ISSUE-XIV (NOVEMBER 30-DECEMBER 6)


VOX IURA MAGAZINE ISSUE
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1. DENIAL OF LEGITIMATE EXPECTATION CAN BE A CIRCUMSTANCE LEADING TO ARBITRARINESS AND VIOLATION OF ARTICLE 14 OF THE CONSTITUTION.

Name of the case: State of Jharkhand and others v Brahmaputra Metallics Ltd Ranchi and others

The judgment delivered by the Supreme Court on December is a good reference to understand the concepts of legitimate expectation and promissory estoppel. The judgment pronounced by a bench comprising Justices D Y Chandrachud and InduMalhotra also illustrates how the doctrine of legitimate expectation can be used against arbitrary State action to claim relief.

Doctrine of Legitimate Expectation

This doctrine developed is in parallel to the doctrine of promissory estoppel. The doctrine of legitimate expectation is founded on the principles of fairness in government dealings. It comes into play if a public body leads an individual to believe that they will be a recipient of a substantive benefit.

Another key principle which flows out of the judgment is that deprivation of legitimate expectation is justifiable only on the ground of public interest. The Court noted that no reason based on public interest was cited by the State in the instant case. "A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest", the Court observed. "Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, we hold that such a course of action by the State is arbitrary and is violative of Article 14", the Court said.


2. CONDUCT OF PUBLIC BODIES HAS TO BE FAIR & NOT ARBITRARY; DO NOT FORCE CITIZENS TO APPROACH COURTS: SUPREME COURT


Name of the case: Chief Executive Officer and Vice Chairman Gujarat Maritime Board vs. Asiatic Steel Industries Ltd [C.A. NO. 3807 OF 2020]


Facts of the Case: In the year 1994, Asiatic Steel was allotted a plot for ship-breaking of "very large crude carriers/ultra large crude carriers‟ as it became the highest bidder. The bid payment was made on 22.03.1995 in foreign currency, to the tune of $1,153,000, while the earnest money deposit of ₹5,00,000/- was paid on 08.11.1994. On 23.02.1995, Asiatic Steel and other allottees approached the Board citing difficulties in commencing commercial operations, on account of the connectivity to the plots and the existence of rocks inhibiting beaching of ships on the plot for the purpose of ship-breaking. The Board, through a notice dated 19.05.1998, stated that an amount of ₹3, 61, 20,000/- would be refunded, but without interest. The Asiatic Steel, therefore, approached the High Court, by filing writ petition. The Board was directed by the High Court to (i) refund the earnest money of ₹5,00,000/- with interest at 10% p.a., in accordance with the resolution of 17.12.2014; and (ii) pay interest of 6% on the Principal from 08.11.1994 to 19.05.1998.


HELD: While upholding the High Court’s judgment, the bench comprising Justices Indira Banerjee and S. Ravindra Bhat observed that the Board's conduct or indifference in regard to the refund sought can be only on the premise that it wished the parties to approach the court, till a decision could be taken to refund the amounts received by it. The Supreme Court observed that, the conduct of a public body charged to uphold the rule of law, has to be fair and not arbitrary.

3. DOWRY DEATH - NO CONVICTION UNDER SECTION 304B IPC IF UNNATURAL DEATH IS NOT ESTABLISHED: SUPREME COURT

Name of the Case: Sandeep Kumar and others v State of Uttarakhand The SC held that the offence of dowry death under Section 304B of the Indian Penal Code cannot be made out if the cause of death has not been established as unnatural. The Court also held that it has to be shown that the deceased wife was subjected to cruelty or harassment in connection with demand for dowry soon before her death. Holding that these factors were not established, the Supreme Court set aside the conviction and life sentence awarded by the Uttarakhand High Court to three persons (husband, father-in-law and mother-in-law of the deceased wife) under Section 304B IPC

4. HIGH COURTS HAVING NO COMMERCIAL DIVISION COMPETENT TO CONSIDER CANCELLATION OF DESIGN UNDER SECTION 22(4) OF DESIGNS ACT : SUPREME COURT Name of the case: S D containers, Indore v. MoldTek Packaging Ltd

The Supreme Court on December 1 in the case of S D containers, Indore v. MoldTek Packaging Ltd held that it is not necessary that a suit involving the issue of cancellation of design under Section 22(4) of the Designs Act should be heard by a High Court having a Commercial division. It was held that a High Court without civil jurisdiction and a commercial division is competent to consider such a case.

As per Section 22 of the Designs Act, a defendant in a suit for infringement of design is entitled to raise a defence that the registration of design is liable to be cancelled. Section 22(4) states that if such a defence is raised, the Court in which the suit is pending shall transfer it to the High Court.

Background of the case

In the instant case, S D Containers instituted a case in the District Court, Indore, for infringement of design of its container lids against the defendant. The defendant raised a counter-claim seeking cancellation of the design. In this backdrop, the District Court chose to exercise the power under Section 22(4). However, the District Court ordered the transfer of the suit to the Calcutta High Court on the reasoning that the Madhya Pradesh High Court has no commercial division (since it has no original civil jurisdiction). The Court noted that after the enactment of Commercial Courts Act, 2015, cases under the Designs Act over the specified pecuniary limit had to be dealt with by the Commercial Courts. Aggrieved by the transfer of the case to Calcutta High Court, the plaintiff approached the Madhya Pradesh High Court(Indore Bench).The High Court held that since the Commercial Courts Act 2015 has an overriding effect, the suit has to be considered by a Commercial Court and not the High Court as envisaged by the Designs Act.

The Supreme Court disapproved the reasoning of the High Court. The Apex court approved the decision of the District Court to transfer the case to the High Court but held that it erred while ordering its transfer to the Calcutta High Court. Since no part of cause of action has arisen within the jurisdiction of Kolkata, the suit is liable to be transferred to Madhya Pradesh High Court, Indore Bench.

5. LOTTERY, GAMBLING AND BETTING TAXABLE UNDER GST ACT: SC

Name of the case: Skill Loto Solutions Pvt Ltd v. Union of India (WP (c) No.961 of 2018)

A three-judge Supreme Court bench led by Justice Ashok Bhushan held that lottery, betting and gambling are ‘actionable claims’ and come within the definition of ‘goods’ under Section 2 (52) of the Central Goods and Services Act, 2017. The bench stated that the levy of GST on lotteries did not amount to “hostile discrimination” and held that lottery, gambling and betting are taxable under the GST Act.

The Supreme Court also reiterated the importance of Article 32 of the Constitution of India. It observed that Article 32 is an important and integral part of the basic structure of the Constitution which is meant to ensure observance of rule of law. It provides for the enforcement of fundamental rights, which is most potent weapon.

6. NOT USING MASKS FLOUTS FUNDAMENTAL RIGHTS: SC

The Supreme Court said that people who do not wear masks in public and follow safety norms during this COVID-19 pandemic violate the fundamental rights of others. A three-judge bench headed by Justice Ashok Bhushan expressed deep anxiety about the lack of implementation of COVID-19 norms across the nation and stayed a Gujarat High Court order which directed people who do not wear masks to be sent for community service at COVID-19 care centres in the State. Solictor-General Tushar Mehta said that the HC’s order may lead to a cure worse than the disease itself.

7. LONG DELAY IN LODGING A FIR A VALID GROUND FOR ANTICIPATORY BAIL: SC

Name of the case: Sumedh Singh Saini v. State of Punjab

Background: The FIR alleged that Balwant Singh Multani was killed in State-managed elimination around the month of December 1991. Allegedly, during the tenure of Sumedh Singh Saini as SSP, Chandigarh on the early morning of 11.12.1991 the police of Chandigarh swooped upon the residence of the deceased and took him away forcibly and illegally without assigning any reason.

The Punjab and Haryana High Court had dismissed his application seeking anticipatory bail. In appeal before the Apex Court, Saini contended that the present FIR is filed with a malafide intention to harass him at the instance of the present party in power in the State. It was submitted that the present FIR is not maintainable as being a second FIR on the same set of facts and has been registered after delay of 29 years of the alleged incident.

Held: The bench headed by Justice Ashok Bhushan while allowing the anticipatory bail observed that a long delay in lodging FIR can be valid consideration for grant of anticipatory bail.

8. SC COMES DOWN HEAVILY ON TELANGANA GOVT FOR “INSENSITIVITY” TOWARDS CASE OF BHEL OFFICER’S SUICIDE DUE TO WORKPLACE SEXUAL HARASSMENT

Name of the case: Rajkumari Chouskey v. State of Telangana & Ors.

The Supreme Court on 4/12/2020 in RajkumariChouskey v. State of Telangana&ors.came down heavily on Telangana Government and Telangana State police for their insensitive approach towards a BHEL employee who committed suicide last year on account of workplace sexual harassment. Despite a lapse of more than eight months, the Telangana state police not even filed the charge sheet. The main accused of the instant crime is a native of the state of Telangana, whereas the deceased was a Hindi speaking outsider, belonging to Bhopal, MP. Hence, there is strong apprehension to the mind of the petitioner that the Telangana police have a strong linguistic and regional bias in favour of the accused and against the deceased.

9. SC ASKS CHAR DHAM PANEL TO DISCUSS MINISTRY PLEA

‘Committee must meet within 2 weeks’. The Supreme Court on Wednesday asked the Char Dham High-Power Committee (HPC) to meet “immediately” and discuss a plea made by the Ministry of Defence that narrowing the feeder roads along the Indo-China border in Uttarakhand will cause “serious repercussions” to national security and urgent troop mobilisations. A Bench led by Justice RohintonNariman asked the HPC to meet within two weeks and submit a report on the minutes of their meeting to the court with copies to the Ministries of Defence and Highways. The Bench has scheduled the next hearing in the third week of January.

10. RIGHT TO REJECT: PLEA IN SUPREME COURT SEEKS DIRECTION TO ECI TO NULLIFY ELECTION IF MAXIMUM VOTES POLLED TO NOTA

The plea by the Supreme Court lawyer AshwiniUpadhyay contends that people in constituencies are totally discontented with candidates presented before them due to the reason that political parties choose their candidates in a very undemocratic manner without consulting their electors.It is prayed in the plea that the court direct the ECI to use its powers under Article 324 to nullify and hold fresh elections if maximum votes have been casted in favour of NOTA and restrict such candidate from participating in fresh election. 11. PLEA ON LIFE BAN ON CONVICTED LEGISLATORS IN THE SC

The Central government has told in its affidavit to the Supreme Court that it rejected the idea of barring convicted legislators for life term from contesting elections, forming or becoming an office-bearer of a political party. The government said disqualification under the Representation of the People Act of 1951 for the period of imprisonment and 6 years thereafter was sufficient for legislators. This case is based on a plea by SC advocate who argued that a life ban on conviction should uniformly apply for members of the judiciary, executive and the legislature, without any discrimination.

12. PRIVATE FINANCIAL INSTITUTIONS CAN’T BE CONSIDERED ‘STATE’ UNDER ARTICLE 12: ALLAHABAD HC

Name of the case: Kailashi Devi v. Branch Manager &Anr.

The Petitioner has taken a commercial loan from HDFC bank and defaulted in payment of installments. A writ petition was filed against HDFC bank seeking to accept the balance loan amount of the petitioner in accordance with the circular issued by the Reserve Bank of India due to Covid-19 and extend the due date of installment for 6 months exempting interest for this period. The Allahabad HC observed that the private bank (HDFC) did not fulfill the factors that determine ‘State’ as enumerated in the precedentsFederal Bank Ltd. V. Sagar Thomas & others, and AjaiHasia v. Khalid Mujib. Thus, the Allahabad HC dismissed the writ petition and reiterated that private institutions, carrying business or commercial activity, maybe performing public duties, but cannot be regarded as “State” under Article 12 of the Indian Constitution.

13. ALLEGATIONS LEVELLED AGAINST A POLICE OFFICER WOULD NOT INCITE THE DISAFFECTION FOR THE FORCE: BOMBAY HC

Name of the case: Ravindra v. The State of Maharashtra and others

Background: On 02.03.2020 one lady police officer had given report against Mr. Harshwardhan Govind (Respondent 4) who is working as a Police Inspector in Tuljapur Police station, District Osmanabad that he had sexually exploited her and he had committed the offence punishable under section 376(2)(g) of the Indian Penal code and the crime was registered in Ashti police Station, District Beed. Owing to this, the applicant sent representation to the Director General of Police, Maharashtra on 30.12.2019 requesting to transfer the police inspector from Tuljapur Police Station and also published the crime of rape in the local newspaper.

Contentions: It was contented by the Police Inspector that the false allegation and publication in the local newspaper has defamed him in the society. He also contended that the applicant has committed the offence punishable under Section 3 of the Police (Incitement to Disaffection) Act, 1922 (which penalizes an attempt to incite anyone to act against the police force or the State Government). An F.I.R report was filed against the applicant alleging that he made a false allegation against Mr. Harshwardhan and Sub Divisional Police Officer Shri. Dilip Tiprase.

Judgment: The Bombay HC relied upon the precedent N. Sengodan v. Secretary to Govt. Home (Prohibition and Excise) Department, Chennai and othersand observed that for attracting the penalty under section 3 for causing disaffection, it is to be proved that the person concerned intentionally caused or attempted to cause an act which was likely to cause disaffection towards the government. But in the instant case, the court believed that the publication by the applicant was not made to create disaffection amongst police or incite them to act against the government. Finally, the court quashed the case filed against the applicant for an offence punishable under section 3 of the Act and said that the allegations made by the applicant may amount to defamation punishable under section 500 of I.P.C and it is up to the respondent no. 4 to take appropriate action permissible under law.

14. FREEDOM OF SPEECH DOESN’T ENTITLE A PERSON TO MAKE DEROGATORY REMARKS AGAINST ANY COMMUNITY OR GENDER: P&H HC

Name of the case: Vijender Kumar v. State of Haryana [CRM-M_ 34577-2020]

Held: Justice AlkaSarin made the following observation while dismissing a bail petition under sections 153-A,295-A and 505 of the Indian Penal Code, 1860 and Section 3(1) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 . It was alleged that the petitioner herein used filthy language and made objectionable comments against females belonging to Scheduled Castes and also against Muslim women. The court in its order held that the screenshots of the said posts prima facie reveals that the comments were derogatory and is against a particular community. The court observed that right to freedom does not permit a person to make any kind of derogatory remarks against any community or gender.

15. MAGISTRATE CAN ORDER REGISTRATION OF FIR U/S.156(3) FOR OFFENCES UNDER MINES AND MINERALS ACT, NO BAR U/S.22: SUPREME COURT


Case Name: Jayant vs. State of Madhya Pradesh [CRIMINAL APPEAL NOS.824­825 OF 2020]

The Supreme Court Bench of Justices Ashok Bhushan and MR Shah observed that the bar under Section 22 of the Mines & Minerals (Development & Regulation) Act, is not attracted when a Magistrate in exercise of powers under Section 156(3) of the Code of Criminal Procedure orders/directs the concerned Incharge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules.

The bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made there under and orders issuance of process/summons for the offences under the MMDR Act and Rules made there under.




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