Case BriefsInternational Courts

International Court of Justice ( ICJ): On 13 June 2016, Equatorial Guinea instituted proceedings against France in ICJ with regard to a dispute concerning the immunity from criminal jurisdiction of the Vice-President of the Republic of Equatorial Guinea, Mr Teodoro Nguema Obiang Mangue, and the legal status of the building which “houses the Embassy of Equatorial Guinea”, located at 42 Avenue Foch in Paris. Equatorial Guinea sought to find the Court’s jurisdiction, first, on Article 35 of the United Nations Convention against Transnational Organized Crime (“Palermo Convention”) and, second, on Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes (“Optional Protocol to the Vienna Convention”). France raised preliminary objections to the jurisdiction of the Court.

Mr Teodoro was fined and convicted for the offences like money laundering and misappropriation of public funds of his country of origin and investing it in France by a French Tribunal. As it was found on investigation that the building at 42 Avenue Foch was bought by him in pursuance of these offences, it was ordered to be attached. However, Equatorial Guinea claimed that the building to be part of its Diplomatic Mission in France. The attachment and his term were suspended after the Equatorial Guinea approached ICJ in this regard.

The Court observed that Equatorial Guinea’s claims based on principles of sovereign equality and non-intervention in the domestic affairs of other States (Article 4 of the Palermo Convention) were not valid as the Court considered that the said Article does not refer to the customary international rules, including State immunity, that is derived from sovereign equality but refers to the principle of sovereign equality itself. The Court gave the expression “sovereign equality” its ordinary meaning while observing that none of the provisions of the Palermo Convention relates expressly to the immunities of States and State officials. Further, it found this unrelated to the object and purpose of the Convention, set out in Article 1. Therefore, the Court concluded that the aspect of the dispute relating to the immunity of the Vice-President and the building from measures of constraint as State property did not concern the interpretation or application of the Palermo Convention and hence, Court lacked jurisdiction in relation to this aspect.

The Court rejected Equatorial Guinea’s claims based on the Palermo Convention concerning France’s alleged overextension of its criminal jurisdiction over predicate offences associated with the crime of money laundering.

Finally, Court noted that the Parties disagreed on the question whether the building constituted part of the premises of the Mission and was thus entitled to the treatment afforded for such premises under Article 22 of the Vienna Convention. Court found that this aspect of the dispute fell within the Vienna Convention and, consequently, it had jurisdiction under the Optional Protocol to the Vienna Convention to adjudge this aspect. [Immunities and Criminal Proceedings, Republic of Equatorial Guinea v. French Republic, No. 163, decided on 06-06-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: In a matter arising under Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, a Division Bench comprising of Hemant Gupta, CJ and Atul Sreedharan, J. allowed a writ appeal and set aside the Orders of the learned Single Judge as well as the Debts Recovery Tribunal.

The appellant, a secured creditor, invoked the jurisdiction of the District Magistrate under Section 14 of the SARFAESI Act. Against the order passed by the District Magistrate, the respondents preferred a challenge before the Debts Recovery Tribunal who declined to exercise jurisdiction, holding that an application under Section 17 of the Act is not maintainable before the Tribunal. Respondents filed an appeal before the learned Single Judge who by his impugned judgment, allowed the challenge and set aside the Order of the District Magistrate. Aggrieved by the Order of the Single Judge, the appellants were in appeal before the High Court.

The High Court, after considering the record, held that the learned Single Judge was not right in setting aside the Order of the DM. The Court, relying on its previous judgments, held that an appeal under Section 17 of the Act against an order passed by the DM, is maintainable before the Debts Recovery Tribunal. Thus, the Court set aside the orders of the learned Single Judge as well as the Debts Recovery Tribunal. The matter was accordingly sent back to the Tribunal for adjudication under Section 17 of the SARFAESI Act. [Authorized Officer v.  Prafulla Kumar Maheshwari; 2018 SCC OnLine MP 325; dated 01-05-2018]

Case BriefsHigh Courts

Madras High Court: A Division Judge Bench comprising of Indira Banerjee, CJ. and M. Sundar, J., allowed a writ appeal filed against the order of the learned Single Judge wherein he dismissed assessee’s challenge to the show-cause notice issued by principal Commissioner of Income Tax (revenue).

The assessee filed a return for the year 2012-2013 under Section 139 of Income Tax Act, 1961. Subsequently, the revenue issued a notice to the assessee under Section 148 of IT Act. The revenue wanted to open a re-assessment for the said year, on the grounds that the interest on loan amount shown to be paid to the bank was diverted by the assessee to its partners. The assessee challenged the re-assessment contending that the notice was issued after expiry of 2 years, which was not permissible.

The High Court considered the submissions made on behalf of the parties and perused Section 148 of the IT Act. The Court noted that read with Section 263(2), a notice of re-assessment under Section 148 could have been issued only within a time period of two years from the date of the scrutinization of the original assessment. Holding the said notice to be a show cause notice, the High Court observed, principles and grounds available for assailing a show cause notice are well settled. It the authority issuing the show cause notice lacks jurisdiction and if it is clearly barred by law, it renders the show cause notice invalid in law. The Court held that the show cause notice issued in this case was issued beyond the statutory period of two years which was clearly barred by law. Accordingly, the writ appeal was allowed. [Indira Industries v. CIT, 2018 SCC OnLine Mad 1850, dated 14-6-2018]

 

 

Case BriefsForeign Courts

Supreme Court of Canada: The Canadian Supreme Court Bench comprising of McLachlin C.J. and Abella, Moldaver, Karakatsania, Wagner, Gascon, Cote, Brown and Rowe JJ., allowed an appeal while discussing the scope and essence of ‘Judicial Review’.

The facts of the case were that the Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses (Appellant), had disfellowshipped Randy Wall (Respondent) due to his engagement in a sinful act for which he was considered to be insufficiently repentant.  The Appeal committee had confirmed the decision of the judicial committee. Further, the Respondent for the purpose of ‘Judicial review’ of his disfellowship placed an originating application on the basis of it being procedurally unfair before the Queen’s Bench.

Following the facts of the case, the primary issue that was to be answered through was of the jurisdiction of the court’s to review decisions of religious organizations.

While concluding the case, and allowing the appeal, the bench gave an understanding of the concept of ‘Judicial review’ by explaining that the private parties cannot seek ‘judicial review’ to solve disputes that may arise between them; rather, their claims must be founded on a valid cause of action, and also stated that the respondent had no cause of action neither did the ecclesiastical issues raised by him were justiciable.

Therefore, the Court, while stating that ‘Judicial Review’ is only available where there is an exercise of state authority and on an analysis of the stated issues which no where touched the ‘rule of law’ decided that “Courts may only interfere to address procedural fairness concerns related to the decisions of religious groups or other voluntary associations if legal rights are at stake and the claim is founded on a valid cause of action.” The appeal was allowed by quashing the originating application for judicial review as the matter in issue was outside the courts’ jurisdiction. [Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC OnLine Can SC 10: 2018 Supreme Court Cases 26, decided on 31-05-2018]

Case BriefsHigh Courts

Delhi High Court: The Division Bench comprising S. Ravindra Bhat and Yogesh Khanna, JJ. set aside the decision of the Single Bench wherein it was that the Bangalore City Civil Court had no jurisdiction to hear the dispute related to arbitration between ISRO’s Antrix Corporation and Devas Multimedia.

An agreement was entered between Antrix Corporation and Devas Multimedia and further terminated unilaterally by Antrix due to ‘national security reasons.’ The agreement provided settlement of the dispute by arbitration and Devas accordingly pulled Antrix to International Court of Arbitration i.e. ‘ICC’. Antrix approached Bangalore Court to restrain Devas from proceeding with the arbitration and stop the International Court from going ahead with the matter. In 2015, the International Court ruling asked Antrix to pay USD 672 million to Devas for unlawful termination of the agreement. Subsequently, in September 2015, Devas moved to Delhi High Court for implementation of the arbitral award by seeking attachment of bank accounts of Antrix but the latter challenged its jurisdiction. Thereafter, it was held Antrix’s pleas in the court in Bangalore were not maintainable.

Antrix contended that under Section 9 of Arbitration and Conciliation once an application was made to a “court”, only that “court” would have jurisdiction over all subsequent applications made by either party under the Act, by virtue of Section 42. On the other hand, it was contended by Devas that Antrix had claimed substantially similar reliefs in its Section 11 petition before the Supreme Court which was dismissed, thereby leading to an issue estoppel. Allowing Antrix to re-agitate similar claims in a Section 9 petition before the City Civil Court would amount to forum shopping and an abuse of process of the courts.

However, contentions of Antrix were upheld against those of Devas. Section 42 precluded the jurisdiction and the Bangalore Court being first seized of Antrix’s petition would first decide Antrix’s initial plea against the arbitration proceedings. If it is found to be maintainable and bonafide, then Section 42 would be applicable, however, if not then that application would be treated as non-est and application in Delhi High Court would not be hit by Section 42. [Antrix Corpn. Ltd. v. Devas Multimedia Pvt. Ltd., 2018 SCC OnLine Del 9338, decided on 30-05-2018]

Case BriefsSupreme Court

Supreme Court: While addressing the ongoing issue relating to the discrepancy in preliminary examinations conducted for Uttar Pradesh Public Service Commission  2018, a vacation bench comprising of Deepak Gupta, J. speaking for himself and U.U. Lalit, J. set aside the judgment of Allahabad High Court wherein answers to certain questions were scrapped by the Court.

The answer key for the preliminary paper of General Studies-I, held for U.P. Public Service Commission 2018 to fill vacancies in Upper Subordinate Services in the State was challenged by certain candidates appearing for the exam, before the Allahabad HC. The High Court, while sustaining the challenge of the petitioners, struck down answers to four questions holding them to be incorrect. Aggrieved by the decision of the High Court, the respondent Commission approached the Apex Court.

The Supreme Court held such interference by the High Court untenable. It found that the answer key was published by the Commission after verification and suggestions of a 15-member and 18-member expert committees. Further, the answer key was examined by a 26-member expert committee on receiving as many as 926 objections by the candidates who appeared for the exam. The Hon’ble Bench observed the law to be well settled regarding the extent and power of the Court to interfere in academic matters. Referring to its earlier decisions in Kanpur University v. Samir Gupta, (1983) 4 SCC 309, and Ranvijay Singh v. State of U.P., (2018) 2 SCC 357, the Hon’ble Court observed, the State Government should devise a system for moderating answers key furnished by the paper setters. The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain such pleas. Judges cannot take on the role of academic experts and no interference is permissible unless the candidate demonstrates that the key answers are patently wrong on the face of it. Noting the fact that the answer key was published after moderation by two expert committees, the Court held that the Allahabad High Court transgressed its jurisdiction in setting aside the decision of experts in the field. Accordingly, the impugned judgment was reversed. [U.P. Public Service Commission v. Rahul Singh,2018 SCC OnLine SC 609, decided 14-6-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Single Judge Bench comprising of Tarlok Singh Chauhan, J., addressed a very unusual petition in which the court exercised its “parens-patriae” jurisdiction.

In accordance to the facts of the case, petitioner is said to have requested her parents to marry “L” who is a facebook friend of the petitioner/ “K”, but after several attempts also petitioner’s parents did not agree for the marriage and instead they lodged a complaint against “L” under Sections 363, 366 376  IPC and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. Further the petitioner was handed over to her parents when she had claimed to have married “L” but later the petitioner came back to “L’s” house.

On filing the instant petition, the petitioner had sought reliefs on not being restrained by her parents or the police from living in her husband’s house or from any kind of harassment and also provision of police protection.

However, the Court had earlier asked for a status report in which it was seen that the petitioner is happily living with “L’s” parents and is being treated well by them. On looking at this report the Court directed that no authority shall remove the petitioner from such custody without the leave of this Court.

Therefore, the Hon’ble High Court, exercised “parens-patriae” jurisdiction to secure the welfare of the minor by taking instance from the Supreme Court case of Lata Singh v. State of U.P., (2006) 5 SCC 475 and proposing to the petitioner to live at Balika Ashram till the time she attains the age of majority and thereby, she will be free to go anywhere, marry anyone and love anyone she likes on reaching the age of majority, till that time no authority or person shall have the permission of the Court to take the petitioner from the Balika Ashram. [‘K’ v. State of H.P., 2018 SCC OnLine HP 432, dated 12-04-2018]

Legislation UpdatesStatutes/Bills/Ordinances

The Government on May 3 published an Ordinance in the Gazette of India which made major changes to the Commercial Court structure in India. These courts were set up below the District Judge level, keeping in mind the increasing number of commercial disputes with a growing economy, and to bring about a speedy resolution of conflict, to showcase India as a lucrative destination for foreign investment. This ordinance sought to amend the Commercial Courts, Commercial Division and the Commercial Appellate Division in High Courts Act of 2015 (the Act).

The amendment made the following important changes to the Act:

1. Addition of the phrase “Commercial Appellate Courts” to the long title of the Act, and prescribing “Commercial Courts Act, 2015” as the short title.

2. In S. 2(i) of the Act, ‘specified value’ was lowered from amounts exceeding One crore rupees to amounts exceeding Three lakh rupees, substantially increasing the ambit of the courts’ jurisdiction.

3. In the High Courts of Bombay, Delhi, Calcutta, Madras and Himachal Pradesh, which exercise ordinary original civil jurisdiction in respect of territories of the cities of Mumbai, Delhi, Kolkata, Chennai and the State of Himachal Pradesh, the State government, in consultation with the respective High Court, shall constitute Commercial Courts at District Judge Level, and also specify the pecuniary value for these courts, which shall be greater than 3 lakhs but less than the pecuniary value of the jurisdiction of the District Court.

4. Where the High Courts do not exercise ordinary original civil jurisdiction, the State government may, in consultation with the respective High Court, establish Commercial Appellate Courts at the District Judge level, to hear appeals against judgments passed by the Commercial Courts below the District Judge level.

5. Insertion of Chapter IIIA to the Act which mandates, in suits not contemplating any urgent interim relief, pre-institution mediation, the manner and procedure of which is to be prescribed by the Central Government. Such a suit shall not be instituted till the remedy of mediation has been exhausted.

Ministry of Law and Justice

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Amit Sthalekar, J. ordered the petitioner (wife of a retired government servant) to vacate the government quarter occupied by her unathorisedly even after retirement of her husband who was a government servant.

The petitioner was unauthorisedly occupying the government quarter in question which was allotted to her husband when he was in government service. The husband of the petitioner had retired from government service twelve years ago but still the petitioner continued to occupy the quarters. Learned counsel for the petitioner submitted that the respondents be restrained from compelling the petitioner from vacating the said quarters in view of the order of the State Women Commission.

The High Court was of the opinion that the submission of the counsel for the petitioner was misconceived. The Court held that the State Women Commission had absolutely no jurisdiction to interfere in the service matters of an employee which are governed by statutory rules. Petitioner’s husband had retired from service twelve years ago; the petitioner continued to occupy the said quarters in wholly illegal and unauthorized manner. Accordingly, the petitioner was ordered to vacate the government quarter within fifteen days. [Asha Rai v. Purvanchal Vidyut Vitran BLW, 2018 SCC OnLine All 435, dated 20-04-2018]

 

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether the order passed by the City Civil Court in exercise of power under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in the capacity of a Civil Court or persona designate, the 3-judge bench of Dipak Misra, CJ and Amitava Roy and AM Khanwilkar, JJ held:

“the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre-existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge).”

It was said that being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction.

Explaining the provision under Section 9 f the Act, the Court said:

“when the Appellate Officer is either the District Judge of the district or any another judicial officer in that district possessing necessary qualification, who could be designated by the District Judge, the question of such investiture of power of an appellate authority in the District Judge or Designated Judge would, by no standards, acquire the colour or for that matter trappings of persona designate.

Explaining further, the Court said that the District Judge or Principal Judge exercises judicial power of the State and is an authority having its own hierarchy of superior and inferior Courts, the law of procedure according to which it would dispose of matters coming before it depending on its nature and jurisdiction exercised by it, acting in judicial manner. Hence, the District Judge/Principal Judge of the City Civil Court and other judicial officers of these Courts possessing necessary qualifications constitute a class and cannot be considered as persona designata. The Appellate Officer, therefore, has to function as a Court and his decision is final in terms of Section 10 of 1971 Act. The Bench said:

“The legislative intent behind providing an appeal under Section 9 before the Appellate Officer to be the District Judge of the concerned District  Court in which the public premises are situated or such other judicial officer in that district possessing necessary qualification to be designated by the District Judge for that purpose, is indicative of the fact that the power to be exercised by the Appellate Officer is not in his capacity as persona designata but as a judicial officer of the pre-existing Court.”

[Life Insurance Corporation of India v. Nandini J. Shah, 2018 SCC OnLine SC 142, decided on 20.02.2018]

Case BriefsSupreme Court

Supreme Court: The bench of J. Chelameswar and SK Kaul, JJ held that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.

Different High Courts had given different opinion on the question as to whether an award under the Arbitration & Conciliation Act, 1996 is required to be first filed in the court having jurisdiction over the arbitration proceedings for execution and then to obtain transfer of the decree or whether the award can be straightway filed and executed in the Court where the assets are located is required to be settled in the present appeal.

Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court were of the opinion:

“An award is to be enforced in accordance with the provisions of the said Code in the same manner as if it were a decree of the Court as per Section 36 of the said Act does not imply that the award is a decree of a particular court and it is only a fiction. Thus, the award can be filed for execution before the court where the assets of the judgment debtor are located.”

However, the Madhya Pradesh and Himachal Pradesh High Courts held:

“The transfer of decree should first be obtained before filing the execution petition before the Court where the assets are located.”

After discussing various provisions of the Act and the various orders of the High Courts at length, the Bench said:

“An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.”

It was, hence, held that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position. [Sundaram Finance Limited v. Abdul Samad, 2018 SCC OnLine SC 121, decided on 15.02.2018]

Case BriefsHigh Courts

Calcutta High Court: A civil petition was decided by a Single Judge Bench comprising of Sanjib Banerjee, J., wherein the orders of the lower appellate court and the trial court insofar as they refused to grant injunction in respect of Schedule C properties to the plaint, were set aside.

The petitioner-plaintiffs filed a suit regarding a property matter wherein injunction was granted in respect of properties covered under Schedule A and B, but was refused in respect of Schedule C properties on the only ground that such property was situated beyond the territorial limits of the trial court. Aggrieved thereby, the plaintiffs filed the instant petition.

The High Court perused the record and discussed law on the subject. The Court was of the view that it was inconceivable that only because a property was not situated within the jurisdiction of a particular court, the court refused to grant an injunction in respect thereof. With help of an example, the Court discussed Section 17 CPC which envisages a suit being instituted in one of the several courts within whose jurisdiction the properties may be situated. It is possible that “A” and “B” have disputes pertaining to six properties and all the six properties are not situated within the jurisdiction of any one particular court. If the cause of action is such that several suits need not be instituted, by virtue of Section 17 the plaintiff may invoke the jurisdiction of any one court within whose jurisdiction any of the properties may be situated; but that would not preclude that court from issuing an injunction in respect of properties situated beyond its jurisdiction.

Since the order of refusal to grant injunction was made only on the above mentioned ground without going into merits; the Court held that the orders of the lower appellate court and the trial court, insofar as they refused to grant injunction in respect of Schedule C properties to the plaint, were liable to be set aside which was ordered accordingly. [Reba Rani Bal V. Malay Krishna Bal, 2018 SCC OnLine Cal 143, order dated 05-02-2008]

 

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court returned a plaint on grounds of want of jurisdiction and vagueness of cause of action raised in an IA before it. The original suit was filed by the plaintiff, seeking a decree of permanent injunction restraining passing off and to claim damages against all defendants.

The plaintiff is a media house which operates a Hindi news channel by the name of ‘News Nation’ which is circulated across the country by way of cable streaming, DTH and online streaming. Plaintiff claimed considerable goodwill associated with the trade name. However, the trade name was pending before the Registrar of Trademarks, Delhi and hence, was not trademarked. The plaintiff claimed that Defendants 2 and 3 established a media house and started publishing a newspaper titled ‘News Nation Gujarat’ and that they also run a website with the domain name www.newsnationgujarat.com along with an interactive Facebook page titled “news nation Gujarat”. The plaintiff claimed that since the newspaper is also circulated through the internet and is hence, available to users in Delhi, the Court has jurisdiction to try the suit. Another grounds the plaintiff took was that it had received queries relating to the defendant media house from M/s Prime Time Communications, based in Delhi, expressing it’s intention to advertise in the said newspaper.

The Court held that merely hosting a web page on Facebook is not sufficient to confer jurisdiction on a court where the defendant does not carry out business. The Court also found that in a passing off action, the plaintiff has to plead and establish there has been a commercial transaction within the jurisdiction of the Court, which the plaintiff has failed to do. Resultantly, the Court, after being satisfied that it does not have jurisdiction to entertain the suit, returned it. [News Nation Networks Private Limited v. News Nation Gujarat, 2017 SCC OnLine Del 12698, decided on 22.12.2017]

Case BriefsHigh Courts

High Court of Madhya Pradesh, Jabalpur: Recently, a petition under Article 227 of the Constitution was filed before the High Court against the order of the court below to reject an application filed by petitioners under S. 45 of the Evidence Act. On going through the facts of the case, the proceedings till now and contentions of counsel from both the sides, the Court concluded that the sole question in the present case is that despite delay whether S. 45 application can be entertained or not.

The Court referred to L.S.Trading Co. v. Manish Mishra2010 SCC OnLine MP 213 : (2010) 4 MP LJ 228 in which it has been observed that the application under S. 45, Evidence Act cannot be rejected only on the ground of delay. The Court further on relating the reference to the facts of the present case observed that the delay alone is not the ground in this case for reject the application of the petitioner and conduct of the petitioner had also played a significant role for the same as the petitioners had themselves rejected a similar application earlier filed by the opposite party.

Further, the Court highlighted the point of law relating to its jurisdiction as to that the interference under Article 227 of the Constitution can be made if order is passed by the court without authority of law or it suffers from any manifest procedural impropriety or palpable perversity. It further held that interference cannot be made mere on a drop of hat and reiterated the stance of the Apex Court in various judgments that mere error of fact or law alone is not sufficient for interference. The Bench of Sujoy Paul, J. finally dismissed the petition stating that it would not act as a bull in a China shop. [Narendra Singh v. Gurmel Kaur,  2017 SCC OnLine MP 1358, decided on 07.11.2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission: The grievance of the petitioner in a recent case before the Commission was that appellants/complainants had entered into agreements with the respondents for purchase of residential flats, which the respondents were to construct and despite paying the substantial amount to the respondents, the construction of the flats had not been completed. The State Commission dismissed the complaints and ruled in favor of respondents against which the appellants approached the National Commission.

To decide on the issue, the Commission examined and explained the relevance of Section 3 of the Consumer Protection Act which provides that the provisions of the Act shall be in addition and not in derogation of the provisions of any other law for the time being in force. Therefore, the remedy under the Act is an additional remedy available to the consumer. The Commission presided by V.K. Jain, J. observed that in the instant case, respondents had entered into agreements with the complainants/appellants, agreeing to construct flats for them and give possession of the said flats and therefore they have a relationship of consumer and service provider and this relationship would not come to an end with just one party canceling the agreement.

The Commission further said that if there is deficiency on the part of the respondents in rendering services to consumers and the same is proved, the complainants/appellants would be entitled to appropriate relief in terms of the provisions of the Consumer Protection Act. In this case, remedy was initiated before the civil court by respondents and not the complainants and therefore, the jurisdiction of civil court is not at all ousted.  [Yashwant Rama Jadhav v. Shaukat Hussain Shaikh, First Appeal No. 1229 of 2017, decided on 18.11.2017]

Case BriefsHigh Courts

High Court of Himachal Pradesh: A Single Judge Bench of Tarlok Singh Chauhan, J. dismissed a Regular Second Appeal holding that in the instant case, jurisdiction of the Civil Courts was ousted by Section 171 of the Himachal Pradesh Land Revenue Act, 1954; and there was no substantial question of law that arose to be considered by the High Court.
The appellants questioned the partition proceedings right up till the Court of the Financial Commissioner; and thereafter filed a suit for declaration, permanent prohibitory and mandatory injunction before the trial court. One of the issues framed by the learned trial court was with regard to the jurisdiction of the civil court to entertain such kind of a suit, particularly in view of the bar as imposed by Section 171 of the aforementioned Act. The learned trial court held that it had no jurisdiction, particularly when the appellants had failed to prove the violation of any provisions of the Act or even violation of the principles of natural justice. Appellants filed an appeal before the learned first appellate court, which too, came to be dismissed. The appellants then filed the instant appeal, again questioning therein the impugned orders.
The High Court perused Section 171 of the Act and decisions of the Supreme Court and observed that the statute ousting the jurisdiction of the civil court is required to be strictly construed. It was also noticed that the appellants had not sought declaration of the title rather they had filed the suit with the allegation that the partition was not properly effected as they were not allotted any land by the road side. This obviously was a matter which lay entirely within the purview of the revenue authorities under the Act. The findings recorded by the learned courts below were based on the correct appreciation of the pleadings and evidence and were pure findings of fact which were immune from challenge in a second appeal. No question of law much less substantial question of law arose for consideration in the instant appeal. Accordingly, the appeal was dismissed. [Ajudhia Devi v. Dhian Singh, 2017 SCC OnLine HP 1522, order dated 4.10.2017]

Case BriefsSupreme Court

Supreme Court: In the case where it was argued that for offences allegedly committed under Section 26(2) of the Securities and Exchange Board of India Act, 1992 before 29.10.2002 (whether or not, taken up for trial before 29.10.2002) the trial was to be conducted by the concerned Metropolitan Magistrate (or, a Judicial Magistrate of the first class), and none other in light of the 2002  amendment, the bench of JS Khehar, CJ and Arun Mishra, J held that Section 26, as amended through ‘the 2002 Amendment Act’, leaves no room for any doubt, that the erstwhile ‘forum’ would cease to be the adjudicatory authority and the newly created ‘forum’ – the Court of Session, would deal with all pending matters as well.

The Court said that the ‘forum’ for trial earlier vested in the Court of Metropolitan Magistrate (-or, Judicial Magistrate of the first class) was retrospectively amended, inasmuch as, the ‘forum’ of trial after ‘the 2002 Amendment Act’ was retrospectively changed to the Court and hence, the trials even in respect of offences allegedly committed before 29.10.2002, whether in respect whereof trial had or had not been initiated, would stand jurisdictionally vested in a Court of Session. It was held that the court having jurisdiction earlier, being a court inferior to a Court of Session ceased to have the jurisdiction to adjudicate matters punishable under ‘the SEBI Act’, after the amendment under ‘the 2002 Amendment Act’ came into force.

Rejecting the contention that the action of transfer of pending matters from the Court of Metropolitan Magistrate (or, Judicial Magistrate of the first class), to the Court of Session (consequent upon ‘the 2002 Amendment Act’) and thereafter, to the Special Court (consequent upon ‘the 2014 Amendment Act’), was liable to be treated as prospective, failing which the accused will be deprived of the important right of revision vested in him, the Court said that when the remedy of revision is considered as not a right of an accused, at all, the absence of the remedy of revision cannot be considered as deprivation of a right. [SEBI v. Classic Credit Ltd., 2017 SCC OnLine SC 961, decided on 21.08.2017]

Experts CornerROYZZ & CO.

Supreme Court: The Court has ruled that administrative circulars issued by the Securities and Exchange Board of India (SEBI) cannot be challenged before the Securities and Appellate Tribunal (SAT).

The Supreme Court passed this judgment when it was hearing an appeal filed by SEBI against a SAT order in a case relating to National Securities Depository Ltd. (NSDL).

Background

NDSL and SEBI were at odds over an administrative circular captioned ‘review of dematerialization charges’ issued in 2005, debarring the depository from levying fees/charges on rendering service to the investors who hold Demat accounts with the depository.  The grievance of the appellant (NDSL) was that it is a company and the law permits it to make profits and distribute the dividend to its shareholders. SEBI, without any justification, interfered with its functioning, NSDL had argued.

SAT in September 2006 had ruled that the term “order” in SEBI Act is extremely wide, and can be applied in all three types of orders— administrative orders, legislative orders, and quasi-judicial orders. Thus, it ruled in favour of NSDL.

Verdict

SEBI challenged SAT’s verdict in the Supreme Court and secured a reversal. The Supreme Court, in the order passed on March 7, said that only “quasi-judicial” orders and decisions are a “subject of SAT”.

“Administrative orders such as circulars issued under the SEBI Act are obviously outside the appellate jurisdiction of the tribunal,” said the SC order.

Conclusion

The clarification and restriction to the scope of SAT will clearly bring down the number of cases before the Tribunal. One cannot approach SAT cause the same will now have jurisdiction only over orders passed by SEBI in a quasi-judicial capacity. [National Securities Depository Ltd. v. SEBI, 2017 SCC OnLine SC 256, decided on 07.03.2017]

Case BriefsSupreme Court

Supreme Court: Deciding the question as to the scope of power of Armed Forces Tribunal to hear the appeals arising out of court martial verdicts qua GREF personnel, the Court held that denial of jurisdiction to the said tribunal would be contrary to the Army Act, 1950 and the provisions engrafted under the Armed Forces Tribunals Act, 2007. It was held that the right to approach the AFT by the personnel of GREF who are tried by a court martial held under the very same Act has to be recognized. It was, however, clarified, that at the same time if the punishment is imposed on GREF personnel by way of departmental proceedings held under the CCS(CCA) Rules, 1965 the same cannot be agitated before the AFT and AFT shall have no jurisdiction to hear and decide grievances of GREF personnel relating to their terms and conditions of service or alternatively put ‘service matters’.

The bench of Dipak Misra and U.U. Lalit, JJ explained that the 2007 Act has been made applicable to persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, the retired personnel subject to these Acts including their dependants, heirs and successors insofar as it relates to their service matters. The tribunal constituted in terms of Sections 4 and 5 thereof, is vested with twin jurisdiction viz., jurisdiction, powers and authority in service matters as provided in Section 14 and the jurisdiction in matter of appeal against courts martial under Section 15 of the Act.

It was further stated that the 1950 Act and the Army Rules, 1954 have been applied to civilian personnel of the GREF only for the purpose of discipline. The reasons are obvious. The GREF is a force raised and maintained under the authority of the Central Government, its units are set up on the lines of the Indian Army, it works with and under close coordination with regular army in border areas, facilitates the Indian Army to carry out its operational role, etc. Hence, it has been felt appropriate that the 1950 Act should be made applicable to a force raised and maintained by the Central Government as considered necessary in the interest of discipline. The issue can be perceived from a different perspective. The GREF personnel are subjected by legislative scheme to dual disciplinary control, and such an arrangement is permissible

Hence, if an offence is committed in relation to an enemy, offences on active service, mutiny, desertion, disobedience, etc., considering the nature and gravity of the offence, it may warrant severe action against the delinquent by way of trial by a court martial. In other disciplinary cases, the competent authority may decide to proceed under CCS(CCA) Rules, 1965 in which the maximum permissible punishment is only ‘dismissal from service’. [Mohammed Ansari v. Union of India, 2017 SCC OnLine SC 83, decided on 02.02.2017]

 

Case BriefsSupreme Court

Supreme Court: Dealing with the question as to whether the Civil Court would cease to have jurisdiction to try the suit of eviction if the suit property came under notified area during pendency of the suit, the Court held that as on the date of the institution of the suit legal right in favour of the landlord had already accrued and it stood crystallised under the law applicable to the building at that time, if during the pendency of the suit, Rent Act becomes applicable to the premises in question, that would be of no consequence and it would not take away the jurisdiction of civil court to dispose of a suit validly instituted.

Referring to various rulings of this Court, the Bench of Dr. A.K. Sikri and N.V. Ramana, JJ said that in order to oust the jurisdiction of civil court, there must be a specific provision in the Act taking away the jurisdiction of the civil court in respect of those cases also which were validly instituted before the date when protection of Rent Act became available in respect of the said area/premises/tenancy. Further In case aforesaid position is not accepted and the protection of the Rent Act is extended even in respect of suit validly instituted prior in point of time when there was no such protection under the Act, it will have the consequence of making the decree, that is obtained prior to the Rent Act becoming applicable to the said area/premises, inexecutable after the application of these Rent Act in respect of such premises. This would not be in consonance with the legislative intent.

In the present case the premises in-question was initially outside the ambit of rent legislation, however, during the pendency of the suit and before it could be finally decided, the area in question was brought within the sweep of rent legislations by requisite notifications. The effect of such coverage was to give protective umbrella to the tenants. As a fortiorari, the landlord can now evict the tenant only by taking recourse to the rent legislation that too, by filing the petition for eviction under the Rent Act before the Rent Controller/Tribunal constituted under the said Acts. [Rajender Bansal v. Bhuru, 2016 SCC OnLine SC 1151, decided on 18.10.2016]