the court below in exercise of its discretionary powers under Order XII Rule 6 of CPC, on the ground that the defence set up was such as to make it impossible for the party to succeed.

In this regard, Justice V Kameswar Rao observed,

" Order XII Rule 6 of the CPC can also be invoked when the objections raised against rendering a judgment are such, which goes to the root of the matter or whether the objections are inconsequential, making it impossible for the party to succeed, even if entertained. "

The Court was dealing with an appeal challenging the judgment and preliminary decree passed by the Trial Court on admission under Order 12 Rule 6 in a Civil Suit concerning a suit property.

8. Insufficiency Of The Stamp Duty On The Arbitration Agreement Is A Jurisdictional Issue Under Section 16 Of The A&C Act: Delhi High Court

Case Title: Religare Finvest Ltd v. Asian Satellite Broadcast Pvt. Ltd.

Citation: 2022 LiveLaw (Del) 368

The High Court of Delhi has held that the sufficiency of the stamp duty on the arbitration agreement is a jurisdictional issue under Section 16 of the A&C Act.

The Single Bench of Justice Sanjeev Narula has held that an objection as to the deficiency in the stamp duty shall be decided as a preliminary issue since the inadequately stamped arbitration agreement can neither be taken in evidence nor can be acted upon, therefore, the tribunal should direct the parties to first get the agreement sufficiently stamped before adjudicating rights and obligations under the agreement.

The Court reiterated that when an insufficiently stamped instrument is presented before the arbitrator, he shall impound the same and direct the parties to pay the requisite stamp duty.

9. [I-Site v. Eye Site] "Phonetic Identity" An Important Index To Test Deception: Delhi High Court Grants Relief To Sun Pharma

Case Title: SUN PHARMACEUTICAL INDUSTRIES LTD. AND ANR. v. KINETIC LIFESCIENCE (OPC) P. LTD. AND ANR.

Citation: 2022 LiveLaw (Del) 369

The Delhi High Court has observed that the phonetic identity or similarity is an important index of similarity or deceptive similarity of one mark against the other competing mark and that the tests of phonetic, visual and structural similarity or identity are disjunctive and not conjunctive.

Justice Jyoti Singh was dealing with a suit for permanent injunction filed by Sun Pharmaceutical Industries Limited concerning it's trademark, prominently displayed on the website www.sunpharma.com. The plaintiffs are involved in the manufacturing of speciality pharmaceuticals and active pharmaceutical ingredients since the year 1983, having 45 manufacturing sites in 6 continents and 10 world class research centres with over 30,000 strong multi-cultural work force from over 50 different nationalities.

10. 'The British School': Delhi High Court Directs Sanjay Gandhi Educational Society To Change Name Of 4 Schools Infringing Trademark

Case Title: THE BRITISH SCHOOL SOCIETY v. SANJAY GANDHI EDUCATIONAL SOCIETY & ANR.

Citation: 2022 LiveLaw (Del) 370

While dealing with a trademark infringement suit filed by the British School Society over the mark 'The British School', the Delhi High Court has directed changing of names of four schools run by Sanjay Gandhi Educational Society, purportedly using identical name.

Justice Pratibha M Singh directed the defendants to change the name of their schools w.e.f. 1st May, 2022 and apply to the CBSE, with whom they are presently affiliated.

"The process shall be undertaken in an expeditious manner so that no inconvenience is caused to the students studying in the schools of the Defendants. Certificates, prizes, medals, etc. to be given to the students presently studying in Defendants' schools shall be issued in the name of 'The British School' only till the end of academic year 2021-2022 and not beyond that," the Court added.

11. "No Clear Prohibition In Law, Not For Court To Guide Policy": Delhi HC Dismisses Plea To Remove Election Symbols From Ballot Papers In MCD Polls

Case Title: ALKA GHALOT v. GOVT. OF NCT OF DELHI & ORS.

Citation: 2022 LiveLaw (Del) 371

The Delhi High Court has recently dismissed a plea seeking to remove election symbols from the ballot paper, including the Electronic Voting Machine for the city's Municipal Corporation polls.

A bench comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla observed thus:

"Though the level of literacy has increased in the State of Delhi, and the presence of a photographs of the candidates on the EVM may also aid in empowering the illiterate to properly exercise their right of franchise in favour of the candidate of their choice, in our view, the election symbols still play an important part in the election process in the country. In our view, in the absence of a clear prohibition, it is not for this Court to guide the policy or frame a law in this regard."

Noting that Article 243ZA of the Constitution of India vests the power and duty to conduct elections to the Municipalities on the State Election Commission and that the State Legislature has been empowered to make provisions with respect to all matters relating to elections to the Municipalities, the Court was of the view that it is for these institutions to decide the Rules for conduct of a free and fair election to the Municipality, including use of election symbols.

12. Delhi High Court Constitutes Committee To Monitor Situation In Ashram Housing Women In 'Animal-Like' Conditions, Retd. IPS Kiran Bedi To Supervise

Case Title: DUMPALA MEENAVATHI AND ANR. v. UNION OF INDIA AND ORS.

Citation: 2022 LiveLaw (Del) 372

The Delhi High Court has constituted a Committee, to be led by a District Judge, to keep a close watch and monitor the situation at Adhyatmik Vidyalaya, a spiritual ashram in Rohini led by absconding self-styled godman Virendra Dev Dixit. The ashram is said to confine over 100 women in "animal-like" conditions.

The Division Bench comprising Acting Chief Justice Vipin Sanghi and Justice Navin Chawla observed that women and children are a vulnerable class and therefore, some vigilance is required to keep a check on the functioning of these institutions.

13. Absence Of Rule Of Law Propels A Country Towards Inevitable Ruin, Duty Of Court To Take Strict View Of Non-Compliance Of Judicial Orders: Delhi HC

Case Title: NAVIN SONI v. MUNISH SONI & ORS

Citation: 2022 LiveLaw (Del) 373

Observing that the absence of rule of law or the presence of utter disregard for the rule of law propels a country towards inevitable ruin, the Delhi High Court has said that it is the duty of the Court to take a strict view when there is non-compliance of judicial orders.

Justice Subramonium Prasad added that the Courts should not hesitate in wielding the sword of contempt when grappling with a situation pertaining to wilful disobedience.

"The process of due course of administration of justice must remain unimpaired. Attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times. It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development," the Court observed.

14. S.125 CrPC | Husband Having Sufficient Means Obligated To Maintain Wife & Children, Can't Shirk Away Familial Responsibility: Delhi High Court

Case Title: JITENDRA KUMAR GARG v. MANJU GARG

Citation: 2022 LiveLaw (Del) 374

The Delhi High Court has observed that Section 125 of Code of Criminal Procedure entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities.

Justice Subramonium Prasad also said that the provision was enacted to ensure that women and children are provided maintenance by the husband so as to protect them from a life of potential vagrancy and destitution.

"The Supreme Court has consistently upheld that the conceptualisation of Section 125 was meant to ameliorate the financial suffering of a woman who had left her matrimonial home; it is a means to secure the woman's sustenance, along with that of the children, if any. The statutory provision entails that if the husband has sufficient means, he is obligated to maintain his wife and children, and not shirk away from his moral and familial responsibilities," the Court observed.

15. 'Will They Hang On Strings?': Delhi High Court Refuses To Entertain 'General PIL' For Removal Of Police Booths From Footpaths

Case Title: Jan Sewa Welfare Society v. Union of India & Ors.

Citation: 2022 LiveLaw (Del) 375

The Delhi High Court has refused to entertain a public interest litigation, seeking removal of police booths allegedly built on footpaths meant for public use.

A Division Bench comprising Acting Chief Justice Vipin Sanghi and Justice Navin Chawla observed that it is open to the Petitioner to raise grievance against any particular booth which is causing obstruction to public movement. However, it is not inclined to pass a general direction in this regard.

The development ensued in a PIL filed by a NGO namely 'Jan Sewa Welfare Society', claiming that construction of police booths on footpaths/ roads by Delhi Police has resulted in grave inconvenience to the general public.

16. If Principles Of Natural Justice Are Violated, Writ Remedy Is Available Despite Statutory Appeal: Delhi High Court

Case Title: Jindal Realty Limited versus National Faceless Assessment Centre, Delhi

Citation: 2022 LiveLaw (Del) 376

The Delhi High Court has quashed an assessment order passed by the revenue department without issuing a prior show cause notice and draft assessment order to the assessee. The High Court has ruled that the assessment order was passed in violation of the principles of natural justice as well as the mandatory procedure prescribed under the "Faceless Assessment Scheme" under the Income Tax Act.

The Bench, consisting of Justices Manmohan and Dinesh Kumar Sharma, held that when there is a violation of the principles of natural justice, the availability of an appellate remedy does not bar the maintainability of a writ petition.

17. Child Bearing Age Of All India Service Officers Should Not Be Prejudiced By Non-Grant Of Relieving Order: Delhi High Court

CaseTitle: GOVT. OF WEST BENGAL v. ARSH VERMA & ORS.

Citation: 2022 LiveLaw (Del) 377

The Delhi High Court has observed that child-bearing age for the young couple should not be irretrievably prejudiced by the non-grant of a relieving order for the All India Service officers.

A division bench comprising of Justice Najmi Waziri and Justice Swarna Kanta Sharma observed:

"….the right to a healthy family life, to start a family and the right to parenthood have to be respected while balancing the careers and duties of the officers concerned. Time and tide wait for none. Child-bearing age for the young couple should not be irretrievably prejudiced by the non- grant of a relieving order for the officers to start their family."

18. Delhi High Court Stays Reopening of Income Tax Assessment Keeping In View The Credentials Of BHEL

Case Title: Bharat Heavy Electricals Limited Versus PCIT

Citation: 2022 LiveLaw (Del) 378

The Delhi High Court bench of Justice Manmohan and Justice Dinesh Kumar Sharma has stayed the reopening of income tax assessments, keeping in view the credentials of Bharat Heavy Electricals Limited (BHEL).

BHEL, the petitioner, has challenged the order issued under Section 148A(d) and the notice issued under Section 148 of the Income Tax Act of 1961 for the Assessment Year 2018–19.

Section 148 of the Income Tax Act deals with the issuance of a notice if any income has escaped recomputation or assessment.

19. Exclusive Jurisdiction Clause Overrides The Seat Clause In An Arbitration Agreement: Delhi High Court

Case Title: Hunch Circle Pvt. Ltd. v. Futuretimes Technology India Pvt. Ltd.

Citation: 2022 LiveLaw (Del) 379

The High Court of Delhi has given primacy to an exclusive jurisdiction clause over the seat clause in an arbitration agreement. The Court held that when a clause confers exclusive jurisdiction on a court other than the seat court, then only the court on which exclusive jurisdiction is conferred shall decide all the applications arising out of the arbitration agreement.

The Agreement between the parties stipulated that the courts, at the place where the main premised of the petitioner is located which admittedly is in Gurgaon, shall have the exclusive jurisdiction to deal with applications for interim measures and the enforcement of arbitral award. It further designated New Delhi as the seat of arbitration.

20. "Injury Due To State Action Considered At Higher Standard": Delhi High Court Grants ₹15L Compensation To Victim Of 1997 CP Shootout

Case Title: TARUN PREET SINGH v. UNION OF INDIA & ANR.

Citation: 2022 LiveLaw (Del) 380

The Delhi High Court has granted compensation of Rs. 15 lakhs to a victim of Connaught Place shootout which took place on 31st March 1997. The man was grievously injured and continued to carry shrapnel in his body.

The Court observed that the injury caused due to the state action where the police officials were convicted of criminal offences needs to be considered at "higher standard" as compared to ordinary cases of negligence and inaction.

Justice Pratibha M Singh clarified that the order was being passed in peculiar facts and circumstances of the case as the incident was not an ordinary incident.

21. Right To Lead Evidence Pivotal To Fair Trial, Court Should Not Be Hyper Technical In Granting Opportunity: Delhi High Court

Case Title: DEEPAK v. RAMESH SETHI

Citation: 2022 LiveLaw (Del) 381

Observing that the right to lead evidence is pivotal to a fair trial and partakes of the character of natural justice and fair play, the Delhi High Court has said that the Court should not be hyper-technical, in the matter of granting opportunity to lead evidence and the like.

Justice C Hari Shankar observed thus:

"The right to lead evidence is pivotal to a fair trial and partakes of the character of natural justice and fair play. No doubt, where a party is unconscionably indolent, the Court may put its foot down and close the right of the party to lead evidence; else, as adversarial litigations are meant to be tried after allowing the parties to an adequate opportunity to place their respective stands on record, the Court should not be hyper-technical, in the matter of granting opportunity to lead evidence and the like."

22. DV Act | Visits Of Sundry Family Members To Matrimonial Home Without Permanency Would Not Render Them As Members Of Shared Household: Delhi HC

Case Title: BHARTI ANAND v. SUSHANT ANAND AND ORS

Citation: 2022 LiveLaw (Del) 382

The Delhi High Court has observed that the visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as shared household, would not render them as members of the "shared household" under Domestic Violence Act.

Justice Prateek Jalan observed thus:

"Just as the woman living fleetingly or casually at different places, would not convert those places into a "shared household", the visits of sundry family members to the matrimonial home, without permanency or the intention to treat the premises as shared household, would not render them as members of the "shared household"."

The Court was dealing with a plea filed by a wife challenging an order of the Metropolitan Magistrate, Mahila Court to the extent that summons in her complaint under the Protection of Women from Domestic Violence Act, 2005 were not issued to the respondent Nos. 3 and 4.

23. Parole | Humanist Approach Needs To Be Taken To Encourage Offenders To Demonstrate Commitment To Society: Delhi High Court

Case Title: SHADAB v. STATE

Citation: 2022 LiveLaw (Del) 383

The Delhi High Court has observed that while granting parole, a humanist approach needs to be taken affording convicts an opportunity to resolve their personal and family issues and to encourage offenders to demonstrate a commitment in relation to the society.

Justice Anoop Kumar Mendiratta also added that that parole is a relief granted by the State which goes a long way for redemption and rehabilitation of such prisoners and that they are ultimately aimed for the good of the society and, therefore, are in public interest.

The Court was dealing with a plea seeking directions on the State to release the petitioner on parole for a period of three months. The petitioner was a life convict serving sentence in a murder case.

The petitioner had undergone incarceration for about 10 years and 10 months in actual without remission and had also earned remission of about 01 year 07 months and 11 days as on May 5, 2020.

24. Use Of Registered Mark By Competitors As Keyword In Google Ads Program Prima Facie Infringement Under Trademarks Act: Delhi High Court

Case Title: MAKEMYTRIP INDIA PRIVATE LIMITED v. BOOKING.COM B. V. & ORS.

Citation: 2022 LiveLaw (Del) 384

The Delhi High Court recently granted injunction in favour of Make My Trip while observing that use of its registered mark by competitors even as metatags is an infringement under Trademarks Act and that third party bidding on trademarks as sponsored keywords for use by internet search engines can constitute misrepresentation.

The observation was given by Justice Prathiba M. Singh,

"In view of the facts, orders and legal position as discussed above, this Court is prima facie of the opinion that the use of the Plaintiff's registered mark 'MakeMyTrip' on the Google Ads Program as a keyword would amount to trademark infringement. The same would be detrimental to the Plaintiff's monetary interest as also to the brand equity of the Plaintiff's mark. To allow competitors such as www.booking.com and even Google to encash upon the reputation of the Plaintiff's mark for their own monetary advantage is not permissible in the opinion of the Court."

25. Kalkaji Temple Redevelopment: Delhi High Court Directs Erection Of Boundary Wall To Prevent Encroachments By Vendors, Unauthorised Occupants

Case Title: NEETA BHARDWAJ & ORS. v. KAMLESH SHARMA

Citation: 2022 LiveLaw (Del) 385

Observing that the entire process of redevelopment of the Kalkaji temple would be severely jeopardized if encroachments happen on a daily basis either by vendors or any other unauthorized occupants, the Delhi High Court has directed erection of boundary wall surrounding the temple premises in order to prevent such encroachments.

Justice Pratibha M Singh was dealing with a bunch of pleas concerning the aspect of maintenance and redevelopment of city's Kalkaji temple

Noting the concerns expressed about continuous encroachment into the Kalkaji Mandir premises, as also into the land which was adjacent to the Mandir area, the Court said:

"….it is deemed appropriate to secure the entire land surrounding the Kalkaji Mandir premises, being used for the activities of the Mandir, by erection of a barricade or a boundary wall for safeguarding the entire land."

26. Executing Court Can't Go Behind Decree & Give Relief To Judgment Debtor That Was Expressly Denied To Him: Delhi High Court Reiterates

Case Title: RAMESH KUMAR BANGA v. KAILASH MAKKAR AND ANR

Citation: 2022 LiveLaw (Del) 386

The Delhi High Court has reiterated that the executing Court cannot go behind the decree that is to be executed and give relief to the judgment debtor that was expressly denied to him.

Justice Subramonium Prasad was dealing with a revision petition challenging the order dated 04.04.2022 passed by the Additional Rent Controller whereby the objection petition filed by the Petitioner under sec. 25 of the Delhi Rent Control Act against the eviction order passed as well as an application under Order VI Rule 17 CPC for amendment of the objection petition, was dismissed.

A suit for eviction was filed by the Respondents regarding a property claiming themselves to be the owners of the said property which they purchased from the previous owners by way of sale deed dated 09.09.1987.

27. The Arbitral Tribunal Cannot Reduce The Liquidated Damages On 'Guess Work': Delhi High Court

Case Title: Haryana Vidyut Prasaran Nigam Ltd. v. M/s Cobra Instalaciones Y. Services S.A. & M/s Shyam Indus Power Solution Pvt. Ltd. (JV)

Citation: 2022 LiveLaw (Del) 387

The High Court of Delhi has held the arbitral tribunal cannot reduce the liquidated damages on 'guesswork' if it finds that it is genuine pre-estimated damages and it is not possible to quantify the damages.

The Single Bench of Justice Bakhru held that once the arbitrator finds that the employer has suffered substantial losses due to the fault of the contractor and the contract provides for liquidated damages which were genuine pre-estimate of the loss as the quantification of the claim is not possible, then the arbitrator cannot reduce the amount of the damages on guesswork.

The court partially set aside the award on the ground that the arbitrator has taken inconsistent views regarding the imposition of liquidated damages and made guesswork without there being any material on record to make an educated guess as to the quantum of damages payable.

Nominal Index [Citations 2022 LiveLaw (Ker) 192 - 2022 LiveLaw (Ker) 200]

Asha Joseph v. Babu C. George & Ors, 2022 LiveLaw (Ker) 192

Greenlights Power Solutions Versus State Tax Officer, 2022 LiveLaw (Ker) 193

Jaganadhan v. State of Kerala, 2022 LiveLaw (Ker) 194

S. Raveendranath Pai & Ors. v. State of Kerala & Ors, 2022 LiveLaw (Ker) 195

Arun Jose v. State of Kerala, 2022 LiveLaw (Ker) 196

Chengalam Service Co-operative Bank Ltd. v. Rajkumar & Ors, 2022 LiveLaw (Ker) 197

Satyendra Kumar Jha v. Secretary (Transport) & Ors, 2022 LiveLaw (Ker) 198

Simi C.N. v. State of Kerala & Ors, 2022 LiveLaw (Ker) 199

Shameena Siddique & Anr. v. M. Abubekhar Siddiq & Ors, 2022 LiveLaw (Ker) 200

Judgments This Week

1. Details Of Funds In Possession Not Necessary In A Plaint For Specific Performance Of Sale Deed: Kerala High Court

Case Title: Asha Joseph v. Babu C. George & Ors.

Citation: 2022 LiveLaw (Ker) 192

The Court has held in a suit for specific performance under the Code of Civil Procedure, even if the plaintiff has not given details of funds in her possession or the manner in which she intended to raise them in the plaint, this is not fatal to the suit since those aspects are matters of evidence which need not be pleaded. While allowing an appeal, Justice P. B. Suresh Kumar and Justice C. S. Sudha observed that although the appellant who was the plaintiff in the suit had not given the details of the funds in her possession or the manner in which she intended to raise them in the plaint, the suit will survive since those aspects are matters of evidence, which as per Order VI Rule 1 of CPC need not be pleaded.

2. Bonafide Error In Format Of Date On E-Way Bill, Warrants Only Minor Penalty: Kerala High Court

Case Title: Greenlights Power Solutions Versus State Tax Officer

Citation: 2022 LiveLaw (Ker) 193

The bench of Justice Bechu Kurian Thomas has held that a minor penalty can be imposed for a bona fide mistake in the date on an e-way bill. The petitioner/assessee has a valid GST registration and carries on business in electrical contract work. In connection with the work of a hospital in Assam, some goods were transported by a vehicle after paying the required tax. During the course of transportation from Ernakulam, the goods were intercepted by the department, who detained the goods under section 129 of the Central Goods and Service Tax Act, 2017 on noticing an irregularity in the e-way bill.

3. Persons From Whom Amounts Were Collected Based On An Unconstitutional Levy Entitled To Refund: Kerala High Court

Case Title: Jaganadhan v. State of Kerala & connected matters.

Citation: 2022 LiveLaw (Ker) 194

The Court has ruled that persons from whom a fee was collected under a State Circular calling for applications for use of unnotified land for other purposes were entitled to a refund of the amount since the circular was struck down as unconstitutional. Justice T.R. Ravi observed that the issue of whether the claim for refund of amounts which have been collected based on the unconstitutional levy either in the form of fee or in the form of tax or in the form of duty is no longer res integra.

4. Land Used For Cultivating Long Duration Crops Not Ecologically Fragile Even If Encircled By Vested Forests: Kerala High Court

Case Title: S. Raveendranath Pai & Ors. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 195

In a significant judgement, the Court has held that the land principally used for the cultivation of crops of long duration cannot be declared as ecologically fragile land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act even if it is encircled by vested forests. Upon perusal of Sections 2(b) and 2(c) of the Act, a Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha concluded that land which is not a forest does not become an ecologically fragile land.

5. Can Invoke ESMA If Ongoing KSEB Strike Causes Disruption To Its Operations: Kerala High Court Issues Interim Order

Case Title: Arun Jose v. State of Kerala

Citation: 2022 LiveLaw (Ker) 196

In a major setback to the ongoing strike organised by the KSEB Officers' Association, the Kerala High Court on Tuesday issued an interim order in a Public Interest Litigation (PIL) seeking to declare the ongoing strike by the Kerala State Electricity Board (KSEB) officers as illegal. Justice C.S Dias and Justice Basant Balaji opined that the State Government has an obligation to act as a conciliator between the KSEB, which is a State Public Sector Undertaking, and its employees to settle their differences amicably, without causing any disruption to the normal lives of citizens.

6. Article 226 | Rule Of Alternative Remedy Is A Rule Of Discretion, Not Rule Of Jurisdiction: Kerala High Court

Case Title: Chengalam Service Co-operative Bank Ltd. v. Rajkumar & Ors.

Citation: 2022 LiveLaw (Ker) 197

The High Court has held that merely because it may not exercise its discretion under Article 226 of the Constitution in view of the availability of alternative remedy, is not a ground to hold that it has no jurisdiction. A Division Bench of Justice Suresh Kumar and Justice C.S. Sudha said that the case appears to be a classic example of the 'fence eating the crop' while adding that the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so.

7. State Govt Bound To Consider Requests For "Bharat Series" Registration Of Vehicles: Kerala High Court

Case Title: Satyendra Kumar Jha v. Secretary (Transport) & Ors.

Citation: 2022 LiveLaw (Ker) 198

The High Court has ruled that the State government is bound to consider the application of the petitioner for registration of his vehicle with a 'Bharat series' number since the Centre had already brought it into implementation. Justice Sathish Ninan also clarified that the fact that the State was yet to finalise the tax payable for such registration was immaterial to consider such applications. "The manner and form of registration in BH series having already been brought in by the Central Government, the State Government is bound to consider the request of the petitioners for registration of the vehicles in BH series," said the Court.

8. Decriminalisation Of Attempt To Commit Suicide Is The General View Of Courts: Kerala High Court Drops Charges U/S 309 IPC

Case Title: Simi C.N. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 199

The High Court recently quashed all charges pending against a Village Officer who attempted to commit suicide and was booked under Section 309 of the Indian Penal Code (attempt to commit suicide). After an elaborate study of the general judicial opinion on the issue, Justice K. Haripal observed that the growing trend was in favour of decriminalisation of the offence since suicidal behaviour is often considered to be a symptom of mental distress.

9. Magistrate Can Decide Validity Of Talaq In Wife's Petition Under DV Act If Husband Disputes Their Marital Status: Kerala High Court

Case Title: Shameena Siddique & Anr. v. M. Abubekhar Siddiq & Ors.

Citation: 2022 LiveLaw (Ker) 200

The High Court has ruled that a Magistrate is empowered to decide the pela of talaq raised by the husband in his wife's petition filed under the Domestic Violence Act if he disputes their marital status on that ground. Justice Kauser Edappagath thereby allowed a criminal revision petition holding that the finding of the appellate court that the Magistrate has no power to decide the validity of the talaq is wrong and only to be set aside.

Other Developments

10. Kerala High Court Grants Anticipatory Bail To Makeup Artist Accused Of Sexual Assualt By Several Women

Case Title: Anez Anzare & Anr v. State of Kerala & Ors.

The High Court granted anticipatory bail to celebrity makeup artist Anez Anzare who has been accused of sexually abusing several women under the guise of applying makeup on them. Justice Gopinath P. held that the petitioner can be granted anticipatory bail in all the cases registered against him subject to conditions.

11. Actor Assault Case | Kerala Bar Council Pulls Up Crime Branch For Leaking Privileged Communication To Media

The Bar Council of Kerala lashed out at the Crime Branch for leaking privileged communication between a lawyer and his client in the 2017 sexual assault case to the media. A meeting was convened to consider the complaint filed before the Council seeking appropriate legal action against the police officers who allegedly leaked a telephone conversation between Senior Advocate B. Raman Pillai and actor Dileep who is accused in the assault case.

Also Read: Lawyer Moves Kerala Court Against Alleged Leak Of Privileged Communication To Media By Police

12. [Bulk Diesel Prices] Kerala High Court Reserves Order In Appeals Challenging Interim Order In Favour Of KSRTC

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

The Court has reserved its order on 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 announced that it will declare its verdict in the case on Monday.

13. Pampa Sand Mining Case: Kerala High Court Sets Aside Vigilance Probe

Case Title: State of Kerala v. Ramesh Chennithala & Ors.

The Court has set aside the vigilance probe which was ordered into the alleged illegal mining of sand accumulated along the banks of river Pampa. In August 2020, the Vigilance Special Court in Thiruvananthapuram had ordered a Vigilance inquiry into the charges of corruption based on a petition filed by Senior Congress Leader Ramesh Chennithala. Justice Sunil Thomas set aside the vigilance court's order on a review petition filed by the State.

14. Kerala High Court To Hold Special Sittings During Summer Vacation To Reduce Pendency Of Criminal Appeals

With an objective to reduce the pendency in Criminal Appeals, the Court will be holding special sittings during its ongoing summer vacation to hear jail appeals and legal aid matters. This was disclosed through a notification published on the High Court website, which also said that this step was taken after Chief Justice S Manikumar ordered special sittings to be held.

15. Can GST Be Imposed On Royalty Paid To Govt? Kerala High Court To Consider

Case Title: Royal Sand & Gravels Pvt Ltd. v. Union of India & Ors.

The High Court has admitted a plea that has raised significant questions of whether royalty paid to the government qualifies as tax and if GST can be imposed on such royalty. The petitioner has pointed out the settled legal position on the concept of royalty by the Supreme Court where it has been held that royalty is tax. Therefore, according to the petitioner, the royalty payable on the extraction of minerals being in the nature of statutory impost comes under the preview of taxation.

16. Actor-Producer Vijay Babu Moves Kerala High Court Seeking Pre-Arrest Bail In Rape Case

Case Title: Vijay Babu v. State of Kerala & Anr.

Malayalam actor-producer Vijay Babu has approached the High Court seeking anticipatory bail after an actress accused him of sexually exploiting her. According to him, the defacto complainant is merely trying to blackmail him by filing this false case. He added that while the survivor may be free to raise allegations against anyone, the statutory authorities are duty-bound to ascertain the truthfulness of the allegation before tarnishing or defaming an individual based on a complaint which could not be substantied.

17. Idukki Airstrip A Threat To Periyar Tiger Reserve, No Clearance From Environment Ministry: Centre Tells Kerala High Court

Case Title: M.N. Jayachandran v. Union of India

The Central Government objected to the airstrip being constructed in Idukki and submitted before the Court that the project has not secured the required prior permission from the Ministry of Environment and Forest. A Division Bench of Justice C.S. Dias and Justice C. Jayachandran was adjudicating upon a PIL seeking a direction upon the State authorities not to proceed with the construction of the airstrip and the operation of the aircraft in 4.8565 hectares in Idukki District without obtaining clearance under Section 2 of the Forest Conservation Act and Environmental clearance and other allied reliefs.

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