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, WP (C) No. 42460 of 2018, 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]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Prevention of Money Laundering Act: The Bench of Manmohan Singh, J. and G.C. Mishra (Member) allowed an appeal filed against the order of Adjudicating Authority directing freezing of accounts.

Respondent herein had filed an application under Section 17(4) of the Prevention of Money Laundering Act, 2002 for extending the debit freeze on 49 accounts which were involved in money laundering in order to locate proceed of crime for the purpose of further investigation. The said application was rejected holding that the same was beyond the scope of Sections 17(1-A) and 17(4) of PMLA.

Section 17(1-A) of the Act states that “where it is not practicable to seize such record or property, the authorized officer may make an order to freeze such property whereupon the property shall not be transferred or otherwise dealt with, except with the prior permission of the officer”. It is well settled that if the statute requires a thing to be done in a particular manner, it must be in that manner otherwise the action is vitiated. On realizing its mistake about freezing, the Adjudicating Authority directed respondent to file a fresh application, and in that application, it passed a fresh order directing freezing of accounts. The present appeal has been filed against this fresh order of the Adjudicating Authority under Section 26 of PMLA.

The Tribunal opined that the Adjudicating Authority had exceeded its jurisdiction in directing the respondent to file a fresh application. Such jurisdiction was not within its domain as the previous application of respondent was decided on merits.  It was concluded that the second application filed by the respondent was not maintainable on the basis of the same material. In view thereof, the impugned order was held to be not sustainable in law and the same was set-aside.[Abhishek Paddar Haripoddar v. Deputy Director, Directorate of Enforcement, Patna, FPA-PMLA-2323/PTN/2018, decided on 01-02-2019]

Case BriefsSupreme Court

Supreme Court: In an appeal against the order of the Punjab and Haryana High Court where it was held that the Wakf Tribunal has no jurisdiction in a matter where the rights of a non-Muslim are in question and that it is only the Civil Court which had the jurisdiction in the such cases, the bench of Ashok Bhushan and KM Joseph, JJ noticed that:

“The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court.”

Background of the case:

  • The Punjab Wakf Board claimed to the owner of a land which it had allegedly let out to one Sham Singh and his wife Kuldeep Kaur for cultivation of the land.
  • The lessee deposited the rent for few years and thereafter initiated litigation against the interest of the Board claiming that the said property was not a wakf property.
  • When the suit was transferred to the Wakf Tribunal after it was constituted, the Board filed an application before the Tribunal for rejection of the plaint on the ground that the Tribunal has no jurisdiction to entertain the suit and the Civil Court alone has jurisdiction to entertain the suit. However, the Tribunal held that it is only the Wakf Tribunal which has jurisdiction to try the present suit.
  • Board approached the High Court which held that the Wakf Tribunal has no jurisdiction in a matter where the rights of a non-Muslim are in question.

Considering the abovementioned facts, the Court said that the defendant has specifically denied that suit property is a Wakf property. Thus,

“within the meaning of sub-section (1) of Section 6 question that whether a suit property is a Wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the Board.”

It was clarified that as per Section 6 sub-section (1) if any question arises as to whether a Wakf property in the list of Wakfs is wakf property or not, a suit can be instituted in a Tribunal for the decision of the question which decision shall be treated as final.

On the question that whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5, the Court said:

“The provision contained in proviso to Section 6(1) that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs shall be applicable to every person who though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on 63 him in that behalf during the course of the relevant inquiry under Section 4.”

[Punjab Wakf Board v. Sham Singh Harike, 2019 SCC OnLine SC 142, decided on 07.02.2019]

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Mohammad Rafiq and Goverdhan Bardhar, JJ. dismissed a habeas corpus Petition filed by the petitioner-husband praying for a direction to the respondent- wife to produce before the court the minor child who was a permanent resident of Canada and a citizen of US and cause his return along with the respondent-wife to the jurisdiction of the Court of Canada in compliance of the orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario.

The facts of the case are that the petitioner-husband had alleged that the respondent-wife had wrongly removed their son from his custody. The wife had moved from Ontario, Canada, the place where the three of them were residing at that time, to New York. She then shifted to New Jersey and finally to India along with the son, who was 4 years old at that time. The petitioner challenged this and sought for his custody and his documents like passport, etc. A habeas corpus petition was filed by the husband petitioner, demanding that the wife be directed to produce before the court their son, who was a permanent resident of Canada and was a US citizen, in compliance with orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario. The Canadian Court had also directed various law enforcement agencies including INTERPOL to enforce the custody order. A warrant was also issued against the wife, with imposition of cost of $30,000 upon her.

The High Court, upholding the previously settled law observed that the law has sufficiently developed to rule that despite a pre-existing order for return of a child by a foreign court, the High Court may decline relief for such return. The Court further asserted that the issue should be considered bearing in mind the welfare of the child.

The High Court dismissed the petition of the father stating that the child’s return would not be in his best interests. It observed that if he was forced to go back to Canada in the sole care of his father, it is likely to psychologically disturb him, particularly when he will be required to now adapt to an education system of that country. This would adversely affect his overall growth and grooming as in the absence of his mother.

The Court while dismissing the petition held that  the Court in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. The removal of the child from Ajmer, after he has stayed there for a few years now, would not be in his best interests, especially in view of the fact that he is suffering from chronic asthma and amblyopia. It further opined that it cannot hold the wife guilty of contempt as she cannot be solely held responsible for violation of the settlement terms. The Court gave directions allowing the father to maintain contact with his son. Till the time the child attains majority he shall be kept in the custody of his mother in India. [Naveen Sharma v. State of Rajasthan, 2019 SCC OnLine Raj 63, Order dated 11-01-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J. dismissed a civil writ petition filed by an employee against whom disciplinary proceedings were initiated but no final order had been given in the matter.

The present writ application had been filed challenging the entire proceedings arising out of departmental proceedings which was initiated against the petitioner for certain charges communicated to him under Praptra ‘K’ during the period when he was posted as Circle Officer.

The Court noted that the petitioner had approached it without there being any order of punishment against him. Disciplinary proceedings had been initiated against the petitioner and the enquiry report had been submitted after the conclusion of the proceedings before the Enquiry Officer. Since the final decision was yet to be taken by the disciplinary authorities, thereafter only could the petitioner be aggrieved by the outcome of proceedings.

In view of the above, it was held that at present there was no occasion for this Court to exercise any jurisdiction in favour of the petitioner.[Bishwa Nath Prasad v. State of Bihar, 2019 SCC OnLine Pat 36, Order dated 10-01-2019]

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Allahabad High Court: The writ petition was filed before a Division Bench of Abhinava Upadhya and Dr Yogendra Kumar Srivastava, JJ. where order passed by the Tehsildar, Kairana was challenged.

Petitioner alleged that there was a road accident in front of his house due to which two respondents entered into a dispute with the petitioner in consequence of which FIR was filed against the respondents. Later, a complaint before Tehsildar was filed by the respondents against petitioner alleging that petitioner was involved in the construction of the road on land not belonging to him. Accordingly, Tehsildar had issued a direction to SHO, Kairana to check if the alleged road was constructed. Petitioner had submitted that the above complaint was just to harass him.

Petitioner’s main contention was that Tehsildar, an executive authority could not have passed the above order and in case of any grievance by the respondent the correct forum to be approached was the Court of Civil Jurisdiction.

High Court observed that the dispute raised in this petition was of civil nature and Tehsildar had no jurisdiction to issue a direction to the SHO to interfere with the right of petitioner. Therefore, the impugned order was quashed. [Jagmal Singh v. State of U.P., 2019 SCC OnLine All 109, Order dated 29-01-2019]

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Delhi High Court: The Bench of Sunil Gaur, J. refused to invoke the inherent extraordinary jurisdiction of the High Court under Section 482 CrPC.

Petitioners, represented by Akshay Bhatia and Avinash Das Advocates, had prayed for quashing of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 (for dishonour of cheque). The quashing was sought on merits.

N.K. Aggarwal and Priya Pachouri, Advocates appeared for the respondents. It was informed to the Court that notice under Section 251 CrPC had been already framed and petitioners had also given their defence.

Since petitioners had an efficacious remedy to assail the notice framed under Section 251, the High Court refrained from invoking its inherent extraordinary jurisdiction under Section 482. The petitioners were given liberty to assail the notice before the Revisional Court within a period of four weeks. The petition was disposed of accordingly without commenting on merits. [Anand and Associates v. Jugal Kishore Jain, 2019 SCC OnLine Del 6708, Order dated 15-01-2019]

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Kerala High Court: The Bench of P.V. Asha, J. dismissed a civil writ petition filed by an Assistant Professor holding that Court cannot interfere with the academic qualifications prescribed for an academic post.

The petitioner, an Assistant Professor working on contract basis in the faculty of Dairy Sciences and Technology of Kerala Veterinary and Animal Sciences University filed the instant petition challenging the First Statute relating to qualification for the post of Assistant Professors in the said University.

Petitioner’s contention was that the qualification prescribed for appointment as Assistant Professor in the concerned faculty was vague and made with malafide intention to give appointment to certain persons. Respondent submitted that the petitioner was challenging the statute only because she is an MBA holder with B.Sc in Computer Science and NET qualified without any basic qualification/ degree in Dairy Science and Technology.

The Court examined the provisions of Kerala Veterinary and Animal Sciences University Act, 2010 and opined that UGC Regulations as well as Clause 140 of the Kerala Veterinary and Animal Sciences University First Statutes provided that the qualification for appointment to the post of Assistant Professor should be good academic record with at least 55% marks at the Masters Degree level in a relevant subject from an Indian University or equivalent degree from an accredited foreign university with pass in NET. The discipline in question is Dairy Business Management. Admittedly, the petitioner had no qualification having any relevancy in dairy.

Relying on the Judgment of Apex Court in Dr Basavaiah v. Dr H.L. Ramesh, (2010) 8 SCC 372 it was held that the qualifications as to academic requirement had been prescribed by the government with the help of experts in the field. Therefore, this Court was not supposed to interfere with such matters which had already been dealt with by competent persons having sufficient expertise in the field. [Rekha U. Menon v. Vice-Chancellor, Kerala Veterinary and Animal Sciences University, 2018 SCC OnLine Ker 7702, Order dated 19-12-2018]

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Madhya Pradesh High Court: This case was filed before a Bench of Rohit Arya, J., where petitioner who was a sarpanch was suspended.

Petitioner contended that he was suspended by the impugned order on the ground that a case had been registered for the commission of offence under Sections 7, 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988. It is under Section 39(1)(a) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 that the competent authority had the power to suspend an office bearer of Panchayat if any charges are framed under any criminal proceedings under Chapters V-A, VI, IX. Thus, impugned order was without jurisdiction and illegal since no charges were framed against the petitioner.

High Court found substantial force in the submission made by the petitioner regarding the scope of Section 39 of the Act.  Thus, Court was of the view that impugned order was without authority and exceeded the powers under Section 39(1)(a) of the Act. Therefore, the impugned order was set aside. [Vinod v. Panchaya and Social Justice, 2019 SCC OnLine MP 137, dated 14-01-2019]

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Madhya Pradesh High Court: Petitioner had filed this petition before a Bench of Subodh Abhyankar, J., under Article 226 of the Constitution of India against the order passed by the respondent.

It was directed by the respondent that preference should be given to the warehouses of MP Warehousing and Logistic Corporation if allotment of warehouses occurs and after exhausting the same, other warehouses of private parties may be used, which were taken on rent. Petitioner submitted that he had taken a loan from SBI for construction of a warehouse and since the order of preference to the warehouses of MPWLC only was passed, petitioner could suffer undue loss despite entering into an agreement with the Warehousing Corporation. Thus, impugned order was not justified.

High Court found the arbitration clause in the agreement between petitioner and respondents according to which the validity of impugned order is a dispute and petitioner should have gone for arbitration. Accordingly, since there was an alternate remedy available, the present petition was dismissed as the Court could not invoke its jurisdiction under Article 226 of the Constitution of India. [Gupta Warehouse v. State of MP, 2019 SCC OnLine MP 98, dated 03-01-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J., allowed the writ petition which was filed against the act of arbitrary stoppage of the salary of the panchayat teachers.

The facts of the case are that petitioners were appointed as panchayat teachers in the year 2010 and they continued till April 2017. From the month of May, 2017 their salary had been arbitrarily stopped without issuing any order in respect thereof.

The respondents asserted that the petitioners’ degrees of integrated course from Central Board of Higher Education, New Delhi were not recognized in view of the letter issued by the Principal Secretary and as such the very appointment of the petitioners as panchayat teacher was bad.

The Court held that there was nothing in the counter affidavit to show that prior to withholding of such salary/stoppage of salary with effect from May, 2017 the petitioners were ever afforded any opportunity of being heard in the matter. It is trite law that when an order is violative of the principles of natural justice, the plea of alternative remedy would not be a bar to exercise of jurisdiction under Article 226 of the Constitution of India in such matter.

The Court observed that whether the petitioner’s degree obtained in 2010 on basis of which petitioners were appointed as panchayat teacher was recognized or not was an issue which was required to be looked into by the authority before inflicting such harsh penal consequence.[Kanchan Kumari v. State of Bihar, 2018 SCC OnLine Pat 2293, Decided on 06-12-2018]