Weekly Legal Updates (9 July to 15 July 2023)

Weekly Legal Updates main objective is to update the legal knowledge of law students, lawyers, academicians and other professionals. If we do not update our legal knowledge regularly, our knowledge become redundant.

Control of services in Delhi: SC issues notice to Centre on AAP’s plea but no stay on ordinance

The Supreme Court on Monday issued a notice to the Centre after the AAP-led Delhi government challenged the validity of the May 19 ordinance on control of services in Delhi. However, a bench comprising Chief Justice D Y Chandrachud and Justices P S Narasimha declined to stay the operation of the ordinance despite vehement arguments by senior advocate A M Singhvi, who was representing the AAP government.

The apex court has also directed the Delhi government to amend its plea and add Lieutenant Governor as a party in the case. The Arvind Kejriwal-led Delhi government had filed a plea in SC
challenging the constitutionality of the ordinance on control of services. In its plea, the AAP government has said it is an “unconstitutional exercise of executive fiat” that attempts to
“override” the top court and the basic structure of the Constitution.

Besides quashing the ordinance, the Delhi government has also sought an interim stay on it.
The Centre had on May 19 promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, to create an authority for transfer and posting of Group-A officers in Delhi.

The Aam Aadmi Party (AAP) government has termed it as a “deception” with the Supreme Court verdict on control of services.

The ordinance, which came a week after the Supreme Court handed over the control of services in Delhi excluding police, public order and land to the elected government, seeks to set up a National Capital Civil Service Authority for transfer of and disciplinary proceedings against Group-A officers from the Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services (DANICS) cadre.

Transfer and postings of all officers of the Delhi government were under the executive control of the LG before the May 11 top court verdict. In its plea, the Delhi government has said the ordinance, which came days after the apex court verdict, is a plain attempt to “override” the top court and the basic structure of the Constitution itself vide executive fiat.

(Courtesy:- The Times of India, 10 July 2023)

Supreme Court grants protection to editor of Marunadan Malayali channel in SC/ST case

The Supreme Court on Monday granted protection from arrest to the editor of an online news channel in a case filed against him under the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act by an MLA belonging to Kerala’s ruling Left Front.

The state police had intensified action against the online channel, days after the Kerala High Court dismissed Shajan Skaria’s anticipatory bail plea in the complaint lodged with Elamakkara police by CPI-M MLA P V Sreenijin, a dalit leader who represents Kunnathunad constituency in the state assembly.

A bench of Chief Justice D Y Chandrachud and Justice P S Narasimha issued notice to the Kerala government and others on the appeal filed by Skaria challenging the Kerala high court order.

“Pending further orders, there shall be a stay of arrest,” the bench said.

The police took action against the news channel — ‘Marunadan Malayali’ — as part of an investigation to trace its editor, Skaria, after a case was filed against him under the SC/ST (Prevention of Atrocities) Act by the MLA.

After MLA Sreenijin lodged a police complaint that the channel deliberately defamed him by spreading fake news, Skaria moved the special court seeking protection from arrest.

The special court dismissed the plea, saying publication of the video containing derisive and derogatory comments is sufficient to attract the alleged offences, and hence the bar on anticipatory bail under Section 18 of the SC/ST (Prevention of Atrocities) Act would apply.

Skaria then moved the high court, which upheld the sessions court order, and made scathing observations against the channel’s style of functioning.

While granting Skaria the relief, CJI Chandrachud remarked orally the editor’s statements might be defamatory but no offence under the SC/ST act was apparently made out against him.

The court told Skaria’s counsel that being a senior journalist he should exercise restraint while publishing stories.

(Courtesy:- The Indian Express, 10 July 2023)

Supreme Court Dismisses Request Challenging RBI Move On Exchange Of Rs. 2,000 Notes

The Supreme Court on Monday refused to entertain an appeal challenging the Delhi High Court verdict dismissing a PIL against the RBI notification permitting exchange of ₹ 2,000 currency notes without any requisition slip and ID proof, saying it is an executive policy decision.

A bench of Chief Justice DY Chandrachud and Justice PS Narasimha dismissed the appeal filed by lawyer Ashwini Upadhyay in his personal capacity.

“This is the matter of executive policy decision,” the bench said while dismissing the appeal.

On May 29, the Delhi High Court dismissed the PIL challenging the notifications enabling the exchange of ₹ 2,000 denomination currency notes without any requisition slip and ID proof.

The high court had said the decision was taken to avoid inconvenience to citizens, and that it cannot sit as an appellate authority on a policy decision.

The high court had maintained it cannot be said that the government’s decision is perverse or arbitrary, or it encourages black money, money laundering, profiteering or abets corruption.

The appeal was filed against the decision.

Mr Upadhyay said the Rs. 2,000 banknotes are being exchanged without any requisition slip and ID proof like Aadhaar card by criminals and terrorists also. 

(Courtesy:- NDTV, 10 July 2023)

Zee vs SEBI: SAT refuses to stay restraining order against Punit Goenka and Subhash Chandra

The Securities Appellate Tribunal (SAT) on Monday upheld an interim order given by the Securities and Exchange Board of India (Sebi) against Essel group chairman Subhash Chandra and his son Punit Goenka, the CEO and MD of Zee Entertainment Enterprises Ltd.

The setback to the duo complicates the closure of the merger between Zee and Sony.

An interim order given by the market regulator on June 12 had barred Goenka and Chandra from holding directorship or key managerial positions in any listed firms due to alleged fund diversion.

With the SAT declining to give any interim relief, the duo may now challenge Monday’s ruling before the Supreme Court.

In a 21-page order, the bench presided over by Justice Tarun Agarwala and technical member Meera Swarup asked Goenka and Chandra to file a reply or objection to Sebi’s order along with a stay vacating application to the market regulator’s order within two weeks from Monday.

It further directed that the whole time member (WTM) of Sebi will fix a date for hearing within a week from the date of filing the reply by the duo.

The whole-time member will pass appropriate orders within two weeks after giving them an opportunity of hearing.

During the hearing, counsel for both Goenka and Chandra had pointed out that the transaction which Sebi is referring to, occurred in 2019-20 and therefore there was no tearing hurry to pass such kind of interim order at this stage.

“There is nothing on record to indicate that the details of the repayment made by the related entities was made known to the Sebi or to the stock exchange in 2019-20. These details only surfaced when Zee provided the information on May 8, 2023. Thus, prima facie at this stage there is no delay in the passing of the impugned order’’, the tribunal said.

It further added that the contention that no prima facie case existed in passing the order is also erroneous.

According to the tribunal, the argument that the conclusion of siphoning of the funds cannot be arrived at on the basis of the bank statements, though “attractive’’ cannot be considered since a prima facie opinion was arrived at based on objective facts indicating diversion of funds from a listed company which was not in the interest of its shareholders and the investors.

(Courtesy:- The Telegraph Online, 11 July 2023)

Supreme Court says extension granted to ED director Sanjay Mishra illegal, sets July 31 deadline for his term

The Supreme Court on Tuesday set July 31 deadline for the tenure of Enforcement Directorate director Sanjay Mishra. The top court said the third extension granted to the 1984 batch
IRS officer was illegal as it was against its directions. The present extended term of Sanjay Mishra was to end in November 2023. A bench of Justices BR Gavai, Vikram Nath and Sanjay Karol said
in view of the peer review being conducted by the Financial Action Task Force (FATF) this year and to enable smooth transition, Mishra’s tenure will be till July 31.

The Centre had justified its decision to grant extensions to Mishra saying his continuance was necessary as the Prevention of Money Laundering Act (PMLA) and steps taken by India are going to be reviewed by international watchdog, Financial Action Task Force (FATF).
The top court had during the hearing questioned the extensions given to Mishra and had asked the Centre whether he is “indispensable” and if there is no other competent officer in the investigation agency.

The Centre had justified its decision to grant extensions to Mishra saying his continuance was necessary as the Prevention of Money Laundering Act (PMLA) and steps taken by India are going to be reviewed by international watchdog, Financial Action Task Force (FATF).

The top court had during the hearing questioned the extensions given to Mishra and had asked the Centre whether he is “indispensable” and if there is no other competent officer in the investigation agency.

Mishra was first appointed ED director for a term of two years in November 2018. Later, by an order dated November 13, 2020, the central government modified the appointment letter retrospectively and his two-year term was changed to three years. in 2022, the government promulgated an ordinance under which the tenure of the ED and CBI chiefs could be extended by up to three years after the mandated term of two years.

The top court, however, upheld the constitutional validity of amendment in CVC, DSPE Acts to grant five years tenure to ED and CBI chiefs. “The amendments brought in Central Vigilance Commission Act and Delhi Special Police Establishment Act are not arbitrary and legislature is competent to change the law to grant extension of tenure to ED and ED chiefs,”the apex court said.

(Courtesy:- The Times of India, 11 July 2023)

Third extension for Enforcement Directorate chief is ‘illegal’: Supreme Court

The Supreme Court on Tuesday said that the third extension to Sanjay Kumar Mishra’s tenure as the Enforcement Directorate (ED) chief was “illegal” and in violation of its judgment in 2021. The top court, however, permitted him to continue in office until July 31 to allow for a “smooth transfer”.

Mishra, a 1984-batch IRS officer, was to remain in office until November 18, 2023, according to a notification issued by the government.

A bench of Justices BR Gavai, Vikram Nath and Sanjay Karol held that the extension granted to Mishra was contrary to a 2021 judgment by a division bench of the Supreme Court, wherein the court had barred further extensions beyond November 2021.

“In Common Cause judgment, there was a specific mandamus and it was directed that there should be no further extension. Thus, extensions given after verdict was invalid in law,” the Supreme Court said while hearing a batch of petitions challenging the extension his tenure.

The court, however, said that Mishra can continue in his post until July 31 in view of the peer review being conducted by the Financial Action Task Force (FATF) this year and and to enable smooth transition.

Mishra was first appointed as the Director of the Enforcement Directorate for a two-year term in November 2018. This term expired in November 2020. In May 2020, he reached the retirement age of 60.

However, on November 13, 2020, the Central government issued an office order stating that the President had modified the 2018 order to the effect that a time of ‘two years’ was changed to a period of ‘three years.’ This was challenged before the Supreme Court by the NGO Common Cause.

The Supreme Court in a September 2021 verdict approved the modification but ruled against granting more extensions to Mishra.

(Courtesy:- India Today, 11 July 2023)

Kerala Professor Hand Chopping case: NIA Court Finds Six Guilty, 5 Acquitted

A special court of the National Investigation Agency (NIA) on Wednesday found six accused in the sensational 2010 hand-chopping case guilty of the heinous crime. Five other accused were acquitted.

The court found the following accused guilty; M K Nassar, Sajil, Najeeb, M K Naushad, P P Muhammadkunju and P M Ayoob.

The attack was masterminded by Nassar. Shafique, Aziz Odakkali, Mohammad Rafi, T P Subair and Mansoor were acquitted by the court.

The case pertains to the brutal attack on Malayalam professor T J Joseph by Islamic fundamentalists.

Reacting to media questions  on the verdict, Joseph said that he did find any happiness in the NIA court  verdict. He described  the attackers as victims of centuries old tribal beliefs.

 According to him, the actual perpetrators who directed the accused to chop off his hand are yet to be brought to justice.

The second phase of the trial involving accused who were nabbed after 2015, was completed on Wednesday.

The trial got delayed due to Covid pandemic.

The court had earlier sentenced 13 accused who faced the trial in the first phase. As many as eighteen accused were acquitted then.

The gang had carried out the heinous crime on July 4, 2010, to avenge the alleged blasphemy committed by  Joseph while setting a question paper. At that time he was  a faculty at the Newman College, Thodupuzha.

The gruesome incident: A gang of eight people came in a Maruti van and waylaid professor Joseph near his home at Muvattupuzha on July 4, 2010.

Joseph’s sister, Stella Joseph, who witnessed the horrific crime said around eight people armed with swords and knives came in a van and intercepted their vehicle. They pulled the professor  out of the vehicle after smashing the windscreen.

They chopped off his right hand and stabbed him in the left thigh.

The assailants attacked Stella and her mother when they tried to counter the attack. The attackers, before fleeing from the spot, hurled bombs creating terror  in the area.

(Courtesy:- Deccan Chronicle, 12 July 2023)

Supreme Court orders SIT inquiry into Rs 60-crore Gurugram land scam

The Supreme Court has ordered the Gurugram Commissioner of Police to set up an SIT, led by a DSP, to investigate a land scam allegedly involving land registration officials and other accused who “duped” an elderly NRI couple.

A Bench led by Justice Surya Kant cancelled the anticipatory bail of a person accused of creating fake documents to usurp the land worth over Rs 60 crore of NRI couple Pratibha Manchanda and her husband at a Gurugram village.

According to the appellants, the prior original sale deeds of the land were still in their possession. The fact that the vendee agreed to pay such massive sums of money without obtaining the original records as of now casts a shadow over the legitimacy of the transaction, it said.

The Bench, which also included Justice CT Ravikumar, set aside the Punjab and Haryana High Court’s May 31 order granting anticipatory bail to the man who allegedly created fake General Power of Attorney (GPA) in 1996.

“Given the facts and circumstances of this case, we expand the scope of inquiry in these proceedings and direct the Commissioner of Police, Gurugram, to constitute a Special Investigation Team to be headed by an officer not below the rank of DSP, along with two inspectors as its members,” it ordered. The SIT has been asked to conclude the probe in two months. The court said: “The SIT shall have the liberty to subject Respondent No. 2, the vendee(s) (purchaser), the Sub-Registrar/officials, or other suspects to custodial interrogation to arrive at a definite conclusion, strictly in accordance with law.”

It said the Gurugram Police Commissioner shall be personally responsible for monitoring the day-to-day investigation.

“Land scams in India have been a persistent issue, involving fraudulent practices and illegal activities related to land acquisition, ownership, and transactions. Scammers often create fake land titles, forge sale deeds, or manipulate land records to show false ownership or an encumbrance free status,” it said.

“Organised criminal networks often plan and execute these intricate scams, exploiting vulnerable individuals and communities, and resorting to intimidation or threats to force them to vacate their properties. These land scams not only result in financial losses for individuals and investors, but also disrupt development projects, erode public trust, and hinder socio-economic progress,” the Bench noted in its July 7 order.

It said if the vendees and the officers of the registering authority had secured anticipatory bail from the sessions court or high court, the SIT “shall be at liberty to seek suitable modifications to such orders so that no impediment is caused in carrying out a fair and free investigation”.

The SC restrained the civil court, which is seized of a related lawsuit, from passing any order which may obstruct the probe and ordered the authorities in Delhi to extend cooperation in the matter of verification of the GPA, alleged to have been registered in the office of Sub-Registrar, Kalkaji, in 1996.

“We fail to understand or comprehend as to how a bona fide purchaser could pay crores of rupees as sale consideration to a person who neither possesses documents showing ownership and title nor has original GPA of the true owner(s) of the property being sold,” it said, noting that the sale deed was allegedly executed without mentioning the PAN or without deducting TDS, underlining the dubious nature of this transaction.

(Courtesy:- The Tribune, 12 July 2023)

Pets necessary for healthy life, fulfill emotional deficit due to broken relationships: Court

A court in Mumbai recently observed that “pets are also part and parcel of a decent lifestyle and they are necessary for human beings to lead a healthy life as they fulfill the emotional deficit that occurred on account of broken relationships.”

The magistrate court made these observations while allowing a plea by a 55-year-old woman under the Domestic Violence (DV) Act, who sought maintenance from her estranged husband citing her age, health issues and three Rottweiler dogs dependent on her.

The court said the maintenance amount cannot be mitigated on the husband’s claim that the ground taken by the woman seeking maintenance for pets cannot be considered. It allowed the woman’s plea, directing the estranged husband to pay her Rs 50,000 per month as interim maintenance till final disposal of her plea.

Metropolitan Magistrate Komalsing Rajput on June 20 passed an order in an interim application filed by the woman for the maintenance in her main plea under Section 12 of Protection of Women from Domestic Violence Act, 2005. The order was made available this month.

Advocate Shweta R Moray, representing the applicant, informed the court that the couple got married in 1986 and have two married daughters residing abroad. “After a considerable period of settled married life, some differences occurred and in the year 2021, the respondent estranged husband sent the woman to Mumbai (from southern metro city), assuring her of providing maintenance and other basic necessities. But he has not followed his promise,” Moray argued.

The applicant woman further claimed that the respondent man had indulged in domestic violence against her when they were together. Moray submitted that her client has no source of income and suffered from health issues. Three dogs are also dependent on her, besides other requirements, Moray said.

The woman added that the respondent husband is running business in another metro city and has other sources of income, therefore he should pay interim maintenance of Rs 70,000 per month to her.

However, the respondent denied the allegations of domestic violence, arguing that the applicant had left his house on her own without any fault on his part. He denied the applicant’s claim of having sufficient sources of income, adding that he suffered losses in business, making him unable to provide any maintenance to her. The estranged husband also said that he had paid certain amounts to her in the intervening period.

The magistrate court observed that “the applicant succeeded in making a prima facie case of commission of domestic violence against the respondent and she is entitled for relief of interim maintenance.”

The court said that while applicant’s age and ailments were required to be considered while deciding her plea, the pets kept by her were also accruing financial liability on her.

The magistrate held that there is nothing on record “which will dis-entitle the respondent from payment of maintenance, as admitted facts clearly constitute economic violence.”

The court also observed that there was “no concrete material’ to show that respondent had suffered losses in business and that he was unable to provide maintenance. Even if he had suffered such losses, the same would “not be enough to disown liability,” the court noted.

“The parties belonged to a good financial background, the maintenance must be granted and that too with a lifestyle and requirements suitable to her,” it added.

The magistrate disagreed with the husband’s submission against the maintenance sought by the estranged wife for taking care of pets and observed the same “cannot be a ground to mitigate the maintenance amount.”

The court partly allowed the plea and asked the estranged husband to pay Rs 50,000 interim maintenance to the applicant from the date of filing of her application till the decision is taken her main plea.

(Courtesy:- The Indian Express, 13 July 2023)

Pavement can’t be used for any purpose other than allowing people to walk: Supreme Court

Taking exception to roadside space being encroached upon in cities, the Supreme Court has said pavements and footpaths should be used only for allowing people to walk.

A Bench led by Justice AS Oka made the observation while deciding an appeal filed by the Delhi Development Authority (DDA) against a 2016 verdict of the Delhi High Court in a land acquisition case. “A citizen has lost his valuable property by way of compulsory acquisition. The compulsory acquisition has been made for a public purpose and, therefore, the appellant (DDA) and all the concerned authorities cannot allow the pavement to be used for any purpose except for allowing people to walk,” the top court said.

The Bench, which was peeved to see the photographs of a metro depot that showed a part of pavement abutting the facility has been occupied by a ‘car clinic’ and other vendors, expressed hope and trust that either the DDA will take immediate action or call upon the authorities empowered to do so in accordance with the law.

While allowing the DDA’s appeal, it asked the authorities concerned to take serious note of the observations made by it and take necessary action. It imposed costs of Rs 50,000 on the DDA in view of its conduct.

The Bench was deciding an appeal against the high court’s verdict had held that sub-section (2) of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 will apply as compensation has not been paid to the man who had questioned the acquisition of his land despite the DDA having taken the physical possession.

(Courtesy:- The Tribune, 14 July 2023)

Preventive detention laws necessarily harsh; need to follow procedure: Supreme Court

Top court sets aside Jharkhand HC order upholding detention of Prakash Chandra Yadav alias Mungeri Yadav declared an ‘anti-social element’ under the Jharkhand Control of Crimes Act, 2002.

Noting that all preventive detention laws are necessarily harsh, the Supreme Court has emphasised the importance of strictly adhering to procedural requirements in cases concerning preventive detention laws.

“All laws on preventive detention are necessarily harsh. They curtail personal liberty of an individual, who is kept behind bars without any trial. In such cases, procedure is all a detenue has. Laws of preventive detention must therefore be strictly applied,” a Bench led by Justice Aniruddha Bose said.

Setting aside an order of the Jharkhand High Court upholding the detention of Prakash Chandra Yadav alias Mungeri Yadav—declared an ‘anti-social element’ under the Jharkhand Control of Crimes Act, 2002 – the top court on July 10 ordered his release.

The Act empowers the state government to detain an anti-social element to prevent him from indulging in undesirable activities.

Noting that Yadav’s detention was extended twice without the authorities considering his representation, the top court said the procedure of law was not followed.

The extended period of Yadav’s detention beyond the period of three months was unauthorised and illegal, it said, quashing the November 7, 2022 and February 7, 2023 orders that extended his detention. It also set aside The Jharkhand High Court orders dated March 2, 2023 and November 2, 2022 in this regard.

Yadav was given a copy of the initial detention order dated August 8, 2022 passed by the district magistrate of Sahebganj when he was in judicial custody in Rajmahal Jail.

The order mentioned the grounds for his detention and gave details of 18 pending cases against him, including extortion and murder. He filed a representation against the detention order which was handed over to the jail authorities at Sahibganj on August 18, 2022. But the state disputed it.

On behalf of Yadav, senior counsel NK Kaul contended that while the advisory board took its decision under Section 19 of the Act, Yadav’s representation dated August 18, 2022 was not placed before it, and hence the decision of detention was bad in law.

(Courtesy:- The Tribune, 15 July 2023)

Delhi High Court restrains Wipro from using ‘Evecare’ mark in Himalaya trademark infringement suit

The Delhi High Court recently restrained Wipro Enterprises from using the mark ‘EVECARE’ in relation to its intimate hygiene wash for women or any other product after Himalaya filed a lawsuit alleging trademark infringement.

A single-judge bench of Justice Amit Bansal in its July 12 “interim order” noted that the plaintiff-Himalaya Wellness Company has been selling its uterine tonic under the mark ‘EVECARE’ since 1998, whereas Wipro’s product of the same name was launched only around August 2021.

The high court said Himalaya had been using the said trademark for a period of 24 years and “such long usage” had in the court’s “prima facie view” resulted in Himalaya “acquiring goodwill and reputation in the mark ‘EVECARE’”. Himalaya had moved an application seeking temporary restraint on the former from manufacturing, selling the product under the “EVECARE” trademark till the lawsuit is finally decided. The lawsuit sought a “permanent injunction” against Wipro.

Justice Bansal further said that Wipro’s reply to Himalaya’s application was “conspicuously silent” on whether they had knowledge about Himalaya’s products being sold under “the identical mark”.

“It is intriguing for me as to why a reputed company such as the defendant company would launch its product, also pertaining to female reproductive hygiene, almost 22 years later, using the identical trademark as that of the plaintiffs. A simple due diligence exercise conducted on behalf of the defendant would have informed the defendant about the existence of the product of the plaintiffs with an identical trademark. A Google search or a Trade Marks Registry search across various classes would have brought to light the registered mark of the plaintiffs,” Justice Bansal remarked.

The court opined that Wipro had failed to provide a “plausible explanation for adopting the identical trademark” and took the “prima facie view” that the adoption of Himalaya’s registered trademark by Wipro “was not bona fide and amounts to misrepresentation”.

The bench further ruled that Himalaya’s uterine tonic and Wipro’s vaginal wash were similar or “allied/cognate goods” targeting the same set of consumers, i.e., women, and had similar functions.

(Courtesy:-The Indian Express, 15 July 2023)

*Disclaimer: – Always check with the original copy of judgment from the Court website.

Legal News in this Weekly Legal Update are compiled by Team www.deepakmiglani.com. The News/Story has not been edited by team www.deepakmiglani.com

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