Weekly Legal News Updates [21st- 27th September 2020]-Part I

  • Citizens Have a Duty And Obligation To Keep City, Drains, Public Amenities, Etc. Clean: Kerala High Court

The Court observed,

Keeping the environment clean and tidy and removing the waste and other useless materials so as to ensure healthy, and sanitary conditions conducive to the welfare of the citizens are mandatory requirements to be discharged by the Corporation.

Therefore, taking into account the responsibilities imposed upon the State and the Corporations as per the provisions of the Kerala Municipalities Act, 1994 and the Constitution of India, the State and the Corporations cannot remain as mute spectators, when such dreaded diseases are prevailing due to the menace of mosquito breeding.

The Court furthermore directed the State and the Corporations to guarantee that, the waste accumulated in the cities and the other areas is removed. The waste collection shall also be done in accordance with the provisions of the Act, 1994 and they shall ensure that there is no lethargy or inaction on the part of the authorities in discharging their mandatory functions under the Act, 1994 and thereby protect the life and liberty guaranteed to the citizens under Article 21 of the Constitution of India as is envisioned by the framers of the Constitution and to translate its true intent, purport and spirit, and to prevent further deterioration of the environment and the quality of life of the citizens.

Case Title: Renjith K. R. v. State Kerala and Ors.

Case No.: WP(C).No.23271 OF 2013(S)

Quorum: Chief Justice S. Manikumar and Justice Shaji P. Chaly

  • Preventive Detention Laws Cannot Be Invoked By State As An Easy Way Method Bypassing The Ordinary Law: Telangana High Court

The Court ruled that The preventive detention laws cannot be invoked as an easy way method bypassing the ordinary law and if the detention order is passed, it is very much necessary for the detaining authority to apply its mind and arrive at a conclusion that ordinary law is not capable of acting deterrent against the detenu and thus, detention order needs to be passed.

The further stated that, the State cannot take advantage of its own lapses, whereby, on one hand, the State does not effectively oppose the bail application or seeks cancellation of bail and on the other hand, State finds an easy way method to pass detention order by invoking preventive detention laws. If the detaining authority feels that even after strongly opposing the bail, the concerned Courts have granted bail, it is always left open for the authorities to move an application for cancellation of bail either before the same Court or higher Court. Without resorting to such steps, the State chose to invoke provisions of preventive detention law and the same amounts to arbitrary exercise of powers conferred under the preventive detention laws.

Case Title: Mohd. Jaffar v. State of Telangana and Ors.

Case No.: WP No. 10230 of 2020

Quorum: Chief Justice Raghvendra Singh Chauhan and Justice B. Vijaysen Reddy

  • Suo Moto Cognizance of Red Sander Woods Smuggling in Tamil Nadu taken by Madras High Court

The Court asks for response from the local authorities. The Court noted that the smuggling racket was being operated by various political personalities, Police, exporters and brokers from both the State of Tamil Nadu as well as the neighbouring states. The Court further observed that the main reason for the poor people indulging in this illegal activity is that they lack opportunities of employment and proper income in their native districts. If they are provided with proper employment and basic amenities, definitely, they would not go for this kind of illegal activity.

  • Though the Witness Protection Scheme has been evolved in the year 2018, still the system is not providing confidence to the witnesses to come out with the truth as against the hard-core criminals: Madras High Court

The Court held that since there is no protection in the present system for the witnesses, most of the trials ended in acquittal as the witnesses did not come forward to give evidence.

The Hon’ble Apex Court in Rizan v. State of Chhatisgarh [(2003) 2 SCC 661], has clearly held that it is the duty of the Court to separate the chaff from the grain. Where the chaff can be separated from grain, it would be open to the Court to convict the accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of accused persons, appreciated the bench. And further declared that as stated in Rizan’s case, it is the duty of the Court to separate the chaff from the grain, and “while doing so, we could separate the truth from the falsehood of the appellant’s case.

Case: Padhakumar and others v. State of Tamil Nadu

Case no.: C rl. A. (MD) N o. 1 0 4 o f 2 0 1 8

Quorum: The Honourable Mr. Justicet.Raja And The Honourable Mr. Justice B. Pugalendhi

  • The promoter-directors of the Resolution Applicant-Company, who are also guarantors of the Company, would not come under the immunity-blanket of Section 14 of IBC: Calcutta High Court

Court has ruled that section 29-A or 31 of the IBC would not provide a shield against the operation of its section 14(3)(b) as well as that the promoter-directors of the Resolution Applicant-Company, who are also guarantors of the Company, would not come under the immunity-blanket of Section 14.

The Court also held that the 2015 RBI Master Circular on Wilful Defaulters does not mandate that the Show Cause Notice must disclose the basis of the satisfaction of the concerned Committee or the conclusion arrived at from the evidence before it that there has been a “wilful default”.

Case: Sandip Kumar Bajaj & Anr. Vs. State Bank of India & Anr.

Case no.: I.A.No.G.A.1 of 2020 With (Old G.A.1062 of 2020) With W.P.O.236 of 2020

Quorum: The Hon’ble Justice Moushumi Bhattacharya

  • Transfer Deed Can Be Declared Void U/s 23 Senior Citizens Act Only If It Expressly Contains Condition To Provide Basic Amenities/Physical Needs To Senior Citizen: Kerala High Court

The Court ruled that words ‘gift or otherwise’ in Section 23 of the Act have a restricted application. It said: We are of the opinion that looking at the text of the Act and looking at the context in which it was enacted and has application, the intention of qualifying the transfer of property by a senior citizen with the words ‘gift or otherwise’, projects a clear indication to restrict the words ‘or otherwise’ to such category of transfers which are in the nature of gifts or partakes the character of gift. A mere reservation of life interest or right to collect usufructs from the property has to be enforced against the beneficiary of the document or a subsequent transferee and Section 23(1) does not come to the aid of a transferor seeking that remedy. Neither can Section 23(1) be considered to have interfered with the valuable rights of the transferee nor be taken as imposing any restriction on his/her right; when there is a settlement made with reservation of life interest for residence or taking usufructs from the property. There can be no implied condition to assume jurisdiction under Section 23(1) merely for the reason that the document contains a reservation of life interest.

Very pertinent is the fact that Section 23(1) is prospective and applies only to agreements executed after the enactment came into force. Section 23 applies only to transfers after the commencement of the Act. This further fortifies our interpretation that the provision insists on there being an express condition, written as part of the recitals, in the deed. If it were otherwise and the circumstances which led to the execution or a reservation clause could be relied on to infer or imply such a condition having regulated the execution, it would have been made applicable to deeds of all times, executed by senior citizens of a like nature. The measures of publicity as spoken of in Section 21, under Chapter 5 is also intended at informing every senior citizen about the speedy remedy provided for maintenance as also revocation of a gratuitous transfer and to alert them of the condition to be specified; which has to be a part of the recitals of the document.

We are of the opinion that in deciding the scope of Section 23(1), it would be unsafe to look at religious texts or philosophical treatises. That the children should look after their parents, as a principle or a value, require no validation from scriptures or philosophical sources. The Act attempts to provide a dignified existence to the elderly and in drawing the contours of the power conferred under Section 23(1) we have to necessarily be conscious of the interplay of the rights of the senior citizen and that of the beneficiaries to a transaction; of those acquired on the property as regulated by various statutes. The Preamble speaks of the Act as one to provide effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution. Though not specified it has a reference to Article 21 and 41 of the Constitution of India. Only sometimes; but that is no reason to stop loving them, refuse to care for them and alienate them, is the principle on which the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 [for brevity ‘the Act’] have been interpreted in the majority of the decisions of this Court and some other High Courts. Certain Benches provide a different path to find that the statute though inspired by traditional values, all the same, has to be interpreted strictly and there could be no question of unrequited love raised; to bring in drastic consequences to the rights on property gifted or settled by reason of the love and affection of the donor or settler for the beneficiary.



 Case name: WA.No.1460 OF 2015

Quorum: Justices K.Vinod Chandran, VG Arun and TR Ravi

  • Orissa High Court Refuses Termination of a Mentally-Challenged Rape Survivor’s Pregnancy and gives direction to govt. to deal with similar cases

The Court observed that the pregnancy on the victim is forced one and it being contrary to her choice. The victim has been forced not only to carry an unwanted pregnancy but is also forced to give birth to the child against her will. No doubt she will carry a stigma and humiliation for the rest part of life for the offspring born as a result of ghastly recurrence of rape committed on her along with stigma and humiliation on the child and in case it is a female child, looking to the complex society, it is still worse. Situation involved here compelled this Court to give a comprehensive thought to give absolute protection not only to the victim but also to the child to give birth so also to support the mother of the victim a wife of a poor labourer, who has come forwarded to take care of the victim. This Court also observes, in the event the mother faces any difficulty, may redress on such aspect to the District Administration, who shall be duty-bound to take care of the request as far as practicable.
Case: Runa Majhi v. The State of Odisha

Case No.: W.P.(C) No.21947 of 2020

Quorum: The Honourable Mr. Justice Biswanath Rath

  • There is No Material To Prove that Tablighi Jamaat Members Indulged in Activities Which Are Likely To Spread COVID: Bombay High Court

Since the applicants were not conversant with the local language, they studied Quaran and Hadis in their language. The statements of witnesses make it clear that there is no material produced by the prosecution to prove that the applicants were engaged in Tablighi work and they were involved in preaching religious ideology or making speeches in religious places. There is no material produced by the prosecution in the charge-sheet which even prima-facie proves contravention of condition no. 1.25 or 19.8 of the Visa Manual

The Court further remarked,

On the contrary, from the statements of the witnesses mentioned in the charge-sheet, it is clear that the applicants are not conversant with local language and they studied the Quran and Hadis in their language. From the material produced in the charge-sheet, except the statement of the witnesses referred above, there is no other material produced by the prosecution to prove ingredients of contravention of Section 14 of the Foreigners Act.

Court’s observation regarding Sections 269 and 270 of IPC

The Court observed,

To attract ingredients of Sections 269 and 270, the person must commit any act which he knows is likely to spread infection of any disease which is dangerous to life. It is not in dispute that the applicants had undergone Covid-19 test during their period of quarantine i.e. from 03.04.2020 and their test report for infection of Covid-19 was negative. There is no material on record to prove that applicants had indulged in any act which was likely to spread infection of COVID -19.

Court’s observation regarding Section 188 of IPC

The Court observed that no prosecution could have been launched against the applicants under Section 188 of the Indian Penal Code based on a written report submitted by the Police. No F.I.R. could have been registered by the police for an offence punishable under Section 188 of the Indian Penal Code.

Further, the Court said,

The legislative intention appears to be clear from the language of Section 195(1) of the Code, which prescribes that where an “offence” is committed under Section 188 of the Indian Penal Code, it would be obligatory that the public servant before whom such an “offence” is committed, should file a complaint before the jurisdictional Magistrate either orally or in writing. Hence, registration of an F.I.R. for an offence under Section 188 of Indian Penal Code is not permitted in law at the instance of Police.

The Court specifically said,

The investigating authorities acted without jurisdiction in registering the F.I.R. under Section 188 of the Indian Penal Code based on a complaint of police. The investigation conducted by the police was also without jurisdiction.

While quashing the FIRs, the HC had observed that the Tablighi Jamaat members were made “scapegoats” and criticized the “big media propaganda” against them after noting that they were “virtually persecuted” with a campaign that they were responsible for spreading COVID-19 in India.

There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading COVID-19 virus in India”, the Court said adding that there was “virtually persecution” against these foreigners.

Case Title: Hla Shwe and 7 others v. State of Maharashtra


Quorum: Justice V. M. Deshpande and Justice Amit B. Borkar

  • Insurer Not Liable Unless Vehicle Owner Proves That He Took Reasonable Care To See That His Driver Renewed Driving Licence Within Time: Supreme Court

The Court said that we are of the view that once the basic care of verifying the driving licence has to be taken by the employer, though a detailed enquiry may not be necessary, the owner of the vehicle would know the validity of the driving licence as is set out in the licence itself. It cannot be said that thereafter he can wash his hands off the responsibility of not checking up whether the driver has renewed the licence. It is not a case where a licence has not been renewed for a short period of time, say a month, as was considered in the case of Swaran Singh5 where the benefit was given to a third party by burdening the insurance company. The licence in the instant case, has not been renewed for a period of three years and that too in respect of commercial vehicle like a truck. The appellant showed gross negligence in verifying the same.

When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person in charge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim.


Case no.: CIVIL APPEAL NOS. 7220-7221 OF 2011

Quorum: Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari

Weekly Legal News Updates [21st- 27th September 2020]-Part II

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