Thursday, April 25, 2019

No right to be in office, SC tells Assam chief secretary

The Supreme Court on Thursday gave a dressing-down to the Assam chief secretary for his submission that the state government is not bound by any decision of foreigners tribunals declaring a person an illegal migrant, saying he has “no right to continue in office”.
Assam chief secretary Alok Kumar, who was present in the court, had to face the ire of the bench, comprising Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna, for contending that the decision of foreigners tribunals might not be final and might not be accepted by the authority.

“This man does not know what he is saying. Does he deserve to be chief secretary. We are going to issue notice to him for making slanderous statements against the law and misleading the court. You have no right to continue in office,” the bench said.

“The opinion of foreigners tribunal may or may not be accepted by the referral authority. Fresh reference may be initiated against such proceeded person and fresh notices may be issued by the tribunal,” the state government said in its affidavit which was strongly objected to by the bench. The chief secretary apologised and told the court that a fresh affidavit will be filed. The court also slammed the Assam government for its failure to detect illegal Bangladeshi migrants in the state and expressed concern over their participation in the electoral process after obtaining voter cards. It also pulled up the state government for seeking release of those foreigners who had spent over five years in detention centres on execution of bond.

The bench got livid after hearing chief secretary Alok Kumar’s contention and said, “You are the government but you are not following the Constitution and law and you expect court to pass illegal order to allow such people to live in the country who are otherwise not entitled.” As per the Assam government, there are more than one lakh Bangladeshi migrants in the state and only 900, traced so far, have been living in different detention centres.

Solicitor General Tushar Mehta, appearing for the state, informed the court that after holding consultation with the Centre, the government had decided to release ‘foreigners’ who had spent more than five years in detention centres on condition that they would report to police every week.
“First those people should not live in detention centres at all and they should be deported. You have detected only 900 out of more than one lakh people who were declared foreigners. They have now mingled with the local population and most of them are on the electoral list,” the bench observed.

Once Divorce Is Granted, Relief Can't Be Sought Under Domestic Violence Act: Bombay HC

The Bombay High Court has held that once a decree of divorce has been granted, relief cannot be sought by the wife under the Domestic Violence Act.
Justice MG Giratkar was hearing a criminal revision application filed by a 42-year-old woman from Nagpur who challenged a judgment of the Judicial Magistrate First Class dated August 20, 2015. In the said judgment, the applicant wife's application under Sections 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was rejected.
Case Facts
The applicant got married to respondent husband on July 15, 1999. The couple had two children, but the respondent husband filed a petition for restitution of conjugal rights before the family court. However, the matter was amicably settled and they started living together again.

Thereafter, the respondent converted the petition for restitution of conjugal rights into a divorce petition under Section 13 of the Hindu Marriage Act. Family Court allowed the said petition and granted divorce on June 30, 2008. 
In 2009, the application under Sections 12 and 18 of the DV Act was filed by the applicant alleging domestic violence on the part of the respondent husband. The said application was resisted by the respondent on the ground that at the time of filing application, there was no domestic relation. She was not residing with him. She was not a wife in view of the divorce granted, therefore, her application is liable to be rejected. 
The JMFC, Nagpur, dismissed the said application by judgment dated August 20, 2015. Then an appeal was filed before the Additional Sessions Judge, Nagpur, who also recorded in his findings that there was no domestic relationship and, therefore, the applicant is not entitled to relief under the DV Act.
Adv AA Ghonge appeared on behalf of the applicant and Adv RN Sen appeared for the respondent husband.
Ghonge submitted that even though her client is a divorcee, she is entitled to relief under the said Act. She placed heavy reliance on the judgment of the Supreme Court in Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and Anr.
However, the court clarified that the said judgment had been looked at by another bench of the Supreme Court in the case of Inderjit Singh Grewal vs. State of Punjab and Anr, the apex court had found that in the said case, domestic violence took place and an FIR was registered under S.498A and 406 of IPC against the husband and his relatives. Then the wife obtained an ex parte "khula" (divorce) under the Muslim Personal Law from the Mufti and filed a petition under S. 12 of the DV Act, hence. The apex court held that the wife's petition is maintainable.
In the present instance, the court observed-
"In the present case, the applicant is not the wife from the date of decree of divorce i.e. from 30th June 2008 and, therefore, there is no relationship as husband and wife between them at the time of filing of the application." 
After examining a few other judgments of the high court, Justice Giratkar noted-
"There is no dispute that the applicant/wife is no more wife from the decision of family Court in dated 30th June, 2008. The said decision is not set aside by the appellate Court till date. Therefore, it is clear that at the time of filing of petition under the provisions of DV Act in the year 2009, the applicant was not the wife and, therefore, the petition itself was not maintainable."

Finally, referring to a judgment of the Delhi High Court in the case of Harbans Lal Malik vs Payal Malik, the court said-
"In the present case, there was no domestic relation on the date of filing of application under the DV Act and, therefore, the applicant/wife is not entitled for any protection under the said Act."
In the said judgment, the Delhi High Court had observed-
"It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act."
Thus, the revision application was dismissed.

Wednesday, April 24, 2019

Drivers using mobile four times more likely to have accident: WHO report

Drivers who use mobile phones while at the wheel are four times more likely to be involved in accidents, according to the World Health Organisation. It’s far more dangerous if drivers are texting as they take their eyes off the road, posing a much higher risk for all road-users.
According to the WHO, there has been no conclusive evidence to show that hands free devices are safer than hand-held phones indicating how distraction in any form increases manifold the chances of accidents.

Several studies across the globe suggest that drivers take their eyes off the road for an average of 4.6 seconds out of every six seconds while texting. This means a driver would cover a football field without looking at the road while driving at a speed of 80-90kmph and texting.
The WHO says the use of a mobile phone can impair the performance of several driving tasks, leading to longer reaction times to detect and respond to unexpected driving-related events, impaired ability to maintain correct lane position and slower braking reactions with more intensive braking and shorter stopping distances.

The recent death of a child in Delhi after being run over by his uncle who was using his mobile phone while driving has once again pointed to the need of a stronger law to curb the menace, which has been identified as one of the major contributors to road deaths worldwide.
While developed countries identified the use of mobile phones as a major risk factor for road fatalities nearly 7-8 years ago, it was only in 2016 that the Indian government took note of this emerging crisis. According to the annual road accident data published by the road transport ministry, while 2,138 people were killed in 2016 in accidents caused due to use of mobile phones, 4,746 were injured.
The deaths increased to 3,172 in 2017 and the number of people injured also rose to 7,830.

HC orders inventory of FC5 potatoes in cold storages

Upon request by the US food and beverages giant PepsiCo, the Gujarat high court has ordered the court commissioners appointed in the case to visit cold storages in Banaskantha and Sabarkantha district to take stock and prepare inventory of special potatoes that the company holds sole right to grow.

On April 11, a civil court in Deesa town appointed a court commissioner on PepsiCo’s complaint of infringement on its exclusive rights under the Protection of Plant Varieties and Farmers’ Rights Act, 2001 by two farmers Fulchand and Suresh Kachchhawa . The court ordered the court commissioner to visit Kachchhawa’s premise in village Malgadh near Deesa. The court had not ordered for a visit to cold storages, where the company claimed that the potatoes were stored.
The company was not satisfied with the civil court’s order in which it did not order the commissioner to visit the cold storages. It approached the HC, which on April 18 ordered the court commissioner to visit two cold storages named Tirupati Balaji Cold Storage in Deesa of Banaskantha and Harsol near Himmatnagar in Sabarkantha.

The HC has ordered for photographs of the infringing products, type FL-2027 potatoes, registered under trademark of FC5, lying in the cold storages and further to take stock and inventorize the products. the HC ordered to appoint a separate court commissioner for visit to cold storages in Sabarkantha district. The court commissioners have been ordered to work simultaneously on the same day without prior notice to the farmers.

TikTok ban lifted by HC after co assures it of regulation

The Madurai bench of Madras high court on Wednesday vacated its April 3 interim order prohibiting downloading of TikTok after the Chinese company submitted that it had put moderating mechanisms in place to regulate obscene content. However, the HC warned that the company would be charged with contempt of court if the regulatory mechanisms were not found in place.
Senior counsel Isaac Mohanlal representing TikTok argued that the company followed all laid down standards and had better privacy provisions than other social media platforms. It also told the division bench of justice N Kirubakaran and justice S S Sundar that it was only an intermediary platform and did not upload content.

When senior counsel claimed that TikTok had not violated any laws, the court said it was only because there were no laws to address the issues concerning social media platforms, and cited instances where the Parliament took several years to pass legislation.

The court also took note of submissions by amicus curiae Arvind Datar, who said that banning the app -- which is only an intermediary website -- cannot be the solution and cited previous judgments of the Supreme Court and the guidelines of the Information Technology Act. “An intermediary shall not be liable for any data not uploaded by them. There is no obligation on their part for pre-censorship,” said senior counsel citing Supreme Court judgments.
The amicus curiae also said that he met with the officials of the ministry of electronics and information technology and, so far, the Union government had blocked 14,220 websites between 2010-2018 and that this was the first case in the country on an intermediary website.

‘Insurance firm can’t decide line of treatment’

Only doctor and not the insurance company can decide the line of treatment to give to a patient. This observation was made by a consumer court here, which ordered the insurance firm and third-party administrator (TPA) to pay insured amount to a citizen. Complainant Bhanvarlal Purohit, owner of a farsan shop, claimed an insurance amount of Rs 19,457 after his wife Pushpa was discharged from hospital in January 2017. Pushpa was suffering from cervical spondyolis for which she underwent three-day hospital treatment.

A month later TPA Paramount Health Services and Insurance rejected Purohit’s claim on grounds that “no active line of treatment was given during hospitalization”. Purohit’s lawyer Montu Pandya said, “During hospitalization, the doctor prescribed tests, medicines and consulting a physician. But the firm claimed that such treatment was not needed to treat cervical spondylosis and therefore they rejected the claim.”

Purohit then approached the Vadodara District Consumer Disputes Redressal Forum in August 2018 against insurer National Insurance Company and the TPA. He submitted the discharge report along with doctor’s certificate that mentioned Pushpa’s health condition and the treatment offered to her. However, the court ruled that ‘No insurance company can decide the line of the treatment to be given to a patient, only doctors can decide about the treatment.”
The forum upheld the evidence and observed that the TPA has given its opinion after examining the case papers only. “Opinion of the doctor who treated patient is more truthful than the TPA’s opinion which is based on examination of case papers,” the forum stated.
The insurance has been asked to reimburse Bhanvarlal’s claim along with 8% interest and compensation of Rs 3,000.

Tuesday, April 23, 2019

‘Bride’ means trans woman too, rules Madras HC

In a landmark verdict, Madras high court has held that the term ‘bride’ mentioned in the Hindu Marriage Act would also mean transgender woman, and that it would not just refer to a born-woman on her wedding day.

The court also ordered the Tamil Nadu government to issue an order banning sex reassignment surgeries on intersex infants and children.

Justice GR Swaminathan, quoting from the Supreme Court judgments and epics like Ramayana and Mahabharata, said the expression ‘bride’ in the Hindu Marriage Act could not have a static or immutable meaning.

Holding that the expression ‘bride’ would have to include not only a woman, but also a trans woman, the judge directed the authorities to register a marriage between Arun Kumar and Sreeja, a trans woman. They had moved court after the registration department refused to register their marriage, held on October 31 at a temple in Tuticorin, and issue a certificate.

In the process, Justice Swaminathan also comprehensively rejected the government’s contention that the registrar of marriages had powers to refuse registration and stated that since one of them was a transwoman, they did not meet the statutory requirement of the Section 5 of the Hindu Marriage Act, as the term ‘bride’ can only refer to a 'woman on her wedding day.' In this regard, the judge referred to landmark judgment by the Supreme Court, which upheld transgender persons’ right to decide their self-identified gender.

Sunday, April 21, 2019

Driving In High Speed In A Very Busy Road Can Be Said To Be Rash & Negligent: Bombay HC

The Bombay High Court has observed that when a person drives his vehicle in a very high speed, in spite of knowing the fact that it is thickly populated and very busy road, it will be one of the shade of driving the vehicle in rash and negligent manner.
The Trial Court had convicted Popat Bhaginath Kasar under section 304A and Section 279 of the Indian Penal Code. On his appeal, the appellate court acquitted him for the offence under Section 279 of the Indian Penal Code, but affirmed the conviction under Section 304A IPC. The vehicle had hit a seven year old boy who died on the spot.
In his revision petition, Justice VM Deshpande observed that though the speed alone is not a criteria to reach to the conclusion about the rashness on the part of the driver of the offending vehicle, it will be one of the factor as an indicator to show that the driver was driving the vehicle in most rash and negligent manner if he is unable to control the speed of the vehicle.
The court also noticed that it has been brought on record that road on which the incident has occurred, is full of traffic. It said: 
"As seen from the evidence of the two prosecution witnesses, the incident in question has occurred, though at the outskirts of Ahmednagar city, it was thickly populated area and there was heavy rush of various vehicles. In that view of the matter, it was expected from a driver not to drive the vehicle at very high speed at such place. When the driver, inspite of knowing the fact that the spot of the occurrence is thickly populated and very busy road, still allows himself to drive the vehicle in very high speed, in my view, it will be one of the shade of driving the vehicle in rash and negligent manner. In the incident, had the driver at the relevant time, was driving the vehicle in not in rash and negligent manner, life of a boy, namely Neeraj, aged about seven years, could have been saved. Due to the rash and negligent act on the part of the Applicant, his precious life was cut-short."
Dismissing the revision petition, the court said:
In my view, driving the vehicle in a high speed in the area which is thickly populated and having too much movements, is one of the shade by which it could be said that it is a rash and negligent driving.

Saturday, April 20, 2019

Bom HC | Divorced wife cannot file application under Domestic Violence Act; application filed under Ss. 12 and 18 rejected in absence of “domestic relationship”

M.G. Giratkar, J. refused to interfere with an order of the Judicial Magistrate as confirmed by the Sessions Judge, whereby the application filed by the applicant under Section 12 and 18 of the Protection of Women from Domestic Violence Act, 2005 was dismissed.

The applicant married to the respondent in 1999, However, a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 had been passed by the family court in 2008 at the instance of the husband. The application under the DV Act was filed by the applicant in 2009, i.e., subsequent to the grant of divorce. The respondent resisted the application on the ground that there was no “domestic relationship” between them and therefore any application under DV Act was not maintainable. The application was rejected by the Judicial Magistrate as well as the Sessions Judge. Aggrieved thereby, the applicant filed the present revision application.

Amruta A. Ghonge, Advocate led arguments for the applicant. Per contra, R.N. Sen, Advocate appearing for the respondent, resisted the application.

After perusing a conspectus of decisions of the Supreme Court as well as High Courts, the Court came to the conclusion that no relief could be granted to the applicant. It was observed: “In the present case, divorce was granted by the family Court vide order dated 30-06- 2008. Application under the DV Act was filed in the year 2009. At the time of filing of application under the DV Act, the applicant was not the wife. There was no domestic relationship between them. Hence, orders passed by the learned JMFC, Nagpur and maintained by Additional Sessions Judge, Nagpur in Criminal Appeal No. 235 of 2015 are perfectly legal and correct.” In such view of the matter, the revision application was dismissed. [Sadhana v. Hemant, Criminal Revision Application No. 121 of 2018, decided on 18-04-2019]

Tuesday, April 16, 2019

Election Poll code not applicable to cooperatives: HC

In an important order, the Gujarat high court on Tuesday held that the model code of conduct (MCC) for elections cannot be applied to a cooperative society since it is not a government instrumentality.
A bench of Justice Harsha Devani and Justice Bhargav Karia quashed the district election officer’s order cancelling a special general body meeting that was to be convened by the Mehsana District Co-operative Milk Producers Union Ltd (Dudhsagar Dairy).
According to the dairy’s counsel Dipen Desai, the dairy set an agenda on March 8 to convene a meeting to amend its bylaws. On March 10, it decided to convene the meeting on March
24. The general election was announced on March 10 and the model code of conduct came into force.
On March 16, the district collector received a complaint that the dairy’s decision taken on March 10 to convene a meeting was a violation of the MCC. The district collector sought the district registrar’s opinion on March 19 and stopped the dairy from going ahead with its programme citing the MCC.
The dairy approached the HC contending that the MCC is not applicable to it, being a cooperative, because it does not avail of government funds.

HC scraps govt’s ₹10k limit for support to students

In a major beneficiary boost to Gujarat’s private schools, the Gujarat high court has removed the ceiling of Rs 10,000, the maximum amount that can be reimbursed by the state government to private school for expenditure incurred on a primary student admitted on free seat quota under the RTE Act.
Two associations of nearly 7,000 private schools had challenged a July 2015 government resolution fixing a cap on reimbursement by the government. This ceiling was later increased to Rs 13,500.
The high court has ruled that the government cannot fix such an amount under the provisions of section 12(2) of the Right to Education (RTE) Act. Each non-granted and private school is mandated to admit 25% students from economically weaker section under the RTE laws. The high court has clarified that the non-granted schools are entitled to reimbursement of an amount equal to the amount they actually charge from other students or the amount the government spends per child, whichever is less. It further said that the mode of reimbursement could be prescribed by the state government. The school associations’ case got strengthened when the state government itself admitted that it had spent Rs 11,658 per student in 2013-14, Rs 14,477 in 2014-15 and Rs 15,607 in 2015-16. Since the government had spent more than the maximum amount fixed for private schools for reimbursement, it could not have issued the GR fixing the reimbursement amount, the high court observed. With observation that the government cannot snatch private school’s entitlement to a certain amount by issuing a GR, Justice Bela Trivedi quashed the resolution. The private schools had also challenged the issues regarding non-payment of hostel, lodging, boarding, mess transportation etc, but the state government assured to resolve the issues in September 2016. Therefore the petitioners did not press these demands.
On the dispute, president of Akhil Gujarat Rajya Shaala Sanchalak Mahamandal, Narayanbhai Patel, said, “Our demand before the government was that the schools should be reimbursed the amount local district panchayat and municipal corporation spend per child We had made several representations before the government but to no effect. Therefore we approached the high court.”

Bangladeshi actor Ferdous Ahmed was forced to leave India

MHA Cracks Whip For Visa Rule Violation

Bangladeshi actor Ferdous Ahmed was forced to leave India on Tuesday after he was ordered by the ministry of home affairs to exit the country for campaigning for the Trinamool Congress on Sunday.
“Ferdous Ahmed left the country this (Tuesday-16/04/2019) afternoon after MHA asked the actor to leave India.” 
MHA has sought a report from the West Bengal government and the local Foreigner Regional Registration Office, prompting FRRO to probe whether the actor had violated work visa rules by campaigning for TMC’s Raiganj candidate Kanaia Lal Agarwal.
Bangladesh deputy high commission officials confirmed that Ahmed’s visa did not allow him to take part in political campaigns. The officials had called the actor on Sunday itself to inquire about the issue after his campaigning sparked a political stir. Ahmed reportedly replied that he was shooting near Raiganj on Sunday afternoon and “could not turn down TMC’s request for campaigning”.

Monday, April 15, 2019

Regularization Obtained By Misrepresenting Facts Cannot Be Sustained; SC Upholds Termination Of A 'Chowkidar'

Read Judgment
Holding that the appointment of a Chowkidar on regular basis was invalid, the Supreme Court observed an order of regularization obtained by misrepresenting facts, or by playing a fraud upon the competent authority, cannot be sustained.
Karamjit Singh was appointed as a Chowkidar on daily wages by the Punjab Urban Planning and Development Authority on 1st December 1995. His name was on the muster rolls till 31.03.1997. The Government of Punjab revised the Policy for regularization of work-charged / daily wage and other categories of employees who had completed 3 years of service. Even though he had only worked for a few months, Singh's name got into the list and was regularized w.e.f. 06.11.2001.
Some other employees challenged the regularization and the High Court directed the department to look into the matter. In the enquiry, it was found that Singh had not completed the requisite period of 3 years' service prior to 22.01.2001. Consequently, the Chief Administrator annulled the regularization.
Singh challenged this termination before Industrial Tribunal. As the tribunal dismissed his plea, he approached the High court which held that the department ought to have issued a chargesheet, conduct an enquiry against a permanent employee, before terminating or dismissing him from service under the Regulations. It observed that "rightly or wrongly" Singh's services had been regularized.
Setting aside the High Court order, the bench observed that Singh was disentitled from getting the benefit of a regular appointment with the Authority, in the absence of fulfilling the pre-requisite requirement. The bench observed:
"The appointment of the Respondent on regular basis was invalid since the Respondent did not have the pre-requisite experience of 3 years' continuous service prior to 22.01.2001. The Respondent had sought to secure regularization on the basis of interpolation in the final list of employees recommended for regularization. Such an appointment would be illegal and void ab initio, and cannot be sustained."

Saturday, April 13, 2019

No bar on attachment of Pension to recover Maintenance, Bombay HC

The Bombay High Court recently held that there is no bar on attaching a husband’s pension for the purpose of recovering maintenance due to his wife.
Sitting at the Nagpur Bench, Justice MG Giratkar passed a judgment to this effect while disposing of a revision application filed against an interim order of the Magistrate Court. During the course of proceedings initiated under the Domestic Violence Act, the Magistrate had ordered the attachment of the husband’s pension to secure the payment of Rs 30, 000 as interim maintenance to the wife every month.
The husband had filed a revision application challenging the same. For the husband, it was contended that the Magistrate had overstepped his jurisdiction in ordering the attachment of pension for recovery of maintenance. In this regard, reference was made to Section 11 of the Pensions Act, 1871 which deals with “exemption of pension from attachment”. This provision states that,
No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance. shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, for, any demand against the pensioner, or in satisfaction of a decree or order of any such Court.”
The Court, however, pointed out that the provision only bars attachment of pension at the instance of a creditor. It was observed,
The above said Section shows that in civil disputes pensions cannot be attached at the instance of creditors.
On the other hand, it was noted that a wife cannot be termed a creditor. Therefore, the Court concluded that the attachment of pension cannot be barred for the recovery of maintenance in favour of the wife. This was supported by commentary relied upon by the husband’s counsel. The Court noted,
“… Commentary relied on by learned counsel for the applicant/husband at serial No.16 under head of attachment shows that, ‘maintenance allowance granted to wife cannot be considered as debt. She is not a creditor hence exemption under S.11 cannot be granted to husband. (1985)87 Punk LR 682 : (1985) 12 Cri LT 219’. 
The said commentary itself shows that pensions can be attached to recover amount of maintenance. Hence, the stand taken by learned counsel for the applicant/husband that pensions cannot be attached is not digestible.
In view of this observation, the Court refused to quash the Magistrate’s order on the aspect of attaching the husband’s pension for recovering the maintenance due to his wife. However, the Court reduced the amount of maintenance payable from Rs 30, 000 to Rs 20, 000, opining that the amount ordered to be paid by the Magistrate was exorbitant on the facts of the case.
Accordingly, the Court ordered as follows,
Instead of Rs.30,000/­ per month, the applicant/husband shall pay Rs.20,000/­ per month towards interim maintenance to his wife during the pendency of D.V.Act proceedings.
The order of attachment of pension is hereby quashed and set aside subject to the applicant/husband clears all arrears of maintenance within a period of one month from today.
Before parting with the matter, the Court also directed the Magistrate to conclude the case within a period of three months.

Friday, April 12, 2019

Supreme Court directs parties to give details of donations received via electoral bond

The SC ordered all political parties to furnish the details of the electoral bond in a sealed cover by May 31.
Hearing a petition challenging the validity of the electoral bond scheme, the Supreme Court on Friday directed all political parties to furnish details of donations received via these bonds and said that the issue raised in the petition is "vital to fairness” of electoral process.
The SC bench headed by CJI Ranjan Gogoi said that all political parties give details of all donations received through electoral bond till date and the bonds they would receive till May 15 to Election Commission in a sealed cover by May 31. The details will include the name of the donors and the amount received till date.