Case BriefsHigh Courts

Bombay High Court: K.R. Shriram, J. dismissed an admiralty suit filed by the plaintiff insofar as he claimed wages under the provision of Section 129 of the Merchant Shipping Act, 1958.

The plaintiff was a seafarer and worked as Chief Engineer on board two shipping vessels — namely, Malaviya Thirty-Three and Bharati-S — both owned by GOI Offshore Ltd., which was under liquidation. According to him, wages which were due to him from working on both the vessels were not paid to him. He claimed the same under the present suit along with interest. The plaintiff further claimed wages under Section 129 of the Merchant Shipping Act.

Vikrant Shetty, counsel for the plaintiff, contended that Section 129 provides for time of payment of wages, and if the payment is not made within such time, the plaintiff is entitled for further payment of wages for the delayed period. Per contra, counsel for the defendant, S. Priya along with Aparna Sinha, did not dispute the plaintiff’s claim for the payment of wages payable for his employment on the two vessels. She, however, disputed the claim raised under Section 129.

The question before the Court was whether the plaintiff was entitled to approach the Court to claim the amount under Section 129 of the Merchant Shipping Act?

After discussing the provisions of Section 129 (time of payment of wages) and Section 132 (decision of questions by shipping masters), the High Court observed: “any claim for wages under Section 129 can be made only to the shipping master and if the shipping master passes an order within the limit of his jurisdiction, that could be enforced by a Judicial Magistrate of the first class or a Metropolitan Magistrate as provided in Section 132(3) as an order for payment of wages made by such Magistrate.”

It was noted that there are no averments in the plaint whatsoever as to how the plaintiff claims he is entitled to the amounts as claimed under Section 129 of the MS Act. Finally, it was held that since the jurisdiction is not with the High Court but only with the shipping master under Section 129, the Court could not determine the claim under Section 129. Therefore, the claim to such extent was rejected.[Jagdish Singh Bhaduria v. Bharati-S, 2019 SCC OnLine Bom 1179, decided on 05-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Coram of Justice A.I.S Cheema (Judicial Member) and Justice Balvinder Singh (Technical Member) set aside the judgment passed by National Company Law Tribunal, Hyderabad Bench (NCLT) and directed the cancellation of entry of the name of appellant in the register of member of respondent 2 showing equity shares purported to have been credited on the basis of conversion of Compulsory Convertible Debentures (CCDs) standing in the name of appellant.

In the present case, appellant company had filed a Company Petition claiming rectification in the register of member of respondent-company, seeking cancellation of entry of the name of petitioner in the Register of Members of respondent-company showing 906599 equity shares purported to have been credited on the basis of conversion of 906599 CCDs standing in the name of the petitioner. The aforementioned Company Petition under Section 59 of the Companies Act, 2013 was then dismissed by NCLT, Hyderabad claiming that the issues raised were complex and could not be dealt with by NCLT. NCLT ruled that in Ammonia Supplies Corpn. (P) Ltd. v. Modern Plastic Containers (P) Ltd., (1998) 7 SCC 105 it was held that in case of a serious dispute as to title, the matter could be relegated to a civil suit. Aggrieved by the said order, the instant appeal was filed.

Learned counsel for appellant Arun Kathpalia, argued that after passing of Companies Act, 2013 the aforementioned case did not hold good in the light of the bar on civil courts. He submitted that in Shashi Prakash Khemka v. NEPC Micon, 2019 SCC OnLine SC 223 the Supreme Court had held that after Companies Act, it is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the NCLT under Section 59 of the said Act”.

Further, Section 430 of the Companies Act, states that “Civil court will not have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate.”

On the basis of above arguments and in view of the law laid down in NEPC Micon case, it was held that NCLT had jurisdiction to deal with all the cases which dealt with questions regarding rectification and all questions incidental and peripheral to rectification, for the purpose of deciding the legality of the rectification. It was opined that in the present matter, there were really no complex questions involved and even if it were then the same had to be decided by the NCLT and in appeal, this Tribunal was bound to consider whether or not entry made in the Register of Members could be upheld

Hence, the impugned judgment was set aside and cancellation of entry of the name of the appellant in the register of members of respondent 2 showing equity shares purported to have been credited on the basis of conversion of CCDs standing in the name of the appellant was directed.[MAIF Investment India PTE Ltd. v. Ind-Barath Power Infra Ltd., 2019 SCC OnLine NCLAT 203, decided on 28-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.K. Awasthi, J.  dismissed the petition on the ground that trial court and not Special Court are competent to take cognizance when offences were made under the Penal Code, 1860.

A petition was made under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 against the order passed by Additional Sessions Judge.

Facts of the case were that Mukesh and Radheyshyam Mandwani and applicant Sunil were the directors of the company, having an immovable property at Indore. The applicant tried to grab the property without calling any meeting of the company and had also forged the resignation of the complainant and indicted his real brother as director of the company. An FIR was lodged against the applicant for offences under Sections 420, 467, 468, 471 and 120-B of the Penal Code, 1860 and charge sheet was filed. A discharge application on the ground that the trial court was not competent to take the cognizance and Special Court should take the cognizance was rejected by the trial court. Hence, the revision petition was made.

Vijay Asudani, counsel for the applicant argued that a special court can try offence other than offence under the provisions of Companies Act with which the accused may under the CrPC be charged. It was further submitted that the trial court failed to appreciate that the Complainant was the ex-director and shareholder of the company and the fact that the non calling of the meeting, preparation of forged resignation are offences under the Companies Act, 2013 and thus only special court were competent to take cognizance of the offence and thus impugned order should be set aside and applicant should be discharged from the charges made under the Penal Code.

Counsel for the complainant submitted that in order to gain the control over assets of the company and to deceive, betray and cheat the complainant made the complaint under the Penal Code. It was further submitted that the jurisdiction of the Special Court is limited to the offences punishable under the Companies Act, 2013 and not under the Penal Code or any offences committed under any other law. Thus, prayed for the dismissal of the revision petition.

The Court opined that provision of Section 436 (2) of the Companies Act, 2013 also provide that while trying an offence under the Companies Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. In this case, the police registered the offence punishable under the Penal Code and not under Companies Act, 2013. It was held that no criminal trial has been initiated against the applicants for any of the offence which is punishable under the provision of Companies Act, therefore, in absence of any offence punishable under the Companies Act, Special Court is not having jurisdiction to try the case which is punishable under the Penal Code and court of Indore has territorial jurisdiction to try the case for the commission of offence punishable under Sections 420, 467, 468, 471 and 120-B of IPC. Thus, the revision petition was dismissed. [Sunil Mandwani v. State of M.P., 2019 SCC OnLine MP 1248, decided on 27-06-2019]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench of Manojit Bhuyan and Manish Choudhury, JJ. dismissed a writ petition seeking transfer of proceedings from one Foreigners’ Tribunal to another Foreigners’ Tribunal, for being devoid of merits. 

The writ petition seeking the aforesaid transfer was filed on the following grounds:

  1. The Tribunals were located far away from the permanent place of residence of petitioners which caused them physical and financial inconvenience, in presenting their witnesses for examination. 
  1. Access to justice, being a basic and inalienable human right and a facet of right to life guaranteed under Article 21 of the Constitution, the Tribunal dealing with citizenship status of petitioners must be reasonably accessible in terms of distance, and the petitioners’ access to the adjudicatory process must be affordable.
  1. Foreigners’ Tribunals, which are created under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, are unlike other Tribunals created under Article 323A and 323B of the Constitution of India. 
  1. Foreigners’ Tribunals are more like Courts of Executive Magistrates, where opinion is rendered in a summary procedure, and cases before it can be transferred. Thus, Section 24 of the Code of Civil Procedure, 1908 could not create any embargo in the transfer of a proceeding from one Foreigners’ Tribunal to another.

The issue, in this case, was that when a Foreigners’ Tribunal is given to decide a reference received from the registering authority of that district or part thereof, can another Tribunal of a different district, not ordinarily having the jurisdiction to decide such a reference emanating from the other district, assume jurisdiction to decide the reference and whether the High Court, in exercise of its powers under Article 226 of the Constitution, can confer such jurisdiction to the other Foreigners’ Tribunal to decide a transferred reference.

The Court, relying on Mamoni Rajkumari v. State of Assam, 2017 SCC OnLine Gau 998 and State of Assam v. Moslem Mondal, 2013 SCC OnLine Gau 1 observed that a Foreigners’ Tribunal discharged quasi-judicial functions and thus provisions governing Section 24 CPC would not be attracted in a proceeding before it. 

It was opined that inconvenience caused to witnesses in travelling a long distance to contest the reference cases could be eased as para 4(c) of the  Foreigners’ (Tribunals) Order vested the Foreigners’ Tribunals with the power to entertain prayer for the examination of witnesses and for production of documents by issuing Commissions. 

Ruling on the main issue of the case, the Court held that in absence of any enabling provision to transfer a reference case from one Foreigners’ Tribunal to another, and in view of conclusion that the existence of jurisdictional fact was a sine qua non for assumption of jurisdiction by a Tribunal, a petition for transfer of proceedings could not be allowed. [Shariful Islam v. Union of India, 2019 SCC OnLine Gau 2420, decided on 07-06-2019]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of Abhay S. Oka, CJ and H.T. Narendra Prasad, J. dismissed the appeals on the ground of delay and laches.

Under the provisions of Karnataka Acquisition of Lands for Grant of House Sites Act, 1972 (the Act of 1972), lands of appellants were acquired. The complete process was followed. Firstly, the Preliminary Notification under Section 3(1) of the Act of 1972 was published on 24-07-1976. Secondly, the final Notification followed on 22-01-1979. Lastly, an award was made for compensation on 09-04-1982 and redetermined dated 04-02-1999.        

Counsel for the appellants, K.N. Nitish submitted that the lands were never acquired. As per Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the acquisition proceedings had lapsed. It was further submitted that no record was placed by the respondents to show that the land was acquired by the fourth respondent (Town Municipal Council). The counsel also submitted that the fact that compensation was not accepted by the appellants was not disclosed by the respondents. The appellants remain aggrieved as they have not been paid the redetermined compensation. 

The Court observed that the writ petitions were filed thirty-four years after the award was made and forty years after the first preliminary notification was issued. Considering the enormous delay, the Single Judge rightly declined to exercise the jurisdiction under Article 226 of the Constitution of India. The Court upheld the view taken by the Single Judge. [K.M. Krishna v. State of Karnataka, Writ Appeal Nos. 777-779 of 2019(LA-HS), decided on 18-06-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.S. Sanklecha and M.S. Sonak, JJ. while allowing the petition filed against the order of the Maharashtra Appellate Authority for Advance Ruling for Goods and Service Tax (“Appellate Authority”) constituted under the Maharashtra Goods and Services Tax Act, 2017, observed that the Appellate Authority is well within its jurisdiction to advert to ‘new grounds’ in support of its decision.

The petitioner JSW Energy Ltd. proposed to enter into an arrangement with JSW Steel Ltd. involving inter alia conversion of coal and other inputs into electricity and conversion of electricity into Steel on a job work basis. In order to ascertain whether the proposed arrangement, indeed qualifies as “job work” as defined under Section 2(68) of the CGST Act, 2017 and consequently whether the petitioner is entitled to benefits under the CGST and MGST, the petitioner, applied to the Advance Ruling Authority seeking advance ruling on the applicability of GST to the proposed arrangement.

The Advanced ruling Authority held that the proposed work amounted to “manufacture” and not “Job work”, and as such, GST was leviable. Aggrieved, the petitioner applied to the Appellate Authority which disagreed with the reasoning given by Advanced Ruling Authority. It was of the opinion that the expressions “job work” and “manufacture” are not mutually exclusive. However, it upheld the operative part of the order of the Advanced Ruling Authority on two different grounds (“new grounds”).

Senior Advocate Rafique Dada, representing the petitioner, argued that the Appellate Authority exceeded its jurisdiction in introducing or relying upon new grounds which were never raised before the Advance Ruling Authority by the Revenue. Counsel Pradeep S. Jetly appearing with J.B. Mishra for Union of India, submitted that there was no scope for challenging the impugned order. H.B. Takke, AGP supported the submissions made by Pradeep S. Jetly.

The High court held that scope of proceedings where an assessee or a potential assessee seeks advance ruling is different from the scope of proceedings before other Appellate Tribunals. It was held: “The Appellate Authority, in a given case, may be entitled to uphold the conclusion of Advance Ruling Authority, albeit, for reasons other than reasons which prompted the Advance Ruling Authority to base its decision. Ultimately, the Appellate Authority is required to give its ruling on the question posed by taking into account the relevant circumstances and eschewing irrelevant ones. Therefore, is the Advance Ruling AUthority may have missed a particular point, it is not as if the Appellate Authority is precluded from adverting to such point and basing its ruling on the same.”

However, finding on facts of the case, that the Appellate Authority did not provide an opportunity to the petitioner to meet the new grounds, the High Court held that it violated the principles of natural justice. This vitiated the order passed by the Appellate Authority. Resultantly, the Court quashed the impugned order and remanded the matter back to the Appellate Authority for disposing of the petitioners’ appeal in accordance with the law. [JSW Energy Ltd. v. Union of India, 2019 SCC OnLine Bom 988, decided on 07-06-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan and R.C. Khulbe, JJ. contemplated a writ petition, where the petitioner who was an Assistant Professor, sought certiorari to quash the order of recovery of money along with interest. The petitioner further sought mandamus to direct the respondent-State University to re-examine petitioner’s case and subsequently withdraw the order.

The factual matrix of the case are, that the petitioner had earlier invoked the jurisdiction of Court wherein the validity of the order passed by the respondent-University directing the petitioner to deposit a sum of Rs 1,75,000 was questioned. For the aforementioned case the Divisional Bench had observed that it was an admitted fact that, when the petitioner had proceeded on study leave, he had executed a bond with the State of Rajasthan although the petitioner was a temporary employee of the Government of Rajasthan. Finding no merit in the writ petition, the Division Bench dismissed the same. But in 2019 the concerned officer from the department issued an order for recovery of the amount of the bond with interest, executed at the time of study leave granted to the petitioner to secure the Ph.D. Degree, which was in question in the instant writ.

S.S. Yadav, counsel for the petitioner, submitted that the Division Bench had erred in holding that the petitioner was a temporary employee, and that the Rules were applicable to temporary employees only. Since the petitioner was a permanent employee, Rule 110 (1) would alone apply in which event, the petitioner need not pay the said amount for not complying with the bond; the cause of action for both the writ petitioners were different, though the petitioner had filed an application, seeking review of the order passed by the Division Bench earlier. It was further submitted that the impugned order of 2014 made no reference to the petitioner having invoked the review jurisdiction of the Court; and consequently, the petitioner was entitled to again invoke the jurisdiction of the Court under Article 226 of the Constitution.

The Court, observed that petitioner’s contention that a new cause of action had arisen as a result of the Office Order of 2019 did not merit acceptance and, since it was the very same cause of action based on the order of 2014 whereby Rs 1,75,000 was sought to be recovered from the petitioner, on which the present writ petition was based, it is difficult to accept that the petitioner was again entitled to invoke the jurisdiction of Court, in effect, questioning the very same order of 2014. Further, it was stated that bare perusal of the order passed by the Division Bench clearly showed that, while dismissing the writ petition, liberty was not granted to the petitioner to again invoke the jurisdiction of this Court by way of a separate writ petition for the very same cause of action.

The Court held, “The judgment of a competent Court is binding inter-parties and cannot be re-agitated in collateral proceedings. An order or judgment of a Court/Tribunal, even if erroneous, is binding inter-parties. The binding character of judgments, of Courts of competent jurisdiction, is, in essence, a part of the rule of law on which administration of justice is founded.” Since a review petition was already filed by the petitioner the aforementioned writ was dismissed.[Vidya Sagar Singh v. G.B. Pant University of Agriculture and Technology, 2019 SCC OnLine Utt 473, decided on 16-05-2019]

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J. dismissed a writ petition wherein the petitioner husband sought quashing of FIR registered under Section 498-A, 406 and 34 IPC at Police Station, Paschim Vihar, Delhi.

The petitioner, who was represented by Hitender Kapur, Advocate, took three grounds seeking to quash FIR: (i) lack of territorial jurisdiction contending that no offence has taken place in Delhi and thus Police Station has no jurisdiction to investigate and the Trial Court has no jurisdiction to try the offence; (ii) that the FIR was not lodged within the period of limitation; (iii) that on the face of the FIR the allegations are not made out.

Rajesh Mahajan, ASC with Jyoti Babbar, Advocate appeared for the State, while Kamal Gupta, Advocate represented the respondent wife.

(i) Territorial Jurisdiction

The High Court followed the decision in Rupali Devi v. State of U.P., (2019) 5 SCC 384, wherein it was held that even in cases where there is no allegation of harassment or demand of dowry at the parental place of the complainant who comes to take refuge at her parental place, she can lodge an FIR in the said Police Station, which can be investigated by the officer of the said Police Station and the Trial Court having jurisdiction on the said Police Station would have jurisdiction to try the said offence.

Moreover, the case of the complainant in the FIR itself was that her costly items, jewellery, etc., were taken on the ground that they were to be kept in a locker in Delhi so that it could be safe, thus the jewellery and costly items were retained in Delhi. Marriage being performed at Delhi, the entrustment of articles also took place at Delhi. Hence in view of Section 181(4) CrPC, the Court at Delhi would have jurisdiction to try the offence. Thus, this Court finds no merit in the first argument raised.

(ii) Limitation

On facts, it was held that the complaint was filed within the period of limitation. It was also observed that it is trite law that while taking cognizance even if there is delay in matrimonial matters the Court has to see whether it is in the interest of justice to condone the delay in taking the cognizance.

(iii) Nature of allegations

It was noted that the complainant has alleged that the accused person used to taunt her for the kind of clothes given to them at the function and at the wedding and that the same was not as per their demand and status. Allegations were also made regarding entrustment if costly items including jewellery. The Court was of the view that prima facie, the allegations constituting offence punishable under Sections 498-A and 406 IPC were made out.[Ankur Narang v. State (NCT of Delhi), 2019 SCC OnLine Del 8933, decided on 30-04-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J. dismissed a writ petition filed by a village pradhan challenging the order of District Court (revisional court) whereby matter pertaining to the validity of his election as pradhan was directed to be considered afresh by the Prescribed Authority.

Petitioner was elected as the village pradhan of village Bahadurpur. Respondent filed an election petition under Section 12-C of the UP Panchayat Raj Act, 1947 against the petitioner on the ground of unfair practice, etc. Prescribed Authority formulated two issues, whether the petition was barred by provisions of Rule 11, Order 7 Code of Civil Procedure, 1908 and whether the petition had not been filed in accordance with the law. Prescribed Authority recorded the finding that the plaintiff was required to issue a notice to the opposite party under Section 80 of CPC but the same has not been done, hence the election petition was barred. The petitioner preferred civil revision against this order which was allowed and the matter was remanded back to Prescribed Authority for deciding the matter afresh on merits. Aggrieved thereby, the Petitioner approached this Court under Article 227 of Constitution of India seeking a writ of certiorari for quashing the order passed by the revisional court.

Counsel for the petitioner Aditya Pratap Singh, submitted that the election petition had rightly been dismissed by the prescribed authority as the election petition was barred by the provisions of Rule 11, Order 7 CPC, and the revisional court had exceeded its jurisdiction in passing the impugned order. Counsel for the respondent, Ajay Veer Pundir and Narain Dutt submitted that there was no requirement to serve notice under Section 80 CPC in an election petition and the prescribed authority had committed patent error in law by dismissing the election petition.

The Court relied on the judgment of Kushuma Devi v. Sheopati Devi, 2019 SCC Online SC 482, in which it was held that every judicial or quasi-judicial order shall be supported with the reasons which support its conclusion, as the revisionary court while examining the correctness of the order is entitled to know the basis on which a particular conclusion was arrived at in the order. It was opind that the prescribed authority had not recorded any reasons for its order.

It was opined that reasons recorded in judgment are the life of law and in their absence, the judgment could not be said to be legal. The Prescribed Authority had travelled beyond the issues which were under the consideration and the revisional court was justified in remanding the matter back to the prescribed authority and hence writ petition was dismissed.

Further, the Court opined that without framing an issue in regard to notice under Section 80 CPC, the Prescribed Authority had held the election petition to be barred by Order 7 Rule 11 CPC. Thus, the findings recorded by Prescribed Authority in this regard were illegal, and therefore the revisional court’s order remanding the matter back to Prescribed Authority for fresh consideration was valid.

In view of the above, the petition was dismissed.[Narendra Singh v. Anil Kumar, 2019 SCC OnLine Utt 471, decided on 14-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Appellate Tribunal (NCLAT): The Bench comprising of S.J. Mukhopadhaya, J. (Chairperson) and A.I.S Cheema, J. and Kanthi Narahari, Members, Judicial and Technical, respectively; declined to intervene and place any opinion for the appeal made by Ex-Directors and Promoters of Bhushan Power and Steel Limited which stated that:

“More than 270 days have been passed and the final order is yet to be passed by the Adjudicating Authority.”

The present appeal was filed by ‘Committee of Creditors’ against the order passed by Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi, wherein the order was reserved.

Facts and Background of the case explained:

Appellate Tribunal by order dated 04-02-2019 remitted the matter back to the Adjudicating Authority for consideration of the ‘Resolution Plan’ submitted by ‘JSW Steel’.

Thereafter, the matter was heard and Judgment had been reserved. While the Judgment was still pending, Punjab and Haryana High Court passed certain directions directing the Adjudicating Authority to follow a certain  procedure giving reference to the Supreme Court’s decision and held that “any order passed by the Adjudicating Authority/NCLT, which is contravention, contradiction or derogation of the directions of Supreme Court should not be taken into consideration.”

Senior Counsel, Mukul Rohatgi with Advocates Arvind Kr Gupta and Henna George, appeared for the erstwhile directors and promoters of Bhushan Power and Steel Limited.

Solicitor General and Senior Advocate Tushar Mehta with Advocates Bishwajit Dubey, Spandan Biswal, Srideepa Bhattacharya, Sylona Mohapatra and Surabhi Khattar, appeared for the Committee of Creditors of Bhushan Power and Steel Limited.

Decision in the present appeal:

NCLAT declined to entertain the present appeal stating that the matter is still pending before the Adjudicating Authority, therefore they are not inclined to entertain the appeal by erstwhile directors and promoters of Bhushan Power and Steel Limited.

Bench also commented that it is unclear on how Punjab and Haryana High Court’s vacation Bench passed an order as noted above when the matter is still pending. It was also stated that the mentioned Court has no territorial jurisdiction over Delhi, where Principal bench of NCLT, New Delhi is situated.

Further, the Bench stated that, Adjudicating Authority is supposed to decide the case on merit in accordance with law uninfluenced by any order except the decision of this Appellate Tribunal and Supreme Court.

Hence, in view of the above, the appeal stands disposed of. [Committe of Creditors of Bhushan Power and Steel Ltd. v. Mahendra Kumar Khandelwal, 2019 SCC OnLine NCLAT 201, decided on 11-06-2019]

Case BriefsHigh Courts

Kerala High Court: A. Muhamed Mustaque, J. set aside an order given by the Minority Commission whereby Tahsildar and Village Officer were directed to issue the revenue documents to the Respondent 2.

In the present case, Jenny John (Respondent 2) a member of minority community approached the Minority Commission with a complaint that he was denied revenue documents which he intended to receive for the purpose of quarrying. The Minority Commission gave orders directing Tahsildar and the Village Officer to provide him with the necessary documents. The present writ petition was filed challenging the order given by the Minority Commission and to decide whether the Commission had jurisdiction to pass such an order.

The learned Special Government Pleader Sri Jaffarkhan, by referring to Section 9 of the Kerala State Commission for Minorities Act, 2014, contended that the Commission had exceeded its jurisdiction while issuing the impugned order.

Learned counsels for Respondent 2, Mr K. Anand and Mr K. Noushad, contended that he was denied those documents because he belonged to a minority community.

The Court observed that the Constitution of India envisages protection to the minority to ensure a sense of security and treatment at par with the majority. In order to safeguard them from possible discrimination, the State of Kerala enacted the Act of 2014 whereunder a Minority Commission was constituted for the purpose of educational advancement, welfare, protection, empowerment of minority, etc.

It was opined that though the claim for documents from the Revenue Department was related to the economic aspiration of an individual member of the community, it was not protected under the Constitution. Section 9 of the Act pertained to collective nature of right or benefits for the minority community, and a claim made by an individual would not have any bearing in the matter unless it was shown that he was deprived of the benefit for the reason that he belonged to a minority community. This, clearly, was not the case in the present matter as Respondent 2 intended to convert a land assigned for agricultural purpose for non-agricultural use. It was observed that the issue herein was the right use of a particular land and not the status of Respondent 2.

In view of the above, it was held that the question as to whether Respondent 2 could use the land for non-agricultural purposes was not within the jurisdiction of Minority Commission. The impugned order was set aside granting Respondent 2 the liberty to pursue a remedy in an appropriate manner.[Tahsildar (Land Records) v. Kerala State Minority Commission, 2019 SCC OnLine Ker 1486, decided on 25-03-2019 ]

Case BriefsHigh Courts

Bombay High Court: In a very important case relating to rights of an owner of the copyright in sound recordings, S.J. Kathawalla, J. issued a permanent injunction against Wynk Music restraining it from infringing the copyright if Tips Industries held by it in over 25,000 songs. The Court was faced with determining the issue of easy/ready access to music /sound recording vis-a-vis the restrictions which can be put on the same by the bonafide owners of copyright in the said music/sound recording.

Facts

Tips Industries — owner of copyright in over 25,000 sound recordings (“Repertoire”) — licensed its Repertoire to Wynk Music, owner and operator of Wynk — an over the top service available on the internet through which, the subscribers, upon payment of a subscription fee, can listen to numerous sound recordings and audio-visual recordings including Tips’ Repertoire. The Repertoire was licensed to Wynk by the copyright society — Phonographic Performance Ltd. (“PPL”). However, the said license expired on 31-8-2016.

The negotiations which ensued thereafter for extending the license failed, and Tips requested Wynk to deactivate its Repertoire from their platform — which request according to Tips, was not complied with by Wynk. Thereafter, Tips issued a cease and desist notice to Wynk on 17-11-2017. In reply, Wynk invoked Section 31-D of the Copyright Act, 1957, claiming that they are a broadcasting organisation entitled to a statutory license under the said section to communicate the work to the public by way of a broadcast of Tips’ musical work and sound recordings, Consequently, on 29-1-2018, Tips filed two suits against Wynk for infringement of copyright, disputing Wynk’s right to avail  statutory license provided for by Section 31-D and claiming permanent injunction, restraining them from — (a) communicating to the public Tips’ Repertoire; and (b) giving on commercial rental/sale, Tips’ Repertoire of songs by way of providing download services/features.

Discussion 

The High Court held a detailed discussion on several issues as framed before it. After considering various provisions of the Copyright Act and several case laws on the subject, the Court answered the issues as follows:

(a) It is evident that Wynk through its purchase feature and download feature, is enabling its customers to store physical files/electronic copies Tips’ Repertoire on their devices in abrogation of the exclusive rights granted to Tips under Section  14(1)(e)[copyright in respect of sound recording] of the Act.

(a-i) The defence provided in Section 52(1)(a)(i) is not available to Wynk at all. The defence of fair use may be available in a given case, to an individual user. The activities of Wynk can never be termed as ‘private’ or ‘personal use’ or ‘research’. Wynk is clearly selling and /or commercially renting sound recordings including, iner alia, Tips’ Repertoire for their own commercial benefit.

(a-ii) The provisions of Section 52(1)(b) are fairly straightforward. It is clear from the nature of Wynk’s activities that the offline storage, either permanent or temporary, of electronic copies of the sound recordings on the customer’s devices, is the primary selling point/unique object of Wynk’s business. The electronic storage of Tips’ sound recording on the platform of Wynk can neither be termed as ‘transient’ nor ‘incidental’. The sound recordings may be stored on the customers’ devices during the tenure of their subscription or as per their discretion, as the case may be. In such circumstances, the storage of the sound recordings cannot be said to be incidental or transient to services of Wynk.

(a-iii) Section 31-D contemplates communication to public by way of broadcast of sound recordings only, and not their commercial rental and/ or sale. Since the services (download/purchase feature) provided by Wynk are in the nature of commercial rental and/or sale of sound recordings, they do not fall within the purview of Section 31-D of the Act and Wynk is prohibited from exercising a statutory license apropos thereto.

(b) Provisions of Section 31-D read with Rules 29 to 31 of the Copyright Rules, 2013 coupled with the legislative history preceding the passage of Copyright Amendment Act, 2012 clearly support the submission that Section 31-D contemplates only television and radio broadcasting and to internet broadcasting. Moreover, prior determination of royalty rates is a necessary precondition for the exercise of rights in respect of a Statutory License under Section 31-D. Therefore, even assuming that ‘internet broadcasting’ was covered within the ambit of Section 31-D. Wynk could not have exercised Statutory License under the said section in the absence of pre-fixation of the rate of royalty by the Appellate Board.

(c) Rule 29 of the Copyright Rules, 2013 and its proviso which state that prior fixation of royalty rates is a necessary precondition to the exercise of Statutory License under Section 31-D was challenged as invalid by Wynk. However, the challenge was dismissed and the rule was held valid.

(d) Wynk relied on Government of India’s Office Memorandum dated 5-9-2016 which clarified: “… in view of the above, the words any broadcasting organization desirous of communicating to the public may not be restrictively interpreted to cover only radio and television broadcasting, as the definition of Broadcast read with communication to the public appears to include all kinds of broadcast including internet broadcasting. Thus, the provisions of Section 31-D of the Copyright Act, 1957 are not restricted to radio and television broadcasting only but cover internet broadcasting also.” It was held that the said Memorandum lacks a ‘statutory flavour’ and cannot prevail over an interpretation which is drawn under the Act and the Rules. The interpretation of Section 31-D in the said Memorandum is inconsistent with the interpretation drawn by this Court and this Court is not bound by the said Memorandum.

(e) High Court has no jurisdiction to grant a Compulsory License which is within the exclusive domain of the Copyright Board. Furthermore, permitting Wynk to deposit money whilst permitting it to use Tips’ Repertoire for its commercial activities would amount to a grant of a Compulsory License, for which the High Court, being a Civil Court doesn’t have the jurisdiction.

(f) Tips’ entire Repertoire is being widely exploited by Wynk without payment of any royalty. The balance of convenience was in favour of Tips. An injunction order restraining Wynk from using the Tips’ Repertoire would preclude them from using 25,000 songs out of 2.6 million songs. An injunction order against Wynk shall not bring its business to a standstill or cause irreparable injury.

Held

Insofar as the download and purchase feature of Wynk’s activities are concerned, the same amount to infringement of Tips’ rights provided under Section 14(1)(e)(ii) of the Copyright Act; insofar as the on-demand streaming services are concerned, the same amount to infringement of Tips’ rights provided in Section 14(1)(e)(iii) of the Copyright Act; and the provisions of Section 31-D of the Act are not applicable to internet broadcasting.

The Court considered its necessary to grant reliefs in favour of Tips industries in terms of the permanent injunction claimed by it as mentioned above. The present notice of motion were therefore allowed.[Tips Industries Ltd. v. Wynk Music Ltd., Notice of Motion (L) No. 197 of 2018 in Commericial Suit IP (L) No. 114 of 2018, decided on 23-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Bench of Arvind Singh Sangwan, J., quashed the FIR on the basis of the compromise entered into by the parties.

A petition was filed by the petitioner for quashing the FIR for the offences punishable under Sections 377, 34 of Penal Code, 1908 and all the subsequent proceedings arising therefrom.  The ground for quashing the FIR mentioned was with respect to the compromise entered by the party. The Court revealed that they have voluntarily entered into a compromise and the Court is satisfied that the parties have amicably settled their dispute without any fear, pressure, threat or coercion and out of their free will. Hence the Application for quashing of FIR was filed.

The Learned counsel for the petitioner, Piyush Sharma, submitted apart from the amicable settlement between the parties there was no other criminal case pending and none of the petitioners is a proclaimed offender. Reliance was placed upon the case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

The Learned counsel for the respondent, M.S. Nagra, has not disputed the fact that the parties have arrived at a settlement with intent to give burial to their differences.

The Court after noting the submissions of both the parties held that “since the parties have arrived at a compromise and have decided to live in peace, no useful purpose would be served in allowing the criminal proceedings to continue.”[Pipal Singh v. State of Punjab, 2019 SCC OnLine P&H 450, decided on 29-04-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Tarlok Singh Chauhan, J. allowed an appeal challenging the judgment of first appellate court whereby the trial court’s order was set aside without taking the findings of trial court into consideration.

Appellant herein was a defendant in a suit for possession filed by the respondent (plaintiff before trial court), which was dismissed by the trial court. In an appeal by the respondent-plaintiff, the first appellate court set aside the trial court’s order. Aggrieved thereby, the instant regular second appeal was filed. 

The sole issue pertained to the scope, ambit and power of first appellate court while deciding first appeal. It was opined that the right to file first appeal against a decree under Section 96 of the Code of Civil Procedure, 1908 is a valuable legal right of the litigant. The jurisdiction of first appellate court while hearing first appeal is very wide like that of trial court and it is open to the appellant to attack all findings of fact or/and of law in the first appeal. It is the duty of first appellate court to appreciate the entire evidence, and then it may come to a different conclusion. While doing so, the judgment of first appellate court must reflect its conscious application of mind and record findings supported by reasons, on all issues along with the contentions put forth, and pressed by the parties. While reversing a finding of fact, the first appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding.

The Court noted that in the instant case, the first appellate court had not at all adverted to findings and reasons recorded by the trial court and had simply chosen to write a separate judgment without taking into consideration any of the facts and circumstances that prevailed upon the trial court to dismiss the suit.

In view of the above, the impugned order of the first appellate court was set aside, and the matter was remanded to it for a fresh decision.[Sunder Singh v. Roop Singh, 2019 SCC OnLine HP 550, decided on 26-04-2019]

Case BriefsHigh Courts

Delhi High Court: Chander Shekhar, J. refused to interfere with the order of the Juvenile Justice Board whereby it had directed that the two children in conflict with the law in the present cause shall not be treated as adults.

The petitioner was the father of the deceased, Mandeep. An FIR was registered under Sections 363, 302, 201 and 34 IPC in connection with Mandeep’s murder. After going through the material on record including the preliminary assessment reports prepared b experts, the JJ Board passed the order to treat the children in conflict with law as children and were ordered to be tried before the JJ Board as children. The petitioner challenged the order of the JJ Board, but the Additional Sessions Judge upheld the order. Aggrieved thereby, the petitioner filed the present revision petition.

Perusing the record, as well as relevant sections the Juvenile Justice (Care and Protection of Children) Act, 2015, the High Court was of the view that order of the JJ Board did not require interference. Discussing Section 15 and the proviso thereto, the court observed: “There is no doubt that the JJ Board may seek the opinion of an expert regarding the mental and physical capacity of CCL to commit an offence and it is not necessary that if an expert opined that the mental and physical capacity of CCL and his ability to understand the consequence of the offence are positive, then the JJ Board is bound by the expert opinion. It is well within the jurisdiction of the JJ Board to agree or disagree with the preliminary assessment report of the CCL submitted by such a psychologist to the JJ Board.” Having regard to the facts of the present case, it was held that the JJ Board had applied its mind before coming to the conclusion that the two children in conflict shall not be treated as adults. In such view of the matter, the petition was dismissed.[Pradeep Kumar v. State (NCT of Delhi), 2019 SCC OnLine Del 8251, decided on 15-04-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Biswanath Rath, J. entertained the writ petition challenging the order passed by the learned trial Court, directing for recounting of votes of the elected candidate.

The instant writ petition was filed referring to the pleadings in the election dispute which arose before the trial court. The said petition was filed by the elected candidate who pleaded to set aside the order of the trial court confirming the decision of the Election Tribunal for recounting of votes involving the petitioner.

The petitioner contended that in absence of any counter claim for the recounting of the votes of the petitioner by the defeated candidate, votes in favour of opposite party should only be recounted and the rejected votes should be examined. The petitioner wanted the court to interfere in the impugned order and to set aside the same.

The respondent relied on the direction passed by the tribunal for recounting of the votes of the petitioner i.e the elected candidate and hence, did not wish to file any counter claim against the elected candidate.

Perusing the records, the Court opined that, there was no counterclaim involving the allegation for counting of votes in favour of the petitioner and as it was not pleaded in the written statement the tribunal must not had decided the particular issue i.e recounting of the votes of the elected candidate. The Court held, that the Election Tribunal has exceeded its jurisdiction by traveling beyond the scope of litigation involved therein. The Court further directed the Tribunal to conclude the dispute of the miscellaneous case by giving both the parties an equal opportunity of hearing.[Ritarani Jena v. Sumaatee Jena, 2019 SCC OnLine Ori 173, Order dated 02-04-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: The Bench of Gulzar Ahmed,  Faisal Arab and Ijaz UL Ahsan, JJ., dismissed the petition filed against a Judgment of the Lahore High Court through which the appeal filed by the petitioner regarding the termination of his services was dismissed.

The facts of the case were that the petitioner was appointed as an ECG Technician in District Headquarters Hospital, Rawalpindi in 2005 on a contract basis. In 2009, his services were terminated. He challenged his termination through a representation which was not decided. He, therefore, approached the High Court in its constitutional jurisdiction. The High Court directed the respondents to decide the petitioner’s representation. This was dismissed by the departmental authority. The petitioner challenged the said order which was allowed. The respondents, feeling aggrieved, challenged the said judgment through two separate Intra Court Appeals which were allowed; the above facts raised the current contention. The Counsel for the petitioner, Sardar Abdul Raziq Khan and Syed Rafaqat Hussain Shah submitted that the Division Bench of the High Court fell in error in reversing the findings of the Single Judge in a mechanical manner, ICA filed by the Rawalpindi Medical College , which was neither a party to the proceedings nor directly aggrieved of the order, was not competent and the ICA filed by the Government of Punjab was barred by time and the Division Bench erred in law in entertaining the appeals. The respondents defended this by raising the point of law that if two appeals against the same impugned judgment are filed, one of which is within time, the other appeal should also be entertained and decided on merit rather than being dismissed on technical grounds.

The Court held that the appeal filed by the RMC was within time and even if the appeal filed by the Government of Punjab was barred by time, the Division Bench had a legal basis and lawful justification to entertain and decide both appeals on merits. Further, the Court found that the order of petitioner’s appointment was void and no period of limitation runs against a void order. The second issue that was considered was that the dispute between the parties related to contract employment. The Court stated that it is settled law that a contract employee is debarred from approaching the High Court in its constitutional jurisdiction. The only remedy available to a contract employee is to file a suit for damages alleging breach of contract or failure to extend the contract. Therefore, it was held that the petitioner approached the wrong forum in the first place and the Single Judge had exceeded his jurisdiction by interfering in a purely contractual matter. The appeal was thus dismissed. [Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital, 2019 SCC OnLine Pak SC 3, Order dated 06-03-2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and SK Kaul, JJ delivered a very important judgment today where it held,

“the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

Section 498A IPC and related provisions

Section 498A IPC was introduced by the Criminal Law (second amendment) Act, 1983. In addition to the aforesaid amendment in the Indian Penal Code, the provisions of Sections 174 and 176 of the Code of Criminal Procedure, 1973 relating to inquiries by police in case of death by suicides and inquiries by magistrates into cause of such deaths were also amended. Section 198A was also inserted in the Code of Criminal Procedure with regard to prosecution of offences under Section 498A. Further by an amendment in the first schedule to the CrPC the offence under Section 498A was made cognizable and non-bailable. Of considerable significance is the introduction of Section 113A in the Evidence Act by the Criminal Law (second amendment) Act, 1983 providing for presumption as to abetment of suicide by a married woman to be drawn if such suicide had been committed within a period of seven years from the date of marriage of the married woman and she had been subjected to cruelty.

“The object behind the aforesaid amendment, undoubtedly, was to combat the increasing cases of cruelty by the husband and the relatives of the husband on the wife which leads to commission of suicides or grave injury to the wife besides seeking to deal with harassment of the wife so as to coerce her or any person related to her to meet any unlawful demand for any property, etc.”

Cruelty at Matrimonial Home vis-à-vis Parental Home

Earlier Rulings

The Court had, on earlier occasions, held that the offence of cruelty having been committed in the matrimonial home the same does not amount to a continuing offence committed in the parental home to which place the aggrieved wife may have later shifted. It has been held that:

“if on account of cruelty committed to a wife in a matrimonial home she takes shelter in the parental home and if no specific act of commission of cruelty in the parental home can be attributed to the husband or his relatives, the initiation of proceedings under Section 498A in the courts having jurisdiction in the area where the parental home is situated will not be permissible.”

Ruling in the present case

The Court said that the provisions contained in Section 498A IPC, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter.

It, hence, noticed,

“The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498A at the parental home.”

[Rupali Devi. State of Uttar Pradesh,  2019 SCC OnLine SC 493, decided on 09.04.2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of A.J. Shastri, J. dismissed a petition being devoid of merit as the case did not fall in any of the parameters of Section 115 of Code of Civil Procedure which would permit the Court to exercise the discretion provided under it.

In the present Civil Revision Application, the common judgment of the Principal Senior Civil Judge was challenged. The original suit was filed for seeking dissolution of partnership and for the purpose of accounts and for its share to be distributed and also for an interim injunction where the contentions put forth by the respondents was rejected. The present petitioners being aggrieved of the order contended the partnership in question itself, that not only some of the partners but also their nominees have passed away. Therefore, there remains no cause of action to continue the suit or claim and also the plaint itself is barred by law of limitation. And that the partnership deed has not been operated or continued after the year 1985. Mr Vimal Purohit, learned advocate appearing on behalf of contesting respondents had submitted that if a true construction of partnership is seen from the clauses contained in the partnership deed, a dissolution can never be inferred from 1985. He further submitted that the contract is clearly indicating that partnership can continue even after the death of a partner by inserting nominees as partners. Also, contended that even cause of action is also clearly spelled out in the plaint itself and from the bare averments made in the plaint. To substantiate further two cases were relied upon, Khushal Khemgar Shah v. Khorshed Banu Dadiba Boatwalla, (1970) 1 SCC 415 and Kodendera K. Uthaiaha v. P.M. Medappa, (2017) 16 SCC 331.

The Court while referring to the cases cited, held that, the scope analysed by the Hon’ble Court on the exercise of jurisdiction is aptly propounded in the decisions. The Court further opined that, “first of all the order impugned in the revision application is not possible to be construed as perverse in any manner particularly in view of the fact that contentions which have been raised have been dealt with properly by the learned trial judge and additionally the proposition of law laid down by series of decisions have also been taken note of”. And this case does not fall in any of the parameters required for exercising jurisdiction under Section 115 of CPC.  The revision application being devoid of merit was thus dismissed.[Ramankant Nanalal Jasani v. Sureshchadra Amrutlal Jasani, 2019 SCC OnLine Guj 582, Order dated 11-03-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of V. Chitambaresh and A.M. Babu, JJ. dismissed an appeal challenging the learned Single Judge’s order dismissing a petition filed for regularisation of service.

Appellant herein had filed a claim for regularisation in service but the same was turned down in 2001. The writ petition challenging the same was filed only in 2014 and the same was dismissed holding the petitioners guilty of laches in invoking the writ jurisdiction. Being aggrieved, the instant writ appeal was filed.

Respondent 2 (Kerala Shipping and Inland Navigation Corporation Ltd.) submitted that a few casual labourers had been continued only on humanitarian grounds even though the work dwindled after Gosree Projects.

The Court at the outset noted that there was no irregularity in the impugned order. Further, a huge financial commitment would be imposed on respondent  2 if all casual labourers were regularised. Moreover, they also would not even have adequate work for such workers.

Further, the appellant was not advised for appointment as he had a low rank in the rank list published by the Public Service Commission which is entrusted with the task of recruitment.

It was opined that it is not an inflexible rule that services of all casual labourers should be regularised. The Court concluded that appellant was at liberty to move the Labour or Industrial Courts under the Industrial Disputes Act, 1947 if there was an unfair labour practice as writ court is not the proper forum for ventilation of such grievance.

In view of the above, the appeal was dismissed.[K.S. Rajeevan v. State of Kerala, 2019 SCC OnLine Ker 805, decided on 07-03-2019]