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

  • Role of A Woman as A Housewife Most Important & Challenging”; Bombay HC

Acknowledging the pivotal role of a homemaker in a family, Justice Anil S Kilor observed-

When we talk about a ‘family’, the role of a woman as a ‘housewife’ in family is the most challenging and important role which deserves much appreciation but is least appreciated. In fact emotionally she holds the family together. She is a pillar support for her husband, a guiding light for her child/children and harbour for the family’s elderly. She works round-the-clock without a single day off, no matter whether she is working or not. However, the work she does go unacknowledged and is not considered as a ‘job’. It is an impossible task to count the services she renders which are consisting of hundreds of components that go into the functioning of a household itself, in monetary terms.

Case Title :- Rambhau and Ors vs. Shivlal and Ors

Case No. :- First Appeal No. 510 OF 2007

Quorum :- Justice Anil S Kilor

  • Bombay Court taking suo moto cognizance of the building of the Thane’s Bhiwandi area issued notice to State and Municipal Corporation of Greater Mumbai.

The bench observed-

“If this is true, it is unfortunate that no action was taken by the Municipal Authorities to get the building vacated. It is also reported that this building was constructed sometime in the year 1984 before the Municipal Corporation was formed and later on, two illegal floors came to be constructed. However, no action was taken by any of the Municipal Authorities and its officers.”

Noting that such incidents of building collapse happen every year especially during monsoons, Court said-

“This incident is not a solitary incident. Earlier to this, in the month of August, a three storey building known as “Tariq Garden” in the Mahad Town (Raigad District) had collapsed in which 16 persons were reported to have died including two senior citizens.

Such incidents of building collapse are happening frequently, almost every year and more particularly during the monsoon months. As per the report dated 24 September 2020 of the Economic Times, there were 1472 incidents of building collapse in Mumbai city and suburbs during 2015-2019 in which 106 people lost their lives while another 344 were injured. One of the major incidents of the building collapse was of the Siddhi Sai building in suburban Ghatkopar in July 2017 in which it is reported that 17 residents were killed. We are immensely concerned at this sad state of affairs.”

Case Title :- Suo-Motu Public Interest Litigationno. of 2020

Quorum :- Chief Justice Dipankar Datta and Justice GS Kulkarni

  • Writ Petition Under Article 226 Against NCLT Order Not Maintainable: Kerala HC

Kerala High Court held that that writ under Article 226 cannot be invoked against the order passed by National Company Law Tribunal. The division bench set aside the single bench judgment that granted limited relief to the party in a challenged against the order of Tribunal.

The division bench found fault with the single bench granting relief to the petitioners in a writ petition which was not maintainable at the first place.

…in the case on hand, when none of the parties, State or authority or instrumentality of the State, or any private body, discharging public functions, have been arrayed as respondents, when the writ petition has been filed under Article 226 of the Constitution of India, having regard to the roster followed in listing the cases, writ court ought to have directed the respondents/writ petitioners to make necessary amendments, to the provisions under which the writ petition ought to have been filed, or in the alternative, directed that the writ petition be placed before the concerned court, dealing with the challenges made to the orders passed by Courts, or Tribunals, as the case may be. Admittedly, the order impugned in the writ petition (Exhibit-P1) is not an administrative order, passed by the National Company Law Tribunal.

Writ court, without drawing a distinction between a writ petition filed under Articles 226 and 227 of the Constitutions of India, has erroneously proceeded to entertain the writ petition under Article 226 against an interim order passed by the NCLT, Kochi Bench, in I.A. No.83/2020 in C.P.No.114/KOB/2019 dated 9.7.2020″, the DB observed.

“Writ petition filed under Article 226 of the Constitution of India, can be for the enforcement of fundamental rights or for any other purpose, as envisaged under Article 226 of the Constitution. There is no pleadings or materials to substantiate that the appellants are discharging public duties or public functions, and thus, amenable to writ jurisdiction under Article 226 of the Constitution of India”, the division bench added.

Case Title :- Sulochana Gupta and another v. RBG Enterprises Pvt Ltd and others

Case No. :- WA.No.1083 OF 2020

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

  • Vodafone Wins Rs 20,000 Crore Retrospective Tax Case Against India Govt In International Arbitration

    The Vodafone Group has won an international arbitration case against the Indian government in a retrospective tax dispute of over Rs 20,000 crores, reported the Reuters.

The Permanent Court of Arbitration at the Hague ruled that the Indian government’s tax demand on Vodafone is in breach of the investment treaty agreement between India and the Netherlands.

The issue relates to the tax demand of Rs 12,000 crore made by the Income Tax department from the international telecom giant with respect to its acquisition of the Indian assets of Hutchison Whampoa in 2007. The department contended that though the agreement between Vodafone and Hutch was executed outside India, since it related to assets in India, Vodafone was liable to make Tax Deduction at Source with respect to the consideration paid to Hutch.

  • Civil Suit Filed In Mathura Court for Removal Of Masjid Idgah From ‘Shrikrishna Janam Bhoomi’

    The plea seeks “removal of encroachment and superstructure illegally raised by Committee of Management of alleged Trust Masjid Idgah with the consent of Sunni Central Board of Waqf …at Katra Keshav Dev city Mathura belonging to deity Shree Krishna Virajman.”
  • Post-Retirement The Director Can’t Be Held Responsible For Daily Affairs Of Company Including Cheques Issued And Dishonoured : Delhi High Court

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The Court observed,

In cases where the accused has resigned from the Company and Form 32 has also been submitted with the Registrar of Companies then in such cases if the cheques are subsequently issued and dishonoured, it cannot be said that such an accused is in-charge of and responsible for the conduct of the day-to-day affairs of the Company, as contemplated in Section 141 of NI Act for being proceeded against.
 

Case Title: Alibaba Nabibasha v. Small Farmers Agri-Busines Consortium & Ors.

Case No.: CRL. M.C. 1602/2020, CRL. M.A. 9935/2020

Quorum: Justice V. Kameswar Rao

  • Absence Of Motive In A Case Depending On Circumstantial Evidence Is A Factor That Weighs In Favour Of The Accused: Supreme Court

The Supreme Court has restated that absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.

 In this regard, the bench observed:

It is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in the case of Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in the case of Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.

Case name: Anwar Ali vs. State of Himachal Pradesh

Case no.: CRIMINAL APPEAL NO. 1121 OF 2016

Coram: Justices Ashok Bhushan, R. Subhash Reddy and MR Shah

  • Conspiracy Cannot Be Assumed From A Set Of Unconnected Facts Or Conduct At Different Places & Times Without A Reasonable Link: Supreme Court

    Supreme Court stated that Conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct at different places and times without a reasonable link

Addressing this contention, the bench comprising Justices AM Khanwilkar and Sanjiv Khanna observed:

“The question would be whether the appellant (Mohan) was a party to the agreement to do or caused to do the illegal act of kidnapping to be a member of the criminal conspiracy. We are aware of the Explanation to Section 120A but in the facts of the present case, the legal effect of the Explanation in the light of the evidence has to be examined. Conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct at different places and times without a reasonable link.”

Observing thus, the bench ordered his release on bail on such terms and conditions as may be determined by the trial Court.

Case name: MOHAN vs. STATE OF MADHYA PRADESH

Case no.: CRIMINAL APPEAL NO. 630 OF 2020

Coram: Justices AM Khanwilkar and Sanjiv Khanna

  • TRANSGENDER AND SEXUAL CRIMES

“Recognition of Transgender as a third gender is not a social or medical issue but a human rights issue,”- Justice K.S. Radhakrishnan

A plea moved by Advocate Reepak Kansal before the Hon’ble Supreme Court seeks to give equal protection to the transgender against sexual offences. Although the recognition of transgender came up as a victory, the fundamentals are weak. They are yet to have their rights protected and enhanced. Moreover, the Transgender Persons (Protection of right) Act, 2019 had the mandate to bring justice to the them, yet fouled with too many criticisms validity. The Indian penal code, which fails to include transgender in their very definition, has been taken up for consideration. The party against whom such plea demands a writ, order or decree are the Ministry of law and justice, social justice and empowerment.

Law being supreme, yet fails to guarantee equal rights and its protection. The transgenders are often found to be the victim of sexual harassment and the Code has no such provision which would defy those in conflict with law. The plea seeks to modify and interpret clause (i), (ii), and (iv) of sub sec (1) of Sec 354A of the Indian penal code, 1860. The provision reads as –

 Sec 354A-assault or criminal force to woman with intent to outrage her modesty. The inclusive and relevant provision must find its way into the Code as suggested by Advocate Reepak Kansal.

The Hon’ble Supreme Court in National legal Services Authority vs Union of India had recognized Transgender as persons and as a third gender, yet they have no place in the Code (Indian Penal Code). The plea mover seeks to remedy the very discrimination relying on the pillars of the constitution namely, Article 14, 15 and 21.

The plea suggest that nearly 15% of the transgender are sexually assaulted in premises where they need protection. There are no such privileges given to them as regarding separate wards, custody or jails. This is a clear indication of how the state is lacking in granting equal protection of law to transgender.

The plea further suggests that Article 14, 15 and 21 do not give consideration to any gender. Further, Article 21 seeks to give every person a right to live life with dignity. In this regard, the dignified life of transgender is upraised and is often compromised. Promising them a life and not attending them is a matter of consideration. The Plea conclusively seeks directives from the Hon’ble Supreme Court in regard to setting up proper gender neutral sexual Harassment mechanism, enactment of anti discrimination laws, proper adoption and implementation of Universal Declaration of Human rights and lastly, framing of guidelines for protection of Fundamental rights of transgender.

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

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