DATE: 01.09.

2023

Chairman Railway Board V. Chandrima Das (2002)

Facts of the Case:

 Mrs. Chandrima Das, a practising advocate of the Calcutta High Court, filed a petition
under Article 226 of the Constitution against the Chairman, Railway Board; General
Manager, Eastern Railway; Divisional Railway Manager, Howrah Division; Chief
Commercial Manager, Eastern Railway; State of West Bengal through the Chief
Secretary; Home Secretary, Government of West Bengal; Superintendent of Police
(Railways), Howrah; Superintendent of Police, Howrah; Director General of Police,
West Bengal and many other Officers including the Deputy High Commissioner,
Republic of Bangladesh; claiming compensation for the victim, Smt. Hanuffa
Khatoon, a Bangladeshi national who was gang-raped by many including employees
of the Railways in a room at Yatri Niwas at Howrah Station of the Eastern Railway
regarding which G.R.P.S. Case No. 19/98 was registered on 27th February, 1998. Mrs.
Chandrima Das also claimed several other reliefs including a direction to the
respondents to eradicate anti-social and criminal activities at Howrah Railway Station.
 Smt. Hanuffa Khatoon, a Bangladeshi Citizen, arrived at Calcutta Railway Station on
26th February1998 to board Jodhpur Express. She had her ticket in waitlist and so she
was asked to wait in the Ladies Waiting Room by the train ticket examiner.
 At about 5.00 pm two persons Mr. Ashok Singh and Mr. Siya Ram claiming
themselves to be influential persons of Railways took her waiting ticket and
confirmed her reservation in S-3 of the Jodhpur Express.
 Few hours later Mr. Siya Ram approached Mrs. Hanuffa Khatoon to accompany a
boy named Kashi for the food in a restaurant. She agreed and went with the boy. After
the lunch she came back to the Ladies Waiting Room.
 At about 9.00 pm Ashok Singh and Rafl Ahmed advanced towards her and asked her
to accompany them to Yatri Niwas for resting there for few hours.
 Initially she doubted them but after being assured about her safety by the lady
attendant of Ladies Waiting Room, she followed them.
 She was taken in room no. 102 of Yatri Niwas booked in the name of Ashok Singh,
where three more men named Lalan Singh, Awdesh Singh, Sita Ram Singh were
already present.
  Hanuffa Khatoon suspected something peculiar and unusual but soon Ashok Singh
forced her into the room. The four men raped her.
 As soon as she gained consciousness she came back to the platform where she found
Siya Ram Singh conversing with Ashok Singh.
 Seeing the plight of Hanuffa Khatoon Ram Singh assured her to be on his side and
pretended to help her. As it was past midnight and the train had already departed Ram
Singh requested her to his residence for that night assured her about the presence of
his wife and children.
 Trusting Ram Singh, she accompanied him. He took her to a rented flat of Ashok
Singh and raped her.
 On hearing the cry and violent resistance of Hanuffa Khatoon the landlord of the
building rescued her with the help of Jorabagan Police.

Issues of the Case:

Whether the Central Government would be liable to pay compensation to Hanuffa Khatoon
for the act of the railway employees?

Arguments by Appellant:

 The proceedings for claiming damages under Article 226 of Constitution of India
could not be awarded as the petitioner should have claimed the remedy under Private
Law domain not in the realm of Public Law.
 The second contention raised is based on the concept of Locus Standi. Mrs. Chandrika
Das was a practising advocate and was in no way associated with the victim. She
therefore loses her right to file petition under Article 226 of Constitution.
 Smt. Hanuffa Khatoon is a foreign nationalist and so she cannot claim for violation of
her fundamental rights guaranteed in the Indian Constitution.
 The Central Government could not be held vicariously liable for the tortious act of
their employees. Since rape cannot be said to be an official act, the act was committed
in the personal capacity of the railway employees and thus no action could lie against
the Central Government even under the Law of Torts.

Arguments by Respondent:
As regarding the first contention it was argued that where public functionaries are involved
and the matter relates to the violation of Fundamental Rights or the enforcement of public
duties, the remedy would still be available under the Public Law notwithstanding that a suit
could be filed for damages under Private Law.

Ratio and Decision:

 The HC has jurisdiction not only to grant relief for the enforcement of fundamental rights
but also for ‘any purpose’ which would include the enforcement of public duties by
public bodies.

 This is done to prevent the State or the public bodies from acting in an arbitrary manner.
SC, in a number of cases, has awarded compensation for the personal injuries caused by
the officers of the government, like in Rudal Shah vs State of Bihar. Therefore,
compensation can be legally awarded in this case under public law, i.e., Article 226.

 The reliefs in the petition also contained to eradicate anti-social and criminal activities at
Howrah Railway Station and since the nature of petition is in public interest,
therefore, there is a locus standi to Mrs. Chandrima Das.

 Fundamental Rights such as Article 14 and 21 are available to ‘persons’ and

‘Rape amounts to the violation of FR guaranteed to a woman under Article 21’,
therefore, she can complain of a violation of FR even being a Bangladeshi national.

 The Court said that the theory of absolute sovereign immunity is no longer in any
welfare State. The Railways are a commercial body of Union of India which is not
merely sovereign body and can be held vicariously liable for the damage caused by
the employees otherwise there will be responsibility for the government bodies and
will behave in arbitrarily.

DATE: 02.09.2023

Odyssey Communications Pvt. Ltd V. Lokvidyana Sanghatana & Ors.

Facts of the Case:

 The T.V. Serial 'Honi-Anhoni' was being telecast by Doordarshan on every Thursday
between 9.00 P.M. and 9.30 P.M.

 A writ petition was filed by the Respondents stating that the telecast was public
interest as it had the effect of confirming blind faiths, superstitious beliefs in stories of
ghosts, rebirth, precognition etc. and of spreading the unscientific way of thinking and
blind beliefs.

 The High Court issued an interim order of injunction not to telecast and show
episodes 12 and 13 of the serial. Aggrieved by the interim order, the appellant,
producer of the said serial, had come on appeal by special leave.

 This Court, while granting special leave stayed the operation of the interim order
passed by the High Court.

Issues of the Case:

 Article 226 Public Interest Petition against exhibition of a TV serial-Alleging that it
was likely to spread false or blind beliefs and superstitions among people-Violation of
any statutory or contractual right not alleged-Whether High Court was justified in
issuing interim injunction order?
Appellant:

 The appellant contended that the said serial and in particular episodes 12 and 13 did
not emphasise superstitious beliefs but on the contrary criticised and condemned
superstition and blind faith, and at the end of both the episodes a doctor and a
professor gave a scientific explanation for the unusual occurrences portrayed therein
and considered by people as supernatural phenomenon. It was also submitted that the
viewers were told that they should search for scientific reason whenever any unusual
occurrence takes place.
  The appellant further pleaded that the High Court was in error in issuing the order of
injunction without giving a reasonable opportunity to it (the producer), which was
likely to be affected by the order, to explain that the writ petitioners had no right to
move the Court in the circumstances of the case.

Respondents:

 As alleged by the Respondents, if all the episodes in the serial were offensive they
could have approached the High Court as early as possible within the first two or
three weeks after the commencement of the exhibition of the serial. But they waited
till the exhibition of the 11th episode of the serial was over and then filed the petition.
They had not produced any material apart from their own statements to show that the
exhibition of the serial was prima facie prejudicial to the community.

Holdings:

 Constitution of India, 1950: Articles 19(1)(a) and 19(2)-- Right of citizen to exhibit
films on T. V. Subject to compliance of conditions imposed by Doordarshan-Can be
curtailed only under Art. 19(2).

Procedural History:

 Doordarshan is a part of the fundamental right of freedom of expression guaranteed

under Article 19(1)(a) of the Constitution of India which can be curtailed only under
circumstances which are set out in clause (2) of Article 19 of the Constitution of India.
The right is similar to the right of a citizen to publish his views through any other
media such as newspaper, magazines, advertisement hoardings etc. subject to the
terms and conditions of the owners of the media.

 The High Court was in error in the present case in issuing the interim order of
injunction which is set aside.
  The objection to the exhibition of the film was that it was likely to spread false or
blind beliefs amongst the members of the public. The Respondents had not asserted
any right conferred on them by any statute or acquired by them under a contract
which entitled them to secure an order of temporary injunction.

Rationale:

 The High Court overlooked that the issue of an order of interim injunction in this case
could infringe a fundamental right of the producer of the serial. In the absence of any
prima facie evidence of grave prejudice that was likely to be caused to the public
generally by the exhibition of the serial it was not just and proper to issue an order of
temporary injunction. The exhibition of the serial in question was not likely to
endanger public morality. In the circumstances of the case the balance of convenience
lay in favour of the rejection of the prayer for interim injunction.

 This Court reserved its opinion on the question whether a citizen has a fundamental
right to establish a private broadcasting station, or television centre, to be decided in
an appropriate case.

Judgement:

 The Judgement of the court was delivered by VENKATARAMIAH, J. This appeal by

special leave is filed against an interim order of injunction issued by the High Court
of Bombay, Aurangabad Bench on 13th April, 1988 directing the three respondents;
(I) Union of India, (2) Ministry of Information and Broadcasting, Parliament House,
New Delhi and (3) State of Maharashtra, not to telecast and show episodes 12 and 13
of a serial entitled 'Honi-Anhoni' pending disposal of Writ Petition No. 479 of 1988
filed by Respondent No. 1, Lokvidayan Sanghatana, a registered social organisation
of Pune having its branch at Aurangabad and Respondent No. 2 Mahila Sangharsha
Samiti, Aurangabad represented by one of its members Smt. Anagna Patil.
 The writ petition was in the nature of a public interest litigation. The prayer in the writ
petition was that the respondents should be directed not to telecast the serial as such
telecasting was not in the public interest.

 The Court expressed that it would set aside the order passed by the High Court against
which the appeal had been filed and would give reasons in the course of its judgment.
Since the order of stay passed by the Court was allowed to remain in force the 13th
episode, which was the last episode of the serial was telecast on the 28th April, 1988.

 The grounds mentioned in the writ petition in support of the prayer made in it were
that in each and every episode telecast in the serial an obscure and mysterious
atmosphere was being created due to the way of the presentation of the episodes and
that it had created fear in the minds of the common viewers and especially of children
as the serial had the effect of confirming blinds faiths, superstitious beliefs in stories
of ghosts, rebirth, precognition etc. and of spreading the unscientific way of thinking
and blind beliefs. It was further contended that it was the duty of the State not to
encourage blind beliefs amongst the public by telecasting such episodes.

 It was on the basis of these grounds the High Court was requested to grant the interim
order of injunction. The appellant was the producer of the said serial, yet the appellant
was not made a party to the writ petition. But on its application the appellant was
impleaded as a party on 12.4.1988.

 It can no longer be disputed that the right of a citizen to exhibit films on the
Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is
a part of the fundamental right of freedom of expression guaranteed under Article
19(1)(a) of the Constitution of India which can be curtailed only under circumstances
which are set out in clause (2) of Article 19 of the Constitution of India.

 The right is similar to the right of a citizen to publish his views through any other
media such as newspapers, magazines, advertisement hoardings etc. subject to the
 terms and conditions of the owners of the media. We hasten to add that what we have
observed here does not mean that a citizen has a fundamental right to establish a
private broadcasting station, or television centre. On this question we reserve our
opinion. It has to be decided in an appropriate case. The relevant part of Article 19 of
the Constitution reads thus:

"19. Protection of certain rights regarding freedom of speech, etc.-(1) All citizens shall have
the right-

(a) to freedom of speech and expression; .................................... (2) Nothing in sub-clause (a)
of clause (1) shall affect the operation of any existing law, or prevent the State from making
any law, in so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub- clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality,
or in relation to contempt of court, defamation or incitement to an
offence. ................................................."

 Freedom of expression is a preferred right which is always very zealously guarded by

this Court.

DATE: 04.09.2023

Indian Medical Association

V.

V.P. Shantha & Ors. (1995)

In 1995, the Supreme Court delivered a historic decision in Indian Medical Association v VP
Shantha which brought the medical profession within the ambit of a service as defined in Section 2(1)(o)
of the Consumer Protection Act, 1986, and clarified earlier conflicting decisions regarding this issue given
by various High Courts and Consumer Forums.

Facts of the Case:

 In Dr. A.S. Chandra v. Union of India, (1992) 1 Andhra Law Times 713, a Division
Bench of Andhra Pradesh High Court has held that service rendered for consideration
by private medical practitioners, private hospitals and nursing homes must be
construed as 'service' for the purpose of Section 2(1)(d) of the Act and the persons
availing such services are 'consumers' within the meaning of Section 2(1)(d) of the
Act.

 In Dr. C.S. Subramanian v. Kumarasamy & Anr., (1994) 1 MLJ 438, a Division
Bench of the Madras High Court has, however, taken a different view. It has been held
that the services rendered to a patient by a medical practitioner or by a hospital by
way of diagnosis and treatment, both medicinal and surgical, would not come within
the definition of 'service' under Section 2(1)(o) of the Act and a patient who
undergoes treatment under a medical practitioner or a hospital by way of diagnosis
and treatment, both medical and surgical, cannot be considered to be a `consumer'
within the meaning of Section 2(1)(d) of the Act; but the medical practitioners or
hospitals undertaking and providing paramedical services of all kinds and categories
cannot claim similar immunity from the provisions of the Act and that they would fall,
to the extent of such para-medical services rendered by them, within the definition of
`service' and a person availing of such service would be a `consumer' within the
meaning of the Act.

 The National Commission by its judgment and order dated December 15, 1989 in
First Appeal No.2 of 1989 has held that persons who avail themselves of the facility
of medical treatment in Government hospitals are not "consumers" and the said
facility offered in the Government hospitals cannot be regarded as service "hired" for
"consideration". It has been held that the payment of direct or indirect taxes by the
public does not constitute "constitute "consideration" paid for hiring the services
rendered in the Government hospitals. It has also been held that contribution made by
a Government employee in the Central Government Health Scheme or such other
similar Scheme does not make him a "consumer" within the meaning of the Act.
  Owing to the lack of uniformity in judicial interpretation a series of appeals, special
leave petitions, and the Writ Petitions were filed against the contradictory decisions of
the High Courts and subordinate courts. These were heard together and decided by the
Supreme Court in the present case of Indian Medical Association v VP Shantha.

Issues of the Case:

1. Whether and, if so, in what circumstances, a medical practitioner can be regarded as

rendering 'service' under Section 2(1)(o) of the Consumer Protection Act, 1986 (hereinafter
referred to as 'the Act'].

2. Whether the service rendered at a hospital/nursing home can be regarded as 'service'

under Section 2(1)(o) of the Act.

Arguments:

 Issue 1. Whether a medical practitioner, hospital, or nursing home can be regarded as

rendering service under Section 2(1)(o) of the Consumer Protection Act, 1986?
The Supreme Court keeping in mind the wide amplitude of the definition of `service
in the main part of Section 2(1)(o), held in the affirmative.

 It rejected the argument put forth by the petitioners contending that services rendered
by a person belonging to a profession would not fall within the ambit of the Act. Even
though medical practitioners are governed by the Indian Medical Council Act and are
subject to the disciplinary control of Medical Councils of India, they are not immune
from a claim for damages on the ground of negligence.

 Issue 2. Under what circumstances can the service render at a hospital/nursing be

regarded as service under Section 2(1)(o) of the Consumer Protection Act, 1986?
Holding that the definition of service is wide enough to include services rendered by
medical practitioners, the Supreme Court proceeded to consider the exclusionary part
 of Section 2(1)(o). The exclusionary part excludes services rendered (i) free of
charge; or (ii) under a contract of personal service.

 Concerning (i), it held that doctors and hospitals/nursing homes who render service
without any charge to every person availing the service would not fall within the
ambit of the Act. This would fall in the exclusionary part of the definition of service.
However, medical services rendered on payment of consideration are included under
Section 2(1)(o).

 Concerning (ii), the court reiterated the distinction between a contract of service and a
contract for service. The fundamental difference is that in the former, the employer
enjoys a degree of control over the work of the employee whereas in the latter, the
independent contractor so employed is not subject to the control of the employer and
is free to exercise discretion. The court held that the contract between the medical
practitioner and his patient cannot be treated as a contract of personal service as a
master-servant relations are absent. It would be a contract for services and therefore,
will not be covered by the exclusionary part.

Applied Rule of Law:

Section 2 (1) (0) and Section 2 (1) (d) of the Consumer Protection Act , 1986.

Section 2 (1) (0) defines service.

 "service" means service of any description which is made available to the potential
users and includes the provision of facilities in connection with banking, financing,
insurance, transport, processing, supply of electrical or other energy, board or lodging
or both, [housing construction], entertainment, amusement or the purveying of news
or other information, but does not include rendering of any service free of charge or
under a contract of personal service.

Section 2 (1) (d) defines who is consumer.

"consumer" means any person who,

  Buys any goods for a consideration which has been paid or promised or partly paid
and partly promised, or under any system of deferred payment and includes any user
of such goods other than the person who buys such goods for consideration paid or
promised or partly paid or partly promised, or under any system of deferred payment,
when such use is made with the approval of such person, but does not include a
person who obtains such goods for resale or for any commercial purpose; or

 Hires [or avails of] any services for a consideration which has been paid or promised
or partly paid and partly promised, or under any system of deferred payment and
includes any beneficiary of such services other than the person who hires [or avails
of ] the service for consideration paid or promised, or partly paid and partly promised,
or under any system of deferred payment, when such services are availed of with the
approval of the first mentioned person.

Judgement:

 It rejected the argument put forth by the petitioners contending that services rendered
by a person belonging to a profession would not fall within the ambit of the Act. Even
though medical practitioners are governed by the Indian Medical Council Act and are
subject to the disciplinary control of Medical Councils of India, they are not immune
from a claim for damages on the ground of negligence.
 The Court was unable to agree with the submission that a determination about
deficiency in medical service for Section 2(1)(g) cannot be judged based on any fixed
norms. It observed that a deficiency in service may be due to obvious faults
attributable to medical practitioners which can be easily established such as removal
of the wrong limb or the performance of an operation on the wrong patient, etc. The
Court held that a determination about deficiency in service is to be made by applying
the Bolam test as laid down in the English case of Bolam v Friern Hospital
Management Committee for tortious action for damages for negligence.

 The Bolam test provides that a medical practitioner must bring to his task a reasonable
degree of skill and knowledge and must exercise a reasonable degree of care. When
consulted by a patient, he owes a duty of care in deciding whether to undertake the
case, in deciding what treatment, and in the administration of that treatment. A breach
of any of these duties gives a right of action for negligence to the patient.

 Holding that the definition of service is wide enough to include services rendered by
medical practitioners, the Supreme Court proceeded to consider the exclusionary part
of Section 2(1)(o). The exclusionary part excludes services rendered (i) free of
charge; or (ii) under a contract of personal service.

 Concerning (i), it held that doctors and hospitals/nursing homes who render service
without any charge to every person availing the service would not fall within the
ambit of the Act. This would fall in the exclusionary part of the definition of service.
However, medical services rendered on payment of consideration are included under
Section 2(1)(o).

 The Court further considered a situation where free medical services are provided to
only those persons who cannot afford to pay off them, and held that such services
would undoubtedly fall within the ambit of the Act since these expenses are met out
of the income received from paying patients.
  Concerning (ii), the court reiterated the distinction between a contract of service and a
contract for service. The fundamental difference is that in the former, the employer
enjoys a degree of control over the work of the employee whereas in the latter, the
independent contractor so employed is not subject to the control of the employer and
is free to exercise discretion. The court held that the contract between the medical
practitioner and his patient cannot be treated as a contract of personal service as a
master-servant relations are absent. It would be a contract for services and therefore,
will not be covered by the exclusionary part.

The Court finally concluded that Service rendered to a patient by a medical

practitioner (except where the doctor renders service free of charge to every patient or
under a contract of personal service), by way of consultation, diagnosis, and
treatment, both medicinal and surgical, would fall within the ambit of service as
defined in Section 2(1) (o) of the Act.

Ratio Decidendi:

 The ratio decidendi of the case is medical negligence. Medical negligence is basically
the misconduct by medical practitioner by not providing enough care resulting in
breach of their duties and harming the patients which are consumers. They also
argued whether this was the case of negligence in Torts or IPC, later on it was decided
that any negligence in medical field would be determined under CPA, 1986. The
Supreme court also stated that a medical practitioner, nursing home or a hospital can
be regarded as rendering service under CPA, 1986.

DATE: 05.09.2023

CPIO

V.

Subhash Chandra Agarwal (2019)

Facts of The Case:

 In the present case, three appeals were filed in the court of law to clarify the
difference between right to information and right to privacy as both the concepts are
correlated as well as different. The first appeal was filed by Subhash Chandra
Agarwal which demanded the disclosure by the Chief Justice of India, it was alleged
that Union Minister had influenced the decision of Madras High Court judge, Justice
R. Reghupathi.

 The second RTI was filed, requesting the information relating to the appointment of
Supreme Court judges namely, Justice A.K. Ganguly, Justice H.L. Dutta, Justice R.M.
Lodha which superseded other senior Judges. Third appeal was filed seeking the
information on a declaration made by judges of the Chief Justice of the Supreme
Court and the Chief Justices in the States regarding the assets held by them, their
spouses or any person dependent on them.

 The purpose of the appeals which were filed primarily was to request the access to
information and was denied by the court of law. It was held by the full bench of Delhi
High Court that the office of Chief Justice of India comes under the definition of
“public authority” under RTI Act, 2005 and the disclosure of the assets of Chief
Justices of Supreme Court and High Courts were allowed.

 After these applications filed, CPIO, Supreme Court of India denied for the requested
disclosures. Then after the denial, Subhash Chandra Agarwal filed an appeal to
Central Information Commission (CIC), and on 6 January, 2009. CIC ordered the SC
to follow the process mentioned under section 6(3) of RTI Act, 2005 and further an
order was made to disclose the required information.

 The CPIO has filed a writ petition was filed in High Court by CIC but it the case
turned up in favour of the respondent.
Issues of the Case:

The five-judge bench of the Supreme Court delivered the judgment through Justice Sanjeev
Khanna.

The major issues raised by the Court as follows:

 Whether the demand for transparency the Indian courts interferes with the
independence of judiciary?

 Section 8(1)(j) of RTI Act exempts certain disclosures, does the issues in question are
also exempted?

 Does the right to freedom of speech and expression interfere with RTI.

Arguments of Appellant:

The appellants argued the following points:

The Right to Information is not absolute but is subject to certain exemptions.

 According to section 8(1)(j) of the said act, which exempts the personal information
which does not have any role in public activity. Moreover, disclosing the information
of candidates appointed for judicial service would be considered as invasion of
privacy and is against the public interest.

 The disclosure of information by the judges would be violative of their right to

information and also hurdles the functioning of the institution.

 Section 8(1)(j) is very important and more interpretation is required. So it was also
argued that the disclosure regarding the appointment of judges is exempted or not.
Moreover, the information of assets is only voluntary by the Chief Justice of India in
his fiduciary capacity as per pater familias of the judiciary.
  The appellants have contended that disclosure of the information sought would
impede the independence of judges as it fails to recognize the unique position of the
judiciary within the framework of the Constitution which necessitates that the judges
ought not to be subjected to 'litigative public debate' and such insulation is
constitutional, deliberate and essential to the effective functioning of the institution.

 Right to information is not an unfettered constitutional right, albeit a right available

within the framework of the RTI Act, which means that the right is subject, among
other conditions, to the exclusions, restrictions and conditions listed in the Second
Schedule and in Sections 8 to 11 of the RTI Act.

 Similarly, information of prospective candidates who are considered for judicial

appointments and/or elevation relates to their personal information, the disclosure of
which would cause unwarranted invasion of an individual's privacy and serves no
larger public interest. Further, the information on assets is voluntarily declared by the
judges to the Chief Justice of India in his fiduciary capacity as the pater familias of
the judiciary.

Argument of the Respondent:

 The respondent argued that the request to provide information does not interfere with
the independence of the judiciary. Transparency and accountability is must for the
good governance.

 The disclosure of information is in public interest and it is above the exemptions

under the section 8(1)(j) of RTI Act.

 The fiduciary relationship between the Chief Justice and the judges or among the
constitutional functionaries is missing.
  The respondent further argued that the “duty of a public servant is not to act for the
benefit of another public servant.” As such, the Chief Justice and other functionaries
should discharge their constitutional duties and not act as a fiduciary of anyone,
except the people.

 The disclosure is mandatory to protect public interest.

The Supreme Court of India and the Chief Justice of India are two different public
authorities?

 Section 2(h) of RTI Act defines the term “public authority”. A.124 of the Indian
Constitution mentions the establishment of Supreme Court of India and it was
considered as a public authority under RTI act. Another section 2(2)(ii) of RTI Act
says that the Chief Justice and the judges are competent authorities.

Information and right to information:

 The court interpreted the term ‘information’ as ‘material in any form’ which is
accessible by public authority. So, the public authority may access the
information by the private body subject to reasonable restrictions, falls under the
said category. Also, the court further held that Right to Information is not
absolute but the restrictions may be applied in such situations where personal
information is asked, which is not related to any public interest and would
invade the privacy of a person. The competent authority is not bound to disclose
such information unless he is satisfied that the larger public interest justifies the
 disclosure of such information. The sections 8-11 of the said act signify the
exemptions and conditions to access the information. The public authority may
disclose the information it is important to maintain public interest.

Right to privacy and confidentiality:

 In the recent judgment of K.S. Puttaswamy case, the citizen’s right to privacy is
given a separate important place. So the right to know and right to privacy are
inter related rights. The former makes the government answerable to the people
of India while the latter one maintains the confidentiality in urgent matters. The
conflict of interest arose and the topic gained a lot of attention. The court
pointed out the relevance of confidentiality in governmental matters keeping in
view, section 11 of the said act. The court concluded that “Confidentiality may
have some bearing and importance in ensuring honest and fair appraisals,
though it could work the other way around also and therefore, what should be
disclosed would depend on reliable enquiry related to the public interest, that is,
whether the right to access and the right to know outweighs the possible public
interest in protecting privacy or outweighs the harm and injury to third parties
when the information relates to such third parties or the information is
confidential in nature.”
Judgement:

 The Supreme Court held that the RTI Act sets out a regime that enables greater
access and information into the functioning of public authorities, in the furtherance
of efficient and transparent governance. However, the right to know could not be
absolute as it would then conflict with the right to privacy. The scheme of the RTI
Act acknowledges this under Section 8(1)(j) and Section 11, which protect
personal information and information relating to a third party, respectively.
Further, the RTI Act moderates and regulates the conflict between the two rights
by applying the test of larger public interest or comparative examination of public
interest in disclosure of information with possible harm and injury to the protected
interests.
 The Court drew a distinction between the right of confidentiality and the right to
privacy, where the law of privacy was not solely concerned with the information,
 but rather with the intrusion and violation of private rights. It referred to the three-
fold test laid down in the case of K.S. Puttaswamy and Anr. vs. Union of India
((2017) 10 SCC 1) to test intrusions into the right to privacy and held that the RTI
Act fulfilled the criteria laid down.
 It then discussed the protections accorded to public and personal information.
Section 8(1)(j) seeks to protect personal information from unwanted intrusion, but
makes an exception for information that should be disclosed for legitimate public
aims. In this context, the Court noted that details of personal assets of judges would
not amount to personal information and disclosure of the same would not violate
the right to privacy of judges.
 In dealing with the question of transparency in the appointment of judges and the
potential effects on the independence of the judiciary the Court recognized four
major arguments which could be invoked, to deny access to the public. These were

A. confidentiality concerns;
B. data protection;
C. reputation of those being considered in the selection process, especially those whose
candidature/eligibility stood negated;
D. and potential chilling effect on future candidates given the degree of exposure and
public scrutiny involved.

 Thus, while judicial independence was a matter of public interest, it would be

necessary to balance it with judicial independence. The Court held that there was no
definite answer to this question, and that accountability and independence of the
judiciary would have to be balanced depending upon the public interest in each case.

 The Court also considered the exception under Section 8(1)(e) of the RTI Act which
exempted disclosure of information made available to a fiduciary unless it was in the
larger public interest. Here the Court discussed the defining principles of fiduciary
relationships, including the no conflict rule, no-profit rule, undivided loyalty rule, and
duty of confidentiality. The Court held that ordinarily, the relationship between the
CJI and the other judges could not be classified as a fiduciary relationship, however,
this was not absolute, and would have to be evaluated based on the circumstances of
the case.
  The appeals were partially allowed to the extent that the CPIO, Supreme Court was
directed to re-examine the matters relating to third parties, following the procedure
under Section 11 of the RTI Act. However, the information relating to judges’ assets
was directed to be disclosed.

DATE: 06.09.2023

Chiranjilal Srilal Goenka

V.

Jasjit Singh (2001)

Facts of the Case:

 The appellant Shri Chiranjilal Shri Lal Goenka was involved in several suits, one of
which was the present appeal. He died on November 25, 1985 leaving behind his last
Will dated October 29, 1982 in which he appointed his younger daughter Mrs.
Sushila N. Rungta as the sole executrix Radhey Shyam, the natural son of Shri
Mangal Chand Kedia and Mrs. Sita daughter of Shri C.S. Goenka; claimed to be the
adopted son of Shri C.S. Goenka.

 The applicant, executrix; Radhey Shyam and his wife filed substitution applications
under Order 22 Rule 3 CPC setting up rival claims. When the dispute arose as to who
should represent the estate of Shri C.S. Goenka by order dated October 7, 1991 this
Court brought all the three on record as legal representatives; and by a further order
dated November 1, 1991 by consent of parties appointed a retired Chief Justice of the
Bombay High Court as an Arbitrator to settle the dispute as who would be the legal
heirs to the estate of late Chiranjilal Shri Lal Goenka. The arbitrator entered upon the
reference and on the riling of pleadings by the parties framed diverse issues.
Issues of the Case:

1. Does the claimant No.1 prove execution of the Will dated 29th Oct. 1982 and prove the
same to be the last and genuine Will of Shri G.S. Goenka.

2. If not, does she prove the execution of the Will dated 4.7.1978 and prove the same to be
the last and genuine Will of late Shri C.S. Goenka?

3. Does claimant No.2 prove that the late Shri C.S. Goenka duly adopted him on 26.1.1961?

4. Is the copy of the document dated 26.1.1961 filed by claimant No.2 admissible in
evidence?

5. Is the said document genuine and brought into existence in the way claimed by claimant
no.2?

6. If yes, then does the said document constitute an agreement between Mangal Chand and
late Shri C.S. Goenka?

7. If yes, can the said agreement be said to be the one contemplated by Section-13 of the
Hindu Adoption and Maintenance Act?

8. If yes, then would the said agreement dated 26.1.1961 prevent the late C.S. Goenka from
disposing of and dealing with the estate, according to his wishes by a Will?

9. In view of finding on issues above, who are the legal heirs to the estate of the late Shri C.S.
Goenka?

Arguments advanced:

 For issue nos.1 and 2, it was pointed out that probate suit is pending in the Bombay
High Court, wherein the learned Judge has expressed doubt whether arbitrator has
jurisdiction to decide probate suit. Hence, IA No.3 of 1992 was filed before this Court
to seek clarification. By judgment and order dated 18th March, 1993 this Court held
that arbitrator can not proceed with probate suit and decide issue nos.1 and 2 framed
 by him and the High Court was requested to proceed with the probate suit No.65 of
1985. Till the decision in the probate suit, the arbitrator was requested not to decide
issue nos.1 and 2. The Court observed that it would be open to the arbitrator to
proceed with other issues and would conclude his findings on issue nos.1 and 2 on the
basis of result in the probate proceedings and make the award according to law.

Contention of the Appellant:

 An Interlocutory Application was, therefore, moved in this Court for clarification, and
it was contended on behalf of the applicant that the probate court had exclusive
jurisdiction to grant probate of the Will to the applicant for due implementation of the
directions contained in the Will as the executrix, and that this issue cannot be referred
to arbitration and the arbitrator thereby is devoid of jurisdiction to decide Issue Nos. 1
and 2 that had been framed by him, and that the applicant had not consented to refer
the probate suit for arbitration.

Contention of the Respondent:

 The application was contested on behalf of the respondents by contending that

proceeding the order of the Court dated November 1, 1991 the counsel for the
respondents addressed a Letter to the counsel for the petitioner including the probate
suit for reference to arbitration, and this was to obviate the litigation pending in all the
courts as to who were the legal heirs of Shri C.S. Goenka, and thereafter this court
appointed the arbitrator,' that with a view to put an end to the litigation in all the suits
pending in different courts, this Court appointed the arbitrator to decide all the
disputes in pending suits. It is, therefore, desirable that the arbitrator should decide
Issue Nos. 1 and 2 that have been framed.

Judgement:

 Disposing of the Application, this Court, Section 2(11) of Code of Civil Procedure,
1908 defines "legal representatives" to mean a person who in law represents the estate
 of a deceased person; and includes any person who intermeddles with the estate of the
deceased and where a party sues or is sued in a representative character the person on
whom the estate devolves on the death of the party so suing or sued. Order 22 rule 3
says that if one or two or more plaintiffs dies and the right to sue survives, the Court
on an application made in this behalf, shall cause the legal representatives of the
deceased plaintiff. to be made a party and shall proceed with the suit. Mutatis and
Mutandis by operation of Order 22 Rule 11 this rule applies to the appellants at the
appeal stage.

 Similarly, Order 22 Rule 4 applies in the case of death of one of several defendants or
of sole defendant and in case of a dispute under Rule 5 such a question shall be
determined by the Court.

 Inheritance is In some sort a legal and fictitious continuation of the personality of the
dead man, for the representation is in some sort identified by the law with him who he
represents. The rights which the dead man can no longer own or exercise in propria
persona and the obligations which he can no longer in propria persona fulfil, he
owns exercises, and fulfils in the person of a living substitute. To this extent, and in
this fiction, it may be said that legal personality of a man survives his natural
personality, until his obligations being duty performed, and his property duly disposed
of, his representation among the living is no longer called for.

 The grant of Probate by a Court of competent jurisdiction is in the nature of a

proceeding in rem. So long as the order remains in force it is conclusive as to the
due execution and validity of the will unless it is duly revoked as per law. It binds not
only upon all the parties made before the Court but also upon all other persons in all
proceedings arising out of the Will or claims under or connected therewith. The
decision of the Probate. Court, therefore, is the judgment in rem. The probate
granted by the competent court is conclusive of the validity of the Will until it is
revoked and no evidence can be admitted to impeach it except in a proceeding taken
for revoking the probate.
 It is settled law that a decree passed by a court without jurisdiction on the subject
matter or on the grounds on which the decree made which goes to the root of its
jurisdiction or lacks inherent jurisdiction is a corum non judice. A decree passed by
such a court is a nullity and is honest. Its invalidity can be set up whenever it is
sought to be enforced or is acted upon as a foundation for a right, even at the stage or
execution or in collateral proceedings. The defect of jurisdiction strikes at the very
authority of the court to pass decree which cannot be cured by consent or waiver of
the party.

 The Probate Court has been conferred with exclusive jurisdiction to grant probate
of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof,
it has to preserve the original will produced before it. The grant of probate is final
subject to appeal, if any, or revocation if made in terms of the provision of the
Succession Act It is a judgment in rem and conclusive and binds not only the
parties but also the entire world. The award deprives the parties of statutory right of
appeal provided under section 299. Thus the necessary conclusion is that the
Probate Court alone has exclusive jurisdiction and the Civil Court on original side or
the Arbitrator does not get jurisdiction, even if consented to by the parties, to
adjudicate upon the proof or validity of the Will propounded by the executrix, the
appellant.

 The executrix was nominated expressly in the Will as a legal representative entitled to
represent the Estate of the deceased but the heirs cannot get any probate before the
Probate Court. They are entitled only to resist the Claim of the executrix of the
execution and geniuses of the Will. The grant of probate gives the executrix the
right to represent the estate of the deceased, the subject-matter in other proceedings.
This exposition or the law is only for the purpose of finding the jurisdiction of the
arbitrator and not an expression of opinion on the merits in the probate suit.

 The Arbitrator cannot therefore proceed with the probate suit to decide the dispute
in Issue Nos. 1 and 2 framed by him. The High Court is to proceed with the Probate
suit, the Judge to fix the date and proceed day-to- day till it is concluded and decide
the matter within six months. The Arbitrator is not to decide Issue Nos. 1 and 2, but at
 liberty to proceed with the other issues, to await the decision of the probate Court and
depending upon the result thereon, conclude the findings on issue Nos.1 and 2 and
then make the award and take the proceedings according to law.

Legal Provisions used:

Arbitration act:
Sections 8, 14, 17, 20, 30 and 33-Arbitrator-Whether
entitled to enquire into execution and genuineness of will.
Indian Succession Act, 1925. Sections 213, 217, 222, 223
and 276-Will-Probate of jurisdiction of probate court to
enquire into execution and genuineness of will-Whether-
Arbitrator can enquire into such issues under Arbitration
Act.

DATE: 07.09.2023

Vellore Citizens Welfare Forum

V.

Union of India & Ors. (1996)

Facts of the Case:

 This petition- PIL - under Article 32 of the Constitution of India has been filed by
Vellore Citizens Welfare Forum and is directed against the pollution which is being
caused by enormous discharge of untreated effluent by the tanneries and other
industries in the State of Tamil Nadu. It is stated that the tanneries are discharging
untreated effluent into agricultural fields to, road-Sides, Water ways and open lands.
The untreated effluent is finally discharged in river Palar which is the main source of
water supply to the residents of the area.

 According to the petitioner the entire surface and sub-soil water of river Palar has
been polluted resulting in non- availability Potable water to the residents of the area.
 It is stated that the tanneries in the State of Tamil Nadu have caused environmental
degradation in the area. According to the preliminary survey made by the Tamil Nadu
Agricultural University Research Centre Vellore nearly 35,000 hectares of agricultural
land in the Tanneries Belt, has become either partially or totally unfit for cultivation.

 It has been further stated in the petition that the tanneries use about 170 types of
chemicals in the chrome tanning processes. The said chemicals include Sodium
Chloride, Lime, Sodium Sulphate, Chlorium Sulphate, fat liquor Ammonia and
Sulphuric Acid besides dyes which are used in large quantities. Nearly 35 litres of
water is used for processing one kilogram of finished leather, resulting in dangerously
enormous quantities of toxic effluents being let out in the open by the tanning
industry. These effluents have spoiled the physio-chemical properties of the soil, and
have contaminated ground water by percolation.

 According to the petitioner an independent survey conducted by Peace Members, a

non-governmental organisation, covering 13 villages of Dindigal and Peddiar
Chatram Panchayat Unions, reveals that 350 wells out of total of 467 used for
drinking and irrigation purposes have been polluted. Women and children have to
walk miles to get drinking water. Legal Aid and Advice Board of Tamil Nadu
requested two lawyers namely, M.R, Ramanan and P.S. Subramanium to visit the area
and submit a report indicating the extent of pollution caused by the tanneries.

Issues of the Case:

 Whether the tanneries should be permitted to keep on working at the expense of the
health of individuals and the environment?

Arguments from Petitioner:

 The Learned Counsel of the Petitioner pleaded before the court that the whole surface
and subsoil water of river Palar has been intoxicated by the discharge of untreated
effluents from the tanneries. Because of this inhabitants of this region are not able to
get potable/consumable water easily.
  The petitioner submitted the report of a survey conducted by Peace Members, a non-
governmental organization. It covered 13 towns of Dindigal and Peddiar Chatram
Anchayat Unions and revealed that out of the 467 wells used for drinking and
irrigation, 350 wells had been polluted.
 It was expressed that groundwater has also been contaminated by percolation because
the people of these villages faced an acute shortage of water, and the women &
children had to walk miles away to get drinking water for their families.
 Petitioner submitted another report which was a survey conducted by lawyers M.R.
Ramanan and P.S. Subramaniam on the Legal Aid and Advice Board of Tamil Nadu’s
request. It was conducted in Solur village. It stated that 176 chemicals were found in
the tannery effluents. About 40 litres of water is required to process only 1 kilogram
of leather. Thus, the amount of harmful effluents generated by the tanneries is
shockingly excessive.
 Apart from this, a survey conducted by the Tamil Nadu Agricultural University
Research Centre, Vellore, showed that approximately 35,000 hectares of land in the
tanneries belt had been rendered unfit for cultivation either totally or partially.
 Most importantly it was contended that the Tamil Nadu Pollution Control Board and
the government had been urging the tanneries for about the last ten years to set up
either a Common Effluent Treatment Plant for a group of themselves or set up their
separate effluent treatment plants. The Central Government also said that it would
provide subsidies for the establishment of Common Effluent Treatment Plants. But
still, most of the tanneries were functioning without treatment plants.

Arguments from Respondent:

 Learned counsel for the tanneries contended that the standard with respect to Total
Dissolved Solids (TDS) fixed by the Tamil Nadu Pollution Control Board was not
legitimized.
 But the Court requested the National Environmental Engineering Research Institute
(NEERI) on April 9, 1996 to inspect this matter and give its opinion about it. And in
its report, NEERI legitimized the models stipulated by the Board.
 The Ministry of Environment and Forests (MEF) has not completely set down models
for inland surface water release for Total Dissolved Solids (TDS), sulphates, and
 chlorides. The individual State Pollution Control Boards according to the
prerequisites based on nearby site conditions have choice on these matters.
 The guidelines of the TNPCB for inland surface water release can be met for tannery
squander waters cost-viably through appropriate embed control gauges in tanning
activity, and normally structured and viably worked wastewater treatment plants
(ETPs and CETPs).

Judgement:

 After hearing the contentions made by both the parties, the Supreme Court expressed
that efforts should be undertaken to maintain a harmony between environment and
industrial development.
 It was observed by the court that the tanneries are one of the major foreign exchange
sources and also create employment. But, it also harms and wrecks the environment.
Thus in order to create balance between environmental and industrial development
court ruled in the following way:

1. The Supreme Court ruled that the tanneries should be shut down until and unless they
have set up the required pollution control devices.

2. It further added that once these devices are set up, tanneries can approach the Tamil
Nadu Pollution Board and then reopen the tanneries after getting consent from the
board.

3. It directed all the tanneries in the district of North Arcot Ambedkar, Dindigul Anna,
Erode Periyar, Chengai M.G.R. and Trichi to deposit a fine of Rs.10,000 each in the
Collector office.

4. It also directed that the State of Tamil Nadu should award Mr. M. C. Mehta a sum of
Rs.50,000 as a token of appreciation towards the endeavours and efforts made by him
in order to protect the environment.

5. It also emphasized on the formation of Green Benches to deal with the issues related
to environment protection for quick and speedy removal of these cases.
The Supreme Court coordinated the Central Contamination Control Board
and the Tamil Nadu Pollution Control Board to mutually review the
territory on war-balance.

According to the Court:

 It ordered that the tanneries either straightforwardly or through educated insight may
approach the Pollution Control Boards or show that their individual units have set-
up/built the important contamination Control devices.

 It directed the Pollution Control Boards to review the Units and document a report in
this regard before May 6, 1996.

 It also coordinated that the Units which are not in a situation to develop the treatment
devices within this period may move to the Board when they complete the devices.

 It ordered that the North Arcot District and Chennai MGR District Association and
different Associations of the Tanners will bear the costs of the review groups sorted
out by the Boards.

The Court directed the Central Government to constitute an authority as

envisaged by Section 3(3) of the Environment (Protection) Act, 1986.

 It laid down the composition and the functions of this authority to implement the
polluter pays principle and the precautionary principle.

 According to the court, it shall compute the amount of compensation payable by a

polluter both for payment of compensation to the individuals or families affected and
the cost needed to reverse the environment’s damage.
  It also declared that if the polluter refuses to pay the amount of compensation, then
the authority shall direct the industry’s closure.

 As per the directions given, the Central Government constituted an authority named
the ‘Loss of Ecology (Prevention and Payments of Compensation) Authority.

Case Analysis:

 As per the preamble of the Environment Act, its main aim is to establish an authority
under section 3(3) of the Act to secure the environment by controlling contamination
of the environment.

 But, unfortunately there is no such authority established till date consisting of the
Central Government to control the contamination of the environment.

 This work of establishing an authority has to be done by an expert. But as it is not the
case, it is being accomplished by the Supreme Court through the above case.

 If the tanneries are allowed to proceed with their work in five regions of Tamil Nadu
then all waterways will be contaminated and the occupants of the territory will be
exposed to infections. Thus, it was important for the court to guide the Central
Government to make prompt moves under the provisions of the Environment Act.

 Every individual is entitled to natural air, clean water and a contamination-free

environment. The tanneries in the said area violated these rights of individuals. Thus,
the court had ordered the tanneries to pay the fine to affected inhabitants and also pay
the expense of re-establishing the deteriorated nature.

Rationale:

 This is one of the landmark judgments given by the Supreme Court of India on the
matters of protection of environment.
  The Supreme Court applied the concept of Sustainable development while passing
judgement on the said matter. It applied this concept through the polluter pays
principle and the precautionary principle.
 It correctly pointed out that it is not right to do development of industries at the cost
of health and lives of people and hence it should not be permitted.
 Sustainable development means that the needs of the present generation should be
fulfilled without harming or destroying the environment and natural resources needed
for the future generation.
 Thus, by keeping this view of balancing industrial development and environmental
protection in mind, the court ruled out accordingly.
 Also, by keeping the polluter pay principle in mind the court ordered the fine. As it is
important that whoever has polluted the environment and caused damage to it must
compensate the damaged property or person.

Holding:

The Environment (Protection) Act,1986, Section 3(3)

DATE: 08.09.2023

Sonik Industries Rajkot

V.

Municipal Corpn. Of The City Of Rajkot (1986)

Facts of the Case:

 The Rajkot municipality framed Draft rules for the levy of rates on buildings and
lands in Rajkot. The Draft Rules were published and objections were invited and,
thereafter the State Government accorded its sanction to the rules. The issue dated
November 28, 1964 of "Jai Hind", a Gujarati Newspaper published from Rajkot
 carried a Notice purporting to be under Section 77 of the Bombay Municipal
Boroughs Act, 1925 as adopted and applied for the information of persons holding
buildings and immovable property within the Municipal limits of Rajkot that the
Municipality had resolved to enforce the "Rules to the Rajkot Borough Municipality
for the levy of Rate (Tax) on buildings and lands" sanctioned by the State
Government of Gujarat, with effect from January 1, 1965. Thereafter an assessment
list was prepared and steps were taken to demand the tax.

 The appellants, a registered partnership firm instituted a suit in the Court of the Civil
Judge, Senior Division Rajkot for a declaration that the aforesaid Rules were invalid.
The Trial Court decreed the suit. An Appeal against the decree of the Trial Court was
dismissed by the Extra Assistant Judge, Rajkot. A Second Appeal preferred by the
Municipality was referred to a larger Bench of the High Court consisting of learned
Judges who held that the conditions of section 77 had been complied with. In
accordance with the said opinion, the learned Single Judge allowed the Second
Appeal. Hence the appeal by Special Leave.

Issues of the Case:

Whether the rules for the

levy of a rate on
buildings and grounds can
be supposed to be
published under section 77 of
the Act, if the notification
published in a paper
recounting the
assent of the State Government
to the rules makes reference to
that the actual rules are
available
to inspection in the Municipal
office and that duplicates of
the rules can likewise be
purchased
there
Whether the rules for the
levy of a rate on
buildings and grounds can
be supposed to be
published under section 77 of
the Act, if the notification
published in a paper
recounting the
assent of the State Government
to the rules makes reference to
that the actual rules are
available
to inspection in the Municipal
office and that duplicates of
the rules can likewise be
purchased
there
Whether the rules for the
levy of a rate on
buildings and grounds can
be supposed to be
published under section 77 of
the Act, if the notification
published in a paper
recounting the
assent of the State Government
to the rules makes reference to
that the actual rules are
available
to inspection in the Municipal
office and that duplicates of
the rules can likewise be
purchased
there
 Whether the rules for the levy of a rate on buildings and grounds can
be supposed to be published under section 77 of the Act, if the notification published
in a paper recounting the assent of the State Government to the rules makes reference
to that the actual rules are available to inspection in the Municipal office and that
duplicates of the rules can likewise be purchased there.

Arguments of the Case:

 The appellant, a registered partnership firm, instituted a suit in the Court of the
learned Civil Judge, Senior Division, Rajkot, praying for a declaration that the
aforesaid rules were invalid, and that the consequent assessment list and the related
notices of demand were without authority of law.

 A permanent injunction was also sought to restrain the Municipality from giving
effect to the rules. The trial court decreed the suit and granted the declaration and
injunction prayed for. An appeal against the decree of the trial court was dismissed by
the learned Extra Assistant Judge, Rajkot.
 A second appeal was filed by the Municipal Corporation of Rajkot (the Municipal
Borough of Rajkot having been so renamed) in the High Court, and at the time of
admission a learned Single Judge of the High Court formulated three questions of law
arising in the appeal. The appeal was referred subsequently to a larger Bench.

 A Bench of three learned Judges of the High Court took up the case and observed at
the outset that the only question which required consideration at that stage was
whether the courts below had erred in striking down the rules on the ground that they
had not been published as required by s.77 of the Act.

 The learned Judges held that the courts below had taken an erroneous view of the
statute and that, in their opinion, the conditions of s.77 of the Act had been satisfied in
the case. The case was sent back to the learned Single Judge with that opinion for
disposal in accordance with law.

 It is contended by learned counsel for the appellant that the rules sanctioned by the
State Government should have been published along with the notice reciting the
sanction in the same newspaper and there was no publication for the purposes of s.77
if the notice merely mentions that the rules can be inspected in the Municipal Office
and that copies of the rules can be purchased. Our attention is invited to s.192 which
provides for the mode of service of notice under the Act, and it is urged that the
publication of the rules in this case is not in conformity with any of the modes
prescribed therein. It is contended that the provisions of s.77 call for strict
construction inasmuch as the rules are intended to levy a tax on the inhabitants of the
Municipality.

 Learned counsel for the appellant and learned counsel for the Interveners have
referred us to s. 102 of the Act, which empowers the State Government on complaint
made or otherwise that any tax leviable by the Municipality is unfair in its incidence,
or that the levy thereof, of any part thereof, is obnoxious to the interest of the general
public, to require the Municipality to take measures for removing any objection which
appears to it to exist to the said tax. If, within the period so fixed, such requirement is
 not carried into effect to the satisfaction of the State Government, it may, by
notification in the Official Gazette, suspend the levy of the tax, or of such part thereof,
until such time as the objection thereto is removed. It is urged that the rules published
under s.77 of the Act are still open to challenge under s.102 of the Act and it is for that
reason that s.77 provides that the notice published thereunder should prescribe a date,
not less than one month from the date of such publication, as the date on which the tax
as prescribed by the rules shall be imposed. It is said that this period is intended to
enable persons affected by the levy to object again under s.102 of the Act, and
therefore the rules must be set forth in the newspaper itself. We are unable to agree.

 To our mind, s.77 provides the final stage of the procedure enacted in sections
75 to 77 for imposing a levy. The period referred to in s.77, after which alone the tax
can be imposed, is intended to enable persons affected by the levy to acquaint
themselves with the contents of the rules, and to take preparatory measures for
compliance with the rules. The period has not been particularly prescribed in order to
enable a person to take advantage of the benefit of s.102 before the tax is imposed.

 We are of opinion that it would have been more desirable for the Municipality to have
published the rules in the newspaper along with the notice reciting the sanction, but
while saying so we are unable to hold that its omission to do so and notifying instead
that inspection of the rules was available in the Municipal Office does not constitute
sufficient compliance with law.

Judgement:

 The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave
raises the question whether the rules for the levy of a rate on buildings and lands can
be said to be published under s.77 of the Bombay Municipal Boroughs Act, 1925 if
the notice published in a newspaper reciting the sanction of the State Government to
the rules mentions that the rules themselves are open to inspection in the Municipal
office and that copies of the rules can also be purchased there.
 The Rajkot Borough Municipality framed Draft rules for the levy of rates on buildings
and lands in Rajkot. The Draft rules were published and objections were invited, and
there after the State Government accorded its sanction to the rules. In the issue dated
November 28, 1964 of "Jai Hind", a Gujarati newspaper published from Rajkot, a
notice was published purporting to be under s.77 of the Bombay Municipal Boroughs
Act, 1925 as adopted and applied to the Saurashtra area of the State Gujarat
(hereinafter referred to as "The Act"), for the information of persons holding
buildings and immovable property within the Municipal limits of Rajkot that the
Municipality had resolved to enforce the "Rules of the Rajkot Borough Municipality
for the levy of Rate (Tax) on Buildings and Lands" sanctioned by the State
Government of Gujarat with effect from January 1, 1965. Notice recited the date and
serial number of the sanction.

It Also Stated:

 "These rules can be inspected at the office of the Municipality on all days other than
Holidays during office hours; moreover copies of the rules can be purchased at the
Municipal Office".

 The general principle is that if the mode of publication adopted is sufficient for
persons affected by the rules with reasonable diligence to be acquainted with them,
publication of the Rules has taken place in contemplation of the law.

 In the case of Municipal taxation, the conventional procedure enacted in most statutes
requires publication of the proposed rules providing for the levy and inviting
objections thereto from the inhabitants of the Municipality. Thereafter when the rules
are finalised and sanctioned by the State Government, it is mandatory that they be
published so that the inhabitants of the Municipality should know how the levy affects
them in its final form. The rules, and consequently the levy, take effect only upon
publication in accordance with the statute. The object of the requirement is that a
person affected by the levy must know precisely the provisions of the levy and its
consequences for him.
  The requirement of section 77 was complied with inasmuch as information was
thereby given to all persons holding buildings and immovable property within the
Municipal limits of Rajkot that the rules mentioned therein had been sanctioned by
the State Government and that the rules could be inspected in the Municipal office.
The mandatory requirement of section 77 was that the rules should be published,
which requirement the notice satisfies. The mode of publishing the rules is a matter
for directory or substantial compliance. It is sufficient if it is reasonably possible for
persons affected by the rules to obtain, with fair diligence, knowledge of those rules
through the mode specified in the notice. Had the Act itself specified the mode in
which the rules were to be published, that mode would have to be adopted for
publishing the rules. In the opinion of the Legislature, that would have been the mode
through which the inhabitants of the Municipality could best be informed of the rules.

 Section 77 provides the final stage of the procedure enacted in sections 75 to 77 for
imposing a levy. The period referred to in section 77, after which alone the tax can be
3 imposed, is intended to enable persons affected by the levy to acquaint themselves
with the contents of the rules, and to take preparatory measures for compliance with
the rules. The period has not been particularly prescribed in order to enable a person
to take advantage of the benefit of section 102 before the tax is imposed.

Holding (The Applied Rule of Law):

 Bombay Municipal Boroughs Act, 1925, section 77, scope of - Whether the rules for
the levy of a rate on buildings and lands can be said to be published under section 77
of the Act, if the notice published in a newspaper reciting the sanction of the State
Government to the rules mentions that the rules themselves are open to inspection in
the Municipal office and that copies of the rules can also be purchased there.
DATE: 11.09.2023

Shanti Prasad Jain

V.

Kalinga Tubes Ltd., (1965)

Facts of the Case:

1950- The company was

managed by two groups of
shareholders, namely Patnaik
and
Loganathan.
1954- The appellant,
Patnaik, and Loganathan
entered into an agreement
by virtue of which
equal shares as of the existing
shareholders were given to the
appellant, thereby vesting him
with
equal power and say in the
matter of finance and
management of the company.
This agreement
was entered into in the
personal capacity of the
shareholders, excluding the
company as a party
to the agreement. But, there
was no change in the AOA to
incorporate the subsequent
changes.
1957- The three groups of
shareholders converted the
company into a public listed
company.
1958- There was a general
meeting in which the appellant
was outvoted by the rest of the
two
shareholders resulting in a
resolution leading to allotment
of 39,000 new shares to
outsiders and
not to the existing
shareholders.
1960- For the purpose of
raising the capital and allotting
additional equity shares to
outsiders and
not to existing shareholders, a
notice of the general meeting
was issued. Thereafter an
application
was filed by the appellant
against the oppression of
minority shareholders by the
majority
shareholders under ss. 397,
398, 402, 403 of the
Companies Act, 1956.
Exclusion of minority
group by the majority
shareholders group from the
management of the company
by acquiring
 In July 1954, two groups of shareholders led by Pattnaik and 1, who, together held
an equal number of shares of the value of Rs. 21 lakhs out of a total share capital of
Rs. 25 lakhs in the respondent company (then a private ate company), entered into a
private agreement with the Appellant, whereby, (i) the share capital of the company
was to be increased by Rs. 10 ½ lakhs and shares of this value allotted to the
appellant so that the total shares held by him would be equal to the holding of
each of the other two groups; (ii) each of these three groups of shareholders would
have an equal number of representatives on the Board of Directors; (iii) the
appellant undertook to arrange certain credit facilities for the company; and (iv) the
appellant was to be the Chairman of the Board.

 In accordance with this agreement, the appellant was made the Chairman and
though various resolutions were passed by the company to implement the agreement,
these resolutions did not in terms refer to the agreement and no change was made in
the Articles of Association of the company so as to embody the terms of the
agreement. Some time later, the subscribed capital of the company was increased to
Rs. 61 lakhs and the new shares were so allotted as to maintain the parity in the
share holdings of the three groups. When one of the two minority shareholders sold
250 shares, these were equally divided between the three groups and one odd share
was held by P, L and the Appellant jointly.

 In 1956-57, the company desired to raise a loan from the Industrial Finance
Corporation and as this Corporation made advances only to public limited
companies, in January 1957 the company was converted into a public company.
Appropriate amendment were made in its Articles of Association, but even on this
occasion, no attempt was made to incorporate into the Articles the terms of the
Agreement of July 1954.
 After sanction had been obtained of the Controller of Capital Issues for the issue
of additional share capital, the appellant suggested at a meeting of the board of
directors in March 1958 that the new shares should be issued proportionately to the
existing shareholders in accordance with the provisions of Section 81 of the
Companies Act, 1956. On the other hand, those representing the P and L groups
proposed that the new shares should be offered privately in the best interests of the
company at the sole discretion of the directors; this proposal was made because these
two groups did not have money to subscribe for the new capital and they feared that if
shares were offered in the first instance to existing shareholders, the appellant could
get all of them and thus acquire control of the company.

 In view of the majority of the P and L groups in the Board, their proposal was
adopted and subsequently a resolution to that effect was also accepted at a
General Meeting of the shareholders held in March 29,1958. The appellant
thereafter instituted a suit to have the resolution declared illegal and void and
obtained an ex parte injunction against the company from allotting shares pursuant
to this resolution. On July 13, 1958, the appellant's suit was dismissed by the
Subordinate Judge and the injunction vacated by him.

 At 11 A.M. The Board of Directors at a meeting held on that date, immediately on

receiving the news that the injunction had been vacated, allotted the new shares to
seven persons who had previously applied for them. On the same day, the
appellant filed an appeal and applied for and obtained an order staying the
operation of the order of the Subordinate Judge.

 Eventually these appeals were also dismissed and the stay vacated. In September 1960
another General meeting of the company was called to approve a proposal to increase
the share capital of the company from Rs. 1 crore to Rs. 3 crores. It was also
intended that these new shares should be offered to outsiders with a view to making
 the company more broad-based. At that stage the appellant filed a petition in the
High Court under Section 397 and 398 of the Companies Act, 1956, complaining
inter alia, that the issue of new shares was in furtherance of a continuing oppression
of the apperant's minority group; that by allotting such shares to benamidars of P
and L in disregard of the agreement of July 1954, it was intended to exclude the
appellant from all control of the affairs of the company; that the resolutions passed
in March 1958 as to the manner of allotment of new shares contravened S. 81 of
the Companies Act, 1956 and this resolution as well as the hasty allotment on July
30, 1958 were in abuse of the power of the P and L groups and oppressive of the
minority. The petition was allowed by the single Judge but this decision was reversed
in appeal by a Division Bench of the High Court.

Issues of the Case:

 What can be termed as the oppression of minority shareholding group by the majority
shareholding group?

 Whether mismanagement, misconduct, and allocation of new shares to outsiders a just

and equitable cause for winding up of a company?

Judgement:

 A Single Judge bench of learned Justice Barman adjudicated the application

and declared the manner in which new shares were allotted to outsiders
oppressive against the appellant lead minority shareholders. He also held that the
mismanagement due to the continuing oppression of minority shareholders is
adverse to the interest of the company. He also held that the circumstances
demanded winding up of the company, but in order to protect the interest of the
company, the petition was allowed by him and subsequently relief was also granted
u/s 397 and 398 restoring equal shareholding and control according to the terms of the
1954 agreement.
 This order of the Single Judge Bench was challenged by the company and various
other shareholders by way of 14 appeals to the Division Bench3 of Orissa HC. The
Division Bench held that the agreement of 1954 does not have any binding
effect on the company irrespective of its nature in 1957 when it was converted into a
public company from a private company. The Division Bench set aside the order
of Justice Barman and held that the application of the appellant does not carve
out any case of oppression u/s 397 or mismanagement u/s 398.

 The ratio of the order of Division Bench was: "It can be undoubtedly said that
lack of confidence and animosity between the majority and minority shareholder
groups has arisen due to the non-distribution of shares to the petitioner in proportion
to the existing shareholdings. But due to this, the directors of the company cannot be
imposed with the charges of misconduct, fraud, and misfeasance. Therefore, it
cannot be said that the Directors of the company have acted maliciously in
order to oppress the minority shareholding group.

 The term "Oppression" has been defined u/s 210 of the new English
Companies Act. It was widely discussed in the landmark English cases of Elder v.
Elder and Watson, 1 (1952) SC 49, George Meyer v. Scottish Cooperative
Wholesale Society Ltd., 2 (1954) SC 181, Scottish Cooperative Wholesale
Society Ltd. v. Meyer, 3 (1958) 3 All ER 66, Re H.R. Harmer Limited, 4 (1958) 3
All ER 689. A vast definition of the term "Oppression" was given in these
aforementioned cases.

 Following essential elements must be proved by the applicant in order to succeed a

claim for oppression: It must continue until the date of the presentation of the petition.
It must be against a particular member of against some members of a company. It
must be related to the management of the company. The oppressive behaviour and
violation of principles of fair play, a fair deal must be sufficient in nature to become
just and equitable cause for winding up of the company. Lack of confidence cannot be
lead to the conclusion of being oppressed. Unfair treatment must be shown to prove
oppression.
  Eventually, the matter went to the honourable Supreme Court which also upheld the
decision of the Division Bench of the HC. The SC dismissed the appeal and held
that the material placed before it is insufficient to show that there was a cause for
winding up of the company. The court further stated that oppression must be a
continuing fact and it should be proven in continuity and not in isolation with other
transactions. The appellant in order to succeed must prove that the oppression
by the majority shareholders continued till the date of the presentation of the petition.
He must also prove that the management process of the company was against the
principle of fair play, fair deal, probity, and detriment to the interests of a
particular class of members of the company. The violation of proprietary rights as
a shareholder must be there in order to bring a successful claim.

 The SC further held that since the company was not a party to the agreement of 1954,
therefore the company was not bound by the terms and conditions of the agreement
and to a much lesser extent when it was converted into a public company in
1957. The court also held that the appellant failed to make out any case of
mismanagement u/s 398 of the Companies Act, 1956. The SC ultimately held that the
allotment of new shares to outsiders is in no way oppressive to the minority
shareholding group. The reason given by SC for the above conclusion is: "The
allotment of new shares to outsiders by the majority shareholder group cannot be said
to be oppressive towards the appellant minority group as such allotment was
done to prevent the situation of taking over of the entire control of the company by
the appellant when he was given shares in the company as at that time the other two
shareholders i.e. Patnaik and Loganath had no money."

Holding (Applied Rule of Law):

  Companies Act (Act 1 of 1956), ss. 397 and 398-Scope of.

What can be termed as the oppression of minority shareholding group by the majority
shareholding group?
Whether mismanagement, misconduct, and allocation of new shares to outsiders a just
and
equitable cause for winding up of a company?

DATE: 12.09.2023

Research Work Q1

Can winding up proceedings go on when company itself is inactive

for filing purposes?

 The winding up of a company is the process of terminating its business

operations and liquidating its assets. The process can be initiated
voluntarily by the company or by an external entity, such as a creditor,
and can also be done through a tribunal. This paper presents a critical
study of the laws related to the winding up of a company under the
Companies Act, 2013, with a focus on the role of tribunals in this process.

 The Companies Act, 2013,

provides for two types of winding up: voluntary and compulsory.
Voluntary winding up occurs when the company’s directors or
shareholders decide to wind up the company due to various reasons,
including loss of profitability or inability to pay debts. Compulsory
 winding up, on the other hand, is initiated by an external entity, such as a
creditor, and is usually done through a tribunal.

 The role of tribunals in the winding up process and the various provisions
under the Companies Act, 2013, that govern the process. The study also
examines the challenges faced by tribunals in the winding up process,
including delays in the process and the need for adequate resources to
manage the liquidation process efficiently.

 Winding up of a company is a legal process that involves the closure of a

company’s affairs and the liquidation of its assets. The process can be
initiated by the company or by an external entity such as a creditor, and it
can also be done through a tribunal. The purpose of winding up is to
bring an end to the company’s operations, discharge its debts, and
distribute the remaining assets among its shareholders. Winding up of a
company can be a complex and time-consuming process, involving
multiple stakeholders such as shareholders, employees, and creditors. It is
governed by various laws and regulations, and the process can differ
depending on the circumstances and the type of winding up.

 In the case of compulsory winding up, where the process is initiated by an

external entity such as a creditor, the court or tribunal plays a crucial role
in overseeing the process and ensuring that it is conducted fairly and
transparently. As noted by Justice Nariman in the case of Innoventive
Industries Limited v. ICICI Bank, “the object of the Insolvency and
Bankruptcy Code, 2016 is resolution, wherever possible, and failing that,
 liquidation”. This highlights the importance of exploring options for
resolution before resorting to liquidation in cases of winding up of a
company. Overall, winding up of a company is a complex legal process
that involves multiple stakeholders and requires careful consideration of
various legal and financial factors.

 The law relating to the winding up of companies has evolved over time
through various legal developments and precedents. The concept of
winding up of companies can be traced back to the 19th century, where it
was first introduced in the English legal system through the Companies
Act, 1862. This Act provided for the winding up of companies and the
distribution of assets among the shareholders in the event of the
company’s insolvency. The concept of winding up was later incorporated
into the Indian legal system through the Indian Companies Act, 1913. The
Act provided for the winding up of companies by the court and the
appointment of a liquidator to manage the liquidation process. The
Companies Act, 1956, replaced the 1913 Act and further developed the
law relating to the winding up of companies. It introduced the concept of
voluntary winding up, where the shareholders could initiate the winding
up process, and made provisions for the appointment of an official
liquidator.
  In recent years, the law relating to the winding up of companies has
undergone significant changes with the introduction of the Insolvency
and Bankruptcy Code, 2016. The Code provides for a unified legal
framework for the resolution of insolvency and bankruptcy cases,
including the winding up of companies. The Code emphasizes the
resolution of insolvency cases through a time-bound process, and failing
that, the liquidation of the company. The Code has also introduced
various mechanisms for the protection of the interests of creditors and
other stakeholders in the winding up process.

DATE: 12.09.2023

Empire Jute Co.

V.

C.I.T (1980)

Facts of the Case:

 Right from 1939, the demand of jute in the world market was rather lean and with a
view to adjusting the production of the jute mills to the demand of the world market,
various jute mills formed an Association styled as Indian Jute Mills Association and
the appellant is one such member of the said Association. As per the objects of the
Association a quinquennial working time agreement was entered into between the
members of the Association restricting the number of working hours per week,
for which the mills shall be entitled to work their looms. The fourth working
time Agreement was entered into between the members of the Association on 9th
December, 1954 and it was to remain in force for a period of five years from 12th
December 1954.
  As per the first clause of the fourth working time Agreement no signatory shall work
more than forty five hours of work per week subject to alteration in accordance with
the provisions of clauses 7(1)(2) and (3) and further subject inter alia to the provision
of clause (10) and under that clause, a joint and several agreement could be made
providing that throughout the duration of the working time agreement, members
with registered complements of loom not exceeding 220 shall be entitled to work
up to seventy two hours per week.

 Clause 6(a) enabled members to be registered as a "Group of Mills" if they

happened to be under the control of the same managing agents or were combined by
any arrangement or agreement and it was open to any member of the Group Mills so
registered to utilise the allotment of hours of work per week of other members in
the same group who were not fully utilising the hours of work allowable to them
under the working time agreement, provided such transfer of hours of work was for
a period not less than six months. Clause 6(b) further (J) prescribed three other
conditions precedent subject to which the allotment of hours of work transferred by
one member to another could be utilised by the latter and two of them were: (i) All
agreements to transfer shall, as a condition precedent to any rights being obtained by
transferee, be submitted with an explanation to the Committee and Committee's
decision.

 If the Committee sanctions the transfer, it shall be a condition precedent to its

utilisation that a certificate be issued and the transfer registered. This transaction of
transfer of allotment of hours of work per week was commonly referred to as sale of
looms hours by one member to another. The consequence of such transfer was that
the hours of work per week transferred by a member were liable to be deducted from
the working hours per week allowed to such member under the working time
agreement and the member in whose favour such transfer was made entitled to
utilise the number of working hours per week transferred to him in addition to the
working hours per week allowed to him under the working time agreement.

Issues of the Case:

  Whether the purchase revenue expenditure or capital expenditure for the
purposes of Section 10(2) (xv) of the Act.

 Whether the transfer shall be allowed shall be final and conclusive.

Arguments of the Case:

The assessee, under this clause purchased loom hours from four different jute
manufacturing concerns which were signatories to the working time agreement, for the
aggregate sum of Rs. 2,03,255/- during the year 1st August 1958 to 31st July 1959. In the
course of the assessment year 1960-61 for which the relevant accounting year was the
previous year 1st August 1958 to 31st July 1959, the assessee claimed this amount of Rs.
2,03,255/- as revenue expenditure on the ground that it was part of the cost of operating
the looms which constituted the profit making apparatus of the assessee.

The claim was disallowed by the Income Tax officer, but on appeal, the Appellate Assistant
Commissioner accepted the claim and allowed the deduction on the view that the assessee
did not acquire any capital asset when it purchased the loom hours and the amount spent by
it was incurred for running the business of working it with a view to producing day-to-day
profits and it was part of operating cost or revenue cost of production. The Revenue preferred
an appeal to the Tribunal, and, having lost before it, carried the matter before the High Court
by a reference.
The High Court, following the decision of the Supreme Court in Commissioner of
Income Tax v. Maheshwari Devi Jute Mills Ltd., [1966] 57 ITR 36 held that the
amount paid by the assessee for purchase of the loom hours was in the nature of capital
expenditure and was therefore not deductible under section 10(2) (xv) of the Income Tax
Act. Hence the appeal by assessee by special leave.

Judgement:

 An expenditure incurred by an assessee can qualify for deduction under Section 10(2)
(xv) only if it is incurred wholly and exclusively for the purpose of his business, but
even if it fulfils this requirement, it is not enough; it must further be of revenue as
distinguished from capital nature.

Holdings (Applied Rule of Law):

Allowing deduction under Section 10(2) (xv) of the Income Tax Act-Revenue expenditure
and Capital expenditure- Member of the Jute Mill Association entering into a working
time agreement restricting the number of working hours per week for which the mills shall be
entitled to work their looms, and also providing for transfer of such working hours
between one mill and another amongst a particular group of Mills-Transfer styled as sale of
loom hours.

DATE: 13.09.2023

People’s Union for Democratic Rights

V.

Union of India (1982)

Facts of the Case:

 People’s Union for Democratic Rights, an organisation working for the protection of
democratic rights of its citizens employed three social scientists in order to bring out a
report on the exploitation and living conditions of workmen working under the
contractors being employed by the Union of India, Delhi Development Authority,
 New Delhi Municipal Committee and Delhi Administration for the construction of
highways, stadiums, swimming pool, etc for the Asian Games to be held in India.

 On the view of the report, a letter was directed to the Supreme Court judge and was
treated as a Writ Petition alleging violation of Fundamental Rights and Rights endued
under various Acts of the Labour employed.

 The Petitioner included the organisation People’s Union for Democratic Rights and
the Respondent included Union of India, Delhi Development Authority, New Delhi
Municipal Committee and Delhi Administration.

 The matter was dealt with urgency by the Supreme Court highlighting the importance
of a Public Interest Litigation.

 The Provisions in violation dealt with Minimum Wages (Fixed as Rs. 9.25/day but the
jamadars deducted Rs. 1 and thus the workmen were paid only Rs 8.25/day below the
minimum wage decided), Equal Remuneration (Women workers were only paid Rs
7/day for the same amount of labour provided by them), Violation of Article
24 (Children below the age of 14 years were employed at such a hazardous site i.e.
construction site for Asian Games). The Labour was also deprived of basic and
humane conditions under the Contract Labour (Regulations and Abolition) Act, 1970.

Issues of the Case:

 Whether the Writ Petition can be maintainable against the private individual
under Article 32 of the Indian Constitution?

 Whether Article 21 of the Indian Constitution also include Right to Live with
human dignity and Right to Livelihood?
Contention of the Petitioner:

The Petitioner contended that:

 The Petitioner’s position was that separate authorities were tasked with the execution
of the various projects, and they hired contractors to carry out the building work of the
projects, in accordance with Section 7 of the Contract Labour Act 1970. These
contractors hired labourers through “Jamadars,” who brought them from all across
India. Furthermore, the minimum wage was paid to these jamadars rather than to the
workers directly, in violation of the Minimum Wages Act.

 There was also a breach of Article 24 of the Indian Constitution, as well as the
Employment of Children Acts of 1938 and 1970, because the contractors’ used
children under the age of 14 in the building work of the different projects.

 The requirements of the Contract Labour (Regulations and Abolition) Act, 1970, were
violated because employees were denied their access to medical and other services
under the Act.

Contention of the Respondent:

The Respondent maintained the following objections that:

 The Respondent argued that the Petitioners lacked locus standi to file the writ petition
since there had been no infringement of the petitioners’ rights; the issue at hand is the
rights of employees engaged in various construction projects. As a result, the
petitioners’ cause of action was barred.

 Furthermore, it was argued that the workers whose rights were allegedly infringed
were employees of the contractors, not the respondents. Also, because the workmen’s
cause of action, if any, was against the contractors rather than the Respondents, no
Writ Petition could be filed against them.
  The respondent also claimed, as part of this preliminary objection, that no writ
petition under Article 32 of the Constitution could be filed against the respondents
for alleged violations of workers’ rights under various labour laws, and that any
remedy, if any, could be sought only through the provisions of those laws.

Judgement:

 The Supreme Court upheld a Right of Poor workers to approach the Supreme Court
directly under Article 32 of the Indian Constitution for the enforcement of rights
created under various labour laws, particularly the provisions of the Contract Labour
(Regulation and Abolition) Act, 1970, Interstate Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1977, etc.
 The Supreme Court expanded the interpretation of Article 21 of the Constitution
(Right to Life) to include the Right to a Livelihood as well as the “Right to Live with
Fundamental Human Dignity.”
 The Supreme Court passed an order that every State Government should add
construction industry in Section 3(3) of the Employment of Children Act, 1938 by the
powers conferred to it under Section 3-A so as to prevent children below the age of 14
years to be employed under such hazardous work like construction site.

Ratio Decidendi:

 The initial contention about the locus standi of the PIL by the Petitioner on behalf of
the labourers correctly stands by the traditional point of view since the rights of the
 labourers working under the realm of the contractors were violated so prima facie,
they were themselves responsible to approach the court for redressal but this
traditional outlook has now been jettisoned by the Court of Law and has also broken
the narrow view of achieving justice.

 The Court believes that people belonging to low socio-economic backgrounds facing
poverty, illiteracy, lack of legal awareness cannot be kept away from availing their
rights enshrined to everyone by the Constitution of India. Thus, the court rules that in
case any person belonging or suffering from poverty, illiteracy or socially and
economically disadvantaged position is unable to approach the court, any member of
the public acting in a bona fide manner may move the court for the redressal of the
rights of such person.

 The Second Contention points to whether the Court can entertain this Petition under
the realm of Article 32 as the Petitioner merely complains about the Violation of
Labour Laws enacted for the betterment of the Labour and not of any violation of
Fundamental Rights. This is true of the fact that a writ petition is maintainable in case
of violation of any Fundamental Right. But four important facets of the Petitioner’s
argument can be held in direct consonance of the implementation of Fundamental
Rights:

 Firstly, Petitioners allege the issue of equal remuneration under the Equal
Remuneration Act 1946, the same is enshrined under Article 14 of the Indian
Constitution and thus can form a part of Article 32.
 Secondly, the Petitioner talks about the children under the age of 14 years being
employed to work at a construction activity site of Asian Games which again is a
direct breach of Article 24.

 Thirdly, the Complaint regarding the non-obedience of the directions under

Inter-State Migrant Workmen (Regulation and Employment and Condition of
Service) Act also relates to the violation of Article 21 as laid down in Maneka
 Gandhi Vs Union of India and Francis Coralie Mullin Vs Administrator, Union
Territory of Delhi under which the scope of Right to Live was expanded.

 Fourth, the Non-Payment of Wages can also be attributed to as a violation

of Article 23 which entails Prohibition of Traffic in Human Beings and Forced
Labour. Article 23 is not just limited to be implemented against the state but also
against other private citizens, this is so because the framers of the Constitution
did it to protect the rights of the enormous number of citizens belonging to a
lower stratum of Socio- Economic Layer.

 The third issue at hand which deals that whether the onus of this breach, the Court
held that the government which is the employer of these contracts cannot surpass the
obligation for the obedience of various Labour Laws entrusted for the Protection of
Rights of Workmen. The Statues like the Inter-State Migrant Workmen (Regulation
and Employment and Condition of Service) Act, Contract Labour (Regulation and
Abolition Act) 1970, etc provide for the principal employer to provide the specific
facilities in case the contractor fails to meet them.

Holdings (Applied Rule of Law):

 The Constitution of India; Articles 14, 21, 23, 24, 32

 Employment of Children Act, 1938 (26 of 1938); Section 3(3)

 Interstate Migrant Workmen (Regulation of Employment and Conditions of

Service) Act, 1979; Section 3(3)

 Contract Labour (Regulation and Abolition) Act, 1970; Section 13 to 19

 Minimum Wages Act, 1948; Section 20 and 21

 Equal Remuneration Act, 1976; Section 12, 4 and 5

DATE: 14.09.2023

Miss S. Sanyal

V.

Gian Chand (1968)

Facts of the Case:

 The appellant Miss Sanyal has since 1942 been a tenant of a house in Western
Extension Area, Karol Bagh, New Delhi, a part of which is used for a Girls' School
and the rest for residential purposes. The respondent Gian Chand purchased the house
from the owner by a sale deed dated September 19, 1956, and commenced an action
in the Court of the Subordinate Judge, 1st Class, Delhi, against the appellant for a
decree in ejectment in respect of the house. Numerous grounds were set up in the
plaint in support of the claim for a decree in ejectment, but the ground that the
respondent required the house bona fide for his own residence alone need be
considered in this appeal.

 The trial court dismissed the suit and the Senior Subordinate Judge, Delhi dismissed
an appeal from that order holding that the house being let for purposes non-residential
as well as residential, a decree in ejectment could not be granted under Section 13(1)
(e) of the Delhi and Ajmer Rent Control Act, 1952. The High Court of Punjab (Delhi
Bench) in a revision petition filed by the respondent held that on the finding recorded
by the first appellate court a decree in ejectment limited to that portion of the house
 which was used for residential purposes by the tenant could be granted, and remanded
the case to the Rent Controller “for demarcating those portions which were being used
for residence” and to pass a decree in ejectment from those specified portions of the
house. Against that order the tenant has appealed to this Court.

 In the present case the first appellate court held that the house was “let out for running
a school and for residence”. The High Court held that where there is a composite
letting, it is open to the Court to disintegrate the contract of tenancy, and if the
landlord proves his case of bona fide requirement for his own occupation to pass a
decree in ejectment limited to that part which “is being used” by the tenant for
residential purposes. In so holding, in our judgment, the High Court erred.

 The jurisdiction of the Court may be exercised under Section 13 (1)(e) of the Act only
when the premises are let for residential purposes and not when the premises being let
for composite purposes, are used in specific portions for purposes residential and non-
residential. The contract of tenancy is a single and indivisible contract, and in the
absence of any statutory provision to that effect it is not open to the Court to divide it
into two contracts — one of letting for residential purposes, and the other for non-
residential purposes, and to grant relief under Section 13(1)(e) of the Act limited to
the portion of the demised property which “is being used” for residential purposes.

Issues of the Case:

 House let out both for residential and non-residential purposes--Landlord asking for
eviction, of tenant on ground that he wants it for his own residence-Jurisdiction of
court to pass decree.
Arguments:

 The owner of a house let it out to the appellant for her residence and for running a
school. The respondent purchased the house and filed a suit for eviction of the
appellant. The suit was dismissed, but the High Court, in revision, held that a decree
in ejectment limited to that portion of the house which was used for residential
purposes by the tenant could be granted, and remanded the case for demarcating that
portion and passing a decree.

 The respondent Gian Chand purchased the house from the owner by a sale deed dated
September 19, 1956, and commenced an action in the Court of the Subordinate Judge
1st Class, Delhi, against the appellant for a decree in ejectment in respect of the
house. Numerous grounds were set up in the plaint in support of the claim for a decree
in ejectment, but the ground that the respondent required the house bona fide for his
own residence alone need be considered in this appeal.

Judgement:

 The High Court of Punjab (Delhi Bench) in a revision petition filed by the respondent
held that on the finding recorded by the First Appellate Court a decree in ejectment
limited to that portion of the house which was used for residential’ purposes by the
tenant could be granted, and remanded the case to the Rent Controller "for
demarcating those portions which were being used for residence" and to pass a decree
 in ejectment from those specified portions of the house. Against that order the tenant
has appealed to this Court. It is necessary in the first instance to read the material pro-
visions of the Delhi & Ajmer Rent Control Act, 1952.

 The expression "premises" is defined in s. 2(g) of the Act as "any building or part of a
building which is, or is intended to be let separately for use as a residence or for
commercial use or for any other purpose, and includes, Section 13 of the Act which
grants protection to tenants against eviction provides insofar as it is material:

 "(1). Notwithstanding anything- to the contrary contained in any other

law or any contract, no decree or order for the recovery of possession of
any premises shall be passed by any Court in favour of the landlord
against any tenant (including a tenant whose tenancy is terminated):
Provided that nothing in this sub-section shall apply to, any suit or other
proceeding for such recovery of possession if the Court is satisfied- (e)that
the premises let for residential purposes are, required bona fide by the
landlord who is the owner- of such premises for occupation as a residence
for himself or his family and that he has no other suitable
accommodation; Explanation For the purposes of this clause, ’residential
premises’ include any premises which having been let for use as a
residence are, without the consent of the landlord used incidentally for
commercial or other purposes."

 It is clear that s. .13(1) imposes a ban upon the exercise of the power of the Court to
decree ejectment from premises occupied by a tenant The ban is removed in certain
specific cases, and, one such case is where the premises having been let for residential
purposes the landlord requires the premises bona fide for occupation as a residence
 for himself or the members of his family and he has no other suitable accommodation.
It is plain that if the premises are not let for residential purposes, (e) has no
application, nor on the express terms of the statute does the clause apply where the
letting is for purposes residential and non-residential.

 In the present case the First Appellate Court held that the house was "let out for
running a school and for residence". The High Court held that where there is a
composite letting, it is open to the Court to disintegrate the contract of tenancy, and if,
the landlord proves his case of bona fide requirement for his own occupation to pass a
decree in ejectment limited to that part which "is being used" by the tenant for
residential purposes. In so holding, in our judgment. the High Court erred. The
jurisdiction ’of the Court may be exercised under s. 13(1)(e) of the Act only when the,
premises are let for residential purposes and not when the premises being let for
composite purposes, are used in specific portions for purposes residential and non-
residential.

 The contract of tenancy is a single and indivisible contract, and in the absence of any
statutory provision to that effect it is not open to the Court to divide it into two
contracts-one of letting for residential purposes, and the other for non-residential
purposes, and to grant relief under s. 13(1)(e) of the Act limited to the portion of the
demised property which "is being used" for residential purposes. The learned Judge
purported to follow the decision of his (Court in Motilal and another v. Nanak
Chand and others (1). It was held in that case that in cases governed by the Delhi &
Ajmer Rent Control Act. 1952 "if the premises are in well-defined parts and have
been let out for residential and commercial purposes together, the rule as to eviction
regarding the portion that has been used for residence will govern the residential
portion of the same and similarly the rules of eviction regarding the commercial
premises will govern the commercial portion of the same as laid down in the Act".
 In the view of the Court even if there be a single letting for purposes residential and
non-residential, if defined portions of the premises let are used for residential and
commercial purposes "it must be held that the letting out was of the commercial part
of the building separately for commercial purposes and of the residential part of the
building for residential purposes". We find no warrant for that view either in the Delhi
& Ajmer Rent Control Act or in the general law of landlord and (1) (1964) Punj. L.R.
179. 539 tenant Attention of, the learned Judge in that case was invited to a judgment
of this (Court in Dr. Gopal Das Verma v. S. K. Bhardwaj and anr). (1), but the
Court distinguished that judgment on the ground that "the facts of that case disclosed
that they had no applicability to the facts of the case" in hand. Now in Dr. Gopal Das
Verma’s (1) case the premises in dispute were originally let for residential purposes,
but later with the consent of the landlord a portion of the premises was used for non-
residential purposes.

 It was held by this Court that "where premises are let for residential purposes and it is
shown that they are used by the tenant incidentally for commercial, professional or
other purposes with the consent of the landlord, the landlord is not entitled to eject the
tenant even if he proves that he needs the premises bona fide for his personal use,
because the premises have by their user ceased, to be premises let for residential
purposes alone". It was, therefore, clearly ruled that if the premises originally let for
residential purposes ceased, because of the consent of the landlord, to be premises let
for residential purposes alone, the Court had no jurisdiction to decree ejectment on the
grounds specified in s. 13(1)(e) of the Act.

 The rule evolved by the Punjab High Court in Motilal’s Case (1) is inconsistent with
the judgment of this Court in Dr. Gopal Das Verma’s (1) case. If in respect of
premises originally let for residential purposes a decree in ejectment cannot be passed
on the grounds mentioned in s. 13(1)(e), if subsequent to the letting, with the consent
of the landlord the premises are used both for residential and non-residential purposes,
the bar against the jurisdiction of the Court would be more effective when the original
letting was for purposes-non-residential as well as residential. It may be recalled that
 the condition of the applicability of s. 13(1)(e) of the Act is letting of the premises for
residential purposes.

 In this case the letting not being solely for residential purposes, in our judgment, the
Court had no jurisdiction to pass the order appealed from. We may note that a
Division Bench of the Punjab High Court in Kunwar Behari v. Smt. Vindhya Devi(1)
has held in construing s. 14(i)(3) of the Delhi Rent Control Act 59 of 1958, material
part whereof is substantially in the same terms as s. 13(1)(e) of the Delhi & Ajmer
Rent Control Act, that "where the building let for residence is the entire premises it is
not open to the Court to further sub-divide the premises and order eviction with
respect to a part thereof".

 In our view that judgment of the Punjab High Court was right on the fundamental
ground that in the absence of a specific provision incorporated in the statute the Court
has no power to break up the unity ’of the contract of letting and attribute incidents
and obligations to a part of the subject-matter of the contract which are not applicable
to the rest. In our view the order passed by the High Court of Punjab remanding the
case for determination; of the residential portion of the house occupied by the
appellant and for passing a decree in ejectment in respect of that part is without
jurisdiction and must be set aside. The appeal is allowed and the decree passed by the
Senior Subordinate Judge is restored. The appellant in this appeal did not appear
before the High Court to assist the Court. In the circumstances there will be no order
as to costs of this appeal.

Holdings (Applied Rule of Law):

 Delhi and Ajmer Rent Control Act (38 of 1952), S. 13(1)(e)

DATE: 15.09.2023

Chancellor, Masters & Scholars of University of Oxford & Ors.

V.

Rameshwari Photocopy Services & Ors. (2016)

Facts of the Case:

 Rameshwari Photocopy Service, founded in 1998 and owned by Dharampal Singh, is

a photocopy shop present on the Delhi School of Economics (DSE) premises in Delhi
University’s North Campus. This shop was the primary supply point of a variety of
course materials and was often visited by DSE students. This was because some of the
professors at the Delhi School of Economics had developed course packets that
included pages from books published by various international publishing houses.
Rameshwari Photocopy Service was entrusted with duplicating and binding these
pages and distributing them to students for 50 paise (US$0.01) each page.
 In 2012, Oxford University Press, Cambridge University Press (UK), and Taylor &
Francis Group (UK), as well as Cambridge University Press India Pvt. Ltd. and
Taylor & Francis Books India Pvt. Ltd., filed a copyright infringement lawsuit against
Rameshwari Photocopy Service and the University of Delhi in the Delhi High Court
 for distributing copied portions of their published books without any appropriate
license.
 The lawsuit generated a ton of support from students, professors and activists alike for
Rameshwari Services, with numerous petitions being filed for joining the defence of
the case. For example, the Association of Students for Equitable Access to
Knowledge (ASEAK) and the Society for Promoting Educational Access and
Knowledge (SPEAK) requested that they be impleaded as defendants. Subsequently,
they were made defendant number three and four respectively.
 In March 2013, more than 309 famous writers and professors from around the world
wrote to the publishers, urging them to drop the lawsuit. Surprisingly, 33 of the 309
signatories had a direct relationship with the plaintiff-publishers and were creators of
works whose copyright was allegedly infringed by Delhi University and its
photocopier. Eminent scholars such as Thomas Blom Hansen, Partha Chatterjee,
Ayesha Jalal, Christophe Jaffrelot, Veena Das, Pratap Bhanu Mehta, Marc Galanter,
and Professors Richard Falk, Arjun Appadurai, Jonathan Parry, Ramachandra Guha,
Farid Esack, TN Madan, Ian Copland, Tanika Sarkar, and Uma Chakravarty were
among those who signed.

 In late 2012, the Delhi High Court passed a temporary injunction preventing
Rameshwari Services from selling the photocopied course packets. The Court
also instructed a Local Commissioner to visit the shop premises without prior notice
and confiscate all allegedly infringing copies of the plaintiff’s works created by it
after compiling an inventory of them.
 In 2016, the lawsuit was rejected and the injunction was removed by Justice Rajiv
Sahai Endlaw, enabling Rameshwari Photocopy Services to resume selling the course
bundles. Later in the same year, a two-judge bench set aside the previous order and
allowed for the lawsuit trial to continue, saying that the reproduction of copyrighted
books for educational purposes was not copyright violations. At the same time, the
Delhi High Court refused to place an injunction on the shop and instead asked it to
submit periodic reports of the course packs it was selling.
  In 2017, an open letter was sent to Oxford University Press by students, alumni and
academics of Oxford University, requesting them not to appeal the Division Bench
decision in the Supreme Court of India. The three publishers, Oxford University
Press, Cambridge University Press (UK), and Taylor & Francis Group (UK)
consequently withdrew from the lawsuit saying they did not want to get entangled in
legal battles with their stakeholders, the educational institutions.
 The Indian Reprographic Rights Organisation (IRRO) petitioned the Supreme Court,
appealing the Division Bench decision of 2016. The IRRO is a copyright society that
was established by publishing houses to give out affordable licenses for reproducing
products that had copyright restricting their dissemination. The Supreme Court held
that, given that the initial litigation brought before the Delhi High Court had been
dropped by the publisher plaintiffs, and that the IRRO was only an intervenor in the
lower court proceedings, the Supreme Court chose not to intervene in the High Court
ruling.

Issues of the Case:

1. Whether the right of reproduction of any work by a teacher or a pupil in the course
of instruction is absolute and not constricted with the condition of it being fair use?

2. What is the span of the phrase ‘by a teacher or a pupil in the course of instruction’
in Section 52(1)(i)(i)?

3. What constitutes ‘publication’ and ‘reproduction’?

Arguments of the Plaintiffs:

 The plaintiffs argued that the inclusion of portions of their copyrighted published
works in the course packs by Rameshwari Services upon the authority of the
University of Delhi amounted to institutional sanction of copyright infringement.
 Since the course packs contained only photocopied parts of the copyrighted
publication, they were functioning as textbooks and thus competing with the sale of
the officially published textbooks. Rameshwari was alleged to have been operating
commercially, by selling the course packs at the rate of 40-50 paise per page as
opposed to the established market rate of 20-25 paise per page of any photocopy. It
was also argued that Section 52(1)(i) of the Copyright Act would not apply as
Rameshwari could not be equated to the reproduction by a teacher to students for the
instruction of knowledge.
 It was contended that alternatively, the reproduction in the manner carried out by
Rameshwari Photocopy Services if held falling within the ambit of Section 52(1)(i),
would render Section 52(1)(h) superfluous. Because the course materials were being
used for ‘preparation of instruction’ instead of ‘instruction’, the same did not fall
under Section 52(1)(i). Instead, Section 52(1)(h) should apply which allows for the
reproduction of only two passages from works by the same author published by the
same publisher during any period of five years.
 Article 9 and Article 10 of the Berne Convention, 1886 as well as Article 13 of the
Agreement on Trade-Related Aspect of Intellectual Property Rights, 1995 was
also relied upon by the plaintiffs.
 The plaintiffs finally pleaded that the defendants must be asked to get licenses from
the Indian Reprographic Rights Organisation because the audience of such published
books were largely academic institutions and if unrestricted reproduction from these
books were allowed the academic publishing business would suffer irreparable losses.
Arguments of the Defendants:

 The defendants contended that their act was well within the ambit of fair dealings as
present in Section 52 of the 1957 Copyright Act. Rameshwari Photocopy Services
said that they could not have competed with the publishing houses as they charged a
nominal rate for its services as fixed by the license deed between itself and the Delhi
School of Economics. It further contended that their act was for the benefit of the
students as many of them could not afford to buy the books whose extracts were part
of the syllabus of the student’s respective courses.
 Delhi University categorically used Section 52(1)(i) as their defence. The University
argued that Rameshwari Photocopy Services had been granted a licence to operate a
photocopy shop on its campus to allow photocopying by students for educational and
research purposes. Denying the University’s request to issue books to Rameshwari
Photocopy Services to prepare coursepacks, the University argued that there is no
limitation on the quantum of reproduction under Section 52(1)(i) of the Copyright
Act, 1957 and that because Section 52(1)(i) covers reproduction for educational
purposes, unlimited photocopying would be permitted.
 It was further argued that there was a difference between the words ‘reproduction’ as
in Section 52(1)(i) and ‘publication’ as in Section 52(1)(h). ‘Publication’ denoted
publishing works for the public whereas in the present scenario the students had a
narrower connotation. Accordingly, it was contended that Section 52(1)(h), could not
be made applicable.
 The University of Delhi argued that both the Berne Convention and the TRIPS
Agreement allowed member states to propose legitimate exceptions to copyright and
that the educational exemption established under Section 52(1)(i) constituted such an
exception.
 SPEAK pleaded that the market of the plaintiffs was not being affected by the actions
of Rameshwari Photocopy Services. This was because the coursepacks contained only
extracts from the books and not the entire book itself. Furthermore, it was contended
 by ASEAK that ‘instruction’ could not just be limited to that in classrooms only; it
had to include other forms of ‘instruction’ as well. The interpretation of Section 52
had to be done liberally as the purpose of the Copyright Act was to develop and
transmit knowledge in society by balancing the interests of work producers with the
interests of society as a whole. Section 52(1)(h) also could not apply as it referred to
third persons and not teachers and students.

Judgements:

 In 2012, after the lawsuit was first filed, the plaintiff-publishers were able to have an
interim injunction imposed against the defendants. The Delhi High Court opined that
Rameshwari Services had no right to compile and sell the coursepacks.
 The University of Delhi then filed an appeal which got dismissed by a two-judge
bench of the same Court.
 In September of 2016, Justice Rajiv Sahai Endlaw dismissed the lawsuit and lifted
the 2012 interim injunction primarily on the grounds of Section 52(1)(i) of the
Copyright Act of 1957 which stated that the reproduction of any work by a teacher or
a pupil in the course of instruction did not institute copyright infringement.

The single-judge bench also made the following observations-

1. Copyright was not a divine and inherent right that gave absolute ownership to the
entity that owned the copyright. Instead, the primary aim of copyright was to
encourage the harvest of knowledge and stimulate the intellectual growth of the
general public.

2. Section 52 could be an all-encompassing defence for educational institutions that

might get entangled in such lawsuits.
 3. The word ‘teacher’ in the Section did not only refer to individual teachers but
applied to educational institutions as a whole.

4. The legislature had not included the word ‘lecture’ deliberately. They did that
because they did not mean to narrow down the meaning of the word ‘instruction’
as used in the Section. This word included lectures as well as anything else that the
teacher instructs the student that helps them acquire substantial knowledge on the
subject.

5. The imparting and receiving of instruction was never limited to face-to-face

interactions but included a process of the teacher readying herself/himself for
imparting instruction, setting syllabus, prescribing textbooks, reading and
ensuring, whether by the interface in classroom/tutorials or otherwise by holding
tests from time to time or clarifying doubts of students.

6. Since, photocopying or clicking pictures of books was not against the law,
photocopying by a shop, as instructed by the University, for the benefit of students
could also not be considered an instance of copyright infringement.

7. because, photocopying could be done by the University, the Court felt there was
no reason why photocopying could not be done by someone else, as instructed by
the University. The Court felt that Rameshwari Services was contracted by the
University to provide coursepacks and there was no difference between using a
photocopier installed within the University and one installed outside it. Justice
Rajiv Sahai Endlaw also said that taking a license would have been necessary if
and only if the defendants fell outside the purview of Section 52. This decision
was then appealed by the plaintiffs.

 On December 9, 2016, the Division Bench of the Delhi High Court ruled in
a landmark decision that the preparation of ‘coursepacks,’ i.e. compilation of
photocopies of the relevant portions of different books prescribed in the syllabus, and
their distribution to students by educational institutions, did not constitute an
infringement of copyright in those books under the Copyright Act, 1957, as long as
the inclusion of the works photocopied (regardless of quantity) pertained strictly to
educational needs. The following were the main observations in the judgement written
by Justice Nandrajog-

1. The Court decided that Section 52 did not have a cap or limitation on fair use.
Rejecting the four-pronged test used in foreign jurisdictions, like the United States
of America, the Court opined that fairness of use had to be inferred exclusively
from the purpose of the use, i.e., education in this case, and not the qualitative or
quantitative extent. Thus, if any material was being used for educational purposes,
then that would be considered fair within the meaning of Section 52, irrespective
of the fact whether the entire copyrighted book or part of it is being used.

2. The argument that the sale of the publishers’ books would be affected was
unequivocally rejected by the Division Bench. It held that, in the absence of the
photocopied parts, the students would just refer to the multiple copies of the books
which were already present in libraries of the various institutions. It was further
observed that such a sale of photocopies was likely to increase and expand the
market of these copyrighted books.

3. Section 52(1)(i) was interpreted wherein it was held that ‘teacher’ and ‘pupil’
included teachers and pupils. Section 13(2) of the General Clauses Act, 1897,
was relied upon and it was held that ‘reproduction’ would include reproducing
multiple copies of a work. Thus, photocopying in bulk was not an infringement of
copyright.

4. The Court further agreed with the defendants that the course of instruction
included not only a classroom lecture but also everything else that is generally
involved in teaching, like taking notes, studying them and studying ancillary
materials. Comparisons were drawn between Section 21(4) of New Zealand’s
Copyright Act, 1962 and the contended section of the Indian Act. The Kiwis’
interpretation of Section 21(4) which had the words ‘in the course of instruction’
in the case of Longman Group Ltd. v. Carrington Technical Institute Board of
 Governors (1991) was held to be relevant in the present scenario and was
accordingly relied upon while reaching to a conclusion.

5. The argument that dissemination to students did not constitute ‘publication’

because ‘publication’ implied ‘public’ which was wider than ‘students’ was
rejected by the Division Bench. At the same time, it was held that the act done by
Rameshwari was not ‘publication’ within the meaning of Section 52(1)(h) as that
required an element of a certain degree of profit, which was missing in this case.

6. Further, it was held that it was very justified that teachers and students used an
intermediary for publication. It was considered common sense that teachers would
not themselves purchase photocopying machines to make copies of materials.
Thus, using the services provided by a shop was not copyright infringement.

7. A major contention of the plaintiffs was that Section 52(1)(i) applied to individual
teachers and in this case, the University of Delhi had provided institutional
sanction to Rameshwari for photocopying, making the Section inapplicable. The
Court, while rejecting this argument, said that the University was simply tasked
with laying down the course guidelines. The teachers were responsible for allotting
study materials for each of the courses. Thus, Delhi University could not be made
liable for giving institutional sanction as the course packs were made and
distributed by the teachers themselves, making the case fall comfortably within the
ambit of the given Section.

8. The plaintiffs had relied heavily on cases of foreign jurisdictions which were
found to have no relevance in the Indian context. Furthermore, The Delhi High
Court held that the Berne Convention and TRIPS were enacted in such a way
that it allowed adequate allowances to individual signatories to formulate their
own rules based on specific and peculiar circumstances of the country. The appeal
was thus dismissed, and the lawsuit trial was reinitiated to determine whether the
course packs indeed were of appropriate and reasonable need. The Court felt that
expert opinion was required in the matter and allowed the plaintiffs to amend their
plaint accordingly. It further ordered the trial court to make a factual finding on the
legality of these copies. The Court refused to award an interim injunction in favour
of the publishers, instead, directed the photocopier to keep a record of the course
 packets photocopied and distributed to students and to file it in the action every six
months.

Holdings (Applied Rule of Law):

 Since the issue involved copyrights, the Copyright Act, 1957 and the Copyright
Rules, 2013 were the relevant source of legal provisions.

 The main provision over which the entire legal battle proceeded was Section 52(1)(i).
Section 52 talks about certain acts which do not constitute copyright infringement.
Section 52(1)(i) in particular stated that the reproduction of any work, by a teacher or
a pupil in the course of instruction; or as part of the question to be answered in an
examination; or answers to such questions all constituted fair dealing of that work.

 A primary question was whether the case would follow under Section 52(1)(i)
or Section 52(1)(h). This subsection says that for bonafide usage of copyrighted
works, the publication of the same could be allowed. But that was limited to only two
 passages from works of the same author published by the same publisher during five
years.

 Because of the absence of substantial Indian case laws in this regard, international
treaties were also cited, namely the Berne Convention, 1886 and the Agreement on
Trade-Related Aspect of Intellectual Property Rights, 1995. The relevant articles
were-

1. Article 9 of the Berne Convention: Allows for governments to make legislation

to govern the reproduction of copyrighted works in special cases.

2. Article 10 of the Berne Convention: This article allows for quotations to be made
of works already in the public domain, provided it is compatible with fair practice.
Moreover, this article also states that the utilization of copyrighted works can be
used for teaching with appropriate agreements.

3. Article 13 of TRIPS: This talks about exceptions to exclusive rights only in

special circumstances.

DATE: 16.09.2023

Lachmi Chand
 V.

Madanlal Khemka (1947)

Facts of the Case:

 The brief facts of the case are a promissory note was executed by Lala Lachhmi
Chand, defendant 1, on 25-3-1928 for a sum of Rs. 10,000. The rate of interest
stipulated was 12 annas per cent per mensem. It was in favour of Shri 108 Baba
Kali Kamli Wala Ramnath Maniramji of Rishikesh. On 28-7-1930 a sum of Rs. 4800
was paid by defendant 1 through one Mt. Draupadi. On 25-8-1932 a fresh promissory
note was executed in renewal of the previous promissory note by both Lala Lachhmi
Chand and Onkar Prasad for a sum of Rs. 8363 the total amount then found due. On
5-11-1934 another promissory note by way of renewal was executed for Rs. 9887-43.

 It was executed by Lala Lachhmi Chand alone. In November 1937another promissory

note is said to have been executed in respect of the amount found due on the previous
promissory note and handed over to the creditor. Along with this promissory note a
letter (Ex. 5) dated 3-11-1937 acknowledging the liability for payment of Rs. 12,024-
1-6 then due was sent over the signatures of both Lala Lachhmi Chand and Onkar
Prasad. Lastly, on 14-11-1939 a promissory note was executed by both Lachhmi
Chand and Onkar Prasad for a sum of Rs. 13,302-11-9. This purported to be by way
of renewal of the pre-existing liability under the former promissory note.

 The plaint was filed on 4-11-1942 with the allegations set out above and it was
specifically stated in the plaint that the cause of action for the suit arose on25-8-1928,
the date of the original transaction, and it was stated that limitation was saved by
reason of the subsequent acknowledgment in the form of promissory notes executed
from time to time by the defendants in favour of the plaintiff.

 The defendants resisted the suit on various grounds. Pleas taken by the defendants
mainly are (i) The suit was misconceived in as much as the plaintiff was not a
payee under the promissory note of 1928 and consequently was not entitled to sue
 under the provisions of the Negotiable Instruments Act; (ii) that the cause of action on
the basis of the promissory note of 1928, as set out in the plaint, did not exist; and(iii)
that in any event, the defendants were “agriculturists” and as such entitled to the
benefit of the Agriculturists’ Relief Act in the matter of reduction of interest and the
grant of instalments. It may be mentioned here in passing that the plaintiff admitted
that the defendants were agriculturists. Also both the defendants were members of a
joint Hindu family and Lachmi Chand was the Karta of that family.

Issues of the Case:

 Whether a suit lies at the instance of the real holder as distinguished from the payee or
the endorsee of a promissory note?

Arguments:

 The defendants resisted the suit on various grounds. Pleas taken by the defendants
mainly are (i) The suit was misconceived in as much as the plaintiff was not a
payee under the promissory note of 1928 and consequently was not entitled to sue
under the provisions of the Negotiable Instruments Act.

 (ii) that the cause of action on the basis of the promissory note of 1928, as set out in
the plaint, did not exist; and(iii) that in any event, the defendants were “agriculturists”
and as such entitled to the benefit of the Agriculturists’ Relief Act in the matter of
reduction of interest and the grant of instalments. It may be mentioned here in passing
that the plaintiff admitted that the defendants were agriculturists. Also both the
defendants were members of a joint Hindu family and Lachmi Chand was the Karta of
that family.
Judgement:

 The Apex court held that if a suit is to be based upon the hand-note it must be
instituted by the holder whose name appears on the note and not by any person who
alleges that the original holder is his benamidar and that he is the beneficial owner. It
has further been clearly laid down that there is no such thing for this purpose as a
benami promissory note taken in the name of one person but really meant for the
benefit of another. Where a hand-note is executed in favour of a benamidar it is not
open to the promisor to assert that the holder of the note is not the beneficial owner.

 It is further held that it has been held that the “real” creditor, as distinguished from the
payee or the holder of the instrument, cannot be allowed to fall back upon the original
consideration and to sue for the money advanced by him independently of the
promissory note by proving the actual loan. The fact that a person who is not the
holder of the instrument cannot claim the privileges of a “holder”, so it has been held,
does not disentitle him from suing. In a suit brought by the “real” creditor to which
the maker and the holder of the promissory note were parties a decree was passed
against the maker with a proviso that payment shall be made to the real creditor only
on his securing a valid discharge of the maker from the holder of the note.

 The contention that the real creditor, the holder of the promissory note being his
benamidar, is precluded from maintaining a suit for enforcement of the liability
incurred by the maker under the promissory note was repelled. The court considered a
“broader principle” which is in a suit brought by the “real” creditor to which the
maker and the holder of the promissory note were parties a decree was passed against
the maker with a proviso that payment shall be made to the real creditor only on his
 securing a valid discharge of the maker from the holder of the note. The contention
that the real creditor, the holder of the promissory note being his benamidar, is
precluded from maintaining a suit for enforcement of the liability incurred by the
maker under the pro-note was repelled.

Holdings (Applied Rule of Law):

 Section 8 of the Negotiable Instruments Act, 1881 and Section 78 of the

Negotiable Instruments Act, 1881.

DATE: 18.09.2023

Rajendra Singh Rana

V.

Swami Prasad Maurya (2007)

Facts of the Case:

 The elections for the constitution of the 14th Legislative Assembly of the State of
Uttar Pradesh were held in February 2002. Since, none of the political parties secured
the requisite majority, a coalition Government was formed, headed by Ms. Mayawati,
leader of the Bahujan Samaj Party (hereinafter referred to as, 'B.S.P.'). B.S.P was
admittedly a recognised national party. The ministry was formed in May, 2002. On
25.8.2003, the cabinet is said to have taken a unanimous decision for recommending
the dissolution of the Assembly. Based on it, on 26.8.2003, Ms. Mayawati submitted
the resignation of her cabinet. Apparently, after the cabinet decision to recommend the
dissolution of the Assembly and before Ms. Mayawati cabinet actually resigned, the
leader of the Samajwadi Party staked his claim before the Governor for forming a
Government. On 27.8.2003, 13 Members of the Legislative Assembly (hereinafter
referred to as, 'M.L.As.') elected to the Assembly on tickets of B.S.P., met the
Governor and requested him to invite the leader of the Samajwadi Party to form the
 Government. Originally, 8 M.L.As. had met the Governor and 5 others joined them
later in the day, making up the 13.

 The Governor did not accept the recommendation of Mayawati cabinet for dissolution
of the Assembly. On 29.8.2003, the Governor invited the leader of the Samajwadi
Party, Mr. Mulayam Singh Yadav to form the Government and gave him a time of two
weeks to prove his majority in the Assembly. On 4.9.2003, Mr. Swami Prasad
Maurya, leader of the Legislature B.S.P filed a petition before the Speaker in terms of
Article 191 read with the Tenth Schedule to the Constitution of India, praying that the
13 B.S.P. M.L.As. who had proclaimed support to Mulayam Singh Yadav before the
Governor on 27.8.2003, be disqualified in terms of paragraph 2 of the Tenth Schedule
to the Constitution on the basis that they had voluntarily given up their membership of
B.S.P., their original political party. On 05.09.2003, a caveat was also behalf of the
B.S.P. before the Speaker of the Legislative Assembly requesting the Speaker to hear
the representative of B.S.P. in case any claim of split is made by the members who
had left the Party.

 On 06.09.2003, a request was made by 37 M.L.As., said to be on behalf of 40

M.L.As. elected on B.S.P. tickets, requesting the Speaker to recognise a split in B.S.P.
on the basis that one third of the Members of the B.S.P. legislature party consisting of
109 legislators, had in a body separated from the Party pursuant to a meeting held in
the M.L.A.’s hostel, Darulshafa, Lucknow on 26.8.2003. The Speaker took up the said
application for recognition of a split, the same evening. He verified that the 37
Members who had signed the application presented to him had in fact signed it since
they were physically present before him. Overruling the objections of Maurya, the
leader of the legislature B.S.P., the Speaker passed an order accepting the split in
B.S.P. on the arithmetic that 37 out of 109 comprises one third of the Members of the
legislature Party. This group came to be known as the Lok Tantrik Bahujan Dal. But,
the said Dal was short lived. For, the Speaker, a little later, on 6.9.2003 itself, accepted
that the said Dal had merged with the Samajwadi Party. It is relevant to note that in
the order dated 6.9.2003, the Speaker did not decide the application made by B.S.P.
seeking disqualification of 13 of its M.L.As. who were part of the 37 that appeared
before the Speaker and postponed the decision on that application. It appears that on
 8.9.2003, three more M.L.As. appeared before the Speaker stating that they supported
the 37 M.L.As. who had appeared before him on 6.9.2003 and were part of that group.
The Speaker accepted their claim as well.

 On 29.9.2003, Writ Petition No. 5085 of 2003 was filed in the High Court of
Judicature at Allahabad before the Lucknow Bench challenging the said order of the
Speaker. On 1.10.2003, it came up before a Division Bench of the High Court, and it
is seen from the Order Sheet maintained by the High Court that the Writ Petition was
directed to be listed on 8.10.2003 for further hearing. It was adjourned to 13.10.2003
and then again to 22.10.2003 and to 29.10.2003 and further to 5.11.2003. It is
recorded in the Order Sheet that on 5.11.2003, learned Counsel for the writ petitioner
was heard in detail. No order was passed, but the matter was adjourned to the next day
at the request of counsel, who was apparently representing the Advocate General of
the State. From 6.11.2003, the matter was adjourned to 10.11.2003 and on the request
of the learned Advocate General, it was directed to be listed on 14.11.2003. The same
day, the Speaker before whom the petition filed by the writ petitioner Maurya seeking
disqualification of 13 of the members of the B.S.P. was pending, after noticing what
he had done earlier on 6.9.2003 and 8.9.2003, passed an order adjourning the petition
seeking disqualification, on the ground that it would be in the interests of justice to
 await the decision of the High Court in the pending Writ Petition since the decision
therein on some of the issues, would be relevant for his consideration. It was therefore
ordered that the petition for disqualification may be placed before him for disposal
and necessary action after the High Court had decided the Writ Petition.

 In the High Court, the Writ Petition had a chequered career. On 14.12.2003, when it
came up, it was directed to be listed the next week before the appropriate Bench. On
16.4.2004, it was directed to be put up on 22.4.2004. On 22.4.2004, it was dismissed
for default with an observation that neither any counsel on behalf of the writ petitioner
Page 1000 nor on behalf of the Speaker was present. It may be noted that on
5.11.2003, the High Court had recorded that it had heard counsel for the writ
petitioner in full and the adjournment for further hearing was at the behest of the
Advocate General. Even then, on 22.4.2004, the High Court chose to dismiss the Writ
Petition for default on the ground that counsel on both sides were not present.

 An application for restoration was filed on 27.4.2004 and this application was kept
pending for about 8 months until on 20.12.2004, an order was passed recalling the
order dated 22.4.2004 dismissing the Writ Petition for default and restoring it to its
original number with a further direction to list the Writ Petition before the appropriate
Bench on 4.1.2005. On 4.1.2005, the Writ Petition was adjourned at the request of the
Advocate General to the next day. On 5.1.2005, it was noticed by the Bench that the
matter appeared to have been heard in detail at the admission stage and the Writ
Petition had neither been admitted nor any notice ordered to the respondents and
counsel for the writ petitioner was again heard on the question of admission and the
application for interim relief he had filed and it was recorded that he had concluded
his arguments with the further direction to put up the Writ Petition the next day. On
6.1.2005, it was recorded that counsel for the writ petitioner did not press for interim
relief at that stage and hence the application for interim relief was being rejected.
 On 6.1.2005, the Writ Petition was admitted after hearing counsel for the writ
petitioner and some counsel who appeared for the respondents. Notices were ordered
to be issued to the opposite parties, the group of M.L.As. who had moved the Speaker
for recognition of a split. After some further postings, on 18.2.2005, orders were
passed regarding service of notice and the Writ Petition was directed to be posted for
hearing on 10.3.2005. On 10.3.2005, finding that there was some attempt at evasion
of notices, the court ordered substituted service of notices and directed the listing of
the Writ Petition on 11.4.2005. On 11.4.2005, service of notice was declared
sufficient and the matter was directed to be posted on 2.5.2005 for hearing. After a
number of adjournments mainly at the instance of the respondents in the Writ Petition,
arguments were commenced. On 12.5.2005, counsel for the writ petitioner concluded
his arguments and the case was further adjourned to 25.5.2005 for further hearing
after taking certain counter affidavits on record. Ultimately, the argument of one of
the counsel for the respondents was started and the matter was adjourned to 6.7.2005
for completion of his arguments and for arguments by other counsel for the
respondents in the Writ Petition.

 Meanwhile, on 7.9.2005, the Speaker passed an order rejecting the petition filed by
Maurya for disqualification of 13 M.L.As. of B.S.P. It may be noted that the Speaker
had earlier adjourned that application for being taken up after the Writ Petition was
decided. Meanwhile, the arguments went on in the High Court and the Writ Petition
was directed to be put up on 17.8.2005 for further arguments. The matter was
adjourned to the next day and again to subsequent dates.

 On 8.9.2005, an application was made on behalf of the respondents seeking dismissal

of the Writ Petition in view of the order of the Page 1001 Speaker dated 7.9.2005
dismissing the application seeking disqualification of 13 M.L.As. filed by the writ
petitioner. The said application was dismissed the same day. On 9.9.2005, arguments
were heard and the matter was adjourned for further hearing. On 21.10.2005, an
application was made on behalf of the writ petitioner praying for an amendment of the
 Writ Petition. It was directed to be listed granting time to the respondents in the Writ
Petition to file objections.

Issues of the Case:

 Disqualification with reference to the date on which a member voluntarily gives up his
membership or defies the whip and it is really a decision ex post facto i.e disqualification
relates back to the date when the act of defection takes place.

Arguments:

 The application by writ petitioner - Maurya to the Speaker, in the present case,
was made under paragraph 2 of the Tenth Schedule to the Constitution on the
ground that the 13 Members who met the Governor on 27.8.2003 had voluntarily
given up their membership of B.S.P., their original political party as defined in the
Tenth Schedule. The claim on behalf of the M.L.As. sought to be disqualified and
those who claimed to have gone out with them from B.S.P. is that the
disqualification at the relevant time is subject to the provisions of paragraphs 3, 4
and 5 of the Tenth Schedule and since there has been a split in B.S.P in terms of
paragraph 3 of the Tenth Schedule and a subsequent merger of the 40 M.L.As.
with the Samajwadi Party in terms of paragraph 4 of the Tenth Schedule, they
could not be held to be disqualified on the ground of defection in terms of
paragraph 2(1)(a) of the Tenth Schedule.

 The Speaker, as noticed, did not pass any order on the application for
disqualification of 13 M.L.As. made by Maurya, the leader of the B.S.P.
Legislature Party in terms of paragraph 2 of the Tenth Schedule but proceeded to
 pass an order on the petition filed by 37 M.L.As. before him, claiming that there
has been a split in B.S.P. and they constituted one third of the Legislature Party
which had 109 members. When he passed the order Page 1003 on the claim of the
M.L.As. who had left B.S.P., the then Speaker postponed the decision on the
petition for disqualification filed by Maurya, later adjourned it to await the
decision in the Writ Petition, but still later, the successor Speaker went back on
that order and proceeded to dismiss it after entertaining an alleged preliminary
objection even while the Writ Petition was still pending and it was being argued,
on the ground that he had already recognised the split.

 The respondents in the Writ Petition, the M.L.As. constituting 37 B.S.P. members
who left the party, are the appellants in all the appeals except the appeal arising
out of Special Leave Petition (Civil) No. 6323 of 2006 filed by the Page 1002 writ
petitioner - Maurya. Whereas, the respondents in the Writ Petition challenge the
decision of the majority of the Bench remitting the matter to the Speaker, the writ
petitioner, in his appeal challenges the order of remand made by the majority on a
plea that on the pleadings and the materials available, the High Court ought to
have straightaway allowed the petition filed by the writ petitioner for
disqualification of the 13 M.L.As. According to him, a remand was unnecessary
and considering the circumstances, a final order ought to have been passed by the
High Court.

Judgement:

 The matter was listed today only for consideration and disposal of the amendment
application together with application for further hearing and by 4.00 PM arguments
 with respect to amendment application could be concluded. As indicated in the order
passed on the application brother M.A. Khan (J) took out a typed and signed 'order'
rejecting the application for amendment. Like previous order, brother Hon'ble M.A.
Khan again took out a duly typed and signed judgment/ his opinion and directed the
bench Secretary to place the same on record as his "judgment" in the main writ
petition. The draft of the said judgment was also not circulated to me nor was I ever
been consulted by him. It is further pointed out that brother Hon'ble M.A. Khan (J)
did not indicate at any time that he had already written out the judgment. Further at no
point of time, I had indicated to brother M.A. Khan (J) that the judgment in the writ
petition may be prepared by him. It goes without saying that neither the orders passed
on the application nor the so called judgment on the merits of the writ petition have
been dictated in the open court by brother Hon'ble M.A. Khan(J).

 Apparently, in view of these happenings, the learned Chief Justice constituted a Full
Bench for hearing the Writ Petition. The amendment prayed for was allowed and the
Writ Petition ultimately heard finally and disposed of by the judgment under appeal.
As per the judgment under appeal, the Writ Petition was dismissed by the learned
Chief Justice while the other two learned Judges quashed the orders of the Speaker
and directed the Speaker to reconsider the matter with particular reference to the
petition for disqualification of 13 M.L.As. filed by the writ petitioner and pass
appropriate orders. Feeling aggrieved, these appeals have been filed.

 Whatever may be our ultimate decision on the merits of the case, we must express our
unhappiness at the tardy manner in which a matter of some consequence and
constitutional propriety was dealt with by the High Court. More promptitude was
expected of that court and it should have ensured that the unfortunate happenings
(from the point of view of just and due administration of justice) were avoided.
Though we are normally reluctant to comment on the happenings in the High Court,
we are constrained to make the above observations to emphasis the need to ensure that
no room is given for criticism of the manner of working of the institution.
 The respondents in the Writ Petition, the M.L.As. constituting 37 B.S.P. members
who left the party, are the appellants in all the appeals except the appeal arising out of
Special Leave Petition (Civil) No. 6323 of 2006 filed by the Page 1002 writ petitioner
- Maurya. Whereas, the respondents in the Writ Petition challenge the decision of the
majority of the Bench remitting the matter to the Speaker, the writ petitioner, in his
appeal challenges the order of remand made by the majority on a plea that on the
pleadings and the materials available, the High Court ought to have straightaway
allowed the petition filed by the writ petitioner for disqualification of the 13 M.L.As.
According to him, a remand was unnecessary and considering the circumstances, a
final order ought to have been passed by the High Court.

 Article 191 of the Constitution of India deals with the disqualification for membership
of legislative assemblies just like Article 102 deals with disqualification for
membership to the Houses of Parliament. Article 102 and Article 191 came to be
amended by the Constitution (Fifty- second Amendment) Act, 1985 with effect from
1.3.1985 providing that a person shall be disqualified for being a member of either
Houses of Parliament or of Legislative Assembly or Legislative Council of a State if
he is so disqualified under the Tenth Schedule to the Constitution of India. The Tenth
Schedule was also added containing provisions as to disqualification on ground of
defection. The constitutional validity of this amendment was challenged before this
Court in Kihoto Hollohan v. Zachillhu and Ors. This Court upheld the validity of
the amendment subject to the finding that paragraph 7 of the Tenth Schedule to the
Constitution of India required ratification in terms of Article 368(2) of the
Constitution of India and it had not come into force, so that there was no need to
 pronounce on the validity of paragraph 7 to the extent it precluded a judicial review of
the decision of the Speaker. But it held that judicial review could not be kept out,
though such review might not be of a wide nature. We are proceeding to examine the
relevant aspects in the light of that decision.

 It was thereafter that the writ petitioner sought for an amendment of the Writ Petition
which was subsequently allowed. We will now revert to the action that triggered the
controversy. Eight of the M.L.As. of B.S.P. followed by five other members of B.S.P.
handed over identically worded letters to the Governor on 27.8.2003. A running
translation of the letters is as under:

 We under mentioned M.L.As. whose signatures are marked below humbly request
you that Shri Mulayam Singh Yadav Ji be invited to form Government because the
public of Uttar Pradesh neither want election nor want President Rule. These
members were the members who belonged to B.S.P. and they were requesting the
Governor to invite the leader of the opposition to form the Government. It is based on
this action, that Maurya, the leader of the Legislature B.S.P., had filed the petition
before the Speaker seeking disqualification of these 13 members on the ground that
they had voluntarily left B.S.P., recognised by the Election Commission as a national
party. It was while this proceeding was pending that on 6.9.2003, an application for
recognition of a split was moved by the 37 M.L.As. before the Speaker. Since the
leader of B.S.P. had filed a caveat before the Speaker, the Speaker chose to hear the
caveator while passing the order. Considering the nature of the controversy involved,
it appears to be proper to quote the said representation or application made by the 37
M.L.As. before the Speaker. The running translation of the same reads: We, the
following Members of the Legislative Assembly, are notified as Members belonging
to Bahujan Samaj Party. There is dissatisfaction prevalent among the members of
BSP on account of dictatorial approach, wrong policies and misbehaviour towards the
Members as practiced by the BSP Leader Km. Mayawati. Being aggrieved on account
of the aforesaid reasons, Members, office bearers and workers of the Bahujan Samaj
Party held a meeting in Darulsafa on 26.08.2003. All present unanimously stated that
 Km. Mayawati is occupied with fulfilment of her personal interests alone at the cost
of interests of the State of U.P. and society.

 Hence, it was unanimously resolved that the Bahujan Samaj Party be split up and a
new faction in the name of Loktantrik Bahujan Dal be constituted under the
Leadership of Shri Rajendra Singh Rana, Member Legislative Assembly. We, the
undersigned Members of Legislative Assembly have constituted a separate group
which represents the new faction arising out of the split. Our number is more than one
third of the total number of Members of the erstwhile Bahujan Samaj Party of the
Legislative Assembly. Page 1004 It is, therefore, requested that the aforesaid
Loktantrik Bahujan Dal be recognised as a separate group within the Legislative
Assembly and a separate arrangement for their seating inside the Assembly be made.
It was signed by 37 M.L.As.

 It is on this application that the Speaker passed an order the same evening and it is
that order that is the subject matter of challenge in the Writ Petition filed before the
High Court. The order of the Speaker records that as per the contents of the
application, a meeting of members, office bearers and Members of Legislative
Assembly belonging to B.S.P. was held on 26.8.2003 in the Darulshafa and in this
meeting, it was unanimously resolved that a new faction in the name of Loktantrik
Bahujan Dal under the leadership of Rajendra Singh Rana be constituted. The Speaker
proceeded to reason that the number of members who have constituted the group are
seen to be 37 out of 109 and that would constitute one-third of the total number of
Legislators belonging to B.S.P. In view of the objections raised by Maurya, who had
filed the caveat before him, the Speaker verified whether 37 members had signed the
representation or application. Since they were present before him and were identified,
he proceeded on the footing that 37 M.L.As. of B.S.P. had appeared before him with
the claim.
  The Speaker noticed the contention of the caveator that the burden of proving any
split in the original political party lay on the 37 M.L.As. and that unless they establish
a split in the original political party, they could not resort to paragraph 3 of the Tenth
Schedule to the Constitution and claim that there has been a split in the political Party
and consequently they have not incurred disqualification under paragraph 2 of the
Tenth Schedule. Further, overruling the contention of the caveator that the decision
relating to the split could be taken only by the Election Commission and overruling
the contention that the original 13 members who had left the Party or voluntarily
given up their membership of the Party did not constitute one- third of the total
number of the Legislators belonging to B.S.P. and hence they are disqualified, the
Speaker proceeded to say that the first condition to satisfy the requirement of
paragraph 3 of the Tenth Schedule was only that the members must have made a
claim that the original legislature Party had split and they should show that as a
consequence, the legislature Party has also split and that the split group had one-third
of the members of the legislature Party. Therefore, the Speaker taking note of the one-
third legislators before him proceeded on the basis that it would be sufficient if a
claim is made of a split in the original political Party.

The Speaker formulated the position thus:

Under para 3 following conditions have to be fulfilled:

1. The making of a claim by any Member of a House that he and some other members of his
legislature party have constituted a group representing a faction which has arisen as a
consequence of split in his original political party.

2. The newly constituted group has at least one third of the total number of members of such
legislature party.
Page 1005 If in a case the aforesaid two conditions are fulfilled, the person making such a
claim and the other members will not be disqualified from the membership of the Legislative
Assembly on the grounds mentioned in para 2 of the 10th Schedule.

3. The Speaker also overruled the argument that only 13 M.L.As. had originally quit the
original political party and they should be disqualified and the others subsequently joining
them would not improve the position. The Speaker proceeded to observe that he had to decide
the question of disqualification of the 13 M.L.As. raised by Maurya functioning as a Tribunal
and he would be taking a decision thereon at the appropriate time. It was thus that the claim
of 37 members of a split, was recognised by the Speaker. The Speaker thus did not decide
whether there was a split in the original political party, even prima facie.

4. The same day, the Speaker also entertained another application from the 37 M.L.As. and
ordered that he was recognising the merger of the Lok Tantrik Bahujan Dal in the Samajwadi
Party.

The Speaker had relied on an observation in Ravi S. Naik v. Union of India to justify the
acceptance of the position adopted by the 37 M.L.As. for recognition of a split that it was
enough if they made a claim of split in the original political party. In paragraph 36 of that
judgment, after setting down the two requirements as:

(i) The member of a House should make a claim that he and other members of his legislature
party constitute the group representing a faction which has arisen as a result of a split in his
original party; and

(ii) Such group must consist of not less than one-third of the members of such legislature
party.

This Court observed:

 In the present case the first requirement was satisfied because Naik has made such a
claim. The only question is whether the second requirement was fulfilled.
  But the Speaker failed to notice the following sentence in paragraph 38 of the same
judgment wherein it was stated.

 As to whether there was a split or not has to be determined by the Speaker on the
basis of the material placed before him.

 Thus, there was no finding by the Speaker that there was a split in the original
political party, a condition for application of paragraph 3 of the Tenth Schedule.

Holdings (Applied Rule of Law):

Article 191 of the Constitution of India deals with the disqualification for membership of
legislative assemblies just like Article 102 deals with disqualification for membership to the
Houses of Parliament. Article 102 and Article 191 came to be amended by the Constitution
(Fifty- second Amendment) Act, 1985).

DATE: 18.09.2023

Judgements of Supreme Court pertaining to the Duties of Directors under

the Companies Act, 2013. & Research Work.
1. The main source which governs the actions of the directors is the judiciary. In
the Indian scenario, the judiciary has interpreted and incorporated the directors’
duties as found in other common law jurisdictions. The Indian judiciary heavily
relies on English authorities for interpretation of directors’ duties.

 In Nana Lal Zaver and Anr. V. Bombay Life Assurance Company Limited and
Ors. the Court upheld that Section 105(C) imposes obligations on the directors of
companies and as long as they are complied with, the Court would not interfere. J.
Mahajan noted that the director of the company must act in the interest of the
company. J. Das concurred in his view with J. Mahajan and said that when a director
acts against the interest of the company, the court would interfere on the basis that
there is a relationship of a trustee and of Cestui Que trust i.e., beneficiary of a trust
between the directors and the company. To conclude, the directors should not use their
powers to maintain their control over the affairs of the company or minority
shareholders.

 One of the important questions that arose in this case was “Whether the courts can
replace the judgement of directors, who have knowledge of business with their own
knowledge?”.

 In Bank of Poona Limited v. Narayandas Shriman Somani, the Court said that “the
directors of a company have a peculiar position in the management of a company
since it must act through others. They are treated as being in a fiduciary position and
greatest good faith is expected in the discharge of their duties. This provision is
enacted so that they would be prevented from acting in such a manner that duty and
self-interest should conflict. This section would appear to be intended for the
protection of the interests of the company and if that is so the contract could not be
avoided by the defaulting director.” In short, good faith is expected in the discharge of
their duties and the directors shall not use it for their personal gain. The Court said
that “the directors of a company have a peculiar position in the management of a
company since it must act through others. They are treated as being in a fiduciary
position and greatest good faith is expected in the discharge of their duties. This
 provision is enacted so that they would be prevented from acting in such a manner
that duty and self-interest should conflict. This section would appear to be intended
for the protection of the interests of the company and if that is so the contract could
not be avoided by the defaulting director.” In short, good faith is expected in the
discharge of their duties and the directors shall not use it for their personal gain.

 Corporate law aims at controlling the agency problems among corporate

constituencies. There are 3 generic agency problems and that are manager-
shareholder, minority-majority, and the shareholder-stakeholder agency problem.
Amongst all these three-agency problem, the one which is largely prevalent is
majority-minority agency problem.

 In Om Prakash Khaitan V. Shree Keshariya Investment Limited and Ors. The

Court relived Om Prakash Khaitan, the director of any liability because it held that it
was unreasonable to fasten liability on directors for the defaults and breaches of a
company where such directors are either the nominee directors or are appointed by
virtue of their special skill or expertise. In such cases, the directors should be relieved
of their liability unless they are directly involved in the act complained or otherwise
not acted honestly or have financial involvement in the company.

 In Dale and Carrington Investment Private Limited and Anr. V. PK Prathapan

and Ors., The Supreme Court held that the directors in a private limited company are
expected to make a disclosure to the shareholders of such a company when further
shares are being issued and this flows from their duty to act in good faith and make
full disclosure to the shareholders regarding the affairs of a company.

 The Court then referred to the Needle Industries Case. The Court referred to various
old English cases in the above judgement, which the Court in the present case, cited
with approval. This Court upheld the principle as cited in the English case of Piercy
v. S. Mills and Company Limited, that directors are not entitled to use their powers
of issuing shares merely for the purpose of maintaining their control or the control of
themselves and their friends over the affairs of the company, or merely for the
purpose of defeating the wishes of the existing majority of shareholders. The Court
 finally concluded taking into account the judgements in Needle Industries case and
Tea Brokers case. The Indian Court have also applied the same test while testing
exercise of powers by directors of companies as in other Commonwealth countries.
Thus, the Court stated that the motive for the allotment was mala fide, hence the
allotment must be set aside.

 Thus, it is clearly visible that the Indian Courts have been strict towards the
interpretation of directors’ duties. They have made it clear to the directors that they
must exercise their power with due care, diligence, skill and independent judgement,
and company’s interest has to be considered always.

Cases Where CEO has Committed Fraud and due to which directors have
suffered.

 In the Indian outsourced IT-services market, Satyam Computer Services Limited was
a rising star. Mr. Ramalinga Raju established the firm in Hyderabad in 1987. The
company began with 20 workers and quickly expanded to become a worldwide
company with operations in 65 countries across the world. Satyam was the first Indian
business to be listed on three global stock exchanges, namely New York Stock
Exchange (NYSE), DOW Jones, and EURONEXT.
 After TCS, Infosys, and Wipro, it was recognized as India’s fourth-largest software
exporter. The corporation had significant expansion in the 1990s. Satyam
Renaissance, Satyam Info way, Satyam Spark Solutions, and Satyam Enterprise
Solutions were formed as a result of the same. Satyam Info Way (Sify) was the first
Indian internet business to be listed on the NASDAQ. In the new century, Satyam
 acquired a number of firms, extended its operations to a number of countries, and
signed MoUs with a number of international corporations.
 Satyam continued to add feathers to its cap by becoming the first company in the
world to start a Customer-Oriented Global Organisation training program in May
2000, signing contracts with a slew of international players
including Microsoft, Emirates, TRW, i2 Technologies, and Ford, claiming the
honour of being the first ISO 9001:2001 company in the world certified by BVQI,
and establishing a global presence by opening offices in Singapore, Duba, and Dubai.
 In the fiscal year 2003-2004, Satyam’s total revenues were Rs. 25,415.4 million. By
March 2008, the company’s sales revenue had increased by more than thrice. During
that time, the firm grew at a compound annual growth rate of 38 percent. The average
operational profit, net profit, and operating cash flows were 28, 33, and 35 percent,
respectively. Additionally, profits per share (EPS) surged at a 40 percent compound
annual growth rate, from $0.12 to $0.62. Satyam clearly generated significant
corporate growth and shareholder value. In a worldwide IT business, the company
was a rising star and a household brand. Unfortunately, Satyam became the focus of a
large accounting scam within less than five months after earning the Global Peacock
Award.

What Led to Fraud?

 Satyam’s problems began when its chairman, Mr. Ramalinga Raju, announced a $1.6
billion offer for two Maytas firms, namely, Maytas Infrastructure Ltd and Maytas
Properties Ltd, on December 16th, 2008, indicating that he wished to use the capital
available for the benefit of investors. Raju’s family has promoted and controlled the
two businesses. Investors and the market both gave him the thumbs down, forcing
him to withdraw within 12 hours. Concerns regarding Satyam’s corporate governance
caused a 55 percent drop in share values of the company. Satyam was forbidden from
doing business with the World Bank for eight years on December 23, 2008, after the
international institute charged it with data theft and corrupting its employees.
 On December 28, 2008, one independent director of the company, US academician
Mangalam Srinivasan, announced his resignation, followed by three more
independent directors, Vinod K Dham (famously known as the father of the Pentium
 and an ex-Intel employee), M Rammohan Rao (Dean of the prestigious Indian School
of Business), and Krishna Palepu (professor at Harvard Business School).
 B. Ramalinga Raju resigned as chairman of Satyam on January 7, 2009, after
admitting to a financial scam involving over Rs. 7800 crore. In his letter, he indicated
that his purchase of Maytas firms was his final attempt to replace fictional assets with
genuine ones. It was like riding a tiger and not knowing how to get off without getting
devoured, he said in his letter. Satyam’s proprietors, B Ramalinga Raju and his
brother B Rama Raju, were detained by state police in Andhra Pradesh, and the firm
was taken over by the Central Government.
 Under the Indian Penal Code, 1860, the Raju brothers were charged with criminal
breach of trust, cheating, criminal conspiracy, and forgery. Satyam’s board was
reformed by the Central Government, and three members were appointed, namely, the
HDFC Chairman Deepak Parekh, Ex NASSCOM Chairman and IT specialist Kiran
Karnik, and former SEBI member C Achuthan.
 CII chief mentor Tarun Das, former president of the Institute for Chartered
Accountants (ICAI) TN Manoharan, and LIC’s S Balakrishnan were all named to the
reconstituted Board by the Central Government. Satyam’s
auditors PriceWaterhouseCoopers (PwC) ultimately stated that their audit report
was incorrect because it was based on incorrect financial statements submitted by
Satyam’s management, a week after Satyam founder B Ramalinga Raju’s sensational
confession.
 Satyam’s CFO Srinivas Vadlamani confessed to having inflated the number of
employees by 10,000 on January 22, 2009. He informed CID investigators that this
enabled him to withdraw roughly Rs 20 crore per month from the related but fictitious
salary accounts.
 Andhra Pradesh State CB-CID had raided the house of Suryanarayana Raju,
Ramalinga Raju’s younger brother who owned 4.3 percent of Maytas Infra. 112 sale
deeds of different land purchases and development agreements were recovered from
the house. PricewaterhouseCoopers (PwC) senior partners S Gopalakrishnan and
Srinivas Talluri were detained for their suspected participation in the Satyam scam.
They were arrested by the state’s CID police on allegations of fraud (Section 420) and
criminal conspiracy (Section 120B).

Parties Responsible in the Case:

  Mr. Raju was the prime perpetrator of the deception. Mr. Raju, as well as secondary
actors such as the CFO, the managing director, the company’s worldwide head of
internal audit, and Mr. Raju’s brother, have been charged with the offence of fraud by
Indian authorities. In addition, Satyam’s auditors and Board of Directors share some
blame for the scam because they failed to locate it. Finally, the Satyam crisis was
exacerbated by the ownership structure of Indian corporations.

Remedies Available:

Punishment for Fraud. S. 447, COMPANIES ACT, 2013

 Without prejudice to any liability including repayment of any debt under this Act or
any other law for the time being in force, any person who is found to be guilty of
fraud 1[involving an amount of at least ten lakh rupees or one per cent. of the turnover
of the company, whichever is lower] shall be punishable with imprisonment for a term
which shall not be less than six months but which may extend to ten years and shall
also be liable to fine which shall not be less than the amount involved in the fraud, but
which may extend to three times the amount involved in the fraud: Provided that
where the fraud in question involves public interest, the term of imprisonment shall
not be less than three years.

 Provided further that where the fraud involves an amount less than ten lakh rupees or
one per cent. of the turnover of the company, whichever is lower, and does not involve
public interest, any person guilty of such fraud shall be punishable with imprisonment
for a term which may extend to five years or with fine which may extend to fifty lakh
rupees or with both. Explanation.—For the purposes of this section— (i) “fraud” in
relation to affairs of a company or any body corporate, includes any act, omission,
concealment of any fact or abuse of position committed by any person or any other
person with the connivance in any manner, with intent to deceive, to gain undue
advantage from, or to injure the interests of, the company or its shareholders or its
creditors or any other person, whether or not there is any wrongful gain or wrongful
loss; (ii) “wrongful gain” means the gain by unlawful means of property to which the
 person gaining is not legally entitled; (iii) “wrongful loss” means the loss by unlawful
means of property to which the person losing is legally entitled.

DATE: 19.09.2023

Tara Devi

V.

Sri Thakur Radha Krishna Maharaj (1987)

Facts of the Case:

 This is a petition on special leave against the judgment and order dated January 11,
1987 of the High Court of Judicature of Patna passed in C.R. No. 1385 of 1985.
  The plaintiff-respondent filed a suit for declaration that pattas dated 15.12.1948,
1.7.1950, 24.4.1951 and 26.11.1952 executed by Nagendra Prasad Bhagat in the name
of defendant No. 1 were illegal, ineffective and not binding on the plaintiff. There was
also a prayer for recovery of possession with mesne profits. The suit was valued on
the basis of the rent payable for the land. The defendant filed a written statement and
thereafter raised a preliminary objection that the plaintiff has undervalued the suit and
also challenged the jurisdiction of the Court to entertain the suit. The Trial Court has
held that the suit is governed by Section 7(IV)(c) of the Court Fees Act, 1870 and
the plaintiff has rightly valued the lease hold interest created by the lessee. The
plaintiff is entitled to put his own valuation of the reliefs claimed. The valuation, it
has been held, was not arbitrary and unreasonable and as such it was held that the
plaintiff has rightly valued the suit and proper court fee has been paid thereon.

 Against this judgment and order a Revision Petition being Civil Revision No. 1385 of
the 1985 was filed in the High Court Patna. The said Revision Petition was admitted
and thereafter it was referred to the full bench for decision of the question whether in
a suit for declaration with consequential relief falling under Clause (iv)(c) of Section
7 of Court Fees Act. 1870, the Court has jurisdiction to examine the correctness of
the valuation given by the plaintiff and whether the plaintiff has an absolute right or
option to place any valuation whatever on the relief claimed in such a suit.

Issues of the Case:

 Court has jurisdiction to examine the correctness of the valuation given by the
plaintiff and whether the plaintiff has an absolute right or option to place any
valuation whatever on the relief claimed in such a suit.
Arguments:

 The plaintiff-respondent filed a suit for declaration that pattas dated 15.12.1948,
1.7.1950, 24.4.1951 and 26.11.1952 executed by Nagendra Prasad Bhagat in the name
of defendant No. 1 were illegal, ineffective and not binding on the plaintiff. There was
also a prayer for recovery of possession with mesne profits. The suit was valued on
the basis of the rent payable for the land.

 The defendant filed a written statement and thereafter raised a preliminary objection
that the plaintiff has undervalued the suit and also challenged the jurisdiction of the
Court to entertain the suit. The Trial Court has held that the suit is governed
by Section 7(IV)(c) of the Court Fees Act, 1870 and the plaintiff has rightly valued
the lease hold interest created by the lessee. The plaintiff is entitled to put his own
valuation of the reliefs claimed. The valuation, it has been held, was not arbitrary and
unreasonable and as such it was held that the plaintiff has rightly valued the suit and
proper court fee has been paid thereon.

Judgement:

 It has been held by the High Court considering several decisions including the
decisions of this Court in Sathappa Chettiar v. Ramanathan Chettiar as well
as Meenakshisundaram Chettiar v. Venkatachalam Chettiar that the plaintiff has
the right to value the relief claimed according to his own estimation and such
valuation has to be ordinarily accepted. The plaintiff however, has not been given the
absolute right or option to place any valuation whatever on such relief and where the
plaintiff manifestly and deliberately underestimates the relief the Court is entitled to
examine the correctness of the valuation given by the plaintiff and to revise the same
 if it is patently arbitrary or unreasonable. The High Court held that the Munsif came
to a clear rinding that the valuation given by the plaintiff was not at all arbitrary or
unreasonable and as such there was no scope for interference with the said order
under revision. The revision application was so dismissed.

 The instant special leave petition has been filed against the said order. We have heard
the learned Counsel and in our considered opinion we do not find any merit in the
arguments made on behalf of the petitioner. It is now well-settled by the decisions in
this Court in Sathappa Chettiar v. Ramanathan Chettiar (supra)
and Meenakshisundaram Chettiar v. Venkatachalam Chettiar (supra) that in a
suit for declaration with consequential relief falling under Section 7(iv)(c) of the
Court Fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs
sought in the plaint and such valuation both for the purposes of court fee and
jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the
Court on a consideration of the facts and circumstances of the case that the valuation
is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the
Court can examine the valuation and can revise the same. The plaintiff has valued the
lease hold interest on the basis of the rent. Such a valuation, as has been rightly held
by the Courts below, is reasonable and the same is not demonstratively arbitrary nor
there has been any deliberate underestimation of the reliefs. We, therefore, do find
any reason to grant special leave to appeal asked for in the petition as the order passed
 in the said Revision is unexceptional. The special leave petition is therefore
dismissed. There will however be no order as to costs.

Holdings (Applied Rule of Law):

 Section 7(IV)(c) of the Court Fees Act, 1870.

DATE: 20.09.2023

Case Laws on EPF dues (Insolvency and Bankruptcy Cases):

1. In its recent judgment in State Bank of India vs Moser Baer Karamchari

Union, the Apex court has reiterated the settled legal position of law pertaining to
treatment of Employees’ provident fund, pension fund and gratuity Fund (“EPF
Dues”) under the Insolvency and Bankruptcy Code, 2016 (“Code”). The primary
reason for various interpretations of how PF dues are treated under the Code ensues
from the overlapping nature of certain provisions within the Code itself, the
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“EPF Act”)
and the Companies Act, 2013. The article traces the judicial trend in treatment of EPF
dues under the code and analyses the reasoning put forth by various adjudicating
authorities in deciding on the rights of the employees of the corporate debtor.

Interpretation of Section 36:

 Section 36 (4)(a)(iii) of the Code excludes “all sums due to any workman or employee
from the provident fund, the pension fund and the gratuity fund” from the liquidation
estate of the corporate debtor thereby, excluding the same, from the purview of the
 waterfall mechanism as enshrined under Section 53 of the Code, which enumerates
the order of priority in which the claims have to be settled against the assets of the
corporate debtor. The EPF claims raised against the assets of the Corporate Debtor are
often opposed by the liquidator or the successful resolution applicant (“SRA”) by
largely relying on the term “workmen’s dues” under Section 53 (b) (ii)of the code
which does not cover the EPF claims.

2. The Hon’ble NCLT Mumbai Bench in the case of Precision Fasteners v Employees
Provident Fund Organization interpreted the term ‘workmen’s dues’ by tracing the
legislative history of the term and purported the meaning by drawing a comparison between
the old regime under the 1956 Act and the current Code. The court referred to Section 529 of
Companies Act, 1956 which lists components such as wages or salaries, remuneration to
approved holidays and sums due to any workman from a provident fund, pension fund,
gratuity, etc. falling under the scope of the term ‘workmen’s dues’.

3. This definition was retained in Sections 326 and 327 of the Companies Act, 2013,
providing for the overriding preferential payments. However, the legislature explicitly
excluded the EPF dues from the liquidation estate under the Insolvency Code by virtue of
Section 36(4)(a)(iii). Thus, under the new regime not only has the legislature extended the
earlier law, but also fortified the rights of workmen with respect to EPF dues. This enables
them to claim their EPF dues without being subjected to the waterfall mechanism under
Section 53 of the Code. Such an interpretation perfectly aligns with the purpose and object of
the EPF Act of protecting the rights of the employees for it being a social welfare legislation.
This was aptly highlighted by the Apex court in the case of Employees Provident Fund
Commissioner. O.L. of Esskay Pharmaceuticals Ltd., wherein it observed that:

 “The EPF Act is a social welfare legislation intended to protect the interest of a
weaker section of the society, i.e., the workers employed in factories and other
establishments who have made significant contribution in economic growth of the
country. The workers and other employees provide services of different kinds and
ensure continuous production of goods, which are made available to the society at
large.”
4. The current judicial trend in treating the EPF dues under the provisions of EPF Act and the
Code is highly characterised by judicial protectionism towards the employees, which is in
line with the legislative intent behind explicit exclusion of EPF dues under Section 36 (4)(a)
(iii) of the Code. This position of law with regard to explicit exclusion of EPF dues from the
liquidation estate has now been endorsed and concretized by the Apex court in Sunil Kumar
Jain v Sundresh Bhatt by explicitly stating that ‘Section 36(4) of the IB Code’ has clearly
given outright protection to workmen’s dues under provident fund, gratuity fund and pension
fund, which are not to be treated as liquidation estate assets and the liquidator shall have no
claim over such dues.’

DATE: 21.09.2023

Bobby Art International

V.

Om Pal Singh Hoon (1996)

Facts of the Case:

 In 1994, Bobby Art International, a film production company, made a film titled
“Bandit Queen” which was based on a true story about a village girl who was raped
and brutalized, and who subsequently became a member of a violent criminal gang as
a means of revenging herself upon society. The film was based on the book about the
incident written by Mala Sen. The film contained explicit scenes of rape and nudity.
In July 1995, the Censor Board indicated that it would grant the film an “A”
certificate (films considered suitable for exhibition restricted to adults only) in terms
 of the Cinematograph Act, 1952 (the Act) but only on the condition that certain
scenes were deleted or modified.
 The Act stated that “a film shall not be certified for public exhibition if, in the opinion
of the authority competent to grant the certificate, the film or any part of it is against
the interests of, inter alia, decency”. In addition, in 1991 the Indian Government had
issued guidelines in terms of the Act which stipulated that film certification must
ensure that “artistic expression and creative freedom are not unduly curbed” and that
“certification is responsive to social change”. The guidelines also obliged the Censor
Board to ensure that “human sensibilities are not offended by vulgarity, obscenity or
depravity” and that “scenes involving sexual violence against women like attempt to
rape, rape or any form of molestation or scenes of a similar nature are avoided” and
should be kept to a minimum if absolutely necessary.
 As a result of the condition that certain scenes be deleted or amended, the order of the
Censor Board was appealed to the Appellate Tribunal (the Tribunal). The Tribunal
held that the impugned scenes and the use of vernacular slurs was permissible and
added that “to delete or to reduce these climactic visuals would be a sacrilege.” By a
unanimous order of the Tribunal, an “A” certificate was granted to the film without
requiring deletion or modification of any scenes.
 The film was first screened on August 31, 1995 at a film festival and was opened for
public viewing on January 25, 1996. Om Pal Singh Hoon, a member of the specific
community portrayed in the film, filed a petition before the Delhi High Court seeking
the quashing of the “A” classification and a restraint on the exhibition of the film in
India on the grounds that the portrayal of the main character was “abhorrent and
unconscionable and a slur upon the womanhood of India.” He also claimed that the
film portrayed his community in a depraved way and lowered his self-respect. Hoon
submitted that his rights under articles 14 (right to equality), 19 (right to freedom of
expression) and 21 (right to life and personal liberty) of the Constitution had been
infringed.
 The Court of first instance quashed the “A” classification, and ordered the Censor
Board “to consider the grant of an ‘A’ certificate to it after excisions and
modifications in accordance with his order had been made”. In addition the Court
granted an injunction against the screening of the film until a fresh certificate had
been issued. Bobby Art appealed to the Division Court which upheld the judgment of
 the Court of first instance, holding that “the scene of violent rape was disgusting and
revolting and it denigrated and degraded women” and that the scenes of nudity were
“indecent”.
 Bobby Art then petitioned the Supreme Court.

Issues of the Case:

 The writ petition was filed by the first respondent to quash the certificate of exhibition
awarded to the film "Bandit Queen" and to restrain its exhibition in India.

Contentions:

 The first respondent stated in the writ petition that the was a Hindu and Gujjar by
caste. He was the president of the Gujjar Gaurav Sansthan and involved in the
welfare of the Gujjar community. He had seen the film when it was exhibited at
the International Film Festival; he had felt aggrieved and his fundamental rights
had been violated. Though audiences were led to believe that the film depicted the
character of "a former queen of ravings" also known as Phoolan Devi, the
depiction was "abhorrent and unconscionable and a slur on the womanhood of
India".

 The petitioner and his community had been depicted in a most depraved way
specially in the scene of rape by Babu Gujjar, which scene was "suggestive of the
moral depravity of the Gujjar community as rapists and the use of the name Babu
Gujjar for the principal villian lowered the reputation of the Gujjar community and
 the petitioner. It lowered the respect of the petitioner in the eyes of society and his
friends. The scene of rape was obscene and horrendous and cast a slur on the face
of the Gujjar community. The film went beyond the limits of decency and lowered
the prestige and position of the woman in general and the community of Mahallas
in particular. The first respondent had been discriminated against and Articles 14,
19 and 21 of the Constitution had been violated.

Judgement:

 Bharucha J delivered the judgment of the two-judge bench of the Supreme Court. The
central issue before the Court was whether the graphic nudity and obscenity in the
film was a sufficient reason to justify the infringement of Bobby Art’s freedom of
expression.
 Bobby Art International argued that the Tribunal was the expert body in this regard
and had determined that the film was appropriate. The film company emphasized that
three of the four-member panel of the Tribunal were women and that they had not
found the film offensive.
 Hoon submitted that the courts below had been correct in quashing the certificate and
prohibiting the screening of the film because the film was abhorrent. He argued that
the film violated his own freedom of speech and expression.
 Bharucha referred to the 1970 Indian case of Abbas v. Union of India where
the Chief Justice Hidayatullah held that “the standards that we set for our censors
must make a substantial allowance in favour of freedom thus leaving a vast area for
creative art to interpret life and society with some with some of its foibles along with
what is good”. In that case, the Chief Justice had noted that it would be an error to
conflate sex and obscenity as “it is wrong to classify sex as essentially obscene or
even indecent or immoral.” He had noted that it was not the “elements of rape,
leprosy, sexual immorality” that should be censored but rather that “how the theme is
handled by the producer” determines the need for restriction.

 Bharucha also referred to the 1980 Supreme Court case of Raj Kapoor v. State, the
1985 Supreme Court case of Samaresh Bose v. Amal M, and the 1962 Supreme
Court case of State of Bihar v. Shailabala Devi and noted that these cases had
 emphasized that vulgar writing is not necessarily obscene and that consideration must
be given to the writing as a whole (rather than isolated passages or scenes).

 With reference to the 1962 Supreme Court case of Sakal Papers v. Union of
India and the 1992 Supreme Court case of Life Insurance Corporation of India v.
Manubhai, Bharucha stressed that the only permissible restrictions to the right to
freedom of expression protected by article 19 of the Constitution are those permitted
by article 19 itself. Bharucha confirmed that the guidelines given to the Censor Board
are “broad standards” and that “[w]here the theme is of social relevance, it must be
allowed to prevail”.

 In applying the jurisprudence and guidelines to the present case, Bharucha

commented that “Bandit Queen” “tells a powerful human story”. He held that
the scene in which the main character is humiliated by being stripped naked and
paraded around could not have had its intended effect in any manner other than by
explicitly showing the scene depicting her humiliation. He added that, in this film,
“[r]ape and sex are not being glorified” but are used to focus on the “trauma and
emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist”.
In addition, Bharucha noted that the expletives used in the movie were commonly
used and “no adult would be tempted to use them because they were used in the film”.
 Bharucha referred with approval to the exampled provided by the Tribunal which had
compared this film to “Schindler’s List” in which nudity was used to tell the story and
demonstrate the stripping of the characters’ dignity.
 In conclusion, Bharucha held that the message of a serious film should be recognized
and the test to be applied was whether the individual scenes advance the film’s
message. If the scenes did advance the message Bharucha held that the scenes should
not be censored and that a certificate of an “A” rating would be sufficient caution as
 adult citizens could be “relied upon to comprehend intelligently the message and react
to it”. He reiterated that “a film illustrating the consequences of social evils must
necessarily show that social evil”, and that “a film that carries the message that the
social evil is evil cannot be made impermissible on the ground that it depicts the
social evil”. The Judge also stressed that the determination of whether the manner in
which the social evil is depicted is necessary to tell the story should be left to the
experts within the Tribunal.
 Bharucha acknowledged that in this case the majority of the Tribunal’s members were
women and that it should not be supposed that “three women would permit a film be
screened which denigrates women, insults India womanhood or is obscene or
pornographic”.
 Accordingly, the Court held that the Tribunal’s classification of the film as “A” was
appropriate and that the lower Courts did not adequately consider that the use of
nudity and expletives was simply to further the telling of the story. The Court set
aside the High Court’s order and reinstated the Tribunal’s “A” classification.

Holdings (Applied Rule of Law):

 Section 5-B of the Cinematograph Act, which echoes Article 19(2), states that a
film shall not be certified for public exhibition if, in the opinion of the authority
competent to grant the certificate, the film or any part of it is against the interests
of, inter alia, decency. Under the provisions of sub-section (2) of Section 5-B the
Central Government is empowered to issue directions section out the principles
which shall guide the authority competent to grant certificates in sanctioning films
for public exhibition.
DATE: 22.09.2023

M/s Siddeshawari Cotton Mills Pvt. Ltd.

V.

U.O.I (1989)

Facts of the Case:

 The appellant manufactures cotton fabric on power looms. By virtue of two

notifications issued under Rule 8(1) of the Central Excise Rules 1944 unprocessed
cotton fabric was exempt from excise duty as also additional duties. Since the
appellant was using the process of ’calendering’, the Central Excise authorities held
that the cotton fabric manufactured by it ceases to be "unprocessed".

 The collector of Central Excise, directed the appellant to pay levy on the manufacture
of the calendered cotton fabric, and also levied a penalty of Rs. 1,00,000 under Rule
173. On appeal, the Central Board of Excise and Customs affirmed the levy of duty,
but set aside the imposition of penalty. The appellant preferred an appeal before the
Customs, Excise and Gold (Control) Appellate Tribunal.

 The Tribunal held that calendering is a finishing process and it was not necessary for
the process of calendering to be a process which belonged to the same genus as those
enumerated in Sec. 2(f)(v) to take the cotton fabric out of the exemption. It would be
sufficient that of calendering is a "process" of cotton fabric even if it does not partake
of the other processes specifically enumerated in the preceding expression in Section
2(j)(v)2. In that view of the matter the Tribunal dismissed the appeal preferred by the
appellant.

Issues of the Case:

  Whether the Cotton Manufacturing will be a part
of the term “Any other process” which was used in the Statute which superseded the
words bleaching, mercerising, dyeing, printing, water-proofing, rubberising, shrink
proofing, organdie processing?

 Whether the appellant which manufactures cotton on power looms are exempted from
the duties of the excise and also the additional duties mentioned in the act?

 Does it lose the benefit of exemption by process of calendaring on a calendaring plant

which is present in the Appellant’s premises?

 Whether cotton fibre ceases to be “unprotected” cotton fibre if subjected to

calendaring? Central Excise Act 1944, s 2(f)(v).

Contentions:

 On behalf of the appellant, it was contended that "plain calendering" process neither
adds anything to the cotton fabric nor the effect brought about by it is lasting; it was
purely a temporary finish and that having regard to the nature of the process it is
plainly manifest that it does not impart to the fabric either of the two ingredients
necessary to bring the process into the family of processes envisaged by the preceding
expressions in Sec. 2(f)(v).

 On behalf of the Revenue, it was submitted that since the Tribunal had not specifically
examined this aspect and recorded its finding thereon, it would be appropriate to remit
the matter to the Tribunal.

Judgement:

Allowing the appeal, and remitting the matter to the Appellate Tribunal for a fresh disposal,
the Court,
 The expression ejus dem generis---’of the same kind or nature’--signifies a principle
of construction whereby words in a statute which are otherwise wide but are
associated in the text with more limited words are, by implication, given a restricted
operation and are limited to matters of the same class are genus as preceding them. If
a list or string or family of genus-describing terms are followed by wider or residuary
or sweeping-up words, then the verbal context and the linguistic implications of the
preceding words limit the scope of such words. But the preceding words or
expressions of restricted meaning must be susceptible of the import that they represent
a class. If no class can be found, ejus-dem-generis rule is not attracted and such broad
construction as the subsequent words may admit will be favoured. [220F; 221A-B].

 S.S. Magnhild (owners) v. Mc Intvre Bros. & Co., [1920]; Tribhuban Parkash
Nayyar v. Union of India, [1970] and U.P.S.E. Board v. Hari Shankar, AIR 1979
relied on. Statutory Interpretation by Rupert Cross; Statutory Construction by Francis
Bennian, relied on.

 The definition of "manufacture" obtaining in Sec. 2(f) of the Central Excise Act was
amended by Act 5 of 1986 giving it an extended meaning. [220A] Empire Industries
v. Union of India, [1985] relied on.

 In the present case the expressions ’bleaching, mercerising, dyeing, printing, water-
proofing, rubberising, shrink-proofing, organdie processing’ which precedes the
expression ’or any other process’ contemplate processes which impart a change of a
lasting character to the fabric by either the addition of some chemical into the fabric
or otherwise. ’Any other process’ in the section must, share one or the other of these
incidents. The expression "any other process" is used in the context of what
constitutes manufacture in its extended meaning and the expression "unprocessed" in
the exempting notification draws its meaning from that context. [222G-H; 223A].
 The Judgment of the Court was delivered by VENKATACHALIAH J. This appeal
under Section 35-L of the Central Excise and Salt Act, 1944, (ACT) by Messrs
Siddeshwari Cotton Mills (P) Ltd., preferred against the appellate order dated
16.3.1984, of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi,
raises a short question whether the appellant, which manufactures cotton fabric on
 power looms which is otherwise exempt from duties of excise and the additional
duties of excise respectively under Notification No. 230/77 and 231/77 dated
15.7.1977, loses the benefit of exemption by process of ’calendering’ on a calendering
plant situated in the appellant’s premises.

 The Notification 230/77. CE dated 15.7.1977 issued by Central Government under

Rule 8(1) of the Central Excise Rules, 1944, exempts from the whole of the duty of
Excise, ’unprocessed’ cotton fabric, falling under sub-item (1) of item No. 19 of the
First Schedule to the Act, which is manufactured on power looms (without spinning or
processing plants) installed and worked with the permission of the Textile
Commissioner. Likewise, Notification 1977 exempts such cotton fabric from payment
of the additional duties of excise.

 The question in the appeal is whether such cotton fabric ceases to be "unprocessed"
cotton-fabric if it is subjected to calendering. The Tribunal has held in the affirmative
and has upheld the levy of duty imposed on the appellant. We have heard Sri Soli J.
Sorabjee, learned Senior Counsel for the appellant and Sri A,K. Ganguly, learned
Senior Counsel for the Revenue.

 The facts which are not in dispute may briefly be stated. The Central Excise
authorities held appellant to have contravened the provisions of the relevant rules by
manufacturing and removing, between 14.5. 1981 and 19.9.1981.6,09,848.47 Sq.
Metres of calendered cotton fabric falling under item 19-l(b) of the First Schedule to
the Act without payment of Rs.2,62,767.04 leviable thereon as excise duty. The
Collector of Central Excise, Calcutta, directed the appellant to pay the said duty and
also imposed on the appellant a penalty of Rs. 1,00,000 under rule 173-Q. The Central
Board of Excise and Customs, by its order dated 24.8.1982, partly allowed the
appellant’s appeal and while 218 affirming the levy of the duty, however, set aside the
 imposition of the penalty. The further appeal before the Appellate-Tribunal preferred
by the appellant against the confirmation of the levy and the duty came to be
dismissed by the Tribunal’s order dated 16.3.1984 now under appeal.

 Before the Appellate Tribunal it was contended for the appellant that the process of
plain-calendering to which the cotton fabric was subjected, though might, in itself, be
a process in the larger and general sense of that term, would not, however, fall under
"any other process’ within the meaning of Sec. 2(f)(v) the Act. It was contended that
even after the calendering, the cotton-fabric remained an "unprocessed" cotton fabric
and the expression "any other process" in Sec. 2(f)(v) must be considered ejus-dem-
generis, so as to partake of the nature and character of the processes--and belong to
the same genus--as those envisaged in the preceding expressions in that clause. Sec.
2(f)(v’) reads: "in relation to goods comprised in Item No. 19-I of the Schedule to the
Central Excise Tariff Act, 1985, includes bleaching, merce-rising, dyeing, printing,
water-proofing, rubberising, shrink-proofing, organdie processing or any other
process or any one or more of these processes".

 The Appellate Tribunal did not accept this contention. It held: " .... There is prima
facie nothing in the language employed in Section 2(f) and item 19-1 of the CET to
suggest that the words "any other process" will take within sweep only such processes
as are of the same class or genus as the specifically enumerated process- es. It may be
that for the enumerated process- es some extraneous substance may be required. That,
however, would’ not make the processes a class. They enumerated processes from a
group of disparate and dissimilar processes for example, bleaching and rubberising or
dyeing and organdie processing. Significantly, what follows the enumerated process is
not an expression like "any other like process or any such process", in which case it
could be argued that the non-enumerated process should of the same genus or class as
the enumerated ones......” "...... Admittedly, calendering is a finishing process.

 The machine employed may be a simple or complex one. The effect ought to be
brought about may be simple or not. That, however, would not mean that calendering
is not a process. In fact, from the sample produced by the appellants before us it was
 seen that the appellants had stamped cotton sarees as calendered. It was stated before
us that the sarees were sold as calendered. Saree calendering will thus fail within the
ambit of the expression "any other process" occurring in Section 2(f) and Item 19-I
CET particularly when sub-item (b) of Item 19-1 is read in juxta position with sub-
item (a) which covers cotton fabrics not subjected to any process."

 In this view of the matter; the Appellate Tribunal did not accept the contention that
though "calendering" might be a "process", it is not any ’process’ that satisfies the
requirement of "any other process" occurring in sec. 2(f)(v), but only those processes
that partake of the same common characteristic of and belong to same genus as the
processes such as bleaching, mercerising, dyeing, printing, waterproofing,
rubberising, shrink-proofing, or organdie processing occurring in Section 2(f)(v). The
Appellate Tribunal held that it was not necessary for the "process" ,--process of
calendering in’ the present case--to be a process which belongs to the same genus as
those enumerated in sec. 2(f)(v) to take the cotton-fabric out of the exemption and that
it would be sufficient that if calendering is a "process" of cotton fabric even if it does
not partake of the other processing specifically enumerated in the preceding
expressions in Section 2(f)(v).

 Accordingly, the Appellate Tribunal did not specifically examine the alternative
position whether the process of calendering of the type and kind adopted by the
appellant really shared the common element or characteristic possessed by the other
processes specifically enumerated. Therefore, if it is to be held that the expression
"any other process" in Sec. 2(f)(v) must be understood and construed ejus-dem-
generis, then the question whether the "process" of calendering employed in the
present case belongs to the same genus as the processes envisaged in the preceding
expressions in the section would have to be examined afresh.

 The definition of "manufacture" obtaining in Sec. 2(f) of the Act was amended by Act
5 of 1986 giving it an extended meaning. In repelling the contention that the extended
 meaning was introduced as an artificial concept of "manufacture" not belonging to,
but outside, Entry 84 of List 1 of the Seventh Schedule to the Constitution, this Court
in Empire Industries v. Union of India, [1985] held: "As has been noted, processes
of the type which have been incorporated by the impugned Act were not so alien or
foreign to the concept of "manufacture" that these could not come within that
concept." If, accordingly, the processes such as bleaching, mercerising, dyeing,
printing, water-proofing, rubberising, shrink-proofing, organdie-processing, are not
unrelated to the concept of manufacture and bring .about such a change in the cotton-
fabric as to render it a commercially different product, then by parity of reasoning,
"any other process" in Sec. 2(f)(v) which is a part of the scheme of the extended
meaning of "manufacture" must also share the same characteristic of those other
expression.

Holdings (Applied Rule of Law):

 Central Excises and Salt Act, 1944: Section 2(f)(v), First Schedule Item No. 19(1)
and Notification Nos. 230 and 231 of 1977-Cotton fabric if subjected to
'calendering'---Whether ceases to be 'unprocessed' cotton fabric—Levy of excise duty
—Expression 'any other process' Interpretation of. Statutory Construction: 'Ejus dem
generis' rule—Applicability of Preceding words to control and limit the subsequent
words must rep resent a genus.

DATE: 23.09.2023

State of Karnataka

V.

Udupi Krishna Bhawan (1981)

Facts of the Case:

  The assessee in both the cases is Udipi Krishna Bhavan, Kolar. For the assessment
years ending 31st March, 1977, and 31st March, 1976, the respondent was assessed to
tax on the turnover of food and drinks supplied by it to the visitors. The turnover
included similar transactions at M/s. Sweekar Hotel which is said to be a branch of the
main hotel at Kolar. The respondent preferred two appeals before the Deputy
Commissioner of Commercial Taxes who reduced the turnover to some extent.
Aggrieved by the said orders of the appellate authority, the respondent preferred two
second appeals before the Karnataka Appellate Tribunal. Before the Tribunal, the
respondent placed reliance on the judgment of the Supreme Court in Northern India
Caterers (India) Ltd. v. Lt. Governor of Delhi in which the Supreme Court had held
that supply of food-stuffs in a hotel or restaurant accompanied by service does not
constitute sale as defined under section 2(g) of the Bengal Finance (Sales Tax) Act (6
of 1941) as in force in the Union Territory of Delhi. The Tribunal applied the ratio of
the said judgment and held that the turnover of the respondent does not constitute the
turnover under the Act. Aggrieved by the said common order of the Tribunal, the State
has presented these two revision petitions.

Findings of the Appellate Tribunal:

 The assessee runs a hotel wherein food and drink are served to the visitors. The
assessee declared a turnover of Rs. 5,27,927.01. The assessing authority rejected the
declared turnover and has estimated the total and taxable turnover at Rs. 8,91,699.81.
The first appellate authority dismissed the appeal. The assessee filed a second appeal
to the Appellate Tribunal challenging the order in assessment and the first appeal;

 Before the Tribunal, the assessee objected to the addition of entire turnover. The
Tribunal relying on a decision in Northern India Calerers (India) Ltd. v. Lt.
Governor of Delhi , held that supply of refreshments in restaurant or catering house
for consumption by the visitors is part of the Service and not sale and set aside the
order of the assessing authority directing to delete the disputed turnover.

Issues of the Case:

  Whether the Tribunal was right in holding that the supply of food and drinks by the
assessee was in the nature of service and not sale?

 Whether the Tribunal was right in granting a relief larger than what was sought for?"

Contentions:

 Shri R. G. Devadar, the learned High Court Government Pleader, contended that in
view of the observations of the Supreme Court in its judgment on the review petition
filed in the case of Northern India Caterers, it should be held that the ratio in the main
judgment is in applicable to the case of the assessee and, therefore, the order of the
Appellate Tribunal is liable to be set aside.

 In order to appreciate the contention, it is necessary to set out the findings of the
Appellate Tribunal and the question of law arising for consideration in the revision
petition, as set out in the revision petition. It reads:

Findings of the Appellate Tribunal:

 The assessee runs a hotel wherein food and drink are served to the visitors. The
assessee declared a turnover of Rs. 5,27,927.01. The assessing authority rejected the
declared turnover and has estimated the total and taxable turnover at Rs. 8,91,699.81.
The first appellate authority dismissed the appeal. The assessee filed a second appeal
to the Appellate Tribunal challenging the order in assessment and the first appeal;

 Before the Tribunal, the assessee objected to the addition of entire turnover. The
Tribunal relying on a decision in Northern India Calerers (India) Ltd. v. Lt.
Governor of Delhi , held that supply of refreshments in restaurant or catering house
for consumption by the visitors is part of the Service and not sale and set aside the
order of the assessing authority directing to delete the disputed turnover.
Judgement:

 From the contents of the revision petitions, it is clear that the assessee runs a hotel
wherein food and drink are served to the visitors. On the basis of this fact, the
question of law as arising for consideration and as set out in the revision petition is as
to whether the Tribunal was right in holding that supply of food and drinks by the
assessee was in the nature of service and not sale. In our view, the answer to this
question has to be in the affirmative and in favour of the assessee in view of the ratio
in the main judgment in the case of Northern India Caterers (India) Ltd. The Tribunal
was therefore right in applying the said ratio and setting aside the assessment orders.

 The learned counsel for the petitioner, however, relied on the judgment in review
petition filed in the Northern India Caterers' case. We do not think that the judgment
in the review petition makes any difference as far as this case is concerned. In the
review judgment, Pathak, J., for himself and Tulzapurkar, J., for observed as follows:

 "Indeed, we have no hesitation in saying that where food is supplied in an eating-

house or restaurant, and it is established upon the facts that the substance of the
transaction, evidenced by its dominant object, is a sale of food and the rendering of
services is merely incidental, the transaction would undoubtedly be eligible to sales
tax. In every case it will be for the taxing authority to ascertain the facts when making
an assessment under the relevant sales tax law and to determine upon those facts
whether a sale of the food supplied is intended."

 The clarification made in the above observation is that if in a given case, there is only
sale of food unaccompanied by any service or rendering of service is merely
incidental, the transaction would be eligible to sales tax. In all other respects the view
taken in the main judgment remains unaffected. These observations were made
 obviously for the reason that it was urged for the State that the ratio of the main
judgment would be invoked by restaurant owners in those cases also, where there was
only a sale of food and title passed to the customers. As the finding in this case is that
the assessee was serving food and drinks to visitors for consumption in the premises
of the assessee, the transactions of the assessee are similar to those in the Northern
India Caterers case and the Tribunal was right in applying the said decision.

 In these circumstances, the revision petitions fail and are accordingly dismissed. No
costs.

 Petitions dismissed.

Holdings (Applied Rule of Law):

 Sales tax revision petitions presented under section 8A of the Karnataka

Appellate Tribunal (Amendment) Act (59 of 1976) read with section 23 of the
Karnataka Sales Tax Act, 1957 (hereinafter referred to as the Act).

DATE: 25.09.2023

Emperor

V.

Mt. Dhirajia (1940)

Facts of the Case:

 The Accused i.e., Mt Dhirajia, was a married woman and lived with her husband named
Jhagga in a village. They had a six months old daughter.
  That the husband did not treat his wife well and they often quarrel with each other. The
husband also threatened to beat his wife. That her husband doesn’t like that she would go
to their parent’s house in Bhagatua.

 Later that night, when Jhagga woke up and find that his wife and child were both missing.

 He went on for searching them outside and saw her wife and the child close to the railway
line where she was making her way along the path.

 When she saw her husband was following him, she ran away in panic and ran to some
distance by holding their baby in her arms and either jumped or fell into the deep well
which was a little distance from the path.

 The child died from this incident while the woman was rescued and might have few
injuries.

Issues of the Case:

 Whether this act of jumping into the well was to commit suicide?

 Whether she will be convicted for murder of her own child?

Contentions of the Accused:

She has put forward her version of the affair on three separate occasions: first by a statement
in the nature of a confession; secondly, before the committing Magistrate, and thirdly in the
Court of the Sessions Judge. The first two of these are identical and we need only, therefore,
actually discuss the one before the Magistrate.

She was asked:

1. Did you on 9th August 1939 at about sunrise jump into the well at Sultanpur in order to
commit suicide?
This was her answer:

 There had been a quarrel in my house for three or four days. My husband threatened
to beat me. Thereupon I fled away. He followed me. When I saw my husband coming
after me, I through fear jumped into the well.

And later in another answer she said:

 Yes, I jumped into the well. I did not know that she would the (by doing so). I jumped
into the well through fear of my husband.

Judgement:

 That was perfectly clear and to our minds, quite straightforward statement of fact and
we cannot but regret that in the Sessions Court her statement was changed. There-
possibly on advice-she changed her story and alleged that she did not jump into the
well at all but fell into it by accident. In those circumstances she was tried. The only
issue to which the learned Sessions Judge appears to have addressed his mind, either
in his own deliberations upon the charge under Sec. 302 or in his charge to the jury
under Section 309 was whether as a fact Mt. Dhirajia jumped into the well or fell into
it. His conclusion as expressed in his own judgment is:

 I am, therefore, of opinion that the evidence of Jhagga supported as it is by the two
previous statements of the accused clearly shows that the accused had jumped down
into the well and had not fallen down accidentally.

 He then assumes that it is a case of murder. In the same way the whole purport of his
charge to the jury was that they had merely to decide whether she had jumped
deliberately or fallen by accident into the well. We ourselves, having read the
evidence with considerable care, are satisfied that the story of the falling into the well
by accident is not true. We are satisfied upon the fact that the story told by the
appellant in her own statement before the Magistrate is in substance the true version
of what happened. It is, indeed, supported by the prosecution evidence itself because
 one cannot read her husband's evidence without coming to the conclusion that the
woman was in a panic when she saw her husband coming after her. And we believe
that what she did, she did in terror for the purpose of escaping from her husband.

 Now, upon those facts, what we have to consider-and what we think the learned
Sessions Judge ought to have considered-is whether this satisfies the charges of
murder and of attempted suicide, and if not what the woman has been guilty of. This
raises questions which are not altogether free from difficulty and are of some interest.
To take first the charge of murder, as we all know, according to the scheme of the
Penal Code, 'murder' is merely a particular form of culpable homicide, and one has to
look first to see in every murder case whether there was culpable homicide at all. If
culpable homicide is present then the next thing to consider is whether it is of that
type which under Section 300, Penal Code, is designated 'murder' or whether it falls
within that residue of cases which are covered by Section 304 and are designated
'culpable homicide not amounting to murder.' In order to ascertain whether the case is
one of culpable homicide we have to look at Section 299, Penal Code, which says:

 Whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.

 In this case we can say it at once that we do not, on the facts, attribute to Mt. Dhirajia
an intention to cause the death of her baby. We are satisfied that no such intention was
ever present in her mind. Indeed we think there was no room in her mind for any such
intention having regard to the panic that she was in. But we have to consider whether
what she did, she did with the 'knowledge' that she was likely by such act to cause
death. It has been strongly and very ably argued before us by Mr. Shekhar Saran that
we cannot in this case having regard to all the circumstances attribute to this
unfortunate woman the 'knowledge' of anything at all at that particular moment. We
 desire to pause at this point to say that Mr. Shekhar Saran, who is holding the brief on
behalf of the Government, has very properly and with great ability represented the
appellant herself who was not otherwise represented. We are grateful for his argument
from which we have derived great assistance. The way he puts it is that we must treat
this woman as being in such a state of mind that not only could she have had no
'intention' but she could have had no knowledge either. We regret that we are unable
to go as far as this. 'Intention' appears to us to be one thing and 'knowledge' appears to
us to be a different thing. In order to possess and to form an intention there must be a
capacity for reason. And when by some extraneous force the capacity for reason has
been ousted, it seems to us that the capacity to form an intention must have been
unseated too. But to our minds, knowledge stands upon a different footing. Some
degree of knowledge must, we think, be attributed to every sane person. Obviously,
the degree of knowledge which any particular person can be assumed to possess must
vary. For instance, we cannot attribute the same degree of knowledge to an
uneducated as to an educated person. But we think that to some extent knowledge
must be attributed to everyone who is sane. And what we have to consider here is
whether it is possible for us-treating Mt. Dhirajia as a sane person, which we are
bound to do-to conclude that she could possibly have been ignorant of the fact that the
act of jumping into a well with a baby in her arms was likely to cause that baby's
death. We do not think we can.

 We think that however primitive a man or woman may be, and however frightened he
or she may be, knowledge of the likely consequence of so imminently dangerous an
act must be supposed to have remained with him or her. We have been pressed with
cases by Mr. Saran in which when blows have been struck, it has been discussed
whether knowledge of the likely consequences of those blows can be attributed to the
striker. But we venture to think that such cases as these are fundamentally different
from the case before us. A blow is not per se a necessarily fatal act, especially if the
blow be given with the fist or with one of the less lethal weapons. This is a question
of degree, a question of force, a question of position and so forth, and therefore in
these cases there is ample room for argument as to whether in any particular case,
having regard to the manner in which the particular blow or blows in that case was or
were delivered, there was behind it knowledge that it was likely to result in death.
 But, in this case, the character of the act is in our opinion, fundamentally different.
The act of jumping into a well with a six-months old baby in one's arms can, in our
opinion, but for a miracle, have only one conclusion and we regret that we have to
assume that consequence must have been within the knowledge, but not within the
intention of Mt. Dhirajia.

 For these reasons we think that this was a case of culpable homicide. We must now
proceed to consider whether or not it was murder. We do not propose to set out
verbatim the whole of Section 300, I.P.C., because it is so well known. It provides that
in four cases culpable homicide is always murder, subject to certain specified
exceptions. The first three cases in which culpable homicide is designated as murder
are all cases in which there is found a positive 'intention' in the doer of the act. We
need not waste time on these because, as we have already said, we do not think that in
the circumstances of this case it is possible to attribute to Mt. Dhirajia any positive or
active intention at all. The only case we need discuss is the fourth which is in these
words:

 If the person committing the act knows that it is so imminently dangerous that it must
in all probability cause death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.

 That is the fourth case in which culpable homicide is murder. We have already found
that Mt. Dhirajia must be taken to have known that what she did must in all
probability cause the death of her baby. But this is qualified by the further
requirement that "such act" must be "without any excuse for incurring the risk of
causing death...." The construction of this particular passage of Section 300 is well
settled. It is well settled that it is not murder merely to cause death by doing an act
with the knowledge that it is so imminently dangerous that it must in all probability
cause death. In order that an act done with such knowledge should constitute murder
 it is necessary that it should be committed without any excuse for incurring the risk of
causing the death or bodily injury. An act done with the knowledge of its
consequences is not prima facie murder. It becomes murder only if it can be positively
affirmed that there was no excuse. The requirements of the section are not satisfied by
the act of homicide being one of extreme recklessness. It must in addition be wholly
inexcusable. When a risk is incurred-even a risk of the gravest possible character
which must normally result in death-the taking of that risk is not murder unless it was
inexcusable to take it. That, as we understand it, in terms of this case, is the meaning
of this passage of Section 300, I.P.C. Now looking at the facts of this case which we
need not repeat again, we think that it is not possible to say that Mt. Dhirajia in
jumping into this well did so without excuse. We must consider in assessing what is
excuse or is not excuse the state of mind she Was in. She feared her husband and she
had reason to fear her husband. She was endeavouring to escape from him at dawn
and in the panic into which she was thrown when she saw him behind her she jumped
into the well. We think she had excuse and that excuse was panic or fright or whatever
you like to call it. For these reasons we do not think that Mt. Dhirajia is guilty of
murder.

 Upon this reasoning however we cannot escape from Section 304. It must inevitably
follow, for reasons which are obvious, that Mt. Dhirajia is guilty of culpable homicide
not amounting to murder and that, in our judgment, is the charge upon which she
should have been convicted and not upon the charge of murder. Before we leave this
part of the case we desire to refer to one more authority to which our attention has
been called by Mr. Saran. That is Supadi Lukadu v. Emperor (25) 12 AIR 1925
Bom 310. The case was a curious one in which a girl of 17 years of age, who too was
ill-treated by her husband jumped with her baby into a well when she found that her
husband prevented her from returning to her parents. In that case she was carrying the
baby on her back and the learned Judges who tried it in the Bombay High Court on
appeal came to the conclusion that on the facts of that case she was not aware at all
 that she even had a baby with her. No doubt upon the facts of that particular case that
conclusion was justified. But we desire to say that we are not ourselves prepared to
apply it to the case before us. The facts in the case before us are different and we
should not be justified, we think, in looking for evidence which does not exist in order
to enable us to come to a conclusion which the facts do not warrant. There is nothing
upon this record which could enable us upon any reasonable view of the matter to
assume that Mt. Dhirajia was not aware that she had he baby with her. We have found
it necessary to resist the temptation in this case to adopt the facts to what our own
desires might be because we think that such a course must necessarily be dangerous
and wrong.

 As regards the charge of attempted suicide we think that upon that Mt. Dhirajia was
rightly acquitted. To our minds, the word 'attempts' connotes some conscious
endeavour to do the act which is the subject of the particular section. In this case the
act was the act of committing suicide. We ask ourselves whether when Mt. Dhirajia
jumped into the well, she did so in a conscious effort to take her own life. We do not
think she did. She did so in an effort to escape from her husband. The taking of her
own life was not, we think, for one moment present to her mind. For that reason we
think that Mt. Dhirajia was rightly acquitted under Section 309, I.P.C. So far as the
convictions are concerned therefore, the result of the appeal is that the appellant's
conviction under Section 302, I.P.C., is set aside and there is substituted for it a
conviction under Section 304, I.P.C. So far as the learned Judge's reference to us is
concerned, we are unable to accept it and the verdict of not guilty passed by the jury
must stand. There only remains the question of sentence upon the conviction
under Section 304 which we have substituted for the conviction under Section
302, I.P.C.

 It is obvious that this is not a case deserving of a severe punishment. The unfortunate
woman has already been in prison for a period of eight months and we think the
proper sentence is that she should be sentenced to undergo six months' rigorous
imprisonment which in effect means that she will be at once released unless she is
required upon some other charge.
Holdings (Applied Rule of Law):

 Sections 299, 300, 302, 304 and 309 of the Indian Penal Code, 1860.
 Section 307 of the Criminal Procedure Code, 1973.

DATE: 26.09.2023

Devidas Ramchandra Tuljapurkar

V.

State of Maharashtra (2015)

Facts of the Case:

 “The first, foremost case on obscenity was the Victorian-Era British case R. v.
Hicklin in which the test for obscenity was set down, famously known as the Hicklin
Test.” As indicated by it, “material was offensive on the off chance that it would, in
general, debase or degenerate the individuals into whose hands it was prone to fall.”
“The Hicklin Test was later received in the much-discussed Ranjit Odeshi case, in
which Justice Hidayatullah maintained the restriction on the book” ‘Woman
Chatterley’s Lover’ in India. However, the serious issue with the Hicklin Test was
that the words “deprave” and “corrupt” “were very vague and broad. It concentrated
on confined parts of the work being referred to, which made it more defenceless
against being esteemed obscene. Moreover, it passed judgment on the work of its
evident impact on vulnerable readers, for example, youngsters or feeble disapproved
of grownups as opposed to survey it through the eyes of an ordinary person.”
  “Over fifty years in cases, for example, GD Doordarshan and Anand Goswami the
court changed its way to deal with handling obscenity issues, however, it was a year
ago when the court in the Aveek Sarkar Case at long last hurled out the Hicklin test
expressing the previously mentioned reasons. The court followed Roth v. The
US which set out the” “contemporary community test” a more normal and functional
test as indicated by which “to the normal individual the material taken as an entire
applies to prurient intrigue.” “The Roth test is increasingly smoothed out as it ensures
more right to speak freely as it accepts the issue all in all and sees whether the
prevailing subject of the work applies to the prurient interest.”

 In the current case, the court used the “community standard test” “to hold the
appealing party liable, but it seems that it neglected to give any solid thinking with
regards to how the said poem in question applies to” “prurient interest”. “It would
appear that the court completely ignored the latter part of the test and arrived at a
conclusion. Regardless of whether the former part of the test is utilized in separation,
it is very obscure from the judgment concerning how a mocking poem on Gandhi can
degenerate a person’s mind.”
 “Besides, the court has neither attempted to incorporate the points of reference with
the affirmed obscene poem nor has caused an endeavour to intricate regarding how to
the poem was obscene in the setting of Marathi literature.” The court expresses that it
has utilized the “contemporary community standards test” be that as it may; “it
appears that it has followed the old methodology and proclaimed the poem obscene
not from a normal individual’s perspective yet from a viewpoint of a person who is
defenceless.”

Issues by Appellant:

 “Regardless of whether there could be a reference to a historically respected

character”;

 “Could that reference be by way of allusion or symbol”;

 “Could that reference be reported on in a review or a poem”;

 “Regardless of whether the origination and idea of wonderful permit licenses

receiving an implication”; and
  “Regardless of whether any of the above could include attributing words or acts to a
historically reputed character which could appear obscene to a reader.”

Issues by Respondent:
 “The court should be a focus on its message. The poem must be appreciated in its
entirely”.

 “He said that the poem is meant to agitate.”

 “If such person has passed into the annals of history should not be a reason to exclude
him from becoming” anybody’s ruse of imagination.

Big Question before The Court:

 “The question requires to be considered is concerning whether in the given
boundaries, in the decisions alluded supra, what is the standard of morality in India,
where the picture of the late Mahatma Gandhi, viewed as the father of the Nation, is
regarded in high esteem by the public at large. The question of freedom and speech
arises in front of the court.”

Contentions of the Appellant:

The appellant’s arguments focused on isolating the poem’s content from the obscenity
offence. He attributed the word obscene is ‘lewd’, ‘repulsive’ and ‘loathsome’, citing various
domestic predecessors. The appellant begged the court to take notice of the contemporary
community standard test, citing the United States’ Supreme Court’s decision in Roth
V. The United States. The amicus curiae in the case argued that artistic freedom cannot be
invoked when the work in question degrades and debunks a specific individual’s public
reputation. The appellant that the poetry does not contain obscene terms and hence does not
fall under S. 292 of the Indian Penal Code’s range and scope.

Contentions of the Respondent:

On the other hand, the respondent argued that poem’s purpose is to agitate people and the
court should look after its message. He also argued that if the person has gone down to the
mysteries or path of history then it should not be a reason to exclude him from becoming
anybody’s ruse of imagination. He also mentioned all those phrases which are offensive in
nature and defame the image of Mahatma Gandhi. Multiple references by the appellant to
freedom of speech and expression under Article 19[6] of the Indian Constitution and Article
10[7] of the European Convention on Human Rights were countered by the opposing counsel
on this right as reasonable restrictions.

Judgement:
 “It is beyond debate that the concept of obscenity, for the most part, varies from
nation-to-nation contingent upon the norms of ethical quality of contemporary society
in various nations. As we” “would see it, in deciding on the topic of obscenity, the
Judge, in any case, should attempt to put himself in the situation of the creator and
from the view purpose of the creator the Judge should attempt to comprehend would
could it be that the creator looks to pass on and what the creator passes on has any
abstract and imaginative worth. The Judge ought to from there on place himself in the
situation of readers of each age bunch in whose hands the book is probably going to
fall and should attempt to acknowledge what sort of conceivable impact the book is
probably going to have in the minds of the readers. A Judge ought to from that point
apply his legal psyche impartially to choose whether the book being referred to can be
supposed to be profane inside the significance of S.292, IPC by a target appraisal of
the book all in all and of the entries griped of as revolting independently.
Inappropriate cases, the Court, for dispensing with any abstract component or
individual inclination which may stay covered up in the inner mind and may
unknowingly influence a legitimate target appraisal, may draw upon the proof on
record and consider the perspectives communicated by reputed or recognized authors
of writing on such inquiries if there be any for his thought and fulfilment to empower
the Court to release the obligation of making an appropriate evaluation”.”

Analysis of the Judgement:

  “In a clear judgment on the distribution of a poem on Mahatma Gandhi by Devidas
Ramchandra Tuljapurkar, charged with an offense under segment 292 of the Indian
Penal Code (IPC), the Supreme Court broadly analysed the test on the touchstone of
right to articulation and discourse. This choice sends a reasonable message that under
the garb of freedom of speech and expression and nobody can take freedoms and
clearly”, it can’t give freedom to offend.
 “The Supreme Court refuses to quash the charge against Tuljapurkar for publishing an
allegedly vulgar and obscene poem on Mahatma Gandhi in 1994. The apex court
excused the supplication of the bank representative who had tested the encircling of
the charge against him for distributing the poem in an in-house magazine, of which,
he was an editorial manager.”
 A seat containing judges Dipak Misra and Prafulla C Pant said one can’t be permitted
to utilize indecent language for “verifiable regarded characters” like Mahatma
Gandhi.
 “The seat maintained the Bombay High” Court’s “choice of not suppress the charge
of offer/distribution of vulgar books, surrounded against Devidas Ramchandra
Tuljapurkar, saying that the right to speak freely of discourse and articulation didn’t
permit an individual to cross contemporaneous network boundaries on fairness.”
 “The Supreme Court decisions reaffirm the very much settled recommendation that
the right to speak freely of discourse and articulation” isn’t an “absolute right yet it is
consistently dependent upon sensible boundaries under 19(2) of the Constitution.”

Holdings (Applied Rule of Law):

Section 292 IPC (Indian Penal code, 1860)

DATE: 27.09.2023

Matrimony.Com Limited

V.
Google Llc & Others (2012)

Facts of the Case:

Founded in 1998 as an Internet search engine, Google is a multinational corporation with

American tech roots. It has expanded into various services and products throughout the years,
including, to name a few, Gmail, Google Maps, cloud computing, operating systems, and
mobile devices. Since its founding, the company has had fast expansion, and as of the first
quarter of 2016, Google has about 90% of the global search engine market. This makes it a
dominating player in the industry today. A number of competitors have accused Google of
abusing its position of dominance over the past few years due to its actions and activities. As
a result, the corporation is being looked into by the competition authorities in the US, the EU,
and India. The case was filed by the Bharat Matrimony now called as Matrimony. Com and
Consumer Unity and Trust Society in 2012.

In case no. 07 of 2012

 The Informant stated that Google operates its primary businesses of search and
advertising in a discriminatory manner, harming advertisers and indirectly harming
customers. It was claimed that Google is unfairly influencing the market by manually
adjusting its settings to promote Google's own services and partners search, which
favours its vertical partners, produces favourable outcomes.

 Google offers a wide range of vertical searches in addition to its Search service, such
as YouTube, Google News, Google Maps, and others. In an effort to promote its own
vertical search websites, Google began blending many of these vertical organic search
outcomes into its findings. Consequently, when a person searches, for instance the
title of a song, he gets links to Google videos of that song or YouTube, both of which
are Google properties.

 Furthermore, it was made clear that Google’s own websites would be prominently
displayed in the search results, regardless of whether or not they were relevant to the
query, and that Google would not display the results from any other vertical search
websites as prominently as own vertical search engines from Google.
  Further allegations state that Google's acquisition of diverse software to complete its
vertical integration strengthens its monopolistic position and propensity to stifle
competition. Due to its dominance in the search business, Google is considered as a
necessary commercial partner in the web advertising sector.

 The search algorithm used by Google to determine a website's placement on a search

results page, the history of changes to Google's search and quality score algorithms,
the rationale for positioning Google's vertical properties toward the top of the search
results pages, and the factors that led to informant quality scores declining were
all mentioned.

In case no. 30 of 2012

 It was said that Google holds a supposedly dominant position in the market for online
search and online search advertising globally, including in India, due to its market
share, size, resources, reputation, etc. Due of its strong position in the market, Google
is able to operate independently of competitive dynamics and influence
customers, competitors, and the market in its favour.

 Both of the Informants claim that Google is abusing its dominant position in the
online search market by engaging in actions such as biased search results, search
engine manipulation, access denial to rival search engines, refusal to grant content
licences to rival search engines, establishment of entry barriers, etc.

 On 3rd April 2012, The Commission ordered the Directorate General to conduct an
investigation into the situation after taking into account the materials that were on file.

 The DG looked into the issues and submitted a confidential version of the common
investigation report on 27th March 2015.
Issues of the Case:

After Analyzing the DG Report by the Commission, following issues were raised:

 In the present case, what is the relevant market?

 Whether the Google is dominant in the said relevant market or not?

 If yes, then, Whether Google has abused its dominant position or not under section 4
of the Act?

 Whether Google imposes any unfair conditions on its advertisers?

 Whether Google’s distribution agreements restrict competition?

 Whether Google’s intermediation agreements restrict competition?

Abuse of dominant position:

 'Dominant position' means a position of strength enjoyed by an enterprise in the

relevant market in India which enables it to operate independently of competitive
forces prevailing in the relevant market; or to affect its competitors or consumers or
the relevant market in its favour. To analyse dominance, the factors are enumerated in
Section 19(4) of the Act. Dominance per se does not constitute a legal wrong,
however its abuse is prohibited under the Act. Abuse is stated to occur when an
enterprise uses its dominant position in the relevant market in an exclusionary or/and
exploitative manner. The Act gives an exhaustive list of practices that constitute abuse
of dominant position and, therefore, are prohibited. Under Section 4 of the Act the
following constitutes abuse of dominant position:

1. Directly or indirectly imposing unfair or discriminatory conditions or price (including

predatory price) in purchase or sale of goods or service.
 2. Limiting or restricting production of goods or provision of services or market.
3. Limiting or restricting technical or scientific development relating to goods or
services to the prejudice of consumers.
4. Denying market access in any manner.
5. Entering into contracts subject to acceptance by other parties of supplementary
obligations which, by their nature or according to commercial usage, have no
connection with the subject of such contracts (Imposition of supplementary
obligations).
6. Using its dominant position in one relevant market to enter into, or protect, other
relevant market.

Contentions:

 DG at the conclusion of its investigation has identified two relevant markets as per
Sections 2(r), 2(s)and 2(t) read with Sections19(6) and 19(7) of the Act: market for
online general web search services in India and market for online search advertising
services in India. Based on the market share of Google, DG found Google to be a
dominant enterprise in both the relevant markets. Further, DG submitted that Google
biases its search results, imposes unfair conditions on its advertisers and its
distribution and intermediation agreements restrict competition. The Informants
agreed with the DG report stating that Google's search results were not strictly
determined by relevance, it misleads users into believing that its results are driven
purely by quality considerations.

 Further, most vertical search services depend on Google for their survival and
Google's search biases threatens their very survival. Therefore it harms competition,
reduces innovation, and impedes choice. The Informants alleged that the Google is
guilty of unfair discrimination between third party ads and house ads by not
disclosing adequate information to third party advertisers. Further, it imposes unfair
condition on the trademark owners (particularly those who have notified their
 trademarks to Google) by allowing their trademarks to be bid as keywords by third
parties in online search advertising.
 It was also alleged that Google has two search distribution agreements with Apple (for
its Safari browser) and Mozilla (for its Firefox browser) by which Google is set as the
default option in case of web searches. This amounts to a denial of market access to
competing search engines and therefore contravenes Section4(2)(c) of the Act. Google
also offers online search and advertising services on other websites through
intermediation agreements. There are clauses under these agreements that restrict the
publishers from showing ads that are "same or substantially similar" to Google's on
the same site. This amounts to imposition of unfair conditions by Google on the
publishers and results in abuse of dominant position.

 In response to these allegations Google argued that DG's market definition for search
is flawed because there is no relevant market for general search. Further, Google
denied its dominance in the relevant market and contended that it faces substantial
competitive constraints in each query category. Google contended that its search
results are relevant and according to its quality standards. These search results are
neither biased nor do they mislead user or harm competition. Google's other
competitors like Yahoo and Bing use similar technology for their search results. If
Google ceased to use the technology it uses to develop the search results, it would be
forced to retreat to pre-2000 levels of technology which would mean inferior services
for Indian users compared to those offered in the rest of the world. In relation to
unfair conditions being imposed on its advertisers, Google contended that it treats
house ads like third-party ads and strictly prohibits operators of Google's house ads
accounts from accessing data or information that is not publicly available to all other
advertisers.

 Further, Google stated that permitting advertisers to bid on trademarked keywords

increases competition as it enhances user choice and enables Indian websites to
compete against the trademark owner without violating the trademark law. With
respect to the distribution agreements that restrict competition, Google alleged that
 agreements by which the Google search engine appears as a default setting does not
deny market access to competitors. Defaults simply provide a convenient way for
users to access a preferred search service. Users can easily switch away from the
default if they so choose to. Finally, with respect to the intermediation agreements,
Google stated that these agreements do not create exclusivity nor do they harm
competition. Further, Google does not claim that the non-confusion clause in fact
amounts to exclusivity. Google contended that it has never actually interpreted it in
this way or that any publisher has ever felt bound by exclusivity.

Observations of CCI:

 CCI agreed with the submission of DG and held that market for online general web
search services in India and market for online search advertising services in India to
be two distinct relevant markets. CCI held that the technologies used by Google to
obtain search results leads to an unfair diversion of traffic in favour of commercial
units (sponsored search results). It has also allocated disproportionate real estate to the
commercial units resulting in either pushing down or pushing out of third party
verticals who were trying to gain market access.

 Consequently, users may have been devoid of additional choices of results and
therefore, such conduct amounted to an unfair imposition upon the users availing
search services. CCI did not agree with DG and the Informant on the issue of unfair
conditions on advertisers. CCI found that Google provides sufficient data to
advertisers on the performance of their ads and does not discriminate in favour of
house ads. It also opined that allowing trademarks to be bid as keywords is
advantageous to competition as it is another way that competitors can target their ads
to users who have mentioned a rival and is beneficial to consumers as it helps them in
reviewing and locating a wide choice with respect to the products. Hence, Google was
not found guilty of imposing unfair conditions on its advertisers.

 In relation to Google's distribution agreements, CCI held that the findings of DG were
based upon the supposition that through such agreements, Google has the "potential"
to strengthen its market position to the exclusion of other search engines. However,
 these findings were unfounded and these agreements are neither exclusive nor had it
been established that such arrangements denied market access to any of the competing
search engines. Finally, with respect to the intermediation agreements, CCI held that
by restricting publishers from partnering with competing search services, Google was
denying its competitors access to the search business and further marginalizing
competitors and endangering their viability while strengthening its own position.
These restrictions amounted to a de-facto imposition of online search exclusivity
which resulted in an abuse of its dominant position.

Judgement:

 The Competition Commision Of India announced its landmark decision against

Google. It held Google guilty for abusing its dominant position in the market for
online web search and search advertising services. Google used its search designs
to influence the search results which was discriminatory and also entered into
intermediation agreement that restricted the competitor. It was also asked by the
Google to cease its activities which resulted in the search biases. It was also told to
provide disclaimers in the case of sponsored search results and not to enforce the
restrictive clauses in the intermediation agreements with its Indian partners.

 CCI, therefore imposed a penalty of $21 million i.e. INR 135.86 crores on
Google for abusing its dominant position under Section 4 of the Competition Act ,
2002.

 India, which has 125 million people, has grown to be a sizable market for
technological firms like Google. With its substantial resources, Google holds a
major position in the Indian market; yet, recently, as everywhere in the world,
a few complaints over Google's alleged anti-competitive actions have emerged
in India. The Competition Commission of India (CCI), a body established under
the Competition Act of 2002, investigates commercial practices that have a
negative impact on competition. This case is crucial in the light of India’s ongoing
digitalization since it significantly affected how Google and other search engines
 operated particularly with regard to the presentation of “sponsored results” and
“online search advertising services”. It is necessary to respect such a thorough
judgement since it is no less than 190 pages. The decision serves as the foundation for
its involvement in the digital sphere.

 Applying Anti trust laws to companies which are operating in the digital world
is a monumental undertaking in the beginning and then to reach a decision on
each subject in turn. This decision clarifies the difficulties of implementing
even current anti trust regulations in the digital economy and had welcomed
enthusiastically at least by vertical search providers; this choice will equalize the
playing field of all.

CCI began an investigation

into the alleged abuse of
dominance by Google based
on the
initial complaints received
from the Consumer Unity and
Trust Society (CUTS) and
Bharat
Matrimony. According to the
CCI director general, Google
had an 85% market share in
web
searches from 2009 to 2014,
making it a major player in
India as well. It was claimed in
the
case that Google
manipulated the search results
shown on its website.
Google modified its
algorithms to favour its own
services. As a result, other
market actors will compete
on an
unfair playing field. It was
accused by CUTS of
discriminatory search results,
manipulating
search results, denying
access, and erecting barriers
to entry. These claims
resemble those
made in the USA, Europe, and
other regions of the world.
The investigation also
revealed
that Google's trademark
protection for marketers fell
short of expectations. One
example is a
bid by numerous companies to
purchase Google search ad
terms for the trademarks of
their
rivals, so that when a user
searches for the rival on
Google, their own adverts
will appear
above the search results. For
instance, if you searched for
BharatMatrimonial, then
Shaadi.com adverts will
appear before the results.
The CCI investigation has also
alleged that Google exploited
its dominant position by
putting
restrictions on using the
services of other search
engines in its agreements. The
Google User
Safety policy and the
AdWords policy are allegedly
highly arbitrary and
ambiguous, allowing
Google to end the
advertising campaign on its
own. Additionally, the
AdWords bidding
procedure is opaque. director
general found that Google
imposed constraints on API
access to
discourage advertisers from
multi-homing their ad
campaign.
 CCI began an investigation into the alleged abuse of dominance by Google
based on the initial complaints received from the Consumer Unity and Trust Society
(CUTS) and Bharat Matrimony. According to the CCI director general, Google had an
85% market share in web searches from 2009 to 2014, making it a major player in
India as well. It was claimed in the case that Google manipulated the search results
shown on its website. Google modified its algorithms to favour its own
services. As a result, other market actors will compete on an unfair playing field.
 It was accused by CUTS of discriminatory search results, manipulating search
results, denying access, and erecting barriers to entry. These claims resemble
those made in the USA, Europe, and other regions of the world.
 The investigation also revealed that Google's trademark protection for marketers fell
short of expectations. One example is a bid by numerous companies to purchase
Google search ad terms for the trademarks of their rivals, so that when a user
searches for the rival on Google, their own adverts will appear above the
search results. For instance, if you searched for BharatMatrimonial, then
Shaadi.com adverts will appear before the results. The CCI investigation has also
alleged that Google exploited its dominant position by putting restrictions on using
the services of other search engines in its agreements. The Google User Safety policy
and the AdWords policy are allegedly highly arbitrary and ambiguous, allowing
Google to end the advertising campaign on its own. Additionally, the AdWords
bidding procedure is opaque. director general found that Google imposed constraints
on API access to discourage advertisers from multi-homing their ad campaign.

Holdings (Applied Rule of Law):

 Abuse of Dominance (Section 4 of the Competition Act 2002).

DATE: 28.09.2023

State of Nagaland

V.

Lipok AO (2005)

Facts of the Case:

 State of Nagaland on an acquittal Judgement, filed an application for grant of leave

under section 378 of CrPC, due to its delay, they also filed an application for
condonation of delay of 57 days.
  The High Court rejected the condonation on the ground that there is no sufficient
cause of delay and consequentially rejected the grant of appeal. Thus, the appeal was
filed to the Supreme Court.

Issues of the Case:

 Whether the Judgment of High Court refusing to condone the delay by rejecting the
application was correct?

 What does the term “sufficient cause” under Section 5 of Limitation Act include?

Contentions of Petitioner:

The counsel of the petitioner contended that-

 The file went missing in the police department for 2 months, and when directions
were given to reconstruct the file, missing file suddenly appeared in the office of
Director General of Police, Nagaland.

 The authorities were acting bonafide and Additional Director General of Police
despite the instruction did not file the appeal.

Contentions of Respondent:

The counsel of respondent contented that-

 The appellant merely asked the Additional Advocate General to file an appeal which
was not sufficient on part of the appellant.

 The department should have themselves investigated the matter and should enquire as
to whether the appeal has been filed or not.
Judgement:

 The order of the High Court refusing to condone the delay was set aside. The appeal
was allowed to be registered and disposed of on merits.
 The Court referring to different cases said, that, “what constitutes sufficient cause
cannot be laid down by hard and fast rules. The adoption of strict standard of proof
sometimes fails to protect public justice and it may result in public mischief. The
proof by sufficient cause is a condition precedent for exercise of the discretion vested
in the Court.”
 The trial court noted that the ballistic report established that the bullets were fired
from the guns of the accused-respondents. A finding was also recorded that the
respondent exceeded their power for opening fire, and this constituted misfeasance,
but absence of the post-mortem report was held to have vitally affected prosecution
case it was also held that the accused persons had fired with AK 47 and M 22 rifles in
self-defence. Therefore, benefit of doubt was given to them. A pragmatic approach has
to be adopted and when substantial justice and technical approach were pilled against
each other the former has to be preferred. The proof by sufficient cause is a condition
precedent for exercise of the extraordinary restriction vested in the court. What counts
is not the length of the delay but the sufficiency of the cause and shortness of the
delay is one of the circumstances to be taken into account in using the discretion.

 In N. Balakrishnan v. M. Krishnamurthy (AIR 1998 SC 3222) it was held by this

Court that Section 5 is to be construed liberally so as to do substantial justice to the
parties. The provision contemplates that the Court has to go in the position of the
person concerned and to find out if the delay can be said to have been resulted from
the cause which he had adduced and whether the cause can be recorded in the peculiar
circumstances of the case is sufficient. Although no special indulgence can be shown
to the Government which, in similar circumstances, is not shown to an individual
suitor, one cannot but take a practical view of the working of the Government without
being unduly indulgent to the slow motion of its wheels. What constitutes sufficient
cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd.
v. Shanti Misra (1975 (2) SCC 840) this Court held that discretion given by Section
 5 should not be defined or crystallised so as to convert a discretionary matter into a
rigid rule of law.

 The expression "sufficient cause" should receive a liberal construction. In Brij

Indar Singh v. Kanshi Ram (ILR (1918) 45 Cal 94 (PC) it was observed that true
guide for a court to exercise the discretion under Section 5 is whether the appellant
acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v.
Kuntal Kumari (AIR 1969 SC 575) a Bench of three Judges had held that unless
want of bona fides of such inaction or negligence as would deprive a party of the
protection of Section 5 is proved, the application must not be thrown out or any delay
cannot be refused to be condoned. In Concord of India Insurance Co. Ltd. v.
Nirmala Devi (1979 (4) SCC 365) which is a case of negligence of the counsel which
misled a litigant into delayed pursuit of his remedy, the default in delay was
condoned. In Lala Matu Din v. A. Narayanan (1969 (2) SCC 770), this Court had
held that there is no general proposition that mistake of counsel by itself is always
sufficient cause for condonation of delay. It is always a question whether the mistake
was bona fide or was merely a device to cover an ulterior purpose. In that case it was
held that the mistake committed by the counsel was bona fide and it was not tainted
by any mala fide motive.

 In State of Kerala v. E. K. Kuriyipe (1981 Supp SCC 72), it was held that whether
or not there is sufficient cause for condonation of delay is a question of fact dependant
upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath
(1982 (3) SCC 366), it was held that the appellant had sufficient cause for not filing
the appeal within the period of limitation. This Court under Article 136 can reassess
the ground and in appropriate case set aside the order made by the High Court or the
Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay
was condoned and the case was remitted for decision on merits. In O. P. Kathpalia v.
Lakhmir Singh (1984 (4) SCC 66), a Bench of three Judges had held that if the
refusal to condone the delay results in grave miscarriage of justice, it would be a
 ground to condone the delay. Delay was accordingly condoned. In Collector Land
Acquisition v. Katiji (1987 (2) SCC 107), a Bench of two Judges considered the
question of the limitation in an appeal filed by the State and held that Section 5 was
enacted in order to enable the court to do substantial justice to the parties by disposing
of matters on merits. The expression "sufficient cause" is adequately elastic to enable
the court to apply the law in a meaningful manner which subserves the ends of justice
- that being the life-purpose for the existence of the institution of courts.
 It is common knowledge that this Court has been making a justifiably liberal approach
in matters instituted in this Court. But the message does not appear to have percolated
down to all the other courts in the hierarchy. This Court reiterated that the expression
"every day’s delay must be explained" does not mean that a pedantic approach
should be made. The doctrine must be applied in a rational common sense pragmatic
manner. When substantial justice and technical considerations are pitted against each
other, cause of substantial justice deserves to be preferred for the other side cannot
claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of
culpable negligence, or on account of mala fides. A litigant does not stand to benefit
by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on
account of its power to legalise injustice on technical grounds but because it is
capable of removing injustice and is expected to do so. Making a justice-oriented
approach from this perspective, there was sufficient cause for condoning the delay in
the institution of the appeal. The fact that it was the State which was seeking
condonation and not a private party was altogether irrelevant. The doctrine of equality
before law demands that all litigants, including the State as a litigant, are accorded the
same treatment and the law is administered in an even-handed manner.

 There is no warrant for according a step-motherly treatment when the State is the
applicant. The delay was accordingly condoned. Experience shows that on account of
an impersonal machinery (no one in charge of the matter is directly hit or hurt by the
judgment sought to be subjected to appeal) and the inherited bureaucratic
methodology imbued with the note-making, file-pushing, and passing-on-the-buck
ethos, delay on its part is less difficult to understand though more difficult to approve.
The State which represents collective cause of the community, does not deserve a
 litigant-non-grata status. The courts, therefore, have to be informed with the spirit and
philosophy of the provision in the course of the interpretation of the expression of
sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the
case on technicalities of delay in presenting the appeal. Delay as accordingly
condoned, the order was set aside and the matter was remitted to the High Court for
disposal on merits after affording opportunity of hearing to the parties. In Prabha v.
Ram Parkash Kalra (1987 Supp SCC 339), this Court had held that the court should
not adopt an injustice-oriented approach in rejecting the application for condonation
of delay. The appeal was allowed, the delay was condoned and the matter was
remitted for expeditious disposal in accordance with law.

 In G. Ramegowda, Major v. Spl. Land Acquisition Officer (1988 (2) SCC 142), it
was held that no general principle saving the party from all mistakes of its counsel
could be laid. The expression "sufficient cause" must receive a liberal construction so
as to advance substantial justice and generally delays in preferring the appeals are
required to be condoned in the interest of justice where no gross negligence or
deliberate inaction or lack of bona fides is imputable to the party seeking condonation
of delay. In litigations to which Government is a party, there is yet another aspect
which, perhaps, cannot be ignored. If appeals brought by Government are lost for
such defaults, no person is individually affected, but what, in the ultimate analysis,
suffers is public interest. The decisions of Government are collective and institutional
decisions and do not share the characteristics of decisions of private individuals. The
law of limitation is, no doubt, the same for a private citizen as for governmental
 authorities. Government, like any other litigant must take responsibility for the acts,
omissions of its officers. But a somewhat different complexion is imparted to the
matter where Government makes out a case where public interest was shown to have
suffered owing to acts of fraud or bad faith on the part of its officers or agents and
where the officers were clearly at cross-purposes with it.

 It was, therefore, held that in assessing what constitutes sufficient cause for purposes
of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the
consideration that go into the judicial verdict, these factors which are peculiar to and
characteristic of the functioning of the Government. Government decisions are
proverbially slow encumbered, as they are, by a considerable degree of procedural
red-tape in the process of their making. A certain amount of latitude is, therefore, not
impermissible. It is rightly said that those who bear responsibility of Government
must have "a little play at the joints". Due recognition of these limitations on
governmental functioning - of course, within reasonable limits - is necessary if the
judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and
unrealistic to put Government and private parties on the same footing in all respects in
such matters. Implicit in the very nature of Governmental functioning is procedural
delay incidental to the decision-making process. The delay of over one year was
accordingly condoned. It is axiomatic that decisions are taken by officers/agencies
proverbially at slow pace and encumbered process of pushing the files from table to
table and keeping it on table for considerable time causing delay - intentional or
otherwise - is a routine.
 Considerable delay of procedural red-tape in the process of their making decision is a
common feature. Therefore, certain amount of latitude is not impermissible. If the
appeals brought by the State are lost for such default no person is individually
affected but what in the ultimate analysis suffers, is public interest. The expression
"sufficient cause" should, therefore, be considered with pragmatism in justice-oriented
approach rather than the technical detection of sufficient cause for explaining every
day’s delay. The factors which are peculiar to and characteristic of the functioning of
the governmental conditions would be cognizant to and requires adoption of
pragmatic approach in justice-oriented process. The court should decide the matters
on merits unless the case is hopelessly without merit. No separate standards to
determine the cause laid by the State vis-a-vis private litigant could be laid to prove
strict standards of sufficient cause. The Government at appropriate level should
constitute legal cells to examine the cases whether any legal principles are involved
for decision by the courts or whether cases require adjustment and should authorise
the officers to take a decision or give appropriate permission for settlement. In the
event of decision to file appeal needed prompt action should be pursued by the officer
responsible to file the appeal and he should be made personally responsible for lapses,
if any. Equally, the State cannot be put on the same footing as an individual.

 The individual would always be quick in taking the decision whether he would pursue
the remedy by way of an appeal or application since he is a person legally injured
while State is an impersonal machinery working through its officers or servants. The
above position was highlighted in State of Haryana v. Chandra Mani and Ors.
(1996 (3) SCC 132); and Special Tehsildar, Land Acquisition, Kerala v. K.V.
Ayisumma (1996 (10) SCC 634). It was noted that adoption of strict standard of
proof sometimes fail to protract public justice, and it would result in public mischief
by skilful management of delay in the process of filing an appeal. When the factual
background is considered in the light of legal principles as noted above the inevitable
conclusion is that the delay of 57 days deserved condonation. Therefore, the order of
the High Court refusing to condone the delay is set aside. In normal course, we would
have required the High Court to consider the application praying for grant of leave on
merits. But keeping in view the long passage of time and the points involved, we
 deem it proper to direct grant of leave to appeal. The appeal shall be registered and
disposed of on merits. It shall not be construed that we have expressed any merits on
the appeal to be adjudicated by the High Court.

Appeal is allowed.

Holdings (Applied Rule of Law):

 Limitation Act, 1963; Section – 5

 Code of Criminal Procedure, 1973(Cr. PC); Section – 378
 Indian Penal Code, 1860; Sections – 34, 302, 307, 326
 Constitution of India; Article 136