Annual Newsletter- Landmark Judgments of 2017

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December 31, 2017

As  we get ready to bid farewell to 2017 and welcome 2018, VakilNo1 presents its Annual Newsletter comprising of landmark judicial pronouncements in 2017. The cases covered in this newsletter range from Constitutional, commercial, criminal to IPR matters which have aided in streamlining Indian laws and regulations in 2017. The Newsletter recounts some of the blockbuster verdicts this year including right to privacy and triple talaq judgment whose veracity is still being deliberated and debated in the print and electronic media.

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So gear up for this read which gives you a sneak peek into the cases which traces the judicial manoeuvre of 2017.

Supreme Court Bans Sale and Registration of BS-III Vehicles

Case name- M.C. Mehta v. Union of India

In this case the seminal issue taken up by the Supreme Court was whether the sale and registration and commercial interests of manufacturers and dealers of vehicles that do not meet Bharat Stage-IV (for short BS-IV) emission standards as on 1st April, 2017 takes primacy over the health hazard due to increased air pollution of millions of our country men and women?

In the case the grievance of the manufacturers and dealers of the vehicles pertained to sale and registration of BS- IV vehicles lying in stock with the manufacturers and dealers (as on April 1, 2017) that meet the BS III emission standards but do not meet the BS-IV emission standards.

Bench’s Verdict– In arriving at its decision, the Apex Court weighed the commercial interest of automobile industry which was aggrieved of existing stock of BS III vehicle and national interest of millions of countrymen who everyday suffer on account of alarming air pollution levels. The Court gave paramount importance to the health of people and held that the health of people is far, far more important than the commercial interests of the manufacturers or the loss that they are likely to suffer in respect of the so-called small number of existing stock of such vehicles.

In view of the aforesaid, the Supreme Court from April 1, 2017 banned sale of BS III vehicles that are not BS-IV.

SC Rules that Jobs Secured on the basis of Fake Caste Certificates to be Rendered Invalid

Case name- Managing Director FCI and ors. v. Jagdish Balram Bahira and Ors.

In the case, the Supreme Court was confronted with a batch of petitions involving individuals who sought the benefit of public employment on the basis of a claim to belong to a beneficiary group which upon investigation was found to be invalid. In the case, the Supreme Court has rendered an elaborate explanation of usurpation of constitutional benefits by persons who do not genuinely belong to beneficiary groups.

The crux of Apex Court’s ruling in the instant case was that when a person who does not belong to a caste, tribe or class for whom the reservation is meant, seeks to pass off as its member, such a stratagem constitutes a fraud on the Constitution. Public employment is a significant source of social mobility. Access to education opens the doors to secure futures. As a matter of principle, in the exercise of its constitutional jurisdiction, the court must weigh against an interpretation which will protect unjust claims over the just, fraud over legality and expediency over principle

While analyzing the aforesaid issues, the Supreme Court made reference to the plethora of judgments pronounced by the Court. Some of the remarkable precedents referred to by the Court are enumerated below:

Kumari Madhuri Patil v. Additional Commissioner, Tribal Development- In this case, the Court stressed on importance to scrutinize documents evidencing beneficial claims. The Court in the case had also formulated guidelines for setting up of Committees by State Governments to verify claims of candidates belonging to Scheduled castes/tribes. The Court in the case had categorically stated that in case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making a false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.

The Court while delivering its judgment in the case also made reference to the Halba/Halbi controversy. The Halba/Halbi controversy was adjudged by the Court in the case of State of Maharashtra v. Milind Katwar. The Apex Court in the case opined that if these benefits are taken away by those for whom they are not meant, the people for whom they are really meant or intended will be deprived of the same and their sufferings will continue. Allowing the candidates not belonging to Scheduled tribes to have the benefits or advantage of reservation either in admissions or appointments leads to making a mockery of the very reservation against the mandate and the scheme of the Constitution.”

With reference to the issue whether a candidate who has been long in service can be terminated from services on account of false and fabricated caste claim, the Court referred to the case of R. Vishwanath Pillai v. State of Kerala, wherein the appellant who had completed 27 years of service sought protection from termination pursuant to the discovery of fact that on the basis of forged caste certificate he had claimed to belong to a designated reserved community. The Court while upholding High Court’s order of appellant’s termination from service stated that this apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate.

The Court at length discussed the proposition as laid down by the Supreme Court in the cases of Kavita Vasant Solunke vs. State of Maharashtra and Shalini Gajananrao Dalal v. New English High School Association. In these case, the Court ruled that candidates who honestly and correctly claimed to belong to a particular Scheduled Caste/Scheduled Tribe but were later on found by the relevant authority not to fall within the particular group envisaged for protected treatment would not be negated of the benefits already enjoyed by them and would continue in service. However, such candidates would be disentitled to claim any further or continuing benefit on the predication of belonging to the said Scheduled Caste/Scheduled Tribe.

The Apex Court in the instant case overruled the aforesaid finding of the Court and stated that the principles as settled in Kavita Solunke and Shalini case were not correct and might lead to serious consequences.

WhatsApp Conversation not a Document under the Evidence Act

Case name- National Lawyers Campaign for Judicial Transparency and Reforms & Ors. v. Union of India & Ors

In this case, the Delhi High Court took a stern view of Petition filed on the basis of information available on a WhatsApp group. The Court stated that such information does not qualify to be a document under the Indian Evidence Act.

In the case, the Petitioners had sought issue of direction to the State of Arunachal Pradesh and its Police Officials to register an FIR based on allegations contained in the alleged suicide note of Arunachal Pradesh’s late Chief Minister, Kalikho Pul.

With reference to WhatsApp post forming basis of Petition the Court took a stern view of the facts admitted in the present case and slammed the Petitioners for making serious allegations based on a post allegedly circulated on WhatsApp group.

The Court stated that the alleged suicide note does not qualify as a document in terms of the Evidence Act, 1872 as neither the original nor the copy of the original has been produced.

SC: High Court can Exercise Inherent Power under Section 482 of CrPC in Exceptional Circumstances only

Case name- Rakhi Mishra v. The State of Bihar

In this case, the Supreme Court stated that a High Court can exercise its inherent powers under Section 482 of CrPC in exceptional circumstances only. The Court further stated that power under Section 482 of CrPC cannot be exercised to quash a criminal proceeding where a prima facie case has been made out against the accused.

In the case, the Supreme Court has reaffirmed that the power entrusted to a High Court under Section 482 of CrPC is an exception and not a rule, which can be exercised by it only under the following circumstances:

  • To give effect to an order under the Criminal Procedure Code;
  • To prevent abuse of process of Court;
  • To secure the ends of Justice;

SC: Further Investigation under Criminal Law cannot be Allowed after Cognizance has been taken

Case name- Athul Rao v. State of Karnataka

In this case, the Supreme Court categorically stated the circumstances under which a Magistrate can order further investigation under Section 173(8) of CrPC. This provision confers power on the superior officer of police appointed in the case to direct the officer in charge of the police station to make further investigation. While expounding this issue, the Court made reference to its recent `decision in the case of Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and ors.[1], wherein it was held by the Court, that neither the Magistrate can suo motu nor on an application filed by the complainant direct further investigation. The Court categorically stated that further investigation in a given case may be ordered only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial.

The Court held that further investigation would be allowed only on the request of the investigating agency and that too, in circumstances warranting such investigation on the detection of material evidence only to secure fair investigation and trial.

The case at hand establishes well settled principles of criminal law and investigation. In the case, the Apex Court has made law relating to further investigation under Section 173(8) of CrPC perspicuous and confirmed the following legal propositions in context of further investigation under CrPC:

  1. A magistrate after taking cognizance of the offence on the basis of police report and after appearance of the accused, cannot order further investigations[2]
  2. That the investigating agency/officer alone has been authorized to conduct further investigation.
  3. That the Magistrate’s to power to direct investigation is limited to only Section 156(3) of CrPCe. at the pre-cognizance stage.
  4. That if such power to order further investigation even after taking cognizance is granted to the Magistrate then the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of CrPC.

SC sets aside Triple Talaq by 3:2 Majority

Case name: Shayara Bano v. Union of India

The much touted Triple talaq judgement was pronounced by Five-Judge Constitution Bench of the Supreme Court on August 22, 2017. The Court’s verdict on the boiling issue was witnessed by judicial dichotomy, whereby the Supreme Court declared ‘talaq-e-biddat’ i.e. instant talaq as unconstitutional by 3:2 majority.

Some key takeaways from the Supreme Court’s verdict are enumerated below:

  • Court sets aside the practice of instant talaq as unconstitutional and violative of Articles 14 and 21 of the Indian Constitution.
  • Former CJI Justice Khehar observed that triple talaq was an integral part of Islam and hence was part of fundamental right enshrined in the Constitution. Justice Khehar’s observation was approved and supported by Justice Abdul Nazeer.
  • Justice R F Nariman and Justice U U Lalit termed the practice of triple talaq as unconstitutional and Justice Kurian said that it was against the teachings of Quran.
  • While pronouncing verdict CJI Khehar remarked that triple talaq was an integral part of Islam and hence fell within Article 25 of Constitution granting freedom of conscience and free profession, practice and propagation of religion.
  • Justice Nariman commented that it was extremely difficult to agree to Justice Khehar’s observation that triple talaq was an integral part of Islam.
  • The Minority view by CJI Khekar and Justice Abdul Nazeer wanted to put the practice of triple talaq on hold and give Centre 6 months’ time to formulate a law.

The Triple Talaq Bill namely the Muslim Women (Protection of Rights on Marriage) Bill, 2017  was introduced by the Centre in the Lok Sabha on December 28, 2017. The Bill makes talaq-e-biddat a criminal offence and states that pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. It further envisages that whoever pronounces talaq upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.

Read more here.

SC: 6 Months Waiting Period for Divorce by Mutual Consent is not mandatory

Case name: Amardeep Singh v. Harveen Kaur

In a major development to Hindu Law governing divorce by mutual consent, the Supreme Court ruled that the period of interregnum or cooling off period of 6-18 months provided under Section 13B(2) of the Hindu Marriage Act, 1955  is not mandatory but a directory provision and can be waived off under certain circumstances.

The Court further observed that in view of this, Courts can exercise its discretion depending on the facts and circumstances of each case and waive off the stipulated period where there is no possibility of resuming cohabitation and there are chances of alternative rehabilitation.

In this case, the parties were living separately since 2008. In 2017 the parties arrived at a settlement and applied for divorce by mutual consent. In the case, the parties prayed the Court to waive off the period of 6 months as prescribed under Section 13B(2) of the Hindu Marriage Act, 1955 on the ground that they have been living separately for the last 8 years and that there was no possibility of their re-union.

Key takeaways from the Court’s verdict:

The Supreme Court stated that the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2) it can do so after considering the following :

  • The statutory period of six months specified in 13B(2) in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
  • That all efforts for mediation/conciliation to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
  • That the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties
  • That the waiting period will only prolong their agony.
  • The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
  • If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.
  • That as the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. The Court also stated that such proceedings can also be conducted through video conferencing.

Supreme Court Deciphers Insolvency and Bankruptcy Code, 2016

Case name: M/s Innoventive Industries Ltd. v. ICICI Bank

In this case, the Supreme Court for the first time explained the paradigm shift in law by virtue of the newly enacted Insolvency and Bankruptcy Code, 2016 which consolidates and amends all the laws relating to the insolvency and bankruptcy process in India.

In this case, the Court expounded the legislative intent behind enactment of the Insolvency and Bankruptcy Code, 2016. The Court in the case explained the paradigm shift in Law to render guidance to Courts and Tribunals while dealing with cases under the Code. The Court stated that the moment initiation of the corporate insolvency resolution process takes place, a moratorium is announced by the adjudicating authority under the Code by which institution of suits and pending proceedings etc. cannot be proceeded with which  continues until the approval of a resolution plan as required by the Code. In the interim, an interim resolution professional (IRP) is appointed to manage the affairs of corporate debtors.

With reference to the instant case, the Supreme Court remarked that by giving effect to the State law, the intended scheme of the Code would directly be hindered to that extent in that the management of the relief undertaking, which, if taken over by the State Government, would directly impede or come in the way of the taking over of the management of the corporate body by the interim resolution professional.

Kerala HC: Mother can’t be Forced to choose between Motherhood and Employment

In this recently pronounced judgment Kerala High Court Judge, Justice A. Muhamed Mustaque reinstated the right and dignity of working mothers in India.

One of the seminal issue taken up by the Court in the case was Can a State or its instrumentality as an employer discriminate women employee based on compelling family care giving responsibility?

The Court inter alia made some noteworthy observations in the case which are enumerated below:

  • Motherhood encompass dignity, self-respect and status as elements. Motherhood is an option. In this Universe of life of everyone is an option of his parents, but that does not mean that mother has to be subjugated to any other interest. In general, employer has no legal obligation to have concern over employee’s private affairs. However, this has an exception, if those private affairs are interest protected as fundamental rights.
  • Mother’s role in taking care of her child has been considered as an honour; she enjoyed such status because of her position in respect of the child. If on any reason she could not attend her workplace due to her duties towards child, the employer has to protect her personhood as ‘mother’. If not that it will be an affront to her status and dignity.
  • No action is possible against a woman employee for her absence from duty on account of compelling circumstances for taking care of her child. No service rules can stand in the way of woman for claiming protection of her fundamental right of dignity as mother.Any action by an employer can be only regarded as a challenge against the dignity of woman.
  • Motherhood is not an excuse in employment but motherhood is a right which demands protection in given circumstances.What employer has to consider is whether her duty attached to mother prevented her from attending employment or not. Motherhood is an inherent dignity of woman that cannot be compromised.
  • Mother cannot be compelled to choose between her motherhood and employment. A woman employee is not expected to surrender her self- respect fearing action against her for not being able to attend duty for compelling family responsibility. A woman employee cannot be thrown out of from service for remaining absent on account of taking care of her child, if such taking care is indispensable for her.

SC on Disciplinary Proceedings against Advocates

Case name: Kaushal Kishore Awasthi v. Balwant Singh Thakur

In this recent case the Supreme Court was confronted with the issue of professional misconduct under Section 35 of the Advocates Act, 1961. In view of the facts, the Court held that if the Advocate was not professionally engaged then disciplinary proceedings cannot be initiated against him.

In the case, the Appellant was held guilty of alleged professional misconduct by the State Bar Council and subsequently by Bar Council of India. The Appellant’s license to practice was also suspended. Aggrieved by this the Appellant approached the Supreme Court.

The Supreme Court while allowing the Appeal made reference to Rule 22 under Chapter II of the Standards of Professional Conduct and Etiquette framed by the BCI which debars an Advocate from directly or indirectly making a bid for or purchase either in his own name or in other’s name for his own benefit or for the benefit of any other person any property sold in the execution of a decree or order in any suit, appeal or other proceedings in which he was in any way professionally engaged.

The Court also made reference to Section 35 of the Advocates Act, 1961, as per which punishment can be awarded to an Advocate if he is found guilty of professional or other misconduct.

Key take aways from the Court’s verdict:

  • That the complainant was selling the property to the intending buyer which was an arrangement between them unconnected with any legal proceedings.
  • That the said property was not being sold in execution of any decree, in which proceedings the appellant was engaged.
  • That the complainant intended to sell the property in question when he found himself in need of money. It is this sale which the appellant tried to interdict. He was not doing so in the capacity of an Advocate. As per him, the complainant was not authorised to sell the property without repaying his debt. Whether the appellant was right in this submission or not, is not relevant. What is relevant is that this act has nothing to do with the professional conduct of the appellant.

National Commission says “No Cure/No Success is not Medical Negligence”

Case name: Dr. M. Kochar vs Ispita Seal

In this case, decided by the National Commission, the Commission was confronted with the issue of deficiency in services in IVF procedure performed by the Doctor. The Commission while delivering its judgement made reference to medical literature relating to IVF procedure to arrive at the conclusion that No cure/ no success in IVF is not a negligence.

Also read What Is Medical Negligence?  When and How to File a Case pertaining to Medical Negligence?

While arriving at its decision, the National Commission made the following observations:

  • That IVF is a complex series of procedures used to treat fertility and assist with the conception of a child and it involves several technical steps. The hospital or any treating doctor will not give assurances or guarantees of the treatment. According to medical literature the chances of having a healthy baby using IVF depend on many factors, such as patient’s age and the cause of infertility. In addition, IVF can be time-consuming, expensive and invasive.
  • That medical literature clearly states that presence of vaginal infection does not alter pregnancy rate.
  • That a woman’s age is the most important factor that influences the success rate of IVF procedures. The IVF success rate is highest for women between 24 and 34 as this is the period when they are at their peak fertility levels.
  • With reference to the case, the Commission held that treating doctor adopted the standard method of IVF. The patient was properly investigated and given proper medicines for retrieval of eggs prior to IVF. In any given cycle, the chance of IVF success varies, depending on age and personal health circumstances. The Commission opined that there was no deficiency or lapses in the duty of care on the part of the treating Doctor or OP in the case.
  • That “No cure/ no success is not a negligence”, thus fastening the liability upon the treating doctor is unjustified. The National Commission also set aside the State Commission’s order and stated that the OP could not be held liable without any cogent evidence or medical ground.

Also read Important Judgments on Medical Negligence in India

Insolvency Code: Lawyer can Issue Demand Notice on Behalf of Operational Creditor

Case name: Macquarie Bank Limited v. Shilpi Cable Technologies Ltd.

In this case, the Supreme Court settled the legal proposition under the Insolvency and Bankruptcy Code, 2016 to hold that:

  • Section 9(3)(c) of the Code is directory and not mandatory in nature
  • Demand notice under the Code can be issued by the Lawyer on behalf of the operational creditor

A Lawyer can Issue a demand notice of an unpaid operational debt on behalf of the operational creditor

In this context, the Supreme Court observed that Section 8 of the Code speaks of an operational creditor delivering a demand notice and if the legislature wished to restrict such demand notice being sent by the operational creditor himself, the expression used would perhaps have been “issued” and not “delivered”. Delivery, therefore, would postulate that such notice could be made by an authorized agent.

That both the expressions “authorized to act” and “position in relation to the operational creditor” go to show that an authorized agent or a lawyer acting on behalf of his client is included within the aforesaid expression.

Read more here.

SC: Hotels can sell Mineral Water above MRP

Case name: Federation of Hotel and Restaurant Associations of India v. Union of India

In this recent judgement, the Supreme Court has settled the contentious issue of hotels/ restaurants supplying packaged water bottles at a price higher than the Maximum Retail Price (MRP). The Supreme Court in the case has reaffirmed Delhi High Court’s impugned order passed in 2007 which stated that charging prices for mineral water in excess of MRP printed on the packaging, during the service of customers in hotels and restaurants does not violate any of the provisions of the Standard Weights and Measures Act, 1976  as this does not constitute a sale or transfer of these commodities by the hotelier or Restaurateur to its customers.

Read more here.

SC: Superior Court cannot Direct Subordinate Court to Pass an Order

Case name: Madan Mohan v. State of Rajasthan & Ors.

In this case, the Supreme Court recognized the principle of judicial independence of Courts and categorically states that the same cannot be interfered with by any Court including the Superior Court.

Key takeaways from the case:

  • That no Superior Court in hierarchical jurisdiction can issue such direction/mandamus to any subordinate Court commanding them to pass a particular orderon any application filed by any party.
  • That the judicial independence of every Court in passing the orders cannot be interfered with by any Court including superior Court.
  • That any such directions issued by Superior Court amounts to usurping the powers of Subordinate Court and would amount to interfering in the discretionary powers of the subordinate Court. Such orders are not legally sustainable.

Read more here.

Exclusive jurisdiction Clause in Arbitration Agreement Ousts Jurisdiction of other Courts

Case Name: CVS Insurance and Investments vs. Vipul IT Infrasoft Pvt. Ltd.

In the case, the Delhi High Court gave the ruling that there shall be only one seat of arbitration though venues may be different and where the arbitration seat is fixed only such court shall have an exclusive jurisdiction.

In this case, the seminal issue between the parties was whether the seat of the arbitration should be at Delhi or Noida when the agreement between the parties give exclusive jurisdiction to courts at Noida?

Key takeaways from the case:

  • That there cannot be two or more seats of arbitration though the venue of arbitration may depend upon convenience of the parties. Article 12 of the impugned Agreement gives exclusive jurisdiction to courts at Noida while keeping Delhi and Noida as venue for arbitration.
  • That there shall be only one seat of arbitration though venues may be different and where the arbitration seat is fixed only such court shall have an exclusive jurisdiction.

Read more here

SC: Welfare of Child is of Paramount Consideration in Child Custody cases

Case name: Prateek Gupta v. Shilpi Gupta & ors.

In this recent case, the Supreme Court has passed an important judgment wherein custody of child initially residing in the US and later on brought to India by father was disputed.

The Supreme Court in the case rendered a detailed analysis of legal principles involving ‘intimate contact’ of the child with the place of repatriation and principle of comity of courts over the welfare of child.

The Court referred to plethora of judgments in the case to whittle down to the inference that welfare of child is of paramount consideration and principle of forum convenience has no place in cases where custody of child is disputed.

Key takeaways from the case:

  1. That the Doctrines of “intimate contact” and “closest concern” are of persuasive relevance only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom etc., with the portent of mutilative bearing on the process of its overall growth and grooming.
  2. That immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise.
  3. That there is no forum convenience in wardship jurisdictionand the peremptory mandate that underlines the adjudicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration.

Read more here.

Also read Supreme Court clarifies on Child Custody laws

SC: Judicially Separated Wife is also entitled for Maintenance

Case name: Sanju Devi v. State of Bihar

In this recent case taken up by the Supreme Court yesterday the Court rejected High Court’s order whereby the Petitioner was disentitled from maintenance under Section 125 of the Code of Criminal Procedure, 1973 on the ground that the husband and wife had already judicially separated.

Key takeaways from the case:

That if a divorced wife is entitled for maintenance then there is no reason why a wife who is judicially separated is not entitled for maintenance.

That Section 125(4) of the CrPC states that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent.

Read more here.

Also read Judicial Separation and Divorce in India.

Bombay High Court Upholds Constitutional Validity of RERA

In a major move, the Bombay High Court upheld the constitutional validity of RERA [Real Estate (Regulation and Development) Act, 2016]. A Bench of Justices Naresh Patil and Rajesh Ketkar held that RERA has adequate mechanism, which balances the rights and obligations of the promoter, real estate agent and the allottee.

The case taken up by the Bombay High Court comprised of a batch of petitions whereby the Petitioners (comprising of Builders) in the case had challenged the legality and constitutional validity of certain provisions of RERA as being violative of Articles 14, 19(1)(g), 20 and 300-.of the Constitution of India.

Key takeaways from the case:

  • That the provisions of RERA are prospective in nature. The penalty under Sections 18, 38, 59, 60, 61, 63 and 64 is to be levied on account of contravention of provisions of RERA, prospectively and not retrospectively. These provisions, therefore, cannot be said to be violative of Articles 14, 19(1)(g), 20(1) and 300-A of the Constitution of India.
  • That challenge to constitutional validity of first proviso to Section 3(1), Section 3(2)(a), explanation to Section 3, Section 4(2)(l)(C), Section 4(2)(l)(D), Section 5(3) and the first proviso to Section 6, Sections 7, 8, 18, 22, 38, 40, 59, 60, 61, 63, 64 of the Real Estate (Regulation and Development) Act, 2016 fails. These provisions are held to be constitutional, valid and legal.

Read more here.

SC: Advocate’s Fee based on Percentage of Result of Litigation is Illegal

Case name: Sunitha v. State of Telengana & anr.

In this recent judgment, the Supreme Court made a scathing attack on high fees charged by legal professionals and categorically held that Advocate’s fee based on percentage of result of litigation was illegal. The Supreme Court in the case delved into detailed analysis of professional misconduct by Advocates in charging exorbitant fees from litigants and that claim based on percentage of subject matter in litigation could not be the basis of a complaint under Section 138 of the Act.

Key take ways in the case:

  • That in absence of independent proof, issuance of cheque could not furnish cause of action under Section 138 of the Actin the context of an advocate or client.
  • That to attract penal provisions under Section 138 of the Act, a cheque must have been drawn by the accused on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge in whole or in part, of any debt or other liability due.
  • That Advocate’s Fee in reference to percentage of the decretal amount is illegal.

Read more here.

Punjab HC: Insurer Liable even if Indian Vehicle Meets Accident Abroad

Case name: Anil Kumar v. Roop Kumar Sharma & Anr.

In this case, the High Court of Punjab and Haryana has made a noteworthy judgment pertaining to Insurance claim for Indian vehicles which have met with an accident beyond the territorial limits of India. The Court in the case has categorically stated that once insured, the vehicle is insured to cover all geographical areas where the vehicle is authorised by the authorities to travel.

Key takeaways from the case:

  • That a bare perusal of Sections 146 and 147 of the Motor Vehicle Act makes it clear that the insurance policy is attached to the ‘vehicle’ in question and not to Geographical expense of the area of operation of the vehicle in question.
  • That the only requirement for coming in operation of the policy liability is the use of vehicle in any public place. Therefore, the Insurance Company cannot avoid its liability to pay the compensation only on the ground that the vehicle was used in any particular city, state or a particular geographical area.
  • That once a vehicle is insured quathird party it is insured for all geographical areas as per the provisions of the Act.

Read more here.

SC: Stay Trademark Infringement Suit in case of Rectification Proceeding

Case name: Patel Field Marshal Agencies and ANR. Vs. P.M. Diesels Ltd. and Ors.

In this important judgment, passed by the Supreme Court, the Court categorically stated that if a proceeding for rectification of the trademark in question is pending before the Registrar or the High Court, and simultaneously a suit for infringement is filed, the suit for infringement shall remain stayed.

Key take aways from the case:

That Section 111 of the 1958 Act (corresponds to Section 124 of 1999 Act) which deals with “stay of proceedings where the validity of registration of the trade mark is questioned” specifically provides that if a proceeding for rectification of the register in relation to the trade mark of either the plaintiff or the defendant is pending before the Registrar or the High Court, as may be, and a suit for infringement is filed wherein the aforesaid plea is raised either by the defendant or by the plaintiff, the suit shall remain stayed.

  • That the legislature by enacting Section 111 of the 1958 Act has mandated that the issue of invalidity which would go to the root of the matter should be decided in the first instance and a decision on the same would bind the parties before the civil court. Only if the same is abandoned or decided against the party raising it that the suit will proceed in respect of the other issues, if any.

Read more here.

Supreme Court Issues Directions for Road Safety in India

Case name: Dr. S. Rajaseekaran v. Union of India

In this case, two-Judge Bench of the Supreme Court comprising of Justice Madan B. Lokur and Justice Deepak Gupta have issued a slew of directions for road safety and prevention of road accidents in India.

In the case, the Petitioner had prayed for enforcement of road safety norms and appropriate treatment of accident victims. The Court in the case took note of acute loss of life and limbs caused by road accidents. The Petitioner in the case also stated that practical measures need to be taken in a time-bound and expeditious manner to give effect to legislation, reports and recommendations for ensuring that the loss of lives due to road accidents was minimized.

The guidelines issued by the Court in the case are enumerated here.

Accident Claim: Supreme Court says Insurer can’t Raise Plea of Negligence

Case name: United India Insurance Co. Ltd. v. Sunil Kumar & Anr.

In this recent case, the core issue revolved around the scope of Section 163A of the Motor Vehicle Act, 1988. Section 163A of MV Act provides for special provisions as to payment of compensation on structured formula basis.

Key takeaways from the case:

That grant of compensation under Section 163A of MV Act on the basis of the structured formula is in the nature of a final award and the adjudication there under is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident.

  • That claimant is not required to establish proof of negligence has been made explicit by Section 163A(2). Though the said section does not specifically exclude a possible defence of the Insurer based on the negligence of the claimant but permitting such defence to be introduced by the Insurer to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163A of the Act i.e. final compensation within a limited time frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability was taking an unduly long time.

Read more here.

Also read Motor Vehicle Act, 1988 – SC issues guidelines on Assessment of Compensation

Also read Accident Claims – How to get compensation under Motor Vehicles Act

Also read Motor Vehicles Accident Compensation under the MV Act

Supreme Court Issues Directions on Misuse of Section 498A of IPC

Case name: Rajesh Sharma & Ors. v. State of U.P. 

In this case, the Supreme Court took note of incidences, wherein the legal provision under Section 498A of IPC  have reported of being misused by women. In the wake of alleged misuse of Section 498A of IPC , the Supreme Court the case issued directions with the object to prevent such misuse.

The directions issued by the Supreme Court in the case inter alia include establishment of family welfare committees entrusted with the duty to look into every complaint filed in the District under Section 498A. The Court also restrained expounding of passports in cases where complaint has been lodged under Section 498A against persons ordinarily residing out of India.

Read more here.

SC explains what Constitutes Fundamental Breach of Contract of Insurance

Case name: Lakhmi Chand vs Reliance General Insurance

In this case the issue which surfaced before the Supreme Court pertained to the breach of contract of insurance and the consequences that eventually follow. In the case the Supreme Court was confronted with the following questions:

Key takeaways from the case:

  • That the Law of Insurance is based upon the contract of indemnity whereby the Insurer indemnifies the insured against the loss as per the terms and conditions stipulated in the contract and insured cannot escape its liability unless there is a fundamental breach of contract resulting in repudiation of contract and not every breach.
  • That even if the insurance company is able to prove that there is breach of concerning policy conditions, the insurer would not be allowed to avoid its liability towards insures unless the said breach is so fundamental as to  be found to have contributed to the cause of the accident.
  • That the mere factum of carrying more than permitted capacity by the goods carrying vehicle by insured does not amount to fundamental breach of terms of policy. It was further held that onus to establish the fundamental breach lies with insurer and the insurer has also to prove that the damage suffered by the insured flowed from such breach.

Read more here.

No Distance Education for Technical Courses without AICTE’s Approval

Case name: Orissa Lift Irrigation Corporation Corp. Ltd. v. Rabi Shankar Patro & Ors.

In this landmark judgment, the Supreme Court Bench ruled that distance or correspondence education for technical courses from concerned deemed to be universities would be rendered invalid.

The Bench in the case came down heavily on imparting of technical education by the concerned Deemed to be Universities in the case. The concerned Deemed to be Universities in the case were:

  1. JRN Rajasthan Vidyapeeth, Udaipur, Rajasthan (JRN)
  2. Institute of Advanced Studies in Education, Sardarshahr, Rajasthan (IASE)
  3. Allahabad Agricultural Institute, Allahabad, U.P.
  4. Vinayak Mission’s Research Foundation Salem, Tamil Nadu

The Supreme Court in the case recognized the importance of classroom education for technical courses and suspended engineering degree granted to students by the Deemed universities who were enrolled during the academic years 2001 to 2005.

The Supreme Court in the case also issued directions to the Union of India which inter alia stated that 1994 AICTE Regulations, do apply to Deemed to be Universities and the Deemed to be Universities in the present matter were not justified in introducing any new courses in Technical Education without the approval of AICTE.

Read more here.

Motor Vehicle Act, 1988 – SC issues guidelines on Assessment of Compensation

Case name: National Insurance Company Ltd. v. Pranay Sethi

In this important judgment passed by Five-Judge Constitution Bench of the Supreme Court, the Court has issued guidelines for computation of compensation under the Motor Vehicle Act, 1988.

The seminal issue in the case was whether a person was self-employed or on a fixed salary without provision of annual increment etc., what should be the addition as regards the future prospects?

In view of precedents and divergence of opinion with reference to the issue, the Supreme Court in this case ruled on the following legal propositions for calculating compensation under the Motor Vehicle Act, 1988:

  • Addition of future prospects to determine the multiplicand
  • Deduction towards personal and living expenses
  • Compensation where the deceased was married
  • Compensation where the deceased was a bachelor
  • The age of the deceased should be the basis for applying the multiplier.
  • Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.

Read more here.

Also See: Accident Claims – How to get compensation under Motor Vehicles Act

Also See: MACT – Motor Accident Claims Tribunal – FAQ

Right to Privacy Judgment

Case name: Justice K.S. Puttaswamy v. Union of India

This case be safely categorized as one of the most essential judgement of 2017 delivered by Nine-Judge Constitution Bench of the Supreme Court. In the case one of the crucial observation made by the Court was that privacy is a constitutionally protected right which emerges from the right to life and personal liberty as guaranteed under Article 21 of the Constitution.

Key take aways from the case:

  • The Supreme Court’s verdict in MP Sharma case which held that right to privacy is not protected by the Constitution stands overruled.
  • The decision in Kharak Singh case to the extent that it holds that the right to privacy is not protected by Constitution stands overruled.
  • That right to privacy is protected as an intrinsic part of right to life and personal liberty under Article 21 of the Constitution and as a part of freedoms guaranteed under Part III of the Constitution.

SC Says Sex with minor wife is rape

Case name: Independent Thought v. Union of India & Anr.

In this case, the seminal issue taken up by the Supreme Court was whether sexual intercourse between a man and his wife being a girl between 15 to 18 years of age is rape?

The Supreme Court Bench in this context stated that Section 376(2) of Indian Penal Code is an exception to this issue, however ruled that sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not.

Key take aways from the case:

  • That the exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.
  • That the artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21(3) of the Constitution and our commitments in international conventions.

 

 

[1] (2017)4 SCC 177

[2] Similar view was taken by the Supreme Court in Randhir Singh Rana v. Delhi Admn. (1997) 1 SCC 361