Case BriefsHigh Courts

Delhi High Court: Deciding the issue of ban on the telecast of the BBC documentary “India’s Daughter” by the Central Government and Delhi Police, the Court observed that as there is a judicial order prohibiting telecasting and the matter is still pending before the competent court of law, more particularly as the investigation is still in progress,  interference either under Article 226 or 227 of the Constitution was not warranted.

The petitioner had questioned the action of the Central Government and Delhi Police in banning the telecast of the documentary as illegal and without jurisdiction, violating the fundamental rights of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. It was also contended that the prohibitory order was issued on a mere apprehension that it may lead to serious law and order problem is wholly unwarranted, apart from being without jurisdiction since the same is not authorised by any law. Since the documentary in question being a mirror reflection of the ground reality of the mindset of one of the convicts, the same needs to be appreciated and accepted so as to enable correction of the societal mindset of gender bias and social norms and to bring out the systemic changes in societal behaviour.

The documentary film is about the gang rape and brutal assault of a young woman on December 16, 2012 in a moving bus in New Delhi, known as “Nirbhaya case”. On February 28, 2015  BBC announced that the documentary film which included the interview of one of the convicts, would be aired on the International Women’s Day on March 8. An FIR was registered on the basis of newspaper and internet reports that the convict in the  interview had made highly objectionable, grossly offensive, malicious and derogatory remarks hurting the feelings of women and that the publication and telecast of the same in print and electronic media may provoke breach of peace and cause public mischief. The Government issued an advisory on March 3, 2015  advising all private satellite TV channels not to telecast the documentary “India’s  Daughter” or any excerpts from it or any  programmes  based on the said excerpts.

The Division Bench held that  it is apparent from the facts borne out of record that the “advisory” was a mere advice to the private satellite TV channels hence, the petitioner’s contention  regarding the validity of the “advisory” deserved no consideration at this stage. So far as the judicial orders dated  March 3 and 4, 2015 are concerned, since the matter is pending before the competent court of law and more particularly the investigation is still in progress, the interference either under Article 226 or under Article 227  was not warranted. Disposing of the petitions, the Court left it to the Chief Metropolitan Magistrate to proceed with the matter following the due process of law and granting liberty to the petitioners or any aggrieved party to work out the other remedies under law. [Kritika Padode  v. Union of India, 2016 SCC OnLine Del 4360, decided on August 5, 2016]

Picture Credits: Indiatoday

Case BriefsHigh Courts

Delhi High Court:  Dealing with the question of situs or location of intellectual property rights  in logos, trade marks and brands with reference to the income accruing in India from intangible assets, the Court held that income accruing from the transfer of intangible assets like intellectual property whose owners were not based in India cannot be taxed in India.

The issue related to the transfer of 16 trade marks and Foster’s brand intellectual property of the petitioner, Foster’s Australia Ltd. to SABMiller executed in Australia. By a brand licence agreement executed earlier, Foster’s India Ltd. had been permitted to use 4 trade marks in India. The licensed trade marks continued to remain the absolute property of the petitioner who received royalty and was subjected to withholding tax in India. The petitioner sought an advance ruling from the Authority for Advance Ruling (Income Tax) under Section 245-Q of the Income Tax Act regarding the issue of taxability in India having regard to the provisions of the Income Tax Act, 1961 and the Double Taxation Avoidance Agreement between India and Australia.

The AAR ruled that the income accruing to the applicant from the transfer of its right, title and interest in and to the trade marks and Foster’s brand intellectual property is taxable in India under the Income Tax Act, 1961 on the ground that the subject-matter of assignment/transfer were situate in India.

The petitioner’s plea was that in the case of intangible capital assets the situs thereof has to be determined by the situs of the owner. Because of the nature of an intangible capital asset, the common law principle ‘mobilia sequuntur personam’ had been evolved, whereby a fiction is created to the effect that the situs of an intangible capital asset would be the situs of the owner of that asset. In this backdrop, since the owner of the intangible assets in question was located in Australia, the petitioner, being an Australian company, the intangible assets, which include the intellectual property rights of the petitioner, were also located in Australia. Therefore, the transfer of those assets would not result in any income deemed to have accrued in India and would not be exigible to tax in India. The AAR was of the view that since the intellectual property rights pertain to India, as they were used and nurtured in India and some of them were registered in India, the same had taken roots in India and therefore, were completely situate in India.

Upholding the petitioner’s contention, the Division Bench of Badar Durrez Ahmed and Sanjeev Sachdeva, JJ. observed that in the absence of a specific provision regarding intangible assets, the well-accepted principle of ‘mobilia sequuntur personam’ would have to be followed. The situs of the owner of an intangible asset would be the closest  approximation of the situs of an  intangible asset. This is an internationally accepted rule, unless it is altered by local legislation. Since there is no such alteration in the Indian context, the situs of the trademarks and intellectual property rights, which were assigned pursuant to the ISPA, would not be in India. This is so because the owner thereof was not located in India at the time of the transaction.The Court held that the income accruing to the petitioner from the transfer of its right, title or interest in and to the trademarks in Foster’s brand intellectual property is not taxable in India. [CUB Pty Ltd. (formerly known as Foster’s Australia Ltd.)  v.  Union of India, 2016 SCC OnLine Del 4070, decided on July 25, 2016]

Case BriefsHigh Courts

Delhi High Court: Disposing of a petition which sought freezing of the symbol “elephant” as the reserved symbol of  Bahujan Samaj Party, the Court held that there is no power in the Election Commission of India under the Election Symbols (Reservation and Allotment) Order, 1968 to withdraw/freeze an election symbol once allotted and/or reserved for a recognised political party and the only manner in which the symbol once allotted/reserved is lost, is on loss of recognition.

The petitioner had sought to draw the attention of the EC to the practice of erecting at public places and at State expense, statutes of political functionaries and symbols of the the ruling party, especially in Uttar Pradesh and to freeze the symbol “elephant” under Clauses 6 and 6-A of the Symbols Order.

Observing that recognition as a political party carries a right to a reserved symbol, the Court held that it appears that a symbol once reserved for a recognised political party under the prevalent laws, cannot be taken away. This is certainly a lacuna and which, if the averments of the petitioner are correct, has indeed been exploited by BSP. The Court held that a political party in power cannot use development activities carried out by it and which the government in any case is expected to perform, to propagate its symbol or its leaders so as to come in the way of a free and fair election. The performance of a political party in governance should be allowed to speak for itself.

The Bench of Rajiv Sahai Endlaw, J.  issued the following directions to the EC:

  • within a period of three months, consider issuing appropriate direction/guideline within the meaning of Clause 16-A(b) of the Symbols Order preventing recognised political party in power from using public places and public funds for propagating its reserve symbol and/or its leaders, so as to come in the way of conducting of free, fair and peaceful election and to safeguard the interest of the general public and the electorate in future; and,
  • after issuing the said direction/guideline, within a further period of three months therefrom, consider whether the actions already done by the respondent BSP and as complained of by the petitioner are in violation of the said guideline and if finds so, to give an opportunity to the respondent BSP to undo the same, so as to in future not obstruct free and fair election and if the respondent BSP does not avail of the said opportunity, to initiate proceedings under Clause 16-A of the Symbols Order for withdrawal of recognition thereof.

[Common  Cause v. Bahujan Samaj Party, 2016 SCC OnLine Del 3787, decided on July 7, 2016]

Case BriefsEnvironmental LawHigh Courts

Delhi High Court: Deciding on the issue of legality and validity of the fee schedule prescribed by the  Delhi Pollution Control Committee, wherein the petitioner Hotel was served with show-cause notices under Section 33-A of the Water (Prevention & Control of Pollution) Act, 1974 and Section 31-A of the Air (Prevention Control of Pollution) Act, 1981 the learned Single Judge Manmohan, J., observed that a writ petition solely praying for refund of money against the State is not maintainable. The Court held that the present writ petition is liable to be dismissed not only on the grounds of statutory non-compliance of the environmental law, but also since the petitioner did not approach this Court with clean hands.

The petitioner had contended that under the threat of imminent closure and penal actions, it was forced to pay an amount of Rs 41 lakhs as condonation fee under protest, seeking consent to operate and that it was liable to pay Rs. 46,000 only as per the previous fee structure and sought for the refund of the remaining amount. The Court held that, to treat the omission on the part of petitioner to comply with the laws as innocent non-compliance trivializes the statutory provisions which has a vital and direct impact on the lives of the citizens. The petitioner continued to run his hotel without obtaining any “consent to establish” and “consent to operate” and without installation of any anti-pollution equipment for the past twenty years. Since a very important and salutary provision of the environmental law was not complied with by the petitioner, the Court decided not to entertain the writ petition in exercise of equitable jurisdiction under Article 226 of the Constitution. The petition was dismissed. [Krishna Continental Ltd.v. Delhi Pollution Control Committee, 2016 SCC OnLine Del 3629, decided on May 2, 2016]

Appointments & TransfersNews

The President appointed (i) Shri Justice Parkash Singh Teji, (ii) Shri Justice Inder Singh Mehta, (iii) Shri Justice Ravindra Kumar Gauba, and Smt. Justice Sangita Dhingra Sehgal, Additional Judges of Delhi High Court, to be Judges of the Delhi High Court with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

Case BriefsHigh Courts

Delhi High Court: Disposing of a petition wherein the petitioner had sought a writ of habeas corpus directing the respondents to produce her minor adopted child, whose custody had been illegally handed over to an NGO in pursuance of the orders of the Child Welfare Committee dated May 16, 2016, the Bench of G.S. Sistani and Sangita Dhingra Sehgal, JJ. observed that the procedure adopted by CWC was extremely unusual and dangerous in forcibly taking a child from the custody of her adoptive mother, and not in the interest of the child. This act of CWC had created a traumatic situation for the child.

The petitioner had contended that the custody and guardianship of the child were given to her in 2008, when the child was barely four days’ old by the child’s mother vide an adoption deed. Hence, CWC had exceeded its jurisdiction and its order was illegal and bad in law, in view of the adoption deed. She contended that in June 2015, the biological mother had lodged a complaint with the Delhi Commission for Women that the petitioner had kidnapped her child. After verifying the adoption deed and the relevant photographs, the police cancelled the FIR and the CWC passed an order in favour of the petitioner on October 19, 2015. However, the CWC suo moto took up the matter based on a newspaper report that the child’s biological mother had filed a protest petition before the Magistrate Court. The petitioner was directed to be present before CWC, whereupon on May 16, 2016 the custody of the child was forcibly taken by CWC and handed over to an NGO in the presence of the biological mother.

On the other hand, the biological mother contended she was forced into in to sex trade on account of her vulnerable condition of having lost her husband and none to support her family. On account of her pitiable condition, she was also forced to part with the child and made to sign various documents, which were not even explained to her.

The Court held that the petitioner cannot be deprived of the child’s custody without following the due process of law, when the investigation carried out by the police and the CWC were in favour of the petitioner. The Court directed the custody of the child to be handed over to the petitioner in the court itself and observed that this order would not come in the way of the proceedings, if any, by the biological mother seeking cancellation of the adoption deed. [Sulekha  v. State NCT of Delhi, 2016 SCC OnLine Del 3566, decided on June 1, 2016]

Case BriefsHigh Courts

Delhi High Court: Disposing of a batch of petitions dealing with a matter of public importance involving the functioning of courts and their orderly conduct, and the duty owed by the Bar to the courts, which variously contended that :

  • the principle of one advocate “one vote in one Bar”, should be introduced for all Bar Associations, irrespective of the multitude of memberships of an advocate in Delhi;
  • introduction of the concept of “one person one chamber, one court complex”;
  • ensure that only genuine practitioners are members of the Bar Associations attached to various courts in the city of Delhi, to safeguard that chambers are allotted to genuine practicing    advocates and that the transfer of allotted chambers, is prohibited and discontinued;
  • to frame rules, policies and guidelines involving the issues of allotment of chambers, tenure of

   Bar  Associations and the procedure for free and fair conduct of elections;

the Bench of Ravindra Bhat and Siddharth Mridul, JJ.  by  a common judgment  directed that the principle of “one Bar,  one vote” shall be applicable henceforth in every Bar Association  across  Delhi and also that  “one person , one chamber, one court complex” shall be applicable for allotment of chambers to advocates in all the court complexes  subject to the administrative control of the Delhi High Court.

As to the maintainability of proceedings under Article 226 of the Constitution, the Court held that the nature of relief sought is intrinsically connected with public functioning of the court, as the activities of Bar Associations have a predominantly public character and can in many instances, affect court functioning.

The Court held that the rule incorporating the “one Bar, one vote” principle shall stand incorporated forthwith in relation to every Bar Association in Delhi including the Delhi High Court Bar Association, the Delhi Bar Association, the New Delhi Bar Association, the Rohini, Shahdara, Saket and Dwarka Courts Bar Association and all other courts or Tribunals attached Bar Associations. This condition shall be deemed to be incorporated in the conditions of eligibility applicable for voting  as well as candidature for the post of member of any executive body (by whatever name called) and every office bearer of each association (President, Vice-President, General or Honorary Secretary, Assistant, Joint Secretary, Treasurer, Asst. Treasurer, or any other office bearer of each Association (by whatever other name called), immediately and shall be given effect to in every election to each Bar Association hereafter. This condition shall remain in force and bind all Bar Associations as condition for their recognition.

The “one person one chamber, one court complex” rule applicable for allotment of chambers to advocates in all Delhi Court complexes shall be deemed to have been incorporated with immediate effect.

The District Judge concerned of each court complex and the Registrar of the Delhi High Court were directed to ensure that the above conditions are suitably incorporated in the Chamber Allotment Rules, within two weeks and till then, the same are applicable and shall govern all chamber allotments. [P.K. Dash v. Bar Council of Delhi, 2016 SCC OnLine Del 3493, decided on May 31, 2016]

Case BriefsHigh Courts

Delhi High Court: While dismissing a writ petition that challenged a Central Information Commission order, a single-judge bench of Manmohan, J., held that the High Court is not an appellate Court of the CIC and thus technical and procedural arguments cannot be allowed to come in the way of substantial justice.

In the instant case, the petitioner have challenged an order whereby CIC, on an RTI application by an NLSIU student, has directed the petitioner to upload all the latest amended bare Acts and to examine the functionality of its e-mail ID and develop an appropriate RTI filing mechanism. It was contented by the petitioner that the respondent has never filed an RTI application in the prescribed form. Moreover, the respondent had not filed the first appeal and hence the second appeal could not have been entertained by the CIC. The Court observed that the order has been challenged on mere technical and procedural grounds and the directions given by the CIC are not only fair and reasonable but also promote the concept of rule of law.

The Court further noted that public can be expected to follow the law only if law is easily accessible and Section 4(1) of the RTI Act itself mandates the Government to place the bare acts in public domain. The CIC has also directed the petitioner to pay Rs.10,000/- under Section 19(8)(b) of the RTI Act to the library of NLSIU. The Court took notice of the fact that in challenging the imposition of costs of Rs.10,000/-, the petitioner would have spent more money in filing the present writ petition. Consequently, the costs of Rs.10,000/- was directed to be recovered from the salary of the Government officials who authorized the filing of the writ petition. [Union of India v. Vansh Sharad Gupta, 2016 SCC OnLine Del 3383, Decided on 24.05.2016]

Case BriefsHigh Courts

Delhi High Court:  The Single Judge Bench of S.P. Garg, J cautioned the lower court Judges that the identity of the victim or prosecutrix in a sexual assualt case should not be disclosed in the judgment passed by them, in order to protect her reputation. The Court categorically observed, “Before parting with the case, it is noted that in the impugned judgment dated 21.10.2013, name of the prosecutrix/victim has been disclosed/mentioned. The trial court was not expected to indicate the victim’s name in the judgment. The mistake has been carried out by the learned District  and Sessions Judge too while disposing Crl. A. 73/2013. Learned Presiding Officers must avoid disclosing identity of the victim/prosecutrix in such cases in the judgment to protect her reputation.”

Deciding a revision petition challenging the legality and correctness of the Sessions Court’s order by which the petitioner’s conviction under Section 354 of the Penal Code, 1860 and sentence of rigorous imprisonment for one year was upheld, the Court observed that the petitioner did not furnish any plausible explanation to the incriminating circumstances proved against him. The concurrent findings of the courts below based upon fair and proper appreciation of the evidence deserved no intervention. The Court held that considering the gravity of the offence whereby an innocent child aged about seven years was sexually assaulted by the petitioner, aged about 65 years, further leniency was uncalled for. Dismissing the petition, the Court observed that the petitioner was well aware of the consequences of his act, as the prosecutrix was like his granddaughter. [Gopal Yadav v. State (GNCT) Delhi, 2016 SCC OnLine Del 3275, decided on May 25, 2016]

Case BriefsHigh Courts

Delhi High Court: A Single Bench of Rajiv Sahai Endlaw, J., while relying upon Punjabi University v. Union of India, 2011 SCC OnLine Del 3496, and Vijay Shankar Pandey v. Union of India, 2003 SCC OnLine Del 953  dismissed the petition for annulment of Dronacharya Award given to wrestling coach Mr Anup Singh and noted that the selection for excellence in sports cannot be scientific and mathematical and necessarily entails a discretion.

The petitioner has contended that he was the more deserving candidate for the Award since under the prescribed point-based criteria for selection he was nominated with 420 points as against 377 points of Mr Anup Singh. However, it was noted that besides laying down the point-wise criteria, sufficient leeway has also been given to the Selection Committee’s discretion for the choice of the recipient for the Award. As per Clause 1 of prescribed criteria, 80% weightage was to be given for the medals won in various Championships by the sportsperson trained by the Coach, whereas 20% weightage has to be given to Selection Committee’s assessment. Moreover, the petitioner didn’t challenge the prescribed criteria, rather he pointed out errors in application of the criteria. The Court noted that the judicial review is of the decision-making process and not of the decision and thus dismissed the petition for lack of merit.

The Court was pained to see that the petitioner himself claimed to be entitled to the award  and observed that the as per the scheme, it was not open to any person to nominate himself. The grievance, if any, for non-selection should have been of the person/body who had nominated the petitioner instead of the petitioner himself.

However, the Court also added that such awards would lose their sheen and cease to be coveted and perceived as indicative of the excellence of the holder thereof if they are conferred on persons not deserving thereof or if selection thereof is guided not by the spirit of award and identifying excellence but for extraneous reasons. Utmost care and transparency should be observed in the selection of the recipient of such awards and the awards ought not to be conferred on those who are not perceived by those having expertise in the subject as deserving thereof. [Vinod Kumar v. Union of India, 2016 SCC OnLine Del 3122, decided on 18.05.2016]

Case BriefsHigh Courts

Delhi High Court: Allowing the petition wherein the petitioner had sought reissuance of her daughter’s passport without insisting upon the father’s name being mentioned in the application form, the Bench of  Manmohan, J. held that “mother’s name is sufficient in certain cases like the present one to apply for passport, especially as a single woman can be a natural guardian and also a parent”.

The petitioner had contended that after her divorce, she had raised her daughter as a single parent since her birth on August 24, 1997 as the biological father had completely abdicated his responsibilities towards her daughter. The respondents’ insistence upon her daughter mentioning her father’s name in the application violated her rights to determine her name and identity. She pointed out that the entire record of Petitioner 2 (daugther) which included her educational certificates and aadhar card, etc. did not bear the name of her father. She submitted that if the directions sought for in the present petition are not issued,  her daughter would be compelled to alter her identity that she had been using since her birth as daughter of Petitioner 1 rather than of her biological father. According to her, through the malafide, arbitrary and discriminatory decision of the respondents, Petitioner 2 was being compelled to mention the name of her biological father who had refused to accept her because she is a female child. She emphasised that the respondents had originally in the year 2005 and subsequently in 2011 issued a passport without insisting upon Petitioner 2’s father.

The Court was of the opinion that “the respondents can insist upon the name of the biological father in the passport only if it is a requirement in law, like standing instructions, manuals etc. In the absence of any provision making it mandatory to mention the name of one’s biological father in the passport, the respondents cannot insist upon the same. In the present case, there is no legal requirement for insisting upon the father’s name”.

As regards the respondent’s contention that the computer does not accept the application form without the name of the father being filled up, the Court was informed by the learned Amicus Curiae Shri Amit Bansal that the online passport application as updated on 29th January, 2016 provides that in the column of Family Details, only one detail out of the details of father/mother/legal guardian, is mandatory and required to be filled. The Court observed that technology is intended to ease and facilitate transactions and cannot be the basis for creating and defeating anybody’s legal rights. If the only impediment, in way of granting the relief sought by the petitioners, is the software, the same ought to be suitably modified to accept the application of Petitioner 2, if she is otherwise entitled for re-issuance of the passport.

The Court observed that the fact that the respondents had on previous two occasions, in 2005 and 2011 issued passport to Petitioner 2, without insisting on father’s name, makes it evident that the said requirement is not a legal necessity, but only a procedural formality, which cannot be the basis of rejecting her case. Consequently, legally and factually there was no impediment in issuing the passport to Petitioner 2, without mentioning her father’s name. The respondents were directed to modify their software and accept her application and issue her a passport without insisting upon mentioning her father’s name. [Shalu Nigam v. Regional Passport Officer, Writ Petition (C) No. 155 of 2016 and CM Appls. Nos. 684-685 of 2016, decided on May 17, 2016]

Case BriefsHigh Courts

Delhi High Court:  Disposing of an appeal filed in 1985 against a judgment and decree in a partition suit, the Court observed that, “It is really very unfortunate that this appeal has remained pending on the Board of this Court for almost 30 years and has to pass through hands of as many as 75 Hon’ble Judges or so but still the solution to the problem of dividing the property (which happens to be the piece of land measuring approximately 7794.63 sq yd along with super structure) could not be found out to the satisfaction of all the parties.”

The Bench of V.K. Shali, J. observed that, “In the city of Delhi, the prices of land have risen beyond the imagination. As a matter of fact, the prices have become prohibitive to own the house, plot or flat. As a necessary consequence of this, wherever there is a dispute between the co-sharers of a property, effort of one party is to bring the other party to its knees by tiring out its resources and patience so that it becomes almost a distress sale by such a party to the other co-sharer.”

With reference to Sections 2 and 3 of the Partition Act, 1893 the Court observed that “a perusal of the aforesaid section would clearly show that the court can order sale of the property if it is convinced that the division of the property reasonably and conveniently cannot be effected by metes and bounds. In the present case, the Court is of the view that partition of the suit property cannot be reasonably and conveniently affected then the Court has no other option but to order sale of the property. In the present case, the partition by metes and bounds could not be affected for the last 30 years. Therefore, the only alternative is to order sale”.

The Court appointed Senior Counsel Ms Meenakshi Arora as the Court Commissioner and Ms Natahsha, Advocate to assist her for the purpose of conducting an open, transparent and fair sale of the suit property by inviting bids from members of the general public, directing the process to be completed within a period of four months. [Ramesh Dutt Salwan v. Shiv Dutt Salwan, 2016 SCC OnLine Del 2909, order dated May 10, 2016]