ISSUE -4 (MARCH 01 – MARCH 07)


VOX IURA - Issue 4
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SUPREME COURT CASES


1. CONTRACT IS VOID IF PROHIBITED BY STATUTE UNDER A PENALTY EVEN IF IT DOES NOT EXPRESSLY DECLARE IT VOID: SUPREME COURT

Case: Asha John Divianathan vs. Vikram Malhotra [CA 9546 OF 2010]

The Supreme Court observed that a contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void. The issue considered by the Court in this case was whether the transaction entered into in contravention of Section 31 of the Foreign Exchange Regulation Act, 1973, is void or is only voidable and it can be voided at whose instance? Foreign Exchange Regulation Act was repealed in 1998 and replaced by Foreign Exchange Management Act. As per Section 31, a person, who is not a citizen of India, is not competent to dispose of by sale or gift, as in this case, any immovable property situated in India without previous general or special permission of the RBI. Violation of Section 31 is punishable under section 50. 2. FIR CAN BE QUASHED BY INVOKING ARTICLE 226: SUPREME COURT

Case Name: Kapil Agarwal vs. Sanjay Sharma [Cr. Appeal No. 142 OF 2021].

The Supreme Court bench comprising of Justices DY Chandrachud and MR Shah has pronounced that a High Court, invoking its powers under Article 226, can quash an FIR if the same is found to be an abuse of process of law. While allowing the appeal, the bench observed that the inherent jurisdiction under Section 482 of CrPC and/or under Article 226 is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment.


3. RECRUITMENT TO PUBLIC SERVICES MUST COMMAND PUBLIC CONFIDENCE: SC UPHOLDS CANCELLATION OF EXAMINATION BY DELHI SUBORDINATE SERVICES SELECTION BOARD

Case: Sachin Kumar vs. Delhi Subordinate Service Selection Board [Civil Appeal Nos 639-640 of 2021].

The Apex Court, while upholding the cancellation of the Tier-I and Tier-II examinations held in 2009 for recruitment to the post of Head Clerk [Grade II (DASS)], remarked that recruitment to public services must command public confidence. The bench comprising Justices D.Y. Chandrachud and M.R. Shah observed that “Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment".


4. CENTRE HAS DUTY TO CREATE ADDITIONAL COURTS FOR BETTER ADMINISTRATION OF LAWS MADE BY PARLIAMENT: SC

Case name: In Re Expeditious Trial of Cases under Section 138 of the N.I Act.

A bench comprising Chief Justice of India S.A. Bobde, Justices L. Nageswara Rao and S. Ravindra Bhat expressed a prima facie view that the Union Government has a duty to create additional courts for the better administration of the laws made by the Parliament. The Bench opined that the power under Article 247 of the Constitution, which speaks about the power of the Parliament to provide for the establishment of certain additional courts in respect of matters under the Union List, is "coupled with a duty" on the part of the Central Government to establish additional courts. The bench made this significant observation while considering the suo moto case taken to evolve measures to expedite trial of cheque bounce cases u/s.138 of the Negotiable Instruments Act.


5. SUPREME COURT DISMISSES PIL CHALLENGING 'CENTRE'S OVERRIDING POWER' OVER DEPUTATION/TRANSFERS OF IPS OFFICERS

Supreme Court on 01/03/2021 dismissed a PIL challenging the constitutionality of Rule 6(1) of the Indian Police Service (Cadre) Rules, 1954 for conferring powers on the Central government to override the states in matters of transfer and deputation of IPS cadre officers. The Petitioner contended that the impugned Rule creates unjustifiable and illegal deviation from the intent of the Constitution makers to create harmony between the Centre and States and to boost up the essence of Centre-State relations which is a paramount requirement in order to create a welfare state.


OTHERS

1. OTT platforms will not have to register: Centre

Context:

The government has announced a regulatory and grievance redressal mechanism for over-the-top (OTT) platforms, social media and digital media in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Details:

The guidelines include social media sites, messaging apps, over-the-top streaming services (popularly known as OTT services), and digital news publishers.

Under the guidelines, it appears as if the citizens have been empowered and that there is now a fair grievance redressal mechanism for users of digital platforms.

Issue:

The new governmental guidelines to regulate digital content raise a fundamental legal and ethical question: are they contra constitutional?

For many advocates of the freedom of expression, the guidelines virtually undermine the enabling provisions of Article 19 of the Constitution.

It weaponises the restrictive clause of reasonable restriction, without really spelling out what constitutes reasonable restriction.

Concerns:

Tricky Rule:

The tricky new rule states that big social media companies will have to take down unlawful content within a specific time frame of being served either a court order or notice by an appropriate government agency.

There has been no satisfactory answer from the government on what basis it issues a takedown instruction to major social media platforms.

More opacity:

The new rules pave the way for more opacity and secrecy rather than transparency and accountability.

Unbridled power for the executive:

While the earlier regulatory framework was murky with many lines blurred and the onus of responsibility constantly oscillating between the originator and the intermediaries, the new guidelines give the executive unbridled power without any checks and balances.

From arbitrary takedown notices to selective shutting down of Internet services, the executive has been arming itself against the citizens, and the two important estates of democracy — the legislature and the judiciary — are not sufficiently reflecting on the question of overreach.

In a polarised environment, an informed debate is restricted to some print and online organisations.

Issues relating to individual privacy:

To ensure individual privacy on social media platforms, the introduction of end-to-end encryption was seen as a technical solution to a truly vexatious issue.

However, under the new rule, social media intermediaries must enable tracing of the originator of information on their platform if required by a competent authority, yet again raising the question of individual privacy.


CLAT

1. Which of the following statements cannot be identified as a limitation upon the Doctrine of Legitimate Expectation?

a) The concept of Legitimate Expectation is only procedural and has no substantive impact.

b) The doctrine does not apply to legislative activities.

c) The doctrine does not apply if it is contrary to Public Policy or against the security of state.

d) There are parallels between the Doctrine of Legitimate Expectation and Promissory Estoppel.

2. Which of the following is not true in relation to the Doctrine of Legitimate Expectation as observed by the Supreme Court in "Monnet Ispat and Energy ltd. V. Union of India"?

a) The Doctrine of Legitimate Expectation cannot be invoked aa a substantive and enforceable right.

b) The Legitimate Expectation is different from anticipation and an anticipation cannot amount to an assertable expectation

c) The Doctrine fails where an overriding public interest justifies the change in Administrative Policy .

d) The Doctrine of Legitimate Expectation is founded on the principles of reasonableness and fairness.

3) Which of the following cases can be traced as the origin of the Doctrine of Legitimate Expectation?

a) Attorney General of Hong Kong v. Ng Teen Shit

b) Schmidt v. Secy of State for Home Affairs

c) Food Corporation of India v. kamdhenu Cattle Feed Industries

d) Breen v. Amalgamated Engg. Union

4) Which of the following is not a ground for judicial review of a discretionary action of an Administrative Authority in India?

a) Failure to exercise discretion

b) Excess or abuse of discretion

c) A breach of rules of Natural Justice

d) None of the above

5) What is the meaning of a writ of Certiorarified Mandamus?

a) A writ of Mandamus, issued against an adjudicating body to quash a decision

b) A writ of Certiorari issued to an administrative body to quash its decision.

c) A simultaneous writ to quash a decision and also to give a direction.

d) A simultaneous writ to quash a direction and give a decision.


JUDICIARY EXAMINATION QUESTIONS

1. A litigation commences from the date of______________

(A) Cause of action

(B) Presentation of plaint before the court

(C) From the date of receipt of summons by defendant

(D) From the date of numbering of plaint


2. ”A” gives a lakh of rupees to B reserving to himself with B’s assent, the right to take at pleasure Rs. 10,000/- out of one lakh. Examine legality of this gift.

(A) Whole of the gift is void

(B) Voidable

(C) Onerous gift

(D)The gift holds good as to Rs.90,000/- but is void as to Rs.10,000


3. In which of the following cases, the Doctrine of lis pendens’ will not apply

(A) Suit results in consent/compromise decree

(B) Suit decided ex parte

(C) Friendly suits brought by agreement of parties to obtain declaration of their rights

(D) During pendency of writ petition


4. Which of the following statement is correct?

Statement 1: Gift deed of an immovable property of value less than Rs. 100 requires compulsory attestation by witnesses and registration.

Statement 2: Necessity for examining the attesting witness arises only when the gift deed is specifically denied.

Statement 3: Irrespective of the fact whether the gift deed is denied or not, examining the attesting witness is a condition precedent.

(A) All the three are correct

(B) 1 and 2 are correct

(C) 1 and 3 are correct

(D) 2 and 3 are correct.


5. Ramesh, an advocate, takes up a private employment. Ram, his erstwhile client approaches him for legal advice and the same is given by Ramesh. Later in a criminal proceeding, Ramesh was called upon to disclose his communication with Ram. Ramesh also disclosed the same in court

(A) Ramesh’s evidence is privileged under Section 122 of Indian Evidence Act

(B) Ramesh’s evidence is not privileged under Section 122 of Indian Evidence Act

(C) Ramesh has waived his privilege under Section 122 of Indian Evidence Act and so it can be received in evidence

(D) Ramesh can give evidence only after seeking permission from the Court


ANSWERS

CLAT

1) Option A

2) Option A

3) Option B

4) Option A

5) Option C


JUDICIARY

1. ANSWER: (C)

Relevant Provision:

Plaint is defined in Order VII of Civil procedure Code, 1908. It consists of 18 rules.

Order VII should be read with Section 26 of the Code.

Explanation:

The expression 'Plaint' has not been defined in the Code.

A plaint is a legal document which contains the written statement of the plaintiff's claim. A plaint is the first step towards the initiation of a suit. It can be said to be a statement of claim, a document, by the presentation of which the suit is instituted. It is a pleading of the plaintiff.

When a person begins a civil lawsuit, the person enters into a process called litigation.

Plaint is the statement or a document in which the plaintiff put forwards his claims before the court and it is by the presentation of the plaint that the suit is instituted.

The main stages of litigation are:

i. Investigation

ii. Pleadings

iii. Discovery

iv. Pre-trial

v. Trial

vi. Settlement

vii. Appeal

Case law:

In the case of ONGC Ltd. v. Modern Construction and Company, it was held that where the plaint is presented before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted even if it stood concluded before the previous court.


2. ANSWER: D

Relevant provisions:

According to Section 126 of TP act, The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor it shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part at the mere well of the donor is void wholly or in part, as the case may be.

Explanation:

The suspension or revocation can be done in two modes..


1.Revocationby mutual agreements: when both the parties i.e. donor and donee agree that the gift will be suspended or revoked on happening of some event, provided that, that particular event is not dependent upon the will of the donor.

The condition for revocation is condition subsequent and it must be valid and enforceable. If any such condition is not valid, the gift cannot be revoked.

It is also necessary that the condition upon which the gift is agreed to be revoked must be a condition subsequent, the fulfilment of which is not dependant on the will or desire of Donor. The condition subsequent must be in the nature of future event beyond the control of Donor.

Where the stipulation provided for revocation of gift at the will or pleasure of donor, the stipulation is void and gift is not revoked although such stipulation is merely agreed upon by Donor and donee. Gift revocable at the will of the donor is void. So A makes a gift of One lakh rupees to B reserving to himself with B’s assent the right to take back at his (A’s) Pleasure Rs. 10,000/- out of this amount. The gift as to Rs. 90,000/- is valid but as regards Rs.10,000/- the gift is void, i.e., it shall continue to belong to A. Law shall consider that no Transfer of Rs. 10,000/- was made at all.


2. Revocation by the recession of contract: gift deed is always preceded by an express or implied contract. As per the Indian contract act, all the essentials of a valid contract should be fulfilled. If any essential is not fulfilled, it can be revoked.

For example, if a gift is made out of coercion it means that the donor’s consent was not there and therefore it can be revoked.


3. ANSWER: C

Relevant Provision :

Lis Pendens is captured in Section 52 of the Transfer of Property Act, 1882.

General Meaning:

‘Lis’ means an action or a suit and ‘Pendens’ means pending. Hence, Lis Pendens means during the pendency of a suit.

Maxim: "ut lite pendente nihil innovetur" i.e. during the pendency of litigation; no new rights shall be introduced.

Objectives of this Doctrine :

(i) Avoiding endless litigation,

(ii) Protecting either party to the litigation against the act of the other,

(iii) Avoiding abuse of legal process.

Non – Applicability of Doctrine of Lis Pendens:

  • A sale made by the mortgagee in the exercise of the power as conferred by the mortgage deed.

  • In matters of review;

  • In cases where the transferor is the only party affected;

  • In cases of friendly suits;

  • In cases where the proceedings are collusive;

  • In case of suits involving pending transfers by a person who is not a party to the suit;

  • In cases where the property has not been properly described in the plaint;

  • In cases where the subject matter of rights concerned in the suit and that which are alienated by transfer are different.

Case law:

The Supreme Court in the case of Jayaram mudaliyar vs Ayyaswami has held that the purpose of Sec 52 of Transfer of Property Act, is not to deprive the parties of any just and equitable claim but to ensure that the parties subject themselves to the jurisdiction and authority of the court which shall decide the claims that are put before it.


4. ANSWER: (B)

Relevant provision

Section 123 of Transfer of property act states that, “For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.”

Section 68 of Indian evidence act states that, Proof of execution of document required by law to be attested- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

Explanation

Immovable property:

In the case of an immovable property, registration of the transfer is necessary irrespective of the value of the property. . In the case of Gomtibai v. Mattulal, it was held by the Supreme Court that in the absence of written instrument executed by the donor, attestation by two witnesses, registration of the instrument and acceptance thereof by the donee, the gift of immovable property is incomplete.

Registration of the gift of immovable property is must; however, the gift is not suspended till registration. A gift may be registered and made enforceable by law even after the death of the donor, provided that the essential elements of the gift are all present. There is no requirement for delivery of possession in case of an immovable gift.

Movable properties

In case of movable properties, it may be completed by the delivery of possession. Registration in such cases is optional. The gift of a movable property effected by delivery of possession is valid, irrespective of the valuation of the property. The mode of delivering the property depends upon the nature of the property.

In the case of Govindbhai Chhotabhai Patel vs Patel Ramanbhai Mathurbhai the SC held that, unless the execution of a Gift Deed is specifically denied, it is not mandatory to specifically lead the evidence of an attesting witness under Section 68 of the Indian Evidence Act to prove the Gift Deed.


5. ANSWER: ALL THE ABOVE

Since all the options are not relevant to this question, mark is awarded to all the options. Professional communication between a legal adviser and a client is accorded protection under the Indian Evidence Act 1872, the Advocates Act 1961 and the Bar Council of India Rules.


Relevant Provisions:

Section 126 of the Indian Evidence Act, 1872: Professional Communications

No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment;

Provided that nothing in this section shall protect from disclosure—

(1) Any such communication made in furtherance of any illegal purpose;

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or no behalf of his client.

Section 2(a) of the Advocates Act defines advocate as an advocate entered in any roll under the provisions of the Act.

Rule 49 of the BCI Rules states that an advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, as long as he or she continues to practice and shall, on taking up any such employment, disclose the fact to the Bar Council on whose roll his or her name appears, and shall thereupon cease to practice as an advocate so long as he or she continues in such employment.

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