Insurance Company Has No Contractual Or Other Relationship With Transferee Of Offending Vehicle: Delhi High Court

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The Delhi High Court has observed that an Insurance Company has no contractual or other relationship with the transferee of the offending vehicle in a road accident.

“The registered owner cannot absolve himself of the liability by contending that he had transferred the offending vehicle to a third person before the date of the accident,” Justice Navin Chawla said.

The court observed that the Insurance Company merely steps in as an indemnifier of the compensation which the registered owner of the Offending Vehicle, as being a primary person liable, has to pay to the victims of the road accident.

“Neither the victims of the road accident nor the Insurance Company can run after such persons whom the registered owner claims to have transferred the offending vehicle, and cannot be burdened with following a trail of successive transfers, which are not registered with the Registering Authority,” the court said.

It added: “If the registered owner of the offending vehicle is to seek any benefit of such contract in the form of indemnifying himself against the liability, such registered owner is also liable to reimburse the compensation that may be paid by the Insurance Company to the victims of the road accident if the Insurance Company is otherwise entitled to the same”

The court made the observations while dealing with two appeals filed by the registered owner of a motorcycle and a boy who was driving it, which hit a woman who later succumbed to the injuries.

They challenged an order passed by the Motor Accident Claims Tribunal vide which compensation of Rs.15,49,324 was granted in favour of the claimants and the Insurance Company, National Insurance Company Limited, was directed to pay the same at the first instance.

The tribunal also granted a right to the Insurance Company to recover the compensation amount from the registered owner of motorcycle and the boy was driving it at the time of the accident.

Noting that the motorcycle was being driven by a minor at the time of the accident, Justice Chawla said that the registered owner of the vehicle cannot absolve himself of his responsibility merely by contending that he had sold the bike before that date when he took no further steps to get the fact of such sale registered with the Registration Authority or intimate it to the Registration Authority and the Insurance Company.

“If such a registered owner has allowed a third person, maybe under a contract of sale, to use the vehicle, he remains responsible for his action. If such a third person further allows a minor or a person not holding a valid driving license to drive the vehicle, vicariously, the registered owner becomes responsible for such action of the third party,” the court said.

Accordingly, the court dismissed the appeal filed by the registered owner of the motorcycle. It set aside the Impugned Award allowing the Insurance Company to seek reimbursement of the claim amount from the minor boy.

S.498A IPC - Bail Condition That Husband Should Resume Conjugal Life With Wife Can't Be Imposed: Supreme Court

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The Supreme Court observed that while granting anticipatory bail to the accused husband under Section 498A of the IPC, a condition that the husband shall take his wife to his house and maintain and honour her, cannot be imposed.

A Division Bench of Justices Bela M. Trivedi and Satish Chandra Sharma was hearing the matter.

In the present case, the accused husband (appellant) had applied for anticipatory bail before the High Court of Jharkhand, Ranchi Bench. Though the High Court had granted bail to the husband, it imposed a peculiar condition. As per the same, the husband was required to take his wife to his home and maintain her with dignity and honour. For convenience, the same reads as follows:

“Accordingly, the petitioner is directed to surrender in the Court within six weeks from today and in the event of his arrest or surrendering, he will be enlarged on bail on satisfying the trial court that the petitioner has taken the opposite party no.2 to his house at Bandra locality of Ranchi and keeping and maintaining her with full dignity and honour as his lawful wife.”

According to this, the husband again approached the High Court, praying for modification of the above order. In a petition filed (for modification of order), the husband contended that he had hired a house and was ready to maintain his wife. Per contra, the wife contended that she was willing to resume her marital life provided that her husband joined her in their own house. However, the High Court dismissed his plea while observing that the appellant is resolute in not resuming his life with his wife at his own house.

“In view of the adamant attitude of the appellant in not resuming the conjugal life with the opposite party No.2 in the house of the appellant, where the opposite party No.2 was staying, his petition could not be considered.,” the High Court held.

Against this backdrop, the matter travelled to the Apex Court. The Court categorically opined that such a condition cannot be imposed while granting anticipatory bail. Additionally, this condition should not be a reason for rejecting the appellant's petition.

“In our opinion, neither such condition should have been imposed by the High Court while granting an anticipatory bail, nor such could be a ground for rejection of the petition filed by the appellant.”

while setting aside the impugned order, the Court granted bail to the accused.

S.138 NI Act | Availability Of Funds In Other Bank Accounts Not A Defence; Cheque Dishonour Relates To Specific Account: Supreme Court

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The Supreme Court on December 04 categorically held that in proceedings initiated for bounced cheques (under Section 138 of the Negotiable Instruments Act), the defence that there are sufficient funds in the other bank accounts cannot be appreciated.

“In a proceeding under Section 138 of the Negotiable Instruments Act, the accused cannot rely upon other bank accounts for the dishonoured cheque which relates to the specific bank account of the accused," held the bench of Justices Hrishikesh Roy and Sanjay Karol.

The complainant/ respondent filed complaints for the dishonour of different cheques issued by the same accused. As per the case of the complainant, he invested various amounts from time to time in the company of the accused. The investment was made on the assurance given by the accused that the complainant would receive a certain amount of money. Consequently, to discharge his liability, the accused handed over several cheques to the complainant.

However, when deposited, one of the cheques was returned unpaid due to insufficiency of funds. After receiving no response from the complainant, the accused filed a complaint under the relevant section of the NI Act. Additionally, the offence of cheating under IPC was also included. The trial court convicted the appellant and passed directions concerning the compensation. The same was challenged before the High Court. Though the High Court modified the sentence, it did not interfere with the conviction. In this background, the matter came before the Apex Court.

The Court took objection to this argument. The Court stated that when the cheques were issued, the appellant did not have sufficient funds.

It is seen from the impugned judgment itself that although ten cheques totalling a sum of Rupees Eighty Lakhs was issued by the petitioner, at the relevant point of time, the concerned bank account had a maximum deposit of Rs. 18,52,033/.”

Further, the counsel's argument related to the availability of funds with the appellant in different bank accounts did not find favour with the Court. As mentioned above, the Court held the accused cannot rely upon other bank accounts for the dishonoured cheque which relates to the specific bank account.

“Accordingly, the argument advanced by Mr. Maninder Singh, learned Senior Counsel of having adequate funds by reference to the other bank accounts of the company, cannot be of any assistance to the accused.,”

The Court dismissed the appeal.

Title Cannot Be Transferred On The Basis Of Agreement To Sell/General Power Of Attorney: SC Rejects Contention That 'Suraj Lamps' Judgment Is Only Prospective

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The Supreme Court has reiterated that a title with respect to an immovable property cannot be transferred based on an Agreement to Sell or a General Power of Attorney.

It rejected the contention that the judgment in the case of Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana and Anr. 183 (2011) DLT 1 (SC) is only prospective.

The Court was deciding an appeal against the judgment of the Delhi High Court which had affirmed a Trial Court’s judgment of decreeing the suit for possession and mesne profits.

The two-judge Bench of Justice Vikram Nath and Justice Rajesh Bindal held, “Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. … The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced.”

The Bench said that the Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis.

In this case, the appellant was a defendant in the suit for possession and mesne profits instituted by the respondent with respect to the property in question. The suit was filed based on a Power of Attorney, an agreement to sell, an affidavit, and a will executed in favour of the respondent. The appellant, admittedly, was in possession of the property in question and the suit was contested on several grounds that the appellant was the owner of the property having received the same based on a Hiba (oral gift) from its owner, his own brother. Secondly, the suit was not maintainable as none of the documents based on which the suit was filed were neither admissible nor enforceable under the law.

The findings recorded by the Trial Court were that all the issues were decided against the appellant and in favour of the respondent except issue no. 8 and decree for possession along with mesne profits was granted. In a regular appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) the High Court confirmed the finding with regard to the claim of the appellant regarding Hiba in his favour and held that the appellant had failed to prove the same. With respect to the other argument regarding the suit being maintained based on an unregistered document, the High Court, although in principle agreed but proceeded to uphold the decree of possession on the ground that the respondent had filed the suit as an Attorney for and on behalf of its owner and that he was not objecting to the respondent seeking possession of the suit property. On this sole ground, it confirmed the decree of possession and dismissed the appeal.

The Supreme Court in the above regard observed, “Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.”

The Court further noted that the law is well settled that no right, title, or interest in immovable property can be conferred without a registered document. It also said that the embargo put on registration of documents would not override the statutory provision to confer title based on the unregistered documents with respect to immovable property.

“Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee. … The requirement of compulsory registration and its effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view”, said the Court.

The Court concluded that in case the respondent wanted to evict the appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession.

Accordingly, the Apex Court allowed the appeal, set aside the impugned judgment, and dismissed the suit.

Title Of Immovable Property Can't Be Transferred Through Sale Agreement Or General Power Of Attorney : Supreme Court

The Supreme Court recently held that no title could be transferred concerning immovable properties on the basis of an Agreement to Sell or based on
a General Power of Attorney. 

A bench of Justice Vikram Nath and Justice Rajesh Bindal observed as thus: 

“...no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882”

The bench also rejected the argument that the 2011 judgment in Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr- which held that title cannot be transferred through unregistered documents- applies only prospectively.

"Law is well settled that no right, title or interest in immovable property can be conferred without a registered document," the Court observed referring to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882. 

"The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments."

The appellant in this case was the defendant in a suit instituted by the respondent filed for possession and mesne profits with respect to a certain property. The suit was filed on the basis of a Power of Attorney, an agreement to sell, an affidavit and a will executed in favour of the respondent. 

The appellant was in possession of the property in question. The suit was contested citing that the appellant was the owner of the property since he received it as a gift from his brother, Laiq Ahmed. The appellant also contended that the suit was not maintainable since the documents on the basis of which the suit was filed were neither admissible nor enforceable under law.

The suit was decreed for possession and mesne profits in favour of the respondent. The appellant then approached the High Court, but his appeal was dismissed. 

Although the High Court in principle agreed to the argument regarding the unregistered document, it upheld the the decree of possession on the ground that the respondent had filed the suit as an Attorney for and on behalf of its owner Laiq Ahmed (brother of the appellant) and that Laiq Ahmed did not object to the respondent seeking possession of the suit property. On this ground alone, the High Court confirmed the decree of possession and dismissed the appeal. 

Subsequently, the appellant approached the Supreme Court. 

The Appellant argued that the Trial Court erred in decreeing the suit for possession and mesne profits on the basis of unregistered documents such as the Agreement to Sell, Power of Attorney, Affidavit and a Will. 

Law is well settled that no right, title or interest in immovable property can be conferred without a registered document, the Apex Court said. 

“The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee” the Apex Court observed. 

In this regard, the Court placed reliance on the recent judgments in Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar 2018) 7 SCC 639, Balram Singh Vs. Kelo Devi Civil Appeal No. 6733 of 2022 and M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra in SLP (C) No. 15774 of 2022. 

The Apex Court did not agree with the view taken by the High Court and allowed the appeal while dismissing the suit. 

“In case the respondent wanted to evict the appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in the impugned order” the Apex Court concluded.

High Courts, Session Courts Can Grant Interim/Transit Anticipatory Bail Even When FIR Is Registered In Another State: Supreme Court

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The Supreme Court Observed:

"...we hold that the Court of Session or the High Court, as the case may be, can exercise jurisdiction and entertain a plea for limited anticipatory bail even if the FIR has not been filed within its territorial jurisdiction and depending upon the facts and circumstances of the case, if the accused apprehending arrest makes out a case for grant of anticipatory bail but having regard to the fact that the FIR has not been registered within the territorial jurisdiction of the High Court or Court of Session, as the case may, at the least consider the case of the accused for grant of transit anticipatory bail which is an interim protection of limited duration till such accused approaches the competent Sessions Court or the High Court, as the case may be, for seeking full-fledged anticipatory bail".

Two issues had arisen before the court-

• Whether the power of the HC/Sessions to grant anticipatory under Section 438 of CrPC could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said court?
• Whether the practice of granting transit anticipatory bail or interim protection to enable an applicant seeking anticipatory bail to make an application under section 438 CrPC before a court of competent jurisdiction is consistent with the administration of criminal justice?

The Court began by going to the legal framework, judgments of HC, the evolution of safeguard of anticipatory bail. It quoted Gurbaksh Singh Sibbia v. State of Punjab, a Constitutional bench judgment where the Supreme Court speaking through CJI YV Chandrachud observed “ The society has a vital stake in preserving personal liberty as well as investigational powers of police and their their relative importance at any given time depends upon the complexion and restraints of political conditions. How best to balance these interests while determining the scope of Section 438 of the Code of Criminal Procedure, 1973 was the focus of the said case.”

Then, the court placed the question in the context of personal liberty and access to justice. It held that “we must also look at same from angle of personal liberty and access to justice. Art. 39A deals with- equal justice and free legal aid which can be considered to be a specie of Art 21 which deals with right to life and liberty.”

Delhi High Court Restrains Kerala Based Furniture Store From Using ‘IKEA’ Mark In Trademark Infringement Suit

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The Delhi High Court has restrained a Kerala-based furniture store “Ikea Luxury Furniture” from using the mark “Ikea” either as a trademark or trade name on hoardings, including stationery, banners, handbills, and promotional materials.  Justice Prathiba M Singh was dealing with a trademark infringement suit filed by multinational furniture company, Inter IKEA Systems BV. It sought the protection of its mark ‘IKEA’.

Ikea alleged that the defendant's furniture store was using the mark ‘IKEA’ in respect of various furniture items as also on inside hoardings in the shop and boxes of the products.  “It is clear from the reading of pleadings and documents that the mark.

Considering that the defendant was using the mark for identical goods and products range and targeted the same consumer segment, the court observed that it is a fit case for the grant of an ex-parte ad-interim injunction in favour of Ikea.  “Despite the legal notice being communicated, the Defendant has failed to stop the use of the mark ‘IKEA’. Accordingly, the Defendant shall stand restrained from using the mark.

Justice Singh added that Ikea is free to write to JustDial to take down the page of the Defendant with the name ‘IKEA Luxury Furniture’.

No case of negligence if complications unrelated to medical procedure: SC

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The court noted that no case of negligence is made out if complications suffered by the patients are not related to the medical process.

The Supreme Court has recently said that to apply the principles of Res Ipsa Loquitur, it is necessary that a 'Res' is present to establish the allegation of medical negligence.

Res Ipsa Loquitur is a Latin word that means "the thing speaks for itself".

A bench of justices AS Bopanna and Prashant Kumar Mishra's remark came while upholding a consumer commission order that did not give relief to a woman.

The court noted that no case of negligence is made out if complications suffered by the patients are not related to the medical process.

"In so far as the applicability of principles of Res Ipsa Loquitur, in the fact and circumstances of the case, it is to bear in mind that the principles get attracted where circumstances strongly suggest partaking in negligent behaviour by the person against whom an accusation of negligence is made. For applying the principles of Res Ipsa Loquitur, it is necessary that a 'Res' is present to establish the allegation of negligence. Strong incriminating circumstantial or documentary evidence is required for application of the doctrine," the court said in its October 17 order.

The court was hearing a woman whose husband died after suffering cardiac arrest. The woman has alleged that the hospital has not taken proper care of her husband from the time he was shifted to the Private room till he suffered a cardiac arrest.

The National Consumer Disputes Redressal Commission on Aug 3 2010 held that the petitioner has not been able to establish by any cogent evidence or material on record that the heart attack suffered by the deceased had any connection with the operation in question or on account of lack of post-operative care.

The woman challenged the Consumer Commission order in the Supreme Court.

The appellant submitted that the deceased died due to cardiac arrest, albeit, admittedly, the deceased had no cardiac problems. The woman's lawyer further submitted that at the time of admission, the deceased was informed that after the surgery he would be shifted to the ICU.

However, he was shifted from the recovery room directly to a private room and not to the ICU, the appellant argued. Refuting the appellant's submission, the lawyer representing the Hospital submitted that the patient had made an excellent recovery after neurosurgery and there were no postoperative complications, therefore, he was shifted to the recovery room and thereafter to a private room.

"It is significant to notice that the patient did not have any history of diabetes or hypertension or any cardiac problem. Therefore, it was difficult for treating doctors including the duty doctor or the hospital to assume that the patient may suffer cardiac arrest moreover, the patient had also not complained of pain in any other part of the body except the neck region," the court noted.

"The case in handstands on a better footing, in as much as there was no mistake in diagnosis or a negligent diagnosis by Respondent no. 2 (doctor). In the absence of the patient having any history of diabetes, hypertension, or cardiac problems, it is difficult to foresee a possible cardiac problem only because the patient had suffered pain in the neck region," the court said.

"For the foregoing, this Court is of the considered view that the appellant has failed to establish negligence on the part of Respondents in taking post-operative care and the findings in this regard recorded by the Commission does not suffer from any illegality or perversity," the court said.

States/UTs Must Notify 'District Officers' Under Prevention Of Sexual Harassments Act : Supreme Court Issues Slew Of Directions

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The Supreme Court has issued a slew of directions to the Union government, and all State/UT governments to ensure the effective implementation of the provisions of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) read with its Rules.

Significant among them is the mandatory direction issued by the Court that the States and Union Territories must appoint a "District Officer" as per Section 5 of the Act. Though Section 5 says that the appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer, the Court read this as a mandatory condition.

The concerned Principal Secretary of the State/UT Ministry of Women and Child (or any other Department) will personally ensure the appointment of a district officer in each district within their territorial jurisdiction, as contemplated under Section 5 within four weeks from the date of this judgment.

Pursuant to this, each appointed district officer: (a) must in compliance with Section 6(2) appoint nodal officers in every block, taluka and tehsil in the rural or tribal area and ward or municipality in the urban area; (b)must constitute an LC, as contemplated under Section 6 and 7 of the Act; and (c) ensure the contact details of these nodal officers and LCs, shall be forwarded to the nodal person within the State Government Ministry of Women and Child Development within 6 weeks from the date of this judgment.

Due compliance with Section 21(1) and (2), and Section 22, must be undertaken by each District Officer, of the State including collecting the reports from the IC/employers (or information where no report is available), and from the LC, and preparation of a brief report to be shared with the State government.

When Notice Is Returned As ‘Unclaimed’, It Must Be Deemed Proper Service; 'Unclaimed' Same As 'Refusal': Supreme Court

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The Supreme Court recently held that when notice is returned as ‘unclaimed’, it shall be deemed to be served on the addressee and considered proper service. The Apex Court also clarified that the word ‘refusal’ can be interpreted as synonymous to the word ‘unclaimed’.

Notice issued to the respondent had returned with the remarks ‘unclaimed’. The Registry in its office report had mentioned that when the notice is returned as ‘refusal’, it constitutes complete/proper service, but when it is returned as ‘unclaimed’, is considered incomplete service.

The Court relied on the decisions in K.Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, (1999) 7 SCC 510 and Ajeet Seeds Limited Vs. K. Gopala Krishnaiah (2014)12 SCC 685 (2014) to observe that when notice is returned as ‘unclaimed’, it must be deemed to be proper service on the addressee.

“…The word ‘refusal’ can be interpreted as synonymous to the word “unclaimed”. As held by the Hon’ble Supreme Court in the above decisions, when a notice is served to the proper address of the addressee, it shall be deemed to be served unless the contrary is proved. Thus, when the notice is returned as unclaimed, it shall be deemed to be served and it is proper service. Therefore, service of notice to the sole respondent which has returned as unclaimed is considered as deemed to be served but none has entered appearance”, the Court held.

When Can Two Establishments Clubbed Together For EPF Act Coverage? Supreme Court Explains

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A Division Bench of the Supreme Court recently determined the legal position pertaining to the clubbing of different institutes for the purpose of coverage under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (EPF Act).

After referring to several decisions with respect to the subject matter, the Court concluded that there is a financial integrity between the two institutes and thus, they can be interconnected and can be clubbed for the purpose of coverage.

the Court highlighted that under the provisions of the EPF Act, if any establishment employs 20 or more persons, the same shall be covered under the provisions of the EPF Act for grant of various benefits thereunder to the employees working there.

Moving forward, the Court also narrowed the issue raised in the present appeal and clarified that the same is not regarding the calculation of dues under the EPF Act, rather it is regarding the coverage of the EPF Act by clubbing of two Institutes.

It thereafter relied upon several precedents that laid down the law regarding the adjudicated issue. These decisions included Associated Cement Co. v. Workmen, AIR 1960 SC 56, wherein it was opined that it is impossible to lay down any one test as absolute and invariable for all cases to determine the issue regarding clubbing of two establishments for the purpose of coverage under the EPF Act. The real purpose is to find out true relations between the two establishments and finally opine thereon. In one case, ‘unity of ownership, management and control’ may be an important test whereas in another ‘functional integrity’ or ‘general unity’ may be important. There can also be a case where the test can be of the ‘unity of employment’.

The Court also placed its reliance upon Noor Niwas Nursery Public School v. Regional Provident Fund Commissioner and others, (2001) 1 SCC 1 wherein it was held that no straight jacket formula or test can be laid down for the purpose of clubbing of the two establishments and coverage under the EPF Act.

After perusing various orders and documents produced on record, the Cout was of the opinion that the appellant had taken the case very casually. At the foremost, the Court observed that after the inspection of the institute, report was submitted by the Enforcement Officer on July 01, 2003, wherein it was stated that the establishment would be covered under the provisions of the EPF Act.

The coverage was confirmed vide order dated August 12, 2003. At this, the Court pointed out that both these orders were not challenged by the appellant. It is only after the order was passed by the Commissioner on September 23, 2005, under Section 7-A of the EPF Act, that the proceedings were initiated.

When the matter travelled to the Tribunal, therein it was recorded that the onus to prove that the employees were less than 20 for exclusion of the applicability of EPF Act before the Commissioner, was on the appellant and the appellant had failed to discharge the same. Thus, it did not interfere with the order of the commissioner.

At the end, the Court opined that the documents produced by the appellant themselves show that it is not an independent establishment but an arm of the Society.

Pertinently, one of the documents was the letter dated 09.12.1987 from the University Grants Commission conveying the Registrar, Gulbarga University, Gulbarga, about the inclusion of the appellant college in the list of the approved colleges under the non-Government colleges, teaching upto Bachelor’s degree. The name of the college was mentioned as ‘The Ideal Fine Arts Society’s College of Visual Art’.

It is in this context, the Court held that “the College is nothing but an extended arm of the Society”, while refusing to accept the appellant’s contentions and dismissing the appeal.

Supreme Court rules 5-0 against same-sex marriage, 3-2 against adoption

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The limitations of the judiciary on entering the domain of law-making to recognise same-sex marriages, the Supreme Court, by recognising non-heterosexual relationships and articulating that they are deserving of equal rights and state protection, has moved the needle on the journey of queer rights.

Cheque Dishonour Cases - What Should Courts Ask Accused Once Presumption Under S.139 NI Act Is Applicable? Supreme Court Explains

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Reiterating the principles relating to the presumption under Section 139 of the Negotiable Instruments Act 1881, the Supreme Court reversed the acquittal of an accused in a case for cheque dishonour.

A bench comprising Justices Aravind Kumar and SVN Bhatti observed that there was a "fundamental flaw" in the approach taken by both the Trial Court and the High Court.

Summarising the law relating to the presumption under Section 139 NI Act and the mode of its rebuttal, the Court stated :

"Once the presumption under Section 139 was given effect, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift to the case set up by the accused since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking the aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly".

Two questions that the Courts should ask?

When the Courts have concluded that the signature in the cheque has been admitted and its execution has been proved, then the Courst should inquire into either of the two questions :

1. Has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of the cheque?

2. In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the ‘particular circumstances of the case’?

Referring to a catena of precedents, the Court reiterated that as soon as the complainant proves the execution of the cheque, the burden of proof shifts to the accused by virtue of Section 139. "Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further." the Court explained.

The standard of proof to discharge this burden of proof on the accused is not heavy and can be established through the preponderance of probabilities. The accused can either adduce direct evidence or through circumstantial evidence.

Insisting That Donor Egg Cannot Be Used For Gestational Surrogacy Is Prima Facie Against Surrogacy Rules: Supreme Court

The Supreme Court has observed that insisting that only the egg and the sperm of the intending couple can be used for gestational surrogacy is prima facie against Rule 14(a) of the Surrogacy (Regulation) Rules, 2022.

A new amendment introduced in March 2023 to Form 2 read with Rule 7 of the Surrogacy Rules specifies that donor eggs cannot be used for gestational surrogacy of an intending couple.

The Court made this observation while hearing a batch of pleas filed by married women, suffering from a congenital disorder known as Mayer-Rokitansky-Kuster-Hauser (MRKH), who want to achieve biological motherhood through gestational surrogacy. MRKH syndrome causes absolute uterine factor infertility and the only way for a person suffering from such a condition to attain biological motherhood is through gestational surrogacy. This is because the petitioners are not able to produce eggs due to their medical condition.

The petitioners had challenged the amendment dated 14.03.2023 made to Form 2 under Rule 7 of the Surrogacy Rules, which is the form for Consent of the Surrogate Mother and Agreement for Surrogacy.

“Having regard to the challenge made to paragraph 1(d) in Form 2 namely, the substitution as referred to above, we find, prima facie, that this is a case where the said substitution is contrary to what is stipulated in Rule 14(a) of the Surrogacy Rules,” a bench of Justice B V Nagarathna and Justice Ujjal said.

Hindu marriage can be dissolved through a customary divorce deed if such a customary right is established through existence- SC

The Supreme Court of India recently observed that a Hindu marriage can be dissolved through a customary divorce deed, provided that the party relying on the same should prove that such a customary right exists. The bench also said that a specific pleading regarding the existence of such a customary right should be established through existence before the top Court. This is identified in context with Section 29(2) of the Hindu Marriage Act of 1955 which states that any right recognized by custom or conferred by any special enactment to obtain the dissolution of Hindu marriage will not be affected by the provisions of the Act. 

These observations were made while considering an appeal filed against the Himachal Pradesh High Court’s judgment quashing a wife’s complaint under the Protection of Women from Domestic Violence Act of 2005. While delivering the judgment, the HC relied on the purported customary divorce deed produced by the husband in order to quash a complaint filed by the wife. Aggrieved by the decision of the HC, the wife approached the Supreme Court challenging the HC’s order. During the SC proceedings, the husband claimed that the dissolution of the marriage was conducted through a customary divorce deed. 

The SC bench observed, “The issue whether the parties are governed by the custom under which a divorce can be obtained without resource to Sections 11 and 13 of the 1955 Act, is essentially a question of fact which is required to be specifically pleaded and proved by way of cogent evidence. Such question can ordinarily be adjudicated only by a civil court.” The top Court also highlighted that a mere application filed by the husband cannot allow the Judicial Magistrate to decide the validity of a customary divorce deed. It added that the husband has to lay a proper foundation in pleadings and produce evidence to prove long-time custom. Further, the husband has to establish that their marriage was dissolved by resorting to customary rights.

Moreover, the Supreme Court set aside the HC’s order and remitted the matter back to it for fresh consideration without relying on a customary divorce deed

 

State Govt Has Power To Impose Permit Fee On Erection Of Mobile Towers : Supreme Court

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The Supreme Court has held that a State Government has the competence to impose permit fees on the erection of mobile towers. The Court rejected the argument that the State cannot realise the permit fee on mobile towers in the absence of a Parliamentary law empowering it to do so.

The Court upheld a judgment of the Chhattisgarh High Court which held that the Chhattisgarh Government had the competence to issue the Circulars as well as the Rules for the purpose of realising one-time permit fee while granting sanction for the erection of a mobile tower in the area under the jurisdiction of the Municipal Corporations/Municipalities/Gram Panchayats. e.

The bench of Justices BV Nagarathna and Ujjal Bhuyan refused to accept the case of Bharat Sanchar Nigam Limited, the appellant, that the subject of permit fee on mobile towers would fall within the scope of Entry 31 of List I of the Seventh schedule of the Indian Constitution which lies exclusively within the domain of the Central Legislature. Entry 31 deals with posts and telegraphs; telephones, wireless, broadcasting, and other like forms of communication.

At first, the Court highlighted judgments wherein it had already delved into the scope and ambit of the Entries in various Lists of Seventh Schedule. These included Ahmedabad Municipal Corporation v. GIL Infrastructure Ltd. (2017) 3 SCC 545.

In this matter, the Court had observed that in the context of a mobile tower located on land and building, incidence of a tax or charge or fee is not on the structure of the mobile tower as such, rather it is on the use of the land and building on which the mobile tower is erected. Therefore, the person who is using the land and building for the purpose of installation of the mobile tower so as to make use of the said structure for the purpose of telecommunication or telegraph services is liable to pay the tax or fee or charge.

Acquittal In Criminal Proceedings Does Not Automatically Result In Discharge In Corresponding Disciplinary Proceedings: Supreme Court

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The Supreme Court ruled that an acquittal in connected criminal proceedings does not entail any benefit in the surviving proceedings and thus does not automatically result in a corresponding discharge in disciplinary proceedings pending against an employee.

A Division Bench of Justice Hrishikesh Roy and Justice Sanjay Karol clarified that the two proceedings operate in different domains and had distinct objectives.

"The nature of proceedings being wholly separate and distinct, acquittal in criminal proceedings does not entitle the delinquent employee for any benefit in the latter or automatic discharge in departmental proceedings."

The Apex Court relying on precedents culled out the following essentialities for the operation of clause 4:

a. At least one year ought to have passed since attempts to get the delinquent employee prosecuted;

b. If, after the passage of such time, no prosecution is initiated, then the department may proceed in accordance with its procedure for disciplinary action;

c. If the prosecution commences later in point of time to the disciplinary proceedings, the latter shall be stayed, but not indefinitely. Such proceedings are to be stayed only for a reasonable period of time, which is a matter of determination per the circumstances of each case.

Furthermore, it was also highlighted that an acquittal in criminal proceedings did not automatically result in a corresponding discharge in disciplinary proceedings.

In this specific case, the disciplinary proceedings against the employee had been initiated well after the one-year period mentioned in clause 4. Additionally, the employee had not raised objections based on clause 4 at the outset, and there was no indication of prejudice caused by simultaneous proceedings.

Consequently, the Court set aside the High Court's judgment and restored the employee's dismissal from service based on the disciplinary proceedings.

ED Can't Be Vindictive, Grounds Of Arrest Must Be Furnished In Writing To Accused At The Time Of Arrest : Supreme Court

The Court went to the extent of stating that the ED's conduct "reeks of arbitrariness" and directed the immediate release of both the accused.

In a significant judgment pronounced on Tuesday (October 3), the Supreme Court held that the Directorate of Enforcement (ED) should furnish the grounds of arrest to the accused in writing at the time of arrest.

"We hold that it would be necessary, henceforth, that a copy of written grounds of arrest is furnished to the arrested person as a matter of course and without exception." pronounced a bench comprising Justices AS Bopanna and Sanjay Kumar while setting aside the arrest of Pankaj Bansal and Basant Bansal in the money laundering case against the real estate group M3M.

 The central agency approach was taken in the instant case by which the grounds of arrest were not furnished to the accused in written form. Noticing that the ED officer merely read out the grounds of arrest, the Court held that such conduct would not fulfil the mandate of Article 22(1) of the Constitution and Section 19(1) of the Prevention of Money Laundering Act.