Wednesday, February 13, 2019

CJI Sacks Two SC Officials For Tampering With Order in Anil Ambani's Contempt Case

The extraordinary step from the CJI was an instance of tampering with Justice Nariman's order in January when a show-cause notice of contempt was issued to Anil Ambani.

Following an inquiry, the Supreme Court has sacked its two assistant registrars who were found involved in tampering with a court order which appeared favourable to Reliance Communication chairperson Anil Ambani in a contempt case.

On Wednesday, Chief Justice of India Ranjan Gogoi issued the order to summarily dismiss the two court officials, who were responsible for taking down the judge's orders and getting them uploaded on the website.


The CJI, acting on a complaint by Justice Rohinton F Nariman, who has been hearing the contempt case, used his powers under Article 311 of the Constitution and Section 11(13) of the Supreme Court which empower the CJI to dismiss any employee under “extraordinary” circumstances without resorting to normal disciplinary proceedings.

What prompted the extraordinary step from the CJI was an instance of tampering with Justice Nariman's order in January when a show-cause notice of contempt was issued to Anil Ambani over alleged failure to clear outstanding dues to Ericsson India despite categorical undertakings to the top court.


The order that was uploaded on the Supreme Court website on January 7 said the “personal appearance of the alleged contemnor(s) is dispensed with”. 

This connoted that Ambani’s presence was not required on the next date of hearing although the rule is that anybody who is issued a contempt notice must show up once and request for exemption of his personal appearance on future dates. 

The order propitious to Ambani was uploaded on the website even though Justice Nariman had hours before made it clear that Ambani's personal appearance was not dispensed with.

The discrepancy led senior advocate Dushyant Dave and other Ericsson representatives move Justice Nariman's court again, pointing this out.

Justice Nariman, expressing shock, got the correct order uploaded on the website on January 10. “Personal appearance of the alleged contemnor(s) is not dispensed with,” the revised order said.

Justice Nariman also preferred an inquiry against the court officials, which suggested deliberate tampering after a scrutiny by the CJI.

Subsequently, court masters, Manav Sharma and Tapan Kumar Chakraborty, who held the rank of assistant registrars, were sacked on Wednesday evening.

Ambani, in terms of the revised order, remained present in the court on February 12 and on February 13 in connection with the contempt proceedings. He spent over two hours in the court on Tuesday and almost the whole day on Wednesday when the judgment was reserved by Justice Nariman's bench.

Towards the end of the proceeding, Justice Nariman told senior lawyers Mukul Rohatgi and Kapil Sibal, who appeared for Ambani and RCom: "Consequences will follow of what you have done."

Tuesday, February 12, 2019

Court Has To Confine Itself To The Four Corners Of 'Disobeyed' Order While Exercising Contempt Jurisdiction: SC

The Supreme Court has reiterated that, while exercising the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed.



The bench comprising Justice R. Banumathi and Justice R. Subhash Reddy made this observation in an appeal (Er. K. Arumugam vs. V. Balakrishnan) challenging a Madras High Court order in a contempt case, which passed directions beyond the order allegedly disobeyed.

In the writ petition filed by Balakrishnan, the High Court passed an order directing the District Collector to ensure that a fair and reasonable compensation be sanctioned to him. District Collector passed an order directing compensation at Rs.200 per sq. ft. Balakrishnan then filed contempt petition. The District collector during the pendency of the petition passed another order modifying the compensation to Rs.500 per sq. ft. Thereafter the High court disposed of the contempt petition modifying the compensation to Rs.600 per sq. ft.
"In the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed." said the bench while setting aside the High Court order. The bench referred to judgment in Sudhir Vasudeva v. M. George Ravishekaran, in which the Apex court had observed thus:
"The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above."

The bench observed that the High Court erred in directing the TWAD Board to pay compensation at the rate of Rs.600/- per sq. ft. which works out to more than Rs.4, 00, 00,000. It is public money and having implications on the public exchequer, the public money cannot be allowed to be taken away by an individual by filing contempt petition thereby arm-twisting the authorities, said the court while allowing the appeal.

Pay Rs 1 lakh, go sit in the corner: SC punishes ex-CBI chief Nageshwar Rao for contempt

The Supreme Court came down hard at Nageshwar Rao for transferring officials investigating the Muzaffarpur shelter home rape cases. These transfers were made despite clear SC orders against this.


The Supreme Court today held former interim CBI director M Nageshwar Rao (also spelt as Nageshwara Rao) guilty of contempt of court and imposed a fine of Rs 1 lakh on him. As part of punishment, the court asked him to sit in one corner of the court through the day until the court proceedings end.
The court also slapped a fine of Rs 1 lakh on Nageshwar Rao's legal advisor. The Supreme Court came down hard on Nageshwar Rao for transferring officials investigating the Muzaffarpur shelter home rape case. These transfers were made despite clear orders of the Supreme Court against this.

In his ruling, CJI Ranjan Gogoi said, "Contempt [of court] has been committed. So there will be a mark on his (Nageshwar Rao's) career."
To this, Attorney General KK Venugopal pleased that Rao has an "unblemished" track record of 32 years. "Please kindly adopt merciful approach as he has tendered apologies," he said.

Earlier, Chief Justice of India (CJI) Ranjan Gogoi asked Rao why the court should not initiate contempt of court proceedings against him for transferring investigation officer (IO) AK Sharma.
The court said the charge against Rao is that despite explicit order passed on November 21, 2018 that joint director AK Sharma would not be moved from the investigation into Muzaffarpur shelter home case, Rao went ahead and transferred him.

Appearing for Nageshwar Rao in the court, Attorney General KK Venugopal said Rao committed a series of mistakes but the court should not start contempt of court proceedings against him. He said Rao has appologised for his mistake and that the mistake was not committed wilfully.
CJI Gogoi said the Supreme Court had passed two orders clearly stating that the investigating officers in the Muzafffarpur shelter home case should not be transferred without the court's approval.
He said when Nageshwar Rao was the acting CBI chief, he was aware of these orders.
Acting director Rao forgets about the Supreme Court order but in his own file notes that the SC must be informed, the court said, asking if this is not a case of contempt of court.

Thursday, February 7, 2019

CBI's Nageswara Rao Committed Contempt, Says Supreme Court

Angry over the laxity in the investigation into rapes of children in Bihar's government-run shelter homes, the Supreme Court today accused M Nageswara Rao, the former interim chief of the CBI, of contempt. Mr Rao was responsible for the transfer of AK Sharma, the officer supervising the case, which the court is monitoring. The top court today said the transfer has taken place despite its "embargo". 
Remarking that Mr Rao and Bhasuran, the prosecution in-charge, have committed contempt, Chief Justice of India Ranjan Gogoi said, "You have played with our orders. God help you".
In the morning, the Centre got pulled up for transferring joint director AK Sharma. "How can he be transferred by the Centre when the Supreme Court said he must not be shifted?" the furious Chief Justice had questioned. 
The agency was asked to inform the court that whether the panel, which transfers officers, was aware of the "embargo" and was ordered to do so in writing - by 2 pm. 

Suit In Respect To Properties Situated In Jurisdiction Of Different Courts Can Be Instituted In One Of Those Courts: SC

The Supreme Court has observed that, a suit in respect to immovable property or properties situate in jurisdiction of different courts may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated.

Read Full Judgment

The bench comprising Justice Ashok Bhushan and Justice KM Josephobserved that interpretation of word "portion of the property" in Section 17 CPC cannot only be understood in a limited and restrictive sense of being portion of one property situated in jurisdiction of two courts.

Applying this interpretation, the Section 17 would read thus: The suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property (or Properties) is situate. This would further imply that one property out of a lot of several properties can be treated as 'portion of the property'. 

In this case (Shivnarayan vs. Maniklal), the court agreed with the submission made by the appellant's counsel that the word "property" as occurring in Section 17 shall also include the plural as per Section 13 of General Clauses Act, 1897, which provides that 'words in the singular shall include the plural'.

Answering the issue whether Section 17 applies only when a composite property spread in jurisdiction of two Courts or Section 17 contemplate any wider situation, the bench said:

"The word "property" under Section 17 of the Civil Procedure code may also be properties, hence, in a schedule of plaint, more than one property can be included. Section 17 can be applied in event there are several properties, one or more of which may be located in different jurisdiction of courts. The word "portion of the property" occurring in Section 17 has to be understood in context of more than one property also, meaning thereby one property out of a lot of several properties can be treated as portion of the property as occurring in Section 17. Thus, interpretation of word "portion of the property" cannot only be understood in a limited and restrictive sense of being portion of one property situated in jurisdiction of two courts." 

The bench, referring to various judgments and provisions of CPC summarized the scope and ambit of Section 17 as follows:

  • The word 'property' occurring in Section 17 although has been used in 'singular' but by virtue of Section 13 of the General Clauses Act it may also be read as 'plural', i.e., "properties". 
  • The expression 'any portion of the property' can be read as portion of one or more properties situated in jurisdiction of different courts and can be also read as portion of several properties situated in jurisdiction of different courts.
  • A suit in respect to immovable property or properties situate in jurisdiction of different courts may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated.
  • A suit in respect to more than one property situated in jurisdiction of different courts can be instituted in a court within local limits of jurisdiction where one or more properties are situated provided suit is based on same cause of action with respect to the properties situated in jurisdiction of different courts.
However, though the court favoured the interpretation of Section 17 made by the counsel for appellant, it dismissed the appeal on the ground of mis-joinder of parties and causes of action.

Wednesday, February 6, 2019

HC fines Gadhada Swaminarayan temple chairma

Gujarat high court has slapped a fine of Rs 1 lakh on the chairman of Gadhada’s famous Swaminarayan temple, Kanubhai Kanani, for seeking removal of retired HC judge S M Soni from the post of election officer for the polls scheduled for the Shree Gopinathji Dev Mandir Trust.
Justice Bela Trivedi was furious at the demand for removal of Justice Soni, who was appointed to supervise the temple’s controversial election by the Supreme Court on December 13. The apex court appointed him after both the contesting parties – the trust and a group of devotees – gave consent for Justice Soni’s name.
The court was also angry because it found the petition very contemptuous to the SC order and for dragging Justice Soni to litigation unnecessarily after not cooperating with him in election process. The court also found the petition’s drafting very offending and thought of initiating contempt of court proceedings against the lawyer who had drafted the petition. However,senior counsel Shalin Mehta did not reveal the name of the advocate and requested for a pardon.
During the hearing of the petition, Justice Soni sent his resignation letter to the high court on January 25.
Interestingly, the litigants in this matter had first objected to retired sessions judge K J Upadhyay as election officer by casting aspersions on him and accusing him of partiality. The high court removed judge Upadhyay and decided to appoint a retired HC judge as election officer. Finally, the SC appointed Justice Soni for the task with directions to complete the elections in eight weeks’ time.
The trust’s chairman approached the HC again accusing the retired HC judge of partiality, and demanded the judge Upadhyay may be assigned with the duty of election officer in place of Justice Soni.
The court dismissed Kanani’s petition by ordering him to pay the fine within two weeks. The court also expressed displeasure with the conduct of the petitioner and with the tenor in which the petition was drafted.

Linking PAN with Aadhaar must to file I-T returns -SC

Putting to rest all doubt, the Supreme Court has said that linking the permanent account number with Aadhaar is mandatory for filing income tax returns.

A bench comprising Justices A K Sikri and S Abdul Nazeer said the top court has already decided the matter and upheld Section 139AA of the Income Tax Act.

The court’s order came on an appeal filed by the Centre against a Delhi high court ruling allowing Shreya Sen and Jayshree Satpute to file income tax returns for assessment year 2018-19 (financial year 2017-18) without linking their Aadhaar number and PAN. There were some other individuals too who had been given relief last year.
The Supreme Court has said that linking the permanent account number with Aadhaar is mandatory for filing income tax returns (ITR).
A bench comprising Justices A K Sikri and S Abdul Nazeer said the top court has already decided the matter and upheld Section 139AA of the Income Tax Act. The SC order came on an appeal filed by the Centre against a Delhi high court ruling allowing Shreya Sen and Jayshree Satpute to file income tax returns for assessment year 2018-19 (financial year 2017-18) without linking their Aadhaar number and PAN.
There were some other individuals too who had been given relief last year.
“The aforesaid order was passed by the high court having regard to the fact that the matter was pending consideration in this court. Thereafter, this court has decided the matter and upheld the vires of Section 139AA of the Income Tax Act. In view thereof, linkage of PAN with Aadhaar is mandatory,” the bench said.
Sen and Satpute had filed their returns following the court order and the assessment has also been completed. The SC made it clear that for the current assessment year, returns have to be filed after linking PAN and the unique ID.
The order flows from the September 26 verdict, which declared Aadhaar legally valid and allowed its use for getting subsidies as well as linking with PAN.
While several taxpayers wanted to opt out of Aadhaar and did not want to link their PAN, the government has maintained that it is critical to ensure that individuals don’t evade taxes with multiple PANs. A majority of PANs have already been linked to Aadhaar, government sources said.

Carrying hard copy of your driving licence, RC not mandatory now

As per the latest amendments in the IT Act 2000 and the Motor Vehicles Act 1988, digital driving license and vehicle's RC papers stored in DigiLocker will be now legally recognised at par with the original documents.

In a big relief to the drivers, the Ministry of Road Transport has recently issued a notification informing the general public that drivers do not need to carry physical copies of driving licence or any other vehicle related document for verification purpose anymore as electronic copies will be valid from now. As per the latest amendments in the IT Act 2000 and the Motor Vehicles Act 1988, digital driving license and vehicle’s RC papers stored in DigiLocker will be now legally recognised at par with the original documents. With immediate effect, the notification by the ministry is addressed to all the India State’s Principal Secretaries, All Secretaries of Department of Transport, DGPs/ ADGPs (Traffic) and all State/UT Transport Commissioners.

This powerful move is being seen in line with the numerous grievances and RTI applications received by the Ministry of Road Transport where vehicle owners raised the concern that the documents available in DigiLocker or the mParivahan app were not being considered valid by the traffic police or the motor vehicles department. With this notification in place, the citizen can now produce the transport-related documents in physical or electronic form on demand by any police officer in uniform or any other officer authorised by the state government in the regard. However, the citizens must note that a scanned copy of any of these documents will not be acceptable to the authorities and people will have to store the required vehicle documents on their smartphones on ‘DigiLocker’, an application controlled and operated by the Central government.

The service is part of Digital India scheme, which allows people to store certain official documents on the cloud while eliminating the need to carry important physical documents. People can easily download the app from Google Play Store or App Store and the documents will automatically get validated once uploaded in the app as they are directly issued by the concerned authorities.

The notification is a big relief for the drivers as the previous law demanded them to present the physical documents (e.g. DL, RC, Pollution Check, and Insurance) as proof of eligibility to drive on Indian roads. This was a major concern not only for the drivers but even for the entire ecosystem including law and enforcement machinery, and the insurance industry. There were numerous problems that were being faced by the drivers in India due to the existing law including risk of misplacing DL/ losing it to theft, disfigured/torn documents, long discussions with the traffic police to prove the veracity of the documents, and delay in getting the physical documents from the concerned authorities.

Yet another common problem that the drivers in India face is that the hard copy delivery of insurance certificate is typically delayed on an average by 15-20 days. Moreover, as per a recent survey, on an average a driver gets delayed by 15 min to 4 hours in reaching the destination when asked for physical documents as proof of eligibility to drive on Indian roads. Fortunately, with the implementation of the new law, most of these concerns will be addressed.

From the last few years, numerous authorities including insurers, marketplaces, consumer rights body etc. have been trying hard to bring in amendment in the current IT Act 2000 and the Motor Vehicles Act 1988. The authorities have been demanding to authenticate the soft copy of insurance plans. In all these years, numerous submissions were made to the government to make amendment in the current law.

Negative Marking System Cripples Students' Intuition, Kills Art Of Intelligent Guessing: Madras HC

"Intelligent guessing should be permitted and encouraged, as it would help the students in their future life, whereas, the attempt of CBSE in awarding negative marks would totally eradicate the habit of intelligent guessing." The Madras High Court has observed that system of negative marking system in competitive examinations requires reconsideration and has to be done away with. Justice R. Mahadevan, while disposing of a petition filed by Nelson Prabhakar observed that the very system of awarding negative marks is improper and against the principles of fairness, equality and equity. The judge said that this system does not, in anyway, helps the examiner to analyse the intelligence, aptitude or knowledge of the students in any manner. 

The writ petition filed by Nelson sought for a direction to CBSE to revalue his answer sheets of the Physics and Mathematics of JEE (Main) 2013. Even though the court had granted him an interim order permitting him to write the JEE Advance Level examination, he was not allowed by to take part in the examination on the ground that no order was communicated.

Though the writ petition became infructuous, Nelson's lawyer (Advocate A. Arulmozhi) urged the court to address his concerns against negative marking system. Citing examples of system followed in various countries and also in CMC, Vellore, he sought for a direction to the CBSE to withdraw / strike down the method of negative marking. CBSE defended the system stating that object of having negative marks in the competitive examination is to ensure that only diligent and deserving candidates get selected for admission in the colleges offering professional courses, which cannot be found fault with. Justice Mahadevan agreed with Nelson's counsel and opined that negative marking is a source of discouragement in the minds of the student. Terming 'intelligent guessing' as an art, the judge said that it should be permitted and encouraged. The court also observed that the threat of negative marks will never allow intuition to grow in a student and it also makes the student approaches every question with an element of fear. The court further observed that there is no scientific proof in support of negative marking system that it helps to choose best candidates from the competitive examination. The court also observed that most advanced countries like the UK, Canada, Australia and Russia have stopped the practice of negative marking. Even in India, the renowned CMC, Vellore, one of the best colleges in the field of medicine, does not award negative marks in their entrance examination for admission to medical college, the judge said. As an alternative to negative marking system, the court suggested that the number of alternatives in each question from which the candidates have to choose the correct answer, can be increased. Following are some observations made by Justice Mahadevan in the judgment.


Sunday, February 3, 2019

SC To Look Into Issues Regarding Safety Of Indian Railways

The Supreme Court, last week, said it will look into issues and concerns regarding safety of Indian railways.

The bench comprising Justice Uday Umesh Lalit and Justice Indira Banerjee sought views of the Union of India in the matter, while delivering a judgment in an appeal arising out of a claim made in a railway accident death case.

One Dasarath Yadav had died after his head collided with a post by the side of the railway track resulting in an accident. Though the Railway Claims Tribunal held that he was a bona fide railway passenger and that the incident was an "untoward incident" in terms of the provisions of Section 123 of the Railways Act, 1989, it was found that the deceased was victim of his own act and as such no compensation was payable.

On Appeal, the Calcutta High Court held that the claimant was entitled to compensation of Rs.8, 00,000 with interest @ 9% per annum. In terms of Section 124-A of the Act the 'Principle of Strict Liability' would arise and as such the Tribunal was not right in denying compensation to the claimants, the High Court had held.

Before the Apex court, the contention was that the grant of interest on the sum of Rs.8, 00,000 was not consistent with the law laid down in Rina Devi judgment. The bench observed that the claimant shall be entitled to the benefit ordered by the High Court irrespective of the decision as regards question of law raised in this appeal. Explaining the said judgment, the court said: 
"What this Court has laid down is that the amount of compensation payable on the date of accident with reasonable rate of interest shall first be calculated. If the amount so calculated is less than the amount prescribed as on the date of the award, the claimant would be entitled to higher of these two amounts. Therefore, if the liability had arisen before the amendment was brought in, the basic figure would be as per the Schedule as was in existence before the amendment and on such basic figure reasonable rate of interest would be calculated. If there be any difference between the amount so calculated and the amount prescribed in the Schedule as on the date of the award, the higher of two figures would be the measure of compensation. For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs.4,00,000/-. If, after applying reasonable rate of interest, the final figure were to be less than Rs.8,00,000/-, which was brought in by way of amendment, the claimant would be entitled to Rs.8,00,000/-. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs.8,00,000/- the compensation would be in terms of figure in excess of Rs.8,00,000/-. The idea is to afford the benefit of the amendment, to the extent possible."
The apex court finally held that, the High Court was in error in awarding interest on the sum of Rs.8 lakhs, since the accident had occurred before the amendment.
During the hearing of this case, the bench had appointed Advocate Brijender Chahar as amicus curiae in this case, to assist the court in its concerns about Railway safety. The amicus also submitted summary of following four reports in this regard.

  • Anil Kakodkar High Level Safety Review Committee, 17.02.2012; 
  • Twelfth Report of 16th Lok Sabha on safety and security in Railways; 
  • Report No.14 of 2016 of the Comptroller and Auditor General of India on Suburban Train Services in Indian Railways; and 
  • Twenty-Third Report of Standing Committee on Railways (2013-14) Fifteenth Lok Sabha, Ministry of Railways Report on Suburban Train Services of Indian Railways, with particular emphasis on Security of Women Passengers.
While disposing the appeal, the bench said: 
"The learned Additional Solicitor General readily agreed to the suggestion that the Railways must consider the matter in right earnest and see that the concerns regarding safety are immediately addressed. On the request of the learned Additional Solicitor General, we, therefore, adjourn the matter for eight weeks only to consider the issues regarding the safety as highlighted by the learned amicus curiae."

Friday, February 1, 2019

Decree Passed On Plaintiff's Evidence Without Defendant's Appearance At Trial Is Ex-Parte Decree : SC


Such decree can be set aside under Order IX, Rule 13 CPC, if defendant makes out sufficient grounds.

Read Full Judgment

The Supreme Court has held that a decree passed after taking plaintiff's evidence, without the appearance of defendant at the trial stage, is an ex-parte decree, which could be set aside under Order IX Rule 13 of the Code of Civil Procedure.
The bench of Justice A M Sapre and Dinesh Maheshwari passed the order in the case G.Ratna Raj by LRs vs Sri Muthukumaraswamy Permanent Fund Ltd, which was an appeal against a High Court judgment, which set aside a preliminary decree under Order IX Rule 13 CPC.

The preliminary decree was passed in a suit for redemption of mortgage. Though the defendants had made appearance and filed written statement, they did not appear at the stage of evidence. So, the plaintiff's evidence was recorded in the absence of defendant. The defendant's evidence was closed on its non-appearance.

Based on plaintiff's evidence, the trial court passed a preliminary decree, upon which the defendant filed application under Order IX Rule 13 CPC. The application was rejected by the trial court holding that the decree was not passed ex-parte. This was challenged in the High Court, which reversed the trial court's rejection and set-aside the decree.
Questioning the High Court's order, the plaintiffs came in appeal in SC.
The SC first analysed whether the trial court proceeded under Rule 2 or Rule 3 of Order 17 CPC.

Order 17, Rule 2 CPC stated that in the event of non-appearance of a party to the suit, the Court may proceed to dispose of the suit in any of the modes specified in Order IX. However, Explanation to Rule 2 said that if evidence or substantial portion of evidence of any party has been recorded, and such party fails to appear, then the Court may proceed to decide the case. 
Order 17, Rule 3 CPC dealt with situations where a party commits default in producing evidence or witnesses, or in performing any act necessary for the progress of the suit, for which time was granted. In such cases, the Court may proceed to decide the suit, notwithstanding the default, if parties are present( Rule 3(a)). If parties are, or any of them is, absent, the Court may proceed in the manner specified in Order IX(Rule 3(b)).
Order IX Rule 6(a) specified that in the absence of defendant, the Court may proceed the suit ex-parte, if defendant has been duly served.
So, the issue before the Court was whether the decree was passed by taking recourse to Order IX, or by invoking Explanation of Rule 2, Order 17 on the basis of plaintiff's evidence.

The SC ruled that the decree was not passed invoking Explanation 2 of Rule 2, Order 17. That situation will arise only if the party absent is the party who had given evidence. But here, the party absent is the defendant, who had not given evidence.
"in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because in order to attract the Explanation, "such party" which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat "such party" as "present" on that day and is accordingly empowered to proceed in the suit". 

The Court proceeded to observed :
"In this case, the party, who was absent and was proceeded ex parte was the "defendants" and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence".

It was found that the Court proceeded under Order 17 Rule 2 by taking recourse to Order IX Rule 6(a) against the defendant.

"The Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants", held the judgment authored by Justice Sapre.
The bench followed the 2003 SC judgment in B. Janakiramaiah Chetty vs. A.K. Parthasarthi & Ors in reaching its conclusion.

Thursday, January 31, 2019

Lawyer fined for seeking prosecution of CBI judge

A city sessions court fined an advocate Rs 25,000 for seeking the prosecution of a sitting CBI judge after the latter rejected an application. The lawyer has a habit of seeking the criminal prosecution of judges, the court said.

The lawyer, in this case, is Devesh Bhatt, whose client filed an application for the prosecution of special CBI judge J K Pandya. Additional sessions judge Prerana Chauhan also ordered the registry to send a report to the chairman of the Bar Council of Gujarat for appropriate action against Bhatt for his conduct, under the provisions of Section 15 of the Advocates Act. The court fined the applicant Rs 25,000 as well, public prosecutor Sudhir Brahmbhatt said.

CBI judge Pandya had turned down a demand for further investigation in connection with graft charges earlier this month. Bhatt’s client, the TaxPayers Protection Council, demanded Pandya’s prosecution before the city sessions court for passing an order which could jeopardize the public interest and cause losses to the exchequer.

The sessions court refused to buy Bhatt’s argument and noted that the law gives the judicial immunity when he passes an order as part of his judicial function. The court noted Bhatt’s past behaviour and observed that Bhatt is “habitual of making frivolous complaints against judges”. He had filed a complaint against a former high court judge. The high court took suo motu contempt of court action in 2018 and issued a nonbailable warrant against Bhatt. He has used another person as a tool against the court to make such allegations and file a criminal complaint, which has shaken the credibility and dignity of the judiciary.

The court further said that Bhatt has a habit of tarnishing the image of judges and he then remains absent before courts. This cannot be taken lightly. The court termed it “unfortunate”.
The court further said that it is the duty of advocates to respect judges as well as respect judicial decisions rendered by judges and they should avoid making such type of frivolous prosecution requests as they are also officers of the court and part of the judicial system.

Is Extra Marital Consensual Gay Relationship A Crime?

Discharging a man accused under Section 377 IPC, the Bombay High Court observed that extramarital consensual sexual relationship is not a criminal offence, in view of Supreme Court judgment in Navtej Singh Johar vs. Union of India.

Long back in 2009, a woman had filed a complaint against her husband and his gay partner. According to her, after 4 to 5 years of their marriage in 1994, she realised that her husband is gay and she opposed the parallel relationship of her husband. She alleged that her husband continued to keep his gay relationship with different males, including the accused. She also said that her husband was not willing to stop his relationship with them.

The application seeking discharge by the accused (husband's alleged gay partner), was dismissed by the Magistrate court. The Sessions court, partly allowed revision petition and discharged him from offences under sections 323 and 504 of the Indian Penal Code but maintained the charge under section 377 IPC.
Justice Mridula Bhatkar said: "The complainant has grievance against her husband, who is a gay and kept sexual relations with male friends i.e., the petitioner. The Supreme court in the case of Navtej Singh Johar & Ors. Vs. Union of India has held section 377 of the Indian Penal Code insofar as it criminalises consensual sexual conduct between the adult of same sex, as unconstitutional. In the present case, both were having an extra marital consensual sexual relationship. Though it may be a ground for divorce on the ground of cruelty to the complainant, it does not constitute offence under section 377 because both are adults and had sexual relationship by consent."
The court also said that, the woman, who filed the complaint, cannot be termed as a victim. It said: "In this case, there is no victim. The complainant wife is an aggrieved person but she cannot be called as a victim under section 377 of the Indian Penal Code. There are allegations against the husband having unnatural sexual intercourse with her."
The bench then set aside the order passed by the Additional Sessions Judge, and discharged the accused.

There Cannot Be Any Legitimate Expectation Unless A Legal Obligation Exists: SC

Unless a legal obligation exists, there cannot be any legitimate expectation, the Supreme Court has held.

The bench comprising Justice Dhananjay Y Chandrachud and Justice Hemant Gupta, in State of Bihar vs. Dr. Sachindra Narayan, were considering a contention raise that, since the State Government had provided funds for payment of pension for the last many years, the Institute and the employees of the Institute have legitimate expectations to receive the amount of pension.

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The bench observed that legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. It said that payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.
The court reiterated that a pious hope even leading to moral obligation cannot amount to a legitimate expectation. "Legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists,there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right.", the bench said.
The court allowed state's appeal against the judgment of the division bench of Patna high court which directed it to provide financial assistance for payment of the arrears as well as current pension to the employees of the Anugraha Narayan Sinha Institute of Social Studies, Patna..
The bench said: "The money contributed to the Institute by the State Government is one source of the fund of the Institute fund. Section 9(3) of the Act provides that the funds shall be applied towards meeting the expenses of the Institute including expenses incurred in exercise of its powers and discharge of its functions under the Act. Therefore, the retirement pension scheme, at best can be treated to be a part of obligation of utilization of funds of the Institute but such obligation to bear the amount of pension fund is not on State Government as it is not mandated either by Section 8 or Section 9 of the Act."
The court said that, in this case there was no obligation on the State to disburse the grant towards the pension amount in terms of the Act or the Rules or even in terms of the resolution of the Board.

"The resolution of the Board of the Institute to implement a retirement benefit scheme from its own resources will not bind the State Government to pay the amount of pension to the employees of the Institute. The employees of such Institute cannot be treated at par with the employees of the State Government nor the State can be burdened with the responsibility to pay pension to the employees of the Institute.", the bench said setting aside the division bench order.

Wednesday, January 30, 2019

Pune Cable Operators fail to get stay on TRAI tariff rollout

The Bombay High Court refused to stay the 2017 TV channel tariff order by TRAI in a case filed by the Pune Cable Operators’ Association.
The new tariff scheme is scheduled to come into operation from Friday across the country, except in West Bengal.
The Pune Cable Operators’ Association tried to get a stay today by pointing out that the Calcutta High Court had issued a stay on the implementation of the tariff order till Feb 18 after local cable operators had complained that they needed more time.
However, the Bombay High Court refused to issue a similar stay.
Instead, it asked TRAI and the petitioners to submit a copy of the Calcutta High Court order for a hearing next week.

Additional District Magistrate Can Order Externment Under MP Rajya Suraksha Adhiniyam: SC

The Supreme Court has held that an Additional District Magistrate can pass an Externment order when there is no provision in the statue prohibiting passing of an order by an officer lower than the rank of District Magistrate.

In State of Madhya Pradesh vs. Dharmendra Rathore, the Madhya Pradesh High Court had set aside an externment order passed by the Additional District Magistrate on the ground that he had no jurisdiction to pass the order under the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990, and such an order could be passed only by District Magistrate. The High court had apparently relied on the Constitution Bench judgment of the Supreme Court in Ajaib Singh vs. Gurbachan Singh which had held that the detention order could not have been passed by any authority lower than the rank of District Magistrate.
In fact, in the case of Ajaib Singh the Supreme Court considered the provisions of Defence of India Act, 1962 and Defence of India Rules, which contained a different statutory scheme. The said scheme stipulated that detention order can be passed by the authority empowered by the rules to apprehend or detain with restriction that the authority empowered to detain not being lower in rank than that of a District Magistrate. It was in that background, the court held that Additional District Magistrate being not the District Magistrate was incompetent to pass the impugned order.

The bench comprising Justice Ashok Bhushan and Justice KM Joseph noticed this distinction and also the fact that the State Government, in the present case, had issued a notification delating the power of the District Magistrate to the Additional District Magistrate. 

It observed: "It is clear that in the Statutory Scheme of the Adhiniyam, 1990, there is no provision, which prohibit passing an order by an officer lower than the rank of District Magistrate rather under Section 13, there is no limitation on the State Government while specially empowering an officer of the State to exercise the power of District Magistrate under Sections 3, 4, 5 and 6 and further under Section 18, the powers and duties of District Magistrate can be directed to be exercised or performed by Additional District Magistrate or Sub -Divisional Magistrate for such areas as may be specified in the order. Thus, the Scheme of the Adhiniyam, 1990 clearly contemplate exercise of the power of District Magistrate under Sections 3, 4, 5 and 6 by an Additional District Magistrate or Sub -Divisional Magistrate."

The court said that Ajaib Singh judgment was not applicable in the facts of the present case and that the High Court committed the error in relying on the said judgment for holding that Additional District Magistrate had no jurisdiction.

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Attributing Political Colours To Judgments Is An Act Of Contempt Of Gravest Form: SC

The Supreme Court, in its judgment quashing Rules 14A to 14D of the Rules of High Court of Madras, 1970, observed that attributing political colours to the judgments is nothing less than an act of contempt of gravest form.
Justice Arun Mishra, who authored the judgment for the bench also comprising of Justice Vineet Saran, observed that it has become very common to the members of the Bar to go to the press/media to criticize the judges in person and to attribute political colours to the judgments. 
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The bench said: "Whenever any political matter comes to the Court and is decided, either way, political insinuations are attributed by unscrupulous persons/advocates. Such acts are nothing, but an act of denigrating the judiciary itself and destroys the faith of the common man which he reposes in the judicial system. In case of genuine grievance against any judge, the appropriate process is to lodge a complaint to the concerned higher authorities who can take care of the situation and it is impermissible to malign the system itself by attributing political motives and by making false allegations against the judicial system and its functionaries. Judges who are attacked are not supposed to go to press or media to ventilate their point of view."
Nurses Can Practice Their Profession Throughout The Territory Of India: SC 
Some Advocate Feel They Are The Only Champion Of The Causes.
Justice Mishra further observed that some advocates feel that they are above the Bar Council due to its inaction and they are the only champion of the causes. 
"The hunger for cheap publicity is increasing which is not permitted by the noble ideals cherished by the great doyens of the bar, they have set by their conduct what should be in fact the professional etiquettes and ethics which are not capable of being defined in a narrow compass. The statutory rules prohibit advocates from advertising and in fact to cater to the press/media, distorted versions of the court proceedings is sheer misconduct and contempt of court which has become very common. It is making it more difficult to render justice in a fair, impartial and fearless manner though the situation is demoralizing that something has to be done by all concerned to revamp the image of Bar. It is not open to wash dirty linen in public and enter in accusation/debates, which tactics are being adopted by unscrupulous elements to influence the judgments and even to deny justice with ulterior motives.", the bench said. 
Absolutely Necessary To Remove Black Sheeps From The Profession
The bench added that it is for the Bar Council and the senior members of the Bar to rise to the occasion to maintain the independence of the Bar. It added: " The Bar Council of India under its supervisory control can implement good ideas as always done by it and would not lag behind in cleaning process so badly required. It is to make the profession more noble and it is absolutely necessary to remove the black sheeps from the profession to preserve the rich ideals of Bar and on which it struggled for the values of freedom."

Casual Act Of Possession Over Property Does Not Confer 'Possessory Title': SC

Holding that possessory title over property cannot be claimed merely on the basis of 'casual possession', the Supreme Court observed that a casual act of possession does not have the effect of interrupting the possession of the rightful owner.

In Poona Ram vs. Moti Ram, the plaintiff had filed a suit in which he claimed possessory title based on prior possession for a number of years. The Trial court decreed the suit. The First Appellate court reversed it holding that the defendants had proved their title and possession over the suit property. The High Court restored the Trial court decree and judgment.

In the appeal filed by the defendant, the bench comprising Justice NV Ramana and Justice Mohan M. Shantanagoudar  considered the issue whether the plaintiff had better title over the suit property and whether he was in settled possession of the property, which required dispossession in accordance with law. 
In the judgment, the court explained the concept behind suit based on possessory title. It said: "Section 64 of the Limitation Act, 1963 contemplates a suit for possession of immovable property based on previous possession and not on title, if brought within 12 years from the date of dispossession. Such a suit is known in law as a suit based on possessory title as distinguishable from proprietary title. It cannot be disputed and is by now well settled that 'settled possession' or effective possession of a person without title entitles him to protect his possession as if he were a true owner"

The bench then referred to some previous judgments on the subject and briefly explained the crux of the matter. It said: A person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case."

Examining the evidence on record, the bench observed that merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession. The plaintiff, in this case, had relied on an old body of a motor vehicle belonging to him lying in the disputed property. In this regard, the bench said: "Absolutely no material is found to show that the plaintiff/Respondent No. 1 was in actual possession, much less continuous possession, of the property for a longer period which may be called settled possession or established possession. As mentioned supra, mere casual possession, that too relying on a motor vehicle body lying on a part of the property, would not prove settled possession of the plaintiff."
Setting aside the High Court judgment, the bench said: "In order to claim possessory title, the plaintiff will have to prove his own case, and also will have to show that he has better title than any other person. Since there is no documentary proof that the plaintiff was in possession of the suit property, that too for a long period, he cannot be allowed to succeed based on minor discrepancies in the evidence of the defendants."
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"Don't Play Around With The Law": Supreme Court Warns Karti Chidambaram

The Supreme Court today allowed former finance minister's son Karti Chidambaram to travel abroad but has warned him that the court will be "forced to take steps" if he does not cooperate with the probe agencies, investigating the Aircel-Maxis case. Karti Chidambaram and his father P Chidambaram are accused No, 1 and 2 in the case.
"You can go wherever you want to, you can do whatever you want but don't play around with the law. If there is an iota of non-cooperation, we will come down heavily," Chief Justice Ranjan Gogoi told Karti Chidambaram.
The top court has directed Karti Chidambaram to be present before the Enforcement Directorate on March 5, 6, 7 and 12 for questioning. He also has to deposit Rs 10 crore with the Supreme Court as a condition for traveling abroad. 
Karti Chidambaram had sought the Supreme Court's permission to travel to the UK, Spain, Germany and France in February and March for a tennis tournament.
During the earlier hearing last week, the top court had asked the Enforcement Directorate to specify the dates on which Karti would be required to appear for questioning in the Aircel Maxis case. The probe agency had opposed his plea to travel abroad, alleging that he has been "evasive and non-cooperative". The ED had told that court that the Aircel Maxis probe is getting "delayed" because of Karti Chidambaram's frequent foreign travels.
Karti Chidambaram is being investigated by the Enforcement Directorate and the CBI in several cases, including the one relating to Foreign Investment Promotion Board (FIPB) clearance to INX Media for receiving foreign funds to the tune of Rs. 305 crore when his father, P Chidambaram was the finance minister.

Monday, January 28, 2019

No Authority Can Claim Privilege Not To Comply With SC Judgment: SC

The Supreme Court has observed that no authority can claim a privilege not to comply with its judgment.

The bench comprising Justice DY Chandrachud and Justice Hemant Gupta made this observation while allowing an appeal filed by an employee of the Council for Scientific and Industrial Research (CSIR).
In this case, the employee had approached the Tribunal contending that the failure to communicate the Annual Confidential Reports in which he had failed to meet the benchmark violated the O-Ms issued by the Department of Personnel and Training. However, the tribunal held that CSIR is an autonomous body and therefore the circulars issued by the Union of India would not ipso facto apply. The high court concurred with the said view of the Tribunal.
In his appeal, the bench noted that in Dev Dutt vs. Union of India, it was held that that non-communication of entries in the ACRs has civil consequences since it may affect the chances of the employee for promotion and other benefits. While holding that failure to communicate ACRs would be arbitrary, the court had held that these directions would apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State, in addition to government servants. The bench also added that the Three Judge Bench in Sukhdev Singh vs. Union of India had approved of this view taken in Dev Dutt judgment.

The bench then observed that both the Tribunal and the High Court were in error in coming to the conclusion that CSIR being an autonomous entity and having adopted the O.Ms of the Department of Personnel and Training with effect from a specified date, the employee could not make a grievance of the non-communication of the ACRs for the relevant period.
"CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Dev Dutt's case (supra), all instrumentalities of the State were bound to follow the principles laid down by this Court. CSIR was no exception.", the bench said.

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