Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts

Tuesday, June 20, 2017

SC stays NGT order on demolition of resorts in Kasauli

Supreme Court on Friday stayed the National Green Tribunal (NGT) order directing demolition of five resorts in Kasauli in Himachal Pradesh, which were either constructed or expanded without adequate approvals from authorities.

Although a bench of Justices R K Agrawal and Sanjay Kishan Kaul said the resort owners had to justify construction without approval from local authorities, but granted interim stay on the NGT order. 

The NGT had on May 30 directed Bird's View Resort, Chelsea Resorts, Hotel Pine View, Narayani Guest House and Nilgiri Hotel to demolish their "unauthorised structures". The tribunal had also directed the resorts to pay up for the environmental destruction caused by them. The Bird's View Hotel was directed to pay an environmental compensation of Rs 5 lakh while Chelsea Resorts, Hotel Pine View, Narayani Guest House were directed to pay Rs 7 lakh each. Nilgiri hotel was directed to pay Rs 10 lakh.

"We direct that the unauthorised and illegal construction raised in violation of the planning laws affecting environment, ecology and natural resources adversely, should be demolished in terms of the provisions of the NGT Act of 2010," the NGT had said.

The tribunal had passed the order on a plea filed by Society for Preservation of Kasauli and its Environs (SPOKE) alleging that Bird's View Hotel added a 3-storey structure adjoining the existing building without obtaining prior approval from Town & Country Planner (TCP) and Chelsea Resorts made four building blocks instead of two approved by the TCP.

It had alleged that Hotel Pine View constructed a 7-storey structure in two inter-connecting building blocks as against only three storey in one block that was approved. Narayani Guest House constructed a 6-storey building as against the approval of three storey, while Nilgiri Hotel constructed four extra storeys, it had contended before the tribunal.

Thursday, June 15, 2017

Supreme Court of India held that Only Wakf Tribunal Can Decide Whether A Property Is Wakf Or Not

When the main question involved in the suit is whether the suit land is a Wakf property or not, it can be decided only by the Wakf Tribunal, and not by the civil court, the Supreme Court has held in Rajasthan Wakf Board vs Devki Nandan Pathak.
A bench comprising Justice AM Sapre and Justice RK Agrawal also held that matters falling under Sections 51 and 52 of the Wakf Act are also required to be decided by the tribunal and not by the civil court. The court has now remanded the matter to the high court for deciding the revision afresh on merits.
In the instant case, the Wakf Tribunal, on a plea by Wakf Board, had granted permanent injunction in respect of the property in question and declared the sale deed executed in favour of the other party ‘null and void’. The high court set aside this order holding that the tribunal has no jurisdiction in the matter and on the ground that since no order was made by any authority under the said Act, the applicant before the Wakf Tribunal could not be said to be the person aggrieved also as contemplated in Section 83(2) of the said Act and hence the tribunal would have no jurisdiction to determine the issue involved in the suit.
Relying on an apex court judgment, the high court observed that in so far as the relief of cancellation of sale deed is concerned, it is to be tried by the civil court for the reason that it is not covered by Section 6 or 7 of the Wakf Act.

Supreme Court Limits CCI’s Penalty Powers: “Relevant Turnover” Upheld

upheld the principle of “relevant turnover” for determination of penalties in competition law contraventions; and settled a critical issue in India’s antitrust jurisprudence, which was heavily debated amongst all stakeholders for over five years.
The above ruling arises out of a proceeding involving an alleged contravention of Section 3(3) of the Competition Act, 2002 (Competition Act) in the public procurement of Aluminium Phosphide (ALP) Tablets by the Food Corporation of India (FCI). The Competition Commission of India (CCI) found a violation of Section 3(3) of the Competition Act and imposed a penalty at the rate of 9% of the total turnover of the concerned ALP manufacturers – namely, Excel Corp Care Limited (Excel), United Phosphorus Limited (UPL) and Sandhya Organic Chemicals Private Limited (Sandhya).
The Competition Appellate Tribunal (COMPAT) in its final order upheld the CCI’s order as to the existence of the contravention under the Competition Act. However, it significantly reduced the penalties imposed by the CCI. COMPAT’s modification of penalties was based on the principle that the reference to the term “turnover” in Section 27(b)[1] of the Competition Act would, in the facts and circumstances of the case, mean “relevant turnover”, i.e. turnover derived from the sales of goods or services, which are found to be the subject of contravention.
COMPAT’s order was challenged by the CCI before the Supreme Court. CCI contended that the term “turnover” as used in the Competition Act must always be interpreted as “total turnover” of the enterprise in contravention. The CCI contended that the COMPAT had added words to the Competition Act by inserting the word “relevant” before the term “turnover”. ALP tablets manufacturers, led by Excel, on the other hand, opposed the same by contending that it was the interpretation extended by the CCI, which led to adding the word “total” or “entire” before the term “turnover”.
Key Findings
Ultimately, the Supreme Court held that the imposition of penalty adopting the criteria of “relevant turnover” will be “more in tune with ethos of the Act and the legal principles which surround matters pertaining to imposition of penalties.”
Role of Equity in Penalty Imposition
The Supreme Court held that accepting the CCI’s interpretation of the term “turnover” as “total turnover” in all situations would “bring about very inequitable results”. Relying on various judgments stating that interpretation that brings out inequitable or absurd results has to be eschewed, the Supreme Court held that the interpretation extended by CCI does not commend acceptance.
In this regard, the Supreme Court took note of illustrations demonstrating that imposition of penalty on the basis of “total turnover” in all cases would inequitably discriminate against enterprises committing the same contravention depending on the manner in which their product/business lines are structured.
Strict Interpretation  
The Supreme Court also justified its conclusion and found that the principle postulating strict interpretation of “penal” statutes would also support and supplement the consideration of “relevant turnover” rather than “total turnover”.
In light of the principle of strict interpretation (relying on a recent Constitution Bench decision in Abhiram Singh and Ors v C.D. Commachen (Dead) by L.Rs and Ors[2] ) the Supreme Court held that, “even if two interpretations are possible, the one that leans in favour of infringer has to be adopted” and that there was “no justification for including other products of an enterprise for the purpose of imposing penalty” when the agreement leading to contravention involves one product.
Proportionality and Purposive Interpretation
As regards the arguments of the CCI on the objective to discourage and stop anti-competitive practices, the Supreme Court held, “the penalty cannot be disproportionate and it should not lead to shocking results”. It was held that the aim of deterrence cannot be justified to give an interpretation that may lead to “the death of the entity” itself. The Supreme Court emphasised that the doctrine of proportionality, which is based on equality and rationality, is a “constitutionally protected right which can be traced to Article 14 as well as Article 21 of the Constitution”.
The Supreme Court noticed that the doctrine of purposive interpretation and doctrine of proportionality have certain overlaps. It held that the purpose of the Competition Act cannot be to “finish” certain enterprises. Relying on the South African judgment in Southern Pipelines, the Supreme Court repeated that “there is a legislative link between the damage caused and the profits which accrue from the cartel activity”. Accordingly, the purposive interpretation of the term “turnover”, the Supreme Court found, also favours consideration of “relevant turnover”.
The concurring judgment by Hon’ble Mr. Justice N.V. Ramana held that “proportionality needs to be imbibed into any penalty imposed under Section 27” of the Competition Act. Accordingly, it laid down step-wise methodology to be followed by the CCI in imposing penalties.
Step-wise Methodology for Penalty Imposition
Step 1: Determination of Relevant Turnover
“Relevant turnover” refers to the “entity’s turnover pertaining to products and services that have been affected by such contravention”. The Supreme Court has clarified that the above definition is not exhaustive.
Step 2: Determination of Appropriate Percentage of Penalty Based on Aggravating and Mitigating Circumstances  
The Supreme Court provided an illustrative list of factors to be considered when determining such percentage.
Final Step: The penalty imposed “should not be more than overall cap of 10% of the entity’s relevant turnover”.
Key Takeaways
The Supreme Court’s approach in this judgment indicates a healthy respect for foreign jurisprudence, which is tempered by the motivation to evolve indigenous jurisprudence based on, and appropriate to, the Indian constitutional and legal framework.
  • The judgment lays the foundation for penalty imposition under the competition law regime in India, leading to greater certainty and transparency in penalty imposition. The same will benefit all stakeholders functioning within the framework of the Competition Act.
  • This judgment, from the highest court of the land, is likely to be followed in all cases where the issue of “relevant turnover” is pending or raised either before the DG/CCI or at the Appellate Stage or even before the Supreme Court itself. 

persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.

The Supreme Court of India in Narendra vs. K.Meena has held that persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.
The Bench comprising Justice Anil R. Dave and Justice L. Nageswara Rao also held that leveling of absolutely false allegations with regard to extra-marital life and repeated threats to commit suicide would also amount to ‘mental cruelty’. The Supreme Court set aside a High Court judgment which had reversed the Trial court order granting divorce to the husband on ground of cruelty.
Repeated threats to commit suicide
Observing that repeated threats to commit suicide amounts to cruelty, the Court observed: “No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing.”
Forcing separation from parents
With regard to allegations of cruelty in wife forcing husband to get separated from his parents, the Bench observed: “In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason; she would never insist that her husband should get separated from the family and live only with her…. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income.”
Wild allegation of extra marital affairs
The Court also observed that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife.
Restoring the judgment of Trial court and setting aside the High Court judgment, the Bench said: “The behaviour of the wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband.”

Tuesday, February 21, 2017

Constitution bench to decide petitions on triple talaq: Supreme Court

A five-judge constitution bench would be set up by the Supreme Court to hear and decide on a batch of petitions relating to the practice of triple talaq, 'nikah halala' and polygamy among Muslims.

A bench headed by Chief Justice J S Khehar took on record three sets of issues framed by parties with regard to the cases and said the questions for consideration of the constitution bench would be decided on March 30.

The bench, also comprising Justices N V Ramana and D V Chandrachud, said "the issues are very important. These issues cannot be scuttled".

Referring to the legal issues framed by the Centre, it said all of them relate to the constitutional issues and needed to be dealt by a larger bench.

The bench asked the parties concerned to file their respective written submissions, running not beyond 15 pages, by the next date of hearing, besides the common paper book of case laws to be relied upon by them during the hearing to avoid duplicity.

When a woman lawyer referred to the fate of the apex court judgement in the famous Shah Bano case, the bench said "there are always two sides in a case. We have been deciding cases for last 40 years. We have to go by the law and we would not go beyond the law."

The bench also made it clear that it is willing to sit on Saturdays and Sundays to decide on the issue as it was very important.

During the last hearing, the apex court had said it would decide the issues pertaining to 'legal' aspects of the practices of triple talaq, 'nikah halala' and polygamy among Muslims but not deal with the question whether divorce under Muslim law needs to be supervised by courts as it fell under the legislative domain.

'Nikah halala' means a man cannot remarry a woman after triple talaq unless she has already consummated her marriage with another man and then her new husband dies or divorces her.

The bench headed by the CJI had said "You (lawyers for parties) sit together and finalise the issues to be deliberated upon by us."

The bench had made it clear to the parties concerned that it would not deal with the factual aspects of the particular case and would rather decide the legal issue.

The apex court had said that the question whether divorce under Muslim Personal Law needed to be supervised by either courts or by a court-supervised institutional arbitration fell under the legislative domain.

It, however, allowed lawyers to file small synopsis of cases pertaining to alleged victims of triple talaq.

The Centre had earlier opposed the practice of triple talaq, 'nikah halala' and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.

Ministry of Law and Justice had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries.

Responding to a batch of petitions including the one filed by Shayaro Bano challenging the validity of such practices among Muslims, the Centre had first dealt with the right of gender equality under the Constitution.

All India Muslim Personal Law Board, however, had rubbished the stand taken by the Narendra Modi government that the apex court should re-look these practices as they are violative of fundamental rights like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution.

Another prominent Islamic organisation Jamiat Ulema-i- Hind had told the court there is no scope for interference with the Muslim Personal Law in which triple talaq, 'nikah halala' and polygamy are well rooted and stand on much higher pedestal as compared to other customs.

Monday, January 9, 2017

Speedy disposal of Intellectual property rights cases

 Dispute over Patent for the Use of Twin-Spark Plug Engine Technology – Speedy disposal of Intellectual property rights cases- The Supreme Court of India by this landmark judgment has directed all the courts in India for speedy trial and disposal of intellectual property related cases in the courts in India. In two-year-old dispute involving two companies, which have been locked in a patent dispute over the use of a twin-spark plug engine technology, the Supreme Court observed that suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. The Supreme Court directed that hearing in the intellectual property matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the suit. The Supreme Court further directed to all the courts and tribunals in the country to punctually and faithfully carry out the aforesaid orders.

Friday, January 6, 2017

Aircel-Maxis deal: Supreme Court orders 4 accused to appear before Special Court

The Supreme Court on Friday said that the four accused in the Aircel-Maxis case would have to appear before the Special Court and the scheduled the hearing on February 3, 2017.The SC said Aircel spectrum was to be seized & transferred within 2 weeks if the controller & owners did not appear in court in connection with the case. Earlier yesterday, the Chennai High Court had dismissed a bunch of petitions challenging the summons by the Enforcement Directorate citing that the Aircel-Maxis deal was being heard by the Supreme Court. One of these petitions had been filed by former Union Minister P Chidambaram. Karti Chidambaram and Advantage Strategic Consultants Private Limited’s directors were among the other known petitioners, who had challenged the ED summoning. Karti, in his petition, had contended that the summons was a malice in law and added that the summons was campaign was to aim to bear ill reputation of his father, P Chidambaram. Justice B Rajendran had concurred with the Centre’s counsel and said that the matters related to the case were being monitored by the Apex Court.

Earlier in September, senior advocate Harish Salve had appeared for the accused and said that the Aircel-Maxis case was in no way related to the 2G spectrum scam. He had argued that the Chennai-based Telecom promoter C Sivasankaran had been unduly pressured by the then Telecom Minister Dayanidhi to sell the stake in Aircel to Ananda Krishnan owned Maxis in 2006 but it had nothing to do with the 2G scam.

The trial court, however, had said that the Aircel-Maxis deal fell “fairly and squarely falls within the description of 2G scam”. The CBI had earlier alleged that Dayanidhi had “pressured” and “forced” Sivasankaran to sell his stakes in Aircel and two subsidiary firms to Malaysian firm Maxis Group in 2006. The Malaysian firm had favoured by Dayanidhi and granted a licence within six months after the takeover of Aircel in December 2006, it had said. Ex-Telecom Secretary J S Sarma was also named in the CBI’s charge sheet. His name was put in a column of the accused against whom trial cannot proceed.

Friday, December 23, 2016

Seniority is not the ideal norm to determine the appointment of the chief justice of India..

The Department of Justice in the Ministry of Law and Justice issued a terse notification on December 19 saying that by exercising the powers conferred by clause (2) of Article 124 of the constitution of India, the president had appointed Justice Jagdish Singh Khehar, a Supreme Court judge, as the 44th Chief Justice of India (CJI), with effect from January 4, 2017.

The notification, albeit routine, issued ahead of the swearing-in of the new CJI is significant because of what it fails to reveal. Strange as it may seem, clause (2) of Article 124 of the constitution does not confer any such power on the president to appoint the CJI.

The relevant part of clause (2) of Article 124 reads:

“Every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the president may deem necessary for the purpose and shall hold office until he attains the age of 65 years. Provided that in the case of appointment of a judge other than the chief justice, the Chief Justice of India shall always be consulted.”

No doubt, a CJI is also a judge of the Supreme Court and, therefore, it may be suggested that the power to appoint a CJI can be inferred from this provision. Justice Khehar, however, has already been appointed as a Supreme Court judge once and continues to be one till date.

Therefore, without a clarificatory notification, the use of this provision would mean the appointment of the same person twice.

The absurdity of the literal reading of this provision apart, the lack of clarity in clause (2) of Article 124 with regards to the appointment of the CJI might suggest that the framers of the constitution perhaps envisaged the appointment of a person to the post other than the judge of the Supreme Court. Or at the very least, the framers did not envisage the consultation of the president with the judges of the Supreme Court – or the CJI – with regard to the appointment of the incumbent CJI’s successor.

The supersession issue

By appointing Justice Khehar – the senior-most judge in the Supreme Court after outgoing CJI Justice T.S. Thakur – as the next CJI, the president has put to rest the speculations that have been doing the rounds for weeks.

The news must come as a relief to those who could not rule out supersession in the judiciary by the present government, as well as to those who believed that the present government would hesitate to take an unwise step like the supersession of the CJI, ignoring the convention of elevating the senior-most judge in the Supreme Court as the CJI.

The senior most puisne of the Supreme Court has always been appointed as the CJI except on two occasions.

The convention was breached when Justice A.N. Ray was appointed as the CJI on April 25, 1973, by superseding three senior-most judges. The supersession was made on the day following the Supreme Court’s judgment in the Kesavananda Bharati case.

The second supersession took place during the Emergency when Justice M.H. Beg was appointed as the CJI on January 29, 1977, by superseding Justice H.R. Khanna.

During the hearing of the National Judicial Appointments Commission (NJAC) case last year, the government counsel defending the NJAC assured the Supreme Court’s constitution bench that these two instances of breaching the convention should be considered as aberrations.

The bench also took note of the fact that the first prime minister, Jawaharlal Nehru wanted to supersede Justice Patanjali Sastri, who was the senior-most judge of the Supreme Court, when the first CJI, Harilal Kania, died in office on November 6, 1951.

The bench was told – on the basis of reliable records – that all the six judges of the Supreme Court threatened to resign if Sastri was superseded. Sastri only had a few months left until his retirement and the government acceded to the so-called non-existent convention at the time.

The petitioners in the NJAC case, who doubted the government’s bonafides, pointed to the amendment of the constitution inserting the new Article 124(C), which said that the parliament may – by law – regulate the procedure for the appointment of CJI and other judges of the Supreme Court, and the chief justices and other judges of high courts.

The petitioners were aghast that the new provision equated the appointment of the CJI with that of the other judges of the apex court and chief justices and other judges of high courts without taking note of the convention of seniority guiding the appointment of the CJI, which was cast in stone all these years.

The petitioners were also concerned about the vagueness of the term ‘fitness’, used in Section 5 of the NJAC Act, while referring to the fitness of the senior-most judge of the Supreme Court, to be determined by parliament, for the purpose of his elevation as the CJI.

While Attorney General Mukul Rohatgi clarified to the bench that fitness meant physical and mental fitness alone, doubts remained whether the parliament could define “fitness” in a manner subserving the interests of the executive.

The petitioners’ concerns prevailed over the bench, which struck down both the NJAC Act and the Constitution 99th Amendment Act 2014, on grounds that if the parliament has the authority to regulate the procedure for the appointment of judges – including the CJI – by framing laws, it would mean legislative control, which would breach the “independence of the judiciary.”

The convention of appointing the senior-most judge of the Supreme Court as the CJI, following the retirement of the outgoing CJI, was given the stamp of approval in the Second Judges Case in 1993.

In that case, a nine-judge bench had held that “there is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary.”

The appointment of the CJI, by its very nature, was considered distinct from the appointment of other judges of the apex court and the high courts.

The convention has its own justification – there is no provision for consultation in the constitution between the CJI and the president for the appointment of the CJI, unlike in the case of the appointment of other judges and it is for that reason that a healthy convention has developed of appointing the senior-most judge of the court as the CJI.

This convention, the Supreme Court was told in the Second Judges Case, is in keeping with the concept of independence of the judiciary as it excludes the possibility of executive interference in the matter. The Supreme Court’s nine-judge bench accepted this contention and ruled accordingly. No wonder then that in the NJAC case, another five-judge bench of the Supreme Court found this convention inviolable.

Seniority convention has no roots

Abhinav Chandrachud, a scholar and lawyer, however, found little evidence for this convention prior to the establishment of the Supreme Court, specifically in the high courts of Bombay, Calcutta, Madras, Allahabad, Patna, or in the Federal Court of India (FCI).

According to him, the seniority norm for the appointment of the chief justices of these high courts and in the FCI did not prevail. He observed that when viewed as a whole, the seniority convention in the high courts of India was an exception rather than a rule.
He adds that in the1950s, the appointment of the CJIs on the norms of seniority was an aberration, today, however, it is perhaps indispensable in order to safeguard the independence of the judiciary.
Chandrachud cites a few instances of non-judges becoming chief justices in high courts – Basil Scott was an advocate general and he directly became the chief justice of the Bombay high court, while P.V. Rajamannar was made the chief justice of the Madras high court by superseding four judges. William Patrick Spens was appointed as a chief justice of the federal court – a post vacated by his predecessor, Maurice Gwyer – even though he was not a federal court or a high court judge.

India’s first attorney general, M.C. Setalvad, was asked by the then home minister, K.N. Katju, whether he was interested in taking Kania’s place as the CJI – referring to a custom prevalent in England where the attorney general replaces the lord chief justice. Setalvad reminded the home minister that he had already surpassed the retirement age. Setalvad apparently suggested to the home minister that M.C. Chagla, the then chief justice of the Bombay high court, be considered for the post.

There is evidence suggesting that the framers of the Indian constitution contemplated someone other than the Supreme Court judge to become the CJI in order to ensure that the incumbent has a longer term in office than what most CJIs – elevated on the basis of seniority – can hope to have.

It is too late in the day to speculate what could have been the consequence had the six judges of the Supreme Court not threatened to quit in the face of Nehru’s threat to supersede Sastri in 1951. Since then, seniority as the only norm for the appointment of the CJI has become synonymous with the independence of the judiciary.

The rapid succession of the CJIs and the experience of outgoing CJI Thakur – who had just about a year in office as the chief justice before his retirement and was therefore at the receiving end of the government’s indifference to the collegium’s recommendations for filling vacancies of judges in high courts – should tell us that in the absence of fixed minimum tenures, no chief justice can hope to reform the judiciary and thereby ensure its independence from the executive on aspects other than the appointment of the CJIs.

The next CJI, Khehar, who assumes office on January 4, 2017, will retire on August 27, 2017, with a summer vacation lasting for one and a half months.

Seniority is not the ideal norm to determine the appointment of the CJI, but there appears to be no alternative at present with the government’s lack of respect for institutions hitting an all-time low.

Supreme Court stays Delhi HC order on Unitech-home buyers meetings

The Supreme Court on Thursday stayed the Delhi high court order, which had directed realty firm Unitech to hold meetings with home buyers and opening escrow accounts for completion of delayed projects.

A bench of justices, Dipak Misra and Amitava Roy, said the execution proceedings in the cases filed by the home buyers before the NCDRC, which were stayed after the Delhi HC order, will now continue.

The high court had on September 2 granted an opportunity to beleaguered real estate firm to complete its delayed housing projects and hand over possession of flats to the buyers by opening escrow accounts and using the money deposited in it solely for these projects.

The apex court, on November 18, had stayed all the meetings of homebuyers of Unitech Ltd for giving their approval or disapproval to a proposed compromise scheme forwarded by the company to enable it to complete pending projects.

The bench had also issued notice to the company, saying “there is suspicion that it is trying to subvert the order of this court”.

It said that people who were successful at the level of the national consumer commission and are before the apex court, should get their money back from the developer.

The Delhi HC had directed the home buyers across the country to hold meetings for approval or disapproval of proposed scheme of compromise so the company can complete pending projects and hand over the flats.

Justice Sudershan Kumar Misra, who retired on September 6, in his order, said four meetings of home buyers should be held on November 20 in Mohali, Punjab, on November 27 in Chennai, on December 4 in Gurgaon and on December 11 in Noida.

The company had told the high court that it would open escrow accounts in which the amounts received from the buyers and sale of lands would be deposited, and the money would be used solely for completing the delayed housing projects.

The court had put in “abeyance” all the proceedings pending before different forums against Unitech Ltd to enable it to fulfil its commitment towards homebuyers by handing over possession of flats. It also appointed a court commissioner to monitor the functioning of the escrow account.

It had clarified that cases in which directions had been issued or might be issued in future by the apex court to the company in this regard should stand exempted from the scope of the order.

Thursday, December 8, 2016

Supreme Court backs move to ban highway liquor vends

The Supreme Court indicated on Wednesday that it would order shutting of all liquor vends on national and state highways for the safety and security of commuters who get “distracted” after seeing the shops, causing accidents.

A bench headed by Chief Justice TS Thakur came down heavily on states for not heeding the Centre’s advice to not give licences to the vends on the highways. Instead, the states have increased the number of licences, the bench pointed out. The first communiqué was released in 2007, since then the Centre has been sending notices to the states.

“We would not like any vend on national highways, state highways, advertisements, or signage about the availability of liquor shops. We will direct all highway authorities to remove all sign boards. It should be absolutely free from any distraction or attractions. It should not be visible. Visibility is the first temptation,” Justice Thakur said.

The court was hearing petitions challenging various high court verdicts, which disapproved the sale of liquor on highways. The courts have held that the shops be located at a distance from where they are neither visible nor accessible to the commuters.

“You can start a door delivery of liquor,” the bench told counsel for Jammu and Kashmir who argued if the vends are away from the highway, people would have problems accessing them due to the terrains.

Punjab government counsel also faced the court’s ire for defending the liquor lobby’s interest. “You are acting like a mouthpiece for the liquor lobby by defending the policy,” the bench told the advocate who pleaded the ban should be made effective from April 1, 2017 to avoid a revenue loss of `1,000 crore to the exchequer.

Supreme Court Orders Facebook, Google, Microsoft To Block Rape Videos Circulating On Their Platforms

There is an evil side to social media as well, the one which we sometimes conveniently ignore or refuse to accept its existence. But, that evil is lurking around, choosing its next victim online.

One such evil is the circulation of rape videos on various social media platforms. Videos of sexual exploitation and rape are actually sold in large numbers in states like UP, Bihar, Rajasthan for as low as Rs 50. Shady dealers from rural hinterland acquire these videos, and make a business out of that.

And as per reports, these dealers acquire such sick videos from social media portals like Youtube and Dailymotion. And once a customer buys this video, it is again been re-circulated on the social media via WhatsApp, Facebook and the trauma of the victim continues.

Understanding the gravity of the situation, Supreme Court has ordered Facebook, Google, Microsoft to immediately place a ban on these videos.

A bench headed by Justice Madan B Lokur said, “The social media which is used to circulate the explicit clips should also be called in to ascertain their view as to how this can be curbed. We are issuing notice”,

This order was passed to Additional Solicitor General Maninder Singh.

Representing Govt. of India, Additional Solicitor will now issue notices to these social media portals and ask them to devise methods which can stop the sharing and viewing of these videos.

Why Supreme Court Intervened?

The Bench was hearing a PIL filed by Sunitha Krishnan who had initiated the popular #ShameTheRapistCampaign. Under this campaign, she received rape videos of more than 200 victims, which are being shamelessly shared across social media platforms, and instead of damaging the ‘reputation’ of the rapists, is destroying the life of the victims.
After her campaign, Govt. instructed CBI to investigate these videos, and book the culprits – both the rapists and those who are buying such videos and then circulating them on social media.

Interestingly, last month, the Court asked whether social media portals can held accountable and declared as accused in this case? This observation was made because these social media portals are the mediums through which such videos propagate, and if they are declared as accused along with the rapists and buyers of such videos, then it can turn out to be an interesting legal case study.

Analysts are saying that social media portals are mere platforms for sharing content, and hence, they cannot be held responsible for the type of the content. But yes, they can certainly block some specific type of content, if it harnesses evil and hatred.

Taking actual data from National Crime Record Bureau statistics, the apex court has asked the Centre to point out measures taken by the Govt. to stop cyber crimes against women and children.

As per arguments made by the Centre, it was revealed that Home Ministry has established exclusive Indian Cyber Crime Coordination Centre, which will work to stop such cyber crimes, including sharing of rape videos.

A statement from the Home Ministry said, “In order to tackle cyber crimes comprehensively, MHA has already set up an expert committee to recommend a roadmap for tackling the menace,”

Tuesday, December 6, 2016

Gujarat High Court Passes Verdict Against Entry Tax On Ecommerce Goods - Reduces Liability On Marketplaces

In the case of E-commerce Marketplaces Vs Gujarat State Entry Tax, the Gujarat High Court has reportedly granted some relief to the companies. The tax liability can now be reduced to the extent of central sales tax paid in the state of origin.
The order was passed by a division bench of Justice MR Shah and Justice BN Karia of Gujarat High Court, in a case relating to Flipkart and its group company Instakart. The ruling will ensure that the total tax paid on the goods purchased by consumers in Gujarat from ecommerce companies is equal to the tax paid levied on similar goods in the state.

The decision is in line with the judgement given by the Supreme Court on November 11, 2016, wherein the states were allowed to impose an entry tax on ecommerce goods, but also mandated to ensure that it should not discriminate when compared with the tax imposed on similar goods by a state on its local traders.
Long Story Short.

The Gujarat government passed the bill to levy entry tax on goods purchased through ecommerce portals in March 2016. As per the government, the previous bill affected the local traders as the goods on ecommerce websites were sold at a much cheaper price as no taxes were levied on these goods.

The ecommerce marketplaces including Flipkart, Amazon and Snapdeal alleged that they are a facilitator and an intermediary. The tax, if applicable, should be imposed on the merchant directly, and not on the marketplace. However, looking at the innumerable transactions happening via ecommerce marketplaces, states find it easier to impose the tax on the marketplace or delivery entity instead of the seller.

After Flipkart, Amazon too filed a case against Gujarat State Government for imposing Entry Tax. Flipkart also sued the states of Uttarakhand, Assam, Rajasthan, and Madhya Pradesh on similar lines.

Prior to this, in October 2015, Flipkart, Amazon and Snapdeal had collectively decided to stop delivering products exceeding INR 5,000 in value, in UP and Uttarakhand. The decision was made citing the harassment by tax authorities, wherein buyers needed to file VAT form and provide the details of vehicle shipping good while purchasing goods from them.

Other States With Taxes On Ecommerce Goods

Uttarakhand: In December 2015, the Uttarakhand government had imposed 10% tax on all ecommerce goods entering the state. In response, Flipkart filed a case against the state of Uttarakhand for imposing this entry tax on ecommerce goods.

Jammu and Kashmir: Tax is levied in case of non-registered dealers and individuals for goods above INR 4,999.

Maharashtra: The state has an entry tax on ecommerce goods.

Sikkim and West Bengal: Both the states have 1% tax on ecommerce goods.

Bihar: Shipments below INR 10,000 have tax applicable.

Himachal Pradesh: If the TIN is not mentioned then entry tax is levied. A 5% entry tax for individual & non-registered dealers, and 3% for government bodies.

Madhya Pradesh: In his budget speech, Madhya Pradesh Finance Minister Jayant Malaiya said the government wishes to impose an entry tax of 6% on goods purchased online to compensate for the loss due to ecommerce.

Assam: According to recent reports, Assam was also planning to levy a tax on ecommerce goods.

A few state governments charge these taxes in form of octroi and the amount ranges from 3% to 6% in different states. The situation is expected to become clear with the induction of the GST in April 2017, provided ecommerce marketplaces are defined correctly, so as to have the right kind of tax levied on them.

The development is first reported by ET.

Friday, January 15, 2016

Kiku Sharda controversy: Are India’s dealings with comedy is schizophrenic?

Not everyone can get away depicting a public figure — the head of a ‘spiritual group’ at that — in a multicoloured crochet two-piece. Or in a bejewelled body suit bearing the words ‘Royal Rock Star’. Or tossing aside an elephant by its legs. Or demolishing a rugby team single-handedly. These inspired images of Dera Sacha Sauda chief Baba Gurmeet Ram Rahim Singh are not depicted by comedian Kiku Sharda, who has been sent to 14 days’ judicial custody for mimicking the godman on a comedy show. These are scenes from the Gurmeet-starring, Gurmeet-directed, Gurmeet-written films, MSG: The Messenger and its sequel.
So why has Sharda been jailed for “outraging religious feelings”? Simply because he made fun of the godman in a comedy show, while Gurmeet and his followers are dead earnest. The irony is that in 2007, Gurmeet was accused by radical Sikh organisations for hurting religious sentiments by ‘mimicking’ Guru Gobind Singh in an ad. India’s dealings with comedy is schizophrenic.
Jokes on public figures and deities ricochet in living rooms and websites, essentially wherever the identity of those laughing is not brought to light. Once a comic take on anyone considered ‘important’ moves from this profane semi-private space to the sanctimonious public one, angry hysterics — fine material for public spectacle — tumble out to claim space in the ‘competitive outrage’ domain. Thus a petition to the Supreme Court demanding a ban on ‘Santa-Banta’ jokes, which the apex court has said it will “examine seriously”. Sharda’s arrest for making fun of Gurmeet in a comedy show is even more ludicrous. If it wasn’t a sad commentary on the extreme prickliness tolerated and encouraged in 2016 India, it would have made for extremely absurdist comedy.