Fortnightly Newsletter- Jan 31, 2018

February 1, 2018

The last two weeks of the month of January were sabotaged by two legal issues. Firstly, the Aadhaar case whose hearing commenced before the Constitutional Bench from January 17, 2018 onwards and the other was the meaningless clamor behind banning the screening of the movie “Padmaavat”.

In the Aadhaar hearing submissions of Senior Advocate Shyam Divan’s appearing for the Petitioner have been remarkable and compels us to ponder upon biometric technology deployed for Aadhaar database and vulnerability to a citizen’s right to privacy. The Senior Counsel vehemently argued against the mandatory provision to enroll under the Aadhaar Act and claimed that if Aadhaar Act and programme are allowed to operate unimpeded then it will hollow out the Constitution.

On the other hand, the Supreme Court successfully crumbled the futile endeavors of Karni Sena in stopping the screening of the movie “Padmaavat” and once again pronounced that freedom of speech and expression reigns over all.

So as the first month of the year ends we present for you our fortnightly newsletter giving you an insight of crucial decisions of the Supreme Court and the High Courts of India.

Supreme Court Decisions

SC: Article 226 can’t be invoked if Alternate Statutory Remedies are Available

While dealing with the statutory provisions under the SARFAESI Act the Supreme Court Bench in the case of Authorized Officer, State Bank of Travancore and Another v. Mathew K.C. categorically stated to settled principles that:

  • When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation
  • In financial matters grant of ex-parte interim orders can have a deleterious effect

That the discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal.

Read more here.

Cow Vigilantism: SC Issues Contempt Notice to States

In a major development, the Supreme Court on January 29, 2018 has issued contempt notices to the States of Rajasthan, Haryana and Uttar Pradesh in consequence of a Petition instituted in the Apex Court seeking contempt proceedings against the States for not taking effective measures and action to prevent violence in the name of cow vigilantism. The Contempt Petition has been filed for the alleged willful disobedience committed by the States of Haryana, Rajasthan and Uttar Pradesh of order dated September 06, 2017 passed by the Supreme Court.

Read more here.

SC: Interference with Meter u/S.138 of Electricity Act is Compoundable Offence

In a recent case Suresh Ganpati Halvankar v. The State of Maharashtra & ors., Two-Judge Bench of the Supreme Court has categorically stated that interference or maliciously injuring meters under Section 138 of the Electricity Act is theft of electricity and hence a compoundable offence under Section 152 of the Electricity Act .

The Court further observed that Section 138 would also be so subsumed as the language of Section 152 of the Electricity Actspecifically states ……”an offence of theft” which according to Stroud’s Judicial Dictionary, as well as Ramanatha Iyer’s Law Lexicon, states that one meaning of ‘an’ is ‘any’. If the word ‘any’ is substituted for the word ‘an’ in Section 152 , it becomes clear that any offence relating to the theft of electricity is also within the ken of Section 152 . Section 138 of the Electricity Act also relates to theft of electricity, be it through maliciously injuring meters, and is therefore also within Section 152 , and can therefore be compounded.

Read more here.

Distance Education case: SC Grants One-Time Relaxation to Candidates Enrolled in 2001-2005

The Two-Judge Bench of the Supreme Court vide its judgment dated January 22, 2018 has conferred one-time relaxation in favour of those candidates who were enrolled during the academic years 2001-2005 and who, in terms of the judgment dated November 03, 2017 in the case of Orissa Lift Irrigation Corporation Corp. Ltd. v. Rabi Shankar Patro & Ors. were eligible to appear at the test to be conducted by AICTE.

In the aforesaid context, it would be relevant to have a quick recap of landmark judgment passed by the Supreme Court in November last year whereby the Bench had restrained the Deemed to be Universities  from carrying on any courses in distance education mode from the Academic Session 2018- 2019 onwards without AICTE’s approval (read here). The Court in the case had also ordered that students who were admitted after the Academic Sessions 2001-2005, their degrees in Engineering awarded by the concerned Deemed to be Universities through distance education mode stand recalled and be treated as cancelled.

Read more here.

SC: No Special Consideration can be Accorded for Granting Bail to NRI

In the case of Lachhman Dass v. Resham Chand Kaler, the High of Punjab had granted a regular bail to the Respondent against whom FIR was lodged under Indian Penal Code as well as the Arms Act for murder and other allied offences. Here it would be pertinent to mention that in the case respondent i.e. Resham Chand Kaler is an NRI.

The Supreme Court in the case set aside the High Court’s order and observed that though the respondent is not a citizen of this country (British national), yet the fact remains that he along with other persons has indulged in the criminal activity.

It was further stated by the Court that there is no reason to accord any special consideration for respondent by virtue of a simple fact that he is a citizen of different country.

Read more here.

SC on Liability of Insurer when Driver doesn’t hold a Driving License

In this recent casen of Pappuu And Others vs Vinod Kumar Lamba And Another, the two-Judge Bench of the Supreme Court headed by Chief Justice Dipak Misra framed two issues enumerated below:

  • Whether the fact that the offending vehicle was duly insured by respondent Insurance Company would per semake the Insurance Company liable? 
  • Whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (respondent No.1)?

The Apex Court in the case went on to hold that mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.

Read more here.

SC Restrains Couple from Uploading Each Other’s Photographs on Social Media

In an interesting judgment, the Supreme Court while deciding on the dissolution of marriage between the parties directed the parties to not upload photos of each other anywhere including social media- Neither the husband nor the wife shall put the photographs of each other in any mode at any place which would also include social media or on-line.

Read more here.  

SC: Caste is determined by Birth not Marriage

In a landmark judgment, pronounced by the Supreme Court on January 19 in the case of Sunita Singh v. State of Uttar Pradesh (read the case here), the Bench has held that a person’s caste is determined by birth and the same cannot be changed by marriage.

Read more here.

SC on Under Insurance, Averaging Out and Duty of Insurance Company

In a recent case, two-Judge Bench of the Supreme Court broadly discussed the principles of “Under-Insurance” and “Averaging out” under the Law of Insurance. In the case I.C. Sharma v. The Oriental Insurance Co. Ltd., the Appellant had approached the Apex Court against the National Commission’s order.

While deciding the case, the Supreme Court deliberated on the Principles of Under-Insurance and Averaging Out to decide the amount of claim.

With reference to Under Insurance, the Apex Court stated that it basically means that the insured has taken out an insurance policy in which he has valued the insured items for a sum which is less than the actual value of the insured item. In a country like India this is normally done to pay a lesser premium. This is, in fact, harmful to the policy holder and not to the Insurance Company because even if the entire insured property is lost, the policy holder will only get the maximum sum for which the property has been insured and not a paisa more than the sum insured.

Read more here

Decisions by the High Courts

Bombay HC: Property Inherited by Female Hindu to Devolve on Father’s Heirs and not Husband

In this recent case, the Bombay High Court has held that if a Female Hindu dies childless then her property inherited by Parents will devolve upon the legal heirs of her Father and not husband.

That provision under section 15(2) (a) of the Hindu Succession Act, 1956 clearly excludes the husband from inheriting the property received by a female Hindu from her parents if she was not having any children or has died issueless.

Read more here.

Madhya Pradesh HC: Don’t use the Term “Dalit” for SC/ST’s

In a remarkable judgment delivered by the Madhya Pradesh High Court on January 15, 2018 in the case of Dr. Mohanlal Mahor v. Union of India, the Court has restrained use of the term “Dalit” for members of SC/ST category. The Court has stated that the Central Government/State Government and its functionaries would refrain from using the nomenclature “Dalit” for the members belonging to Scheduled Castes and Scheduled Tribes as the same does not find mentioned in the Constitution of India or any statute.

Read more here.

Madhya Pradesh HC: State Bar Council cannot interfere with Bar Association Elections

In the case Bar Association Lahar, Dist. Bhind v. State Bar Council of M.P. and Anr., the High Court was confronted with the issue- Whether the State Bar Council or its Appellate Committee has any authority to interfere with the process of election or to annul the elections conducted by the Bar Associations?

The Court stated that the law does not confer power on State Bar Council to interfere in Bar Association Elections- While arriving at this inference, the High Court made reference to the M.P. Advocates Welfare Fund Act, 1982 and Model Bye Laws framed under the Act and observed that there is no provision conferring power to the State Bar Council to make any rule in respect of election of the Bar Associations.

Read more here.

Bombay HC: Sending of O-3 Notice Mandatory Prior to TM Removal

In the recent case Kleenage Products (India) Private Limited v. The Registrar of Trademarks & Ors., the Bombay High Court has reiterated the settled principle of Trademark Law that a mark cannot be removed from the register of trademarks for non- renewal unless the Registrar of Trademarks has sent O-3 Notice to the registered proprietor of the mark.

Read more here.

Gujarat HC: Extramarital Affairs is one of the Highest Reasons for Divorce

In the case of Bhartiben Bipinbhai Tamboli v. State of Gujarat & Ors, the High Court strongly condemned the increasing instances of extra-marital affairs and stated that Even if the husband showers all the riches of the world upon the wife while maintaining illicit relationship with another lady, the same would hardly be of any consequence.

The High Court’s judgment in the case also discusses the various provisions and precedents under the Protection of Women against Domestic Violence Act, 2005.

 

Read more here.