30 Oct 2009

Tribunals have inherent powers to extend time: High Court

Time once fixed by the Court or the tribunal is not sacrosanct or the final word. These orders or directions fixing the time for compliance are procedural orders and in terrorem and are passed for a purpose to avoid delay and expedite the proceedings. Courts or tribunals do have the power to extend the period/time fixed by them. Extension of time does not amount to review of the earlier order.
So states a recent decision of the Delhi High Court. The High Court was dealing with petitions filed against orders passed by the Intellectual Property Appellate Board refusing to take on record the additional documents filed by the petitioner along with the affidavit by way of evidence. The Board had noted that "Even if any plausible reason or ground is given justifying for the condonation of delay, there is no provision which empowers this Appellate Board to condone such delay". This stand adopted by the Board was challenged in writ proceedings before the High Court. 

Dismissing the stand of the Board as being incorrect and contrary to the settled law, the decision of the High Court begins with a appreciation of the general law as to the procedure to be adopted by the Tribunals as under;
It is well settled that quasi judicial tribunals on procedural matters are entitled to adopt a procedure which they feel is just and fair. Unless there is a specific or implied bar or prohibition by the statute, a quasi judicial tribunal has flexibility and can follow procedure, which is fair and compliant with the principles of natural justice. Every procedure is acceptable and permissible until it is shown to be prohibited by law (See, Hansraj Harjiwan Bhate versus Emperor AIR 1940 Nag. 390 follwing Narasingh Das versus Mangal Dubey 1882 ILR (5) All 583). Further quasi judicial tribunals have ancillary and incidental powers to ensure that there is effective adjudication and decision. In Suresh Jindal versus BSES Rajdhani Power Ltd. (2008) 1 SCC 341, the Supreme Court has observed that a statutory authority while exercising statutory powers may do all things, which are necessary for giving effect thereto.
Being of this view, the High Court held that tribunals have power to grant extension of time for various purposes and that does not require a specific enabling law to that effect as under;
Courts and tribunals during hearing of any case do pass orders fixing and granting the time and giving directions to the parties like file documents, replies, etc. The courts or the tribunal in such cases retain the power to extend the time granted, unless there is a specific bar or prohibition in the Act or the Rules. Time once fixed by the Court or the tribunal is not sacrosanct or the final word. These orders or directions fixing the time for compliance are procedural orders and in terrorem and are passed for a purpose to avoid delay and expedite the proceedings. Courts or tribunals do have the power to extend the period/time fixed by them. Extension of time does not amount to review of the earlier order.
... In Ganesh Prashad Sah Kesari versus Lakshmi Narayan Gupta (1985) 3 SCC 53, the Supreme Court observed that when a time is fixed or granted by a court for doing any prescribed act or thing, the court in its discretion can enlarge the time fixed though the period originally fixed/granted had expired. Time once fixed, does not whittle down the discretion of the court to further extend the time. In the said case the question was whether a court can extend the time to enable a tenant to deposit rent.
Noting the well settled law to this regard, the High Court further stated;
Rules of procedure, it is well settled, are handmaid of justice and are normally treated as directory and not mandatory unless legislative intent is opposite. Most of the procedural rules are enacted with the object to ensure expeditious trial and do not normally impose a prohibition and bar on the power of the court/tribunal to extend time. A prohibition or bar requires a penal consequence which should flow from non-compliance of a procedural provision. In Kailash versus Nankhu AIR 2005 SC 2441 and Salem Advocate Bar Association, Tamilnadu versus Union of India AIR 2005 SC 3353 it has been held that there may be many cases where non-grant of extension would amount to failure of justice. The object of procedural rules is not to promote failure of justice. Procedural rules deserve to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend the time.
Being of this view, the High Court concluded as under;
The aforesaid Rule permits and allows IPAB to extend the time for doing any act prescribed under the IPAB Rules whether such time as specified has expired or not. Thus IPAB has been given power to extend the time even if the time is specifically fixed under the Rules but cannot extend time fixed under the provisions of the parent Act. It will be incongruous to hold that IPAB has power to extend the time fixed under the statutory Rules but is functus officio and barred from extending time fixed in an order or direction given in an earlier order passed by them. It follows that IPAB has the power to extend the time even when it has fixed a specific time in their earlier order. Rule 14 certainly does not bar or expressly or impliedly prevent the IPAB from extending time fixed by them in an order. IPAB retains inherent eight and power to extend time. IPAB is required to follow fair and just procedure.

Archeological Survey of India itself violating the law: High Court

Sending a strong message against the practices adopted by the Archeological Survey of India in a decision delivered today, the Delhi High Court has concluded that the authority meant to protect and perverse monuments of historical and national importance has itself been violating the law by allowing people to construct in the vicinities or protected monuments. Dealing with a case relating to challenge made by a property-builder on denial of permission for construction at Nizamuddin East of Delhi, hosting Humayun‟s tomb in its vicinity, the High Court held that ASI had no power to consider grant of waiver/deviation from the blanket prohibition of construction near such protected sites.

Recording the prominence and importance of Humayun‟s Tomb, the decision of the High Court states as under;
Not very far from this Court is located the Humayun‟s Tomb. It is a historical monument. It is a mausoleum built for the Mughal emperor Humayun who ruled between 1530 and 1540 and again from 1555 till 1556 when his son Akbar took over the reins. The construction of the mausoleum was commenced by Humayun‟s senior widow Hamida Banu Begum also known as Haji Begum in 1565, nine years after his death. A Persian architect Mirak Mirza Ghiyath was commissioned to design and build it. It is stated to exemplify a synthesis of Persian and Indian traditions of architecture. The arched alcoves, corridors and the high double dome signify the Persian influence and the kiosks which give it a pyramidal outline from a distance are attributed to the Indian influence. It is believed to have inspired the design of the Taj Mahal, a monument built many years later in Agra by Humayun‟s great grandson Shahjahan.
Humayun's tomb is square red sandstone double-storeyed structure that rises from a 7 m. high square terrace, raised over a series of cells accessible through arches on each side. Externally on each side of the tomb are elevations decorated by marble borders and panels. Around the high marble double dome in the centre are pillared kiosks. The tomb is a beautiful sight to behold, even when viewed from a distance. The nearly 450 year old Humayun's tomb is a major tourist attraction in Delhi. It has been declared as a world heritage monument. It is a protected monument within the meaning of the Ancient Monuments Archaeological Sites and Remains Act, 1958 and the Ancient Monuments Archaeological Sites and Remains Rules, 1959. Consequent to a notification issued on 16th June 1992 by the central government, an area of 100m surrounding the Humayun‟s tomb has been declared a “prohibited area” within which no construction activity is permitted.
The matter was before the Court in view of the challenge made by an advocate to the permission granted by the Archaeological Survey of India to a construction company for reconstruction of a property despite the fact that the said property was located within 100 m. of Humayun‟s Tomb. This permission had been granted in terms of the approval by an internal Expert Advisory Committee constituted by the ASI which allowed reconstruction subject to specified limits. Retorting to the petition, ASI argued that the the petitioner advocate himself was staying on a property which had been 'constructed illegally without taking any permission from the ASI as required by law and as such, the entire building was liable to be demolished'. On this ground itself the petition was liable to be dismissed, it was argued, as the "petition was motivated and was essential to stop construction in the building adjacent to that of the neighbour and was therefore an abuse of the process of Court."

ASI also justified its stand of granting the permission to the construction company argued that;
in view of the fact that there were a number of cases where persons desired to construct/reconstruct upon their property falling within the 100 m. Zone of a protected monument, an Expert Advisory Committee (Committee) comprising eminent experts was constituted to aid and advise the Director General, ASI for dealing with such cases. The Committee was headed by the Director General, ASI and a renowned historian and archaeologist, an expert in urban planning, and a leading expert on the history of Delhi. ASI explained that the Committee “examines all proposals where a relaxation of the rule prohibiting construction within the 100 mts. area is asked for, and decides on a case to case basis such applications.” It was pointed out that the case relating to the construction at the said property was decided by the Committee at its meeting held on 22.1.2009. The ASI defended the permission granted to the appellant herein for carrying on construction in the said property. It was submitted that Rule 37 of the Rules provided for an appellate mechanism and since the Committee had examined the proposal and opined that the proposed construction did not threaten the integrity of the monument, did not affect the access of the publicto the monument or otherwise impair the skyline in relation to the monument, permission was granted “as per the norms.” It was further stated that “there is no threat or danger of any kind to the monument of Humayun‟s Tomb on account of the construction ...
Examining the legal sustainability of these arguments, the High Court asked the ASI explain the basis for setting up and for the functioning of the Committee which had been set up by it to allow deviations from the general norm of complete prohibition of construction within 100 meters of the protected monument. However not in agreement with the stand adopted by ASI, the High Court found that ASI had misinterpreted the law declared by earlier decisions to observe;
We do not find this explanation to be acceptable in law. Clearly, the ASI is contradicting the very stand taken by it before the Supreme Court in the SLP referred to hereinbefore. There the ASI has taken the stand the Notification dated 16.6.1992 prohibiting any construction within a range of 100 m. from a protected monument is sacrosanct and ought not to be diluted at all. Therefore, for the ASI now to set up a Committee to consider relaxation of that very norm on a case to case basis is not only unacceptable as being contradictory to its own stand, but is also clearly impermissible in law. As of today, the Notification dated 16.6.1992 prohibiting construction within a range of 100 m. from a protected monument is in force. That Notification has not been diluted one bit. To us it seems plain that the ASI is misreading the directions contained in the judgment of the Division Bench of this Court in Narendra Anand. If the sentence in question is read as a whole, it is apparent that what the Division Bench meant was that as and when the Central Government reviews the position and considers relaxing the norm stipulated in the Notification dated 16.6.1992, it should also consider setting up of a mechanism whereby prohibition is imposed or relaxed on a case to case basis. It is indeed strange that while on the one hand, the ASI has urged before the Supreme Court that there should be no dilution of the aforementioned Notification and the Supreme Court has on its urging stayed the direction of this Court asking the Central Government to review the said Notification, the ASI has itself set up a Committee to grant permissions in dilution of the said Notification. The stay granted by the Supreme Court requires the notification dated 16.6.1992 to be given full effect to without any relaxation of the norm stipulated therein. The ASI is charged with the statutory duty to ensure this. Its actions since 8.6.2006 have unfortunately been to the contrary.
Declaring the very constitution of a Committee to be illegal, the High Court declared "We also have no doubt whatsoever that the setting up of the Committee by the ASI, with the approval of the Union Minister for Culture and Tourism , Government of India for advising the DG, ASI on the grant of permission for construction/renovation in a prohibited area was wholly without any legal basis. The appellant has, along with the memorandum of appeal, enclosed a Notification dated 20.7.2006 purportedly issued by the ASI constituting the Committee with the DG, ASI as its Chairman. We were, however, informed by Mr. Tripathi, learned counsel appearing for the ASI that the said Notification was never in fact issued." ... "As far as the present case goes, the ASI hardly needs to be reminded that every `reconstruction‟ of a building afresh, after pulling down an existing one, would involve activity that might endanger a 450 year old protected monument. That concern should be uppermost in the priorities of the ASI."

Incidentally the High Court noted the decision of the Supreme Court in an earlier case [Rajeev Mankotia v Secretary to President of India AIR 1997 SC 2766] wherein the apex court had explained the rationale of protecting such heritage monuments as under;
It would, therefore, be manifest that all ancient and historical monuments and all archaeological sites and remains or any structure, erection or monument or any tumulus or place of interment shall be deemed to be ancient and historical monument or archaeological sites and remains of national importance and shall be so declared for the purpose of Ancient Monuments Act it they have existed for a century; and in the case of a State monument, of State importance covered by the appropriate State Act. The point of reference to these provisions is that an ancient monument is of historical, cultural or archaeological or sculptural or monolithic or artistic interest existing for a century is of national importance or of State importance. In other words, either of them are required and shall be protected, reserved and maintained as national monuments or State monuments for the basis which not only gives pride to the people but also gives us insight into past glory of our structure, culture, sculptural, artistic or archaeological significance, artistic skills and the vision and wisdom of our ancestors, which should be preserved and perpetuated so that our succeeding generations learn the skills of our ancestors and traditions, cultural and civilisation. They would have the advantage to learn our art, architecture, ascethetic tastes imbibed by the authors of the past and to continue the same tradition for the posterity. Preservation and protection of ancient monuments, is thus the duty of the Union of India and the State Government concerned in respect of ancient monuments of national importance or those of State importance respectively to protect, preserve and maintain them by preserving or restoring their original conditions. 
... We avail this opportunity to direct the Government of India to maintain all national monuments under the respective Acts referred to above and to ensure that all of them are properly maintained so that the cultural and historical heritage of India and the beauty and grandeur of the monuments, sculptures secured through breathless and passionate labour workmenship, craftsmanship and the skills of the Indian architects, artists and masons is continued to be preserved. They are pride of Indians and places of public visit.
Being of such view, the High Court not only set aside the concessions allowed by the Committee  but also directed the ASI "to forthwith stop accepting and processing any application for grant of permission for construction/renovation of any structures or buildings in a prohibited area and to also stop accepting appeals against any orders that may have been issued refusing such permissions. The ASI will also take steps within a period of four weeks, to reconsider all permissions granted pursuant to the setting up of the Committee and take consequential steps, after giving the affected parties an opportunity of being heard."

Have a look at the decision. However, if the High Court is correct in the interpretation of law, what happens to all those protected monuments which are are regularly violated to provide for public conveniences (such as roads, rail-lines, metro etc.)? Wouldn't such acts also be in violation of the law, one is only left to ponder !!!

29 Oct 2009

Video recording of wills to be promoted: High Court

Dealing with the case of inheritance of property on the basis of a will (technically called a 'Probate proceeding') the Delhi High Court in a recent decision has held that video recording of wills not only further the case of the parties but are also a reliance medium to prove the genuineness of a will. Noting the fact that even though the will was made (and recorded on video in 1985) when the Information Technology Act (of 2000) was not even in picture, the High Court found it a convenient way of determining the probate proceedings. The High Court even went ahead to give directions to the lower authorities to promote such video recording of wills such that inheritance disputes can be settled faster and without much doubt. 

Speaking on the legality and admissiability of video recording of will as evidence, the High Court stated;
Before concluding this Court would like to observe that the making of the video of the execution of the last Will in the present case has made the task of the Court easier in arriving at its conclusion as to its genuineness. Although the Information Technology Act, 2000 (IT Act) was not in operation when the video recording was made of the execution and attestation of the last Will, the evidence by way of video recording is admissible for proving the Will in question. The Supreme Court has in State of Maharashtra v. Prafull B. Desai AIR 2003 SC 2053 recognized in principle, although in the context of a trial, that evidence by way of video recording is admissible. This has been followed also in Sube Singh v. State of Haryana AIR 2006 SC 1117 and Rajendra Singh Rana v. Swami Prasad Maurya AIR 2007 SC 1305.
Declaring the legal position as aforesaid, the High Court went on to examine the practical significance of such video recordings and direct the lower authorities to initiate steps towards undertaking such recordings as under;
Under the provisions of the IT Act there should be no difficulty in Courts acting upon and accepting as evidence video or digital recordings of the execution of Wills subject to compliance with the requirement of Section 65B of the Evidence Act, 1872. This Court would like to impress upon the Sub-Registrars that with the availability of inexpensive gadgets like webcams, portable and desk top computers, and connectivity through internet, it should be possible to make a video recording of the entire process of execution of a Will at the time of registration (by focussing on the executor of the Will, and the attesting witnesses, and also the administering of certain standard questions by the registering authority to the Executor). It should be possible to have a certified copy of such video/digital recording clip (with the date and time embedded thereon) issued to the parties concerned. There should also be no difficulty in storing in hard disks (with back ups at different secure locations) the recordings of such digital video clips (with date and time embedded) for easy retrieval. This will eliminate to a large extent questions of genuineness or the capacity of the testator to make the Will. If not already done, a protocol should be developed in this regard (along with a manual of instructions to the Registering authorities) by the Government of the National Capital Territory of Delhi (GNCTD) in consultation with the National Informatics Centre.

28 Oct 2009

Compensation for deaths in 1988 Ahmedabad air crash: High Court

In an elaborate decision, the Gujarat High Court has confirmed the grant of compensation to the kin of the deceased to died while travelling as a passenger in an Indian Airlines flight which crashed near the Ahmedabad Airport on 19.10.1988. It a legal note it was argued before the High Court by the airlines that "its liability for damage sustained in the event of death of or injury to a passenger is limited to a sum of Rs.2 lakhs under Rules 17 and 22 of the Second Schedule to the Carriage by Air Act, 1972 read with the notification dated 5.7.1980 issued by the Ministry of Tourism and Civil Aviation, Government of India under Section 8(2) of the said Act. According to the Indian Airlines, in order to obtain any higher compensation, the plaintiffs have to prove under Rule 25 of the said Schedule that the damage resulted from an act or omission of the Airline done recklessly and with knowledge that damage would probably result, so as to render the limit of liability (Rs.2 lakhs) inapplicable."

The kin of the victims, on the other hand, argued that there were "various aspects to show not only negligence but also recklessness on the part of Indian Airlines and its employees with knowledge that damage would probably result" such as "over-utilization of aircraft, lack of suitable training, fatigue of the crew, sending inexperienced co-pilot with not very Senior pilot in command, defect in the pressure altimeter of the co-pilot, proper briefing was not carried out by the pilot, the pilot and the co-pilot were not aware of availability of VASI lights and non-availability of the approach lights at the Ahmedabad Airport, the pilots did not seek any permission or clearance for landing, Standard call outs were not given out by the pilot and the co-pilot after 1000' that is after they had descended upto 1000' above the ground level, the speed was 160 kts. which was higher than the prescribed speed, the pilots should not have descended below 500 ft. MDA unless they had sighted the runway. There was no panic or any failure of structure or instrument. Both the pilots were unaware of the altitude of the aircraft and were desperate to land at the Ahmedabad Airport in spite of adverse weather conditions and poor visibility. The pilot and the co-pilot were keen to land the aircraft anyhow, even though there was sufficient fuel even to wait for getting landing clearance or to fly back."

On the factual scenario, the High Court decision noted that the "aircraft involved in the accident was a basic series Boeing 737 Aircraft VT-EAH and was on its daily scheduled flight IC 113 from Bombay to Ahmedabad in the morning of 19th October 1988. The aircraft was carrying on board 135 persons i.e. 6 crew members (pilot, co-pilot and 4 cabin crew) and 129 passengers (124 adults and 5 children). The flight took off from Bombay at 0605 IST in the morning. The pilot reported overhead of Ahmedabad at 0647 IST. The aircraft crashed on the outskirts of village Chiloda Kotarpur, near Noble Nagar Housing Society, near Ahmedabad. The plane crashed at a distance of 2540 metres from the beginning of runway 23 on extended central line of the runway in a paddy field at about 0653 IST. In this air crash 124 passengers and 6 crew including pilot and co-pilot lost their lives on the spot. 5 passengers escaped with serious injuries, but 3 of them succumbed to the injuries later on in the hospital. 2 passengers survived, viz. Mr Vinod Rewa Shankar Tripathi and Mr Ashok Agarwal. Thus in all, out of 135 persons on board, 133 persons lost their lives."

The High Court relied extensively on the findings recorded by the Court of Inquiry appointed by the Government of India to look into the accident which noted that "the Indian Airlines and the Airport authorities received the message about the plane crash from Police Sub Inspector of Ahmedabad Airport Security" and concluded that "the cause of the accident is error of judgment on the part of the Pilot-in-command as well as the Co-pilot due to non-adherence to laid down procedures, under poor visibility conditions." The High Court also took note of the findings of the lower court which recorded that "the attitude of the pilots was indifferent and casual and that there was negligence in taking a decision to land when the runway was not sighted. Recklessness could be inferred from lack of diligence shown by the pilots, from the degree of error of judgment found in the report, and knowledge could be imputed because the pilot ought to have known of the risk and damage. It was also held that poor visibility was not passed on to the pilots." 

The High Court applied the time-tested legal doctrine of Res ipsa loquitur to hold the airlines liable. Explaining the legal position thereon, the decision of the High Court records;
32. Res ipsa loquitur literally means the thing speaks for itself. The maxim means that an accident may by its nature be more consistent with its being caused by negligence for which the defendant is responsible than by other causes, and that in such a case the mere fact of the accident is prima facie evidence of such negligence. The maxim res ipsa loquitur has been considered by the Hon'ble Supreme Court in a number of cases. Ordinarily, mere proof that an event or accident, the cause of which is unknown, has happened is no proof of negligence. The maxim applies to cases where the peculiar circumstances constituting the event or accident proclaim that the negligence of somebody is the cause of the event or accident. In the first place, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have management and control use due care; secondly, it must also be shown that the event or thing which caused the accident was within the defendant's control. Res ipsa loquitur is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where (i) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident, but (ii) on the evidence as it stands, i.e. in the absence of any evidence from the defendant, it is more likely than not that the effective cause of the accident, whatever it may have been, was some act or omission of the defendant or of someone for whom the defendant was responsible, which act or omission constitutes a failure to take proper care for the plaintiff's safety. The application of res ipsa loquitur is not necessarily excluded merely because there has been a possibility of outside interference with the things through which the accident happened. The principle of res ipsa loquitur only shifts the onus of proof, in that a prima facie case is assumed to be made out, throwing on the defendant the task of proving that he was not negligent.
Extensively dealing with each of the technical aspects pointed out by the parties to examine the negligence on the part of the airlines, the High Court held that it adopted the "findings of the Court of Inquiry and hold that the accident in question was caused by the composite negligence of the Indian Airlines and their pilots and the Airport Authority and their employees." The Court also brushed aside the legal submissions of the airlines concluding thus;
We are, therefore, of the view that for the accident in question i.e. the crashing of the Indian Airlines corporation aircraft Boeing 737 Aircraft VT-EAH on its daily scheduled flight IC 113 from Bombay to Ahmedabad at 0653 IST in the morning of 19th October, 1988 at a distance of 2540 mtrs. from the beginning of runway 23 at the Ahmedabad Airport in poor visibility conditions, the major share goes to the pilot-in-command and the co-pilot of the Indian Airlines. They acted recklessly with knowledge about probable damage about the consequence of their acts and omissions. We are also of the view that there was some negligence on the part of the Airport Authority of Ahmedabad in not providing the latest visibility report to the aircraft by getting the RVR from the Meteorological office at the airport (paras 53 to 57 hereinabove). The degree of negligence on the part of the pilot-in-command and the co-pilot of the Indian Airlines was so high that the same amounted to recklessness on their part as contemplated by Rule 25 to the Second Schedule to the Carriage by Air Act, 1972. The accident in question was because of recklessness on the part of the Indian Airlines and their servants, particularly the pilot-in-command as well as the co-pilot, with knowledge of the probable consequences of attempting to land without any clearance from the Air Traffic Control, Ahmedabad, without having cared to spot the VASI lights and without having cared to take note of NOTAMS sent by the Airport Authority of India, Ahmedabad about availability of VASI lights and non-availability of Instrument Landing System and non-operational approach lights.
In these factual determinations, the High Court directed compensation to be paid to the victims' kin including interest thereon. Have a look at the detailed decision.

Right of School to strip-search students: US Supreme Court responds

In a recent decision having ramifications manifold on the 'right of privacy', the United States Supreme Court has declared that while schools have a right to search the students on the suspicion of carrying condrabands/prohibited substances, they indeed can be violative of the right to privacy of the student (as protected by the Fourth Amendment) if it extends to strip-search on person. Examining the issue, the Supreme Court in Safford Unified School District No. 1 v. Redding ruled;
The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected toa search of her bra and underpants by school officials acting on reasonable suspicion that she had brought for-bidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability.
Thus while the Court declared that the search was violative of the constitutional right of the student, given the prevailing position of law, the school-administration could not be held liable and they were immune from liability. For having dealt with the issue but (in a opinion of some) not completely fixing the liability, the decision have been criticized as not being a trend-setter. For instance Lewis R. Katz & Carl J. Mazzone in their paper conclude that "the Court was not clear enough to forestall future questions about what actually constitutes a strip search: is it a search down to underwear or does it require exposure of breasts or genitals? The court failed in its mission to provide guidance and prevent future litigation by not providing a clearer definition." The authors also suggest that the definition of a strip search necessarily differs for a boy and a girl wherein they specify different standards to argue that "the Court’s failure to firmly establish the minimum threshold of a strip search will undoubtedly lead to future litigation, and that possibility again raises sufficient uncertainty that will lead to qualified immunity, perhaps even after as egregious incidents as in Redding."

Note: Alternative link to the decision and the arguments made during the hearing of the case can be accessed from here.

27 Oct 2009

Counterfeit RAY BAN sun-glasses: High Court grants interim order

Irked with the rampant misuse and dilution of branded sun-glasses happening in the National Capital, the Delhi High Court has passed stringent directions to check the dilution of the branded goods. The case, brought about by Luxottica of Italy, argued that it had been carrying on the business of selling sunglasses and prescription frames under the trademark RAY BAN and since  1971 its only business has been the manufacture and sale of finished eyeglass frames. It was also put forth by the company that "RAY BAN has come about to mean sunglasses with style and flair and is recognized as the leading brand in quality, function and fashion area". 

The reason for approaching the courts, it was stated by Luxottica, was the "rampant proliferation of spurious and counterfeit RAY BAN sunglasses at the behest of a class of traders that habitually seeks to avoid identification". The company argued that in the last week of August 2009 it employed two investigators to ascertain whether the counterfeit sunglasses bearing the "mark of RAY BAN were being sold in New Delhi. The investigators obtained samples of counterfeit RAY BAN sunglasses from the premises of Defendants and also informed the Plaintiffs about the rampant acts of counterfeiting of sunglasses bearing the Plaintiffs' trademark RAY BAN in the adjoining areas." These traders, it was alleged, were engaged in the "act of manufacturing or importing or selling or offering for sale counterfeit RAY BAN branded sunglasses amounts to passing off the said products as the Plaintiffs' genuine RAY BAN sunglasses." 

On these allegations, it was submitted before the High Court that the company was "suffering or likely to suffer loss of business, sales, loss of reputation, loss of image or loss of trust of their clients who are patrons of genuine RAY BAN products" and thus prayed for relief. In these circumstances, the High Court noted that it appeared to it that "Plaintiffs have made out a prima facie case for grant of an ad interim ex parte injunction as prayed for. This Court is also of the view that the balance of convenience in granting such interim relief at the present stage is in favour of the Plaintiffs." 

Not stopping at that, the High Court also directed for the appointment of Local Commissioners "to visit the premises of the Defendants at the various locations indicated hereunder with the assistance of two representatives of the Plaintiffs to search the said premises, seize and make an inventory of all infringing/counterfeit products and storage devices bearing the mark RAY BAN found therein; return the said seized goods on superdari to the Defendants; obtain undertakings from each of them to produce the seized goods before the Court as and when directed." The Court further authorized the Commissioners "to visit any other premises/warehouse/store where they may have reason to suspect and/or information be received that counterfeit optical sunglasses bearing the Plaintiffs' trademark RAY BAN are being stored/sold/offered for sale and thereafter", permitting them "to take the assistance of the local police in carrying out the directions in this order. They will also take along a photographer/videographer to record their visit through photos or an video. The fees of the photographer/videographer will be paid by the Plaintiffs." Further, "If access is denied by the Defendants to all or any portion of the premises in question, it will also be open to each of the Commissioners to break open the locks."

Big relief for Ray Ban manufacturers indeed, atleast till the disposal of the case. Have a look at the order which records these and other details.

26 Oct 2009

Victims of Jaipur Golden Fire Tragedy to get compensation: High Court

In a recent decision the Delhi High Court has granted compensation to the victims of the fire-tragedy which took place on 4th April, 2004 at about 10.30 p.m. at Mitra Wali Gali, Roshnara Road, Delhi had stored a consignment of rodent killing pesticides which contained Aluminum Phosphate and Zinc Phosphate. The deaths, it seems, were accentuated by the fact that fire brigade officials poured water over the fire in a bid to extinguish it where "due to pouring of water, Aluminum Phosphate and Zinc Phosphate reacted with water resulting in emission of highly poisonous Phosphine gas which continued to emit till 7th April, 2004." As a result of these, five people died and many admitted sick.

The High Court noted that the person "was using the premises at Roshnara Road as a godown without any prior mandatory statutory permission" from the MCD and concluded from the medical and police records that the deaths were indeed caused due to the inhalation of the poisonous gases emitted from the incident-scene. On these facts, rejecting the arguments of the defending parties on all scores, the Court declared the law categorically and clearly to this effect that there was no stopping the court from granting compensation for the alleged acts and omissions of the parties which led to the death of many a poor victims of the incident. 

Dismissing the contentions relating to delay in filing petitions and extraneous motivations behind the filing of the petitions, the Court quoted a decision of the Karnataka High Court to the effect that "Careless conduct and casual approach adopted by the respondent-State in the matter of fundamental right dealing with life and safety forced the petitioners, belonging to a noble profession of advocates to put off their robes and stand before us as litigant seeking justice for the legal heirs of the dead and compensation for the injured. The deaths and injuries are admitted to have been caused on account of the collapse of a building constructed by the builders by using substandard material besides ignoring the structural guidelines and protections. The rolling tears and the soar wailing cries of the victims of the tragedy did not affect the mighty and careless State but did touch the tender hearts of the petitioners, who initiated this action in public interest with prayer for granting appropriate relief to the needy and deserving."

Further, noting that criminal proceedings pending against those operating the godown were not a bar for the High Court to examine the claim for compensation, the Court also set aside the plea of the godown owner that the victims had been adequately compensation by them having been paid Rs. 5,000/- each and a settlement arrived between the victims' kin by holding that even if there was a settlement, it was "unfair, unreasonable, unconscionable, opposed to public policy and consequently void". Holding that the law had for long been settled that compensation could be granted in a writ petition by the High Court, the Court applied the time-tested rule of Ryland v. Flether to invoke the doctrine of strict liability against the defending parties. To this regard, the Court noted;
the dispute raised with regard to cause of fire is irrelevant for attraction of the rule in Ryland Vs. Fletcher inasmuch as one has only to see as to whether a person has put the land to a non-natural use and whether as a consequence of such use, some damage has been caused to the public at large. In the present instance, the above test is admittedly satisfied as respondent no. 5‟s premises was situated in a residential area which could not have been used as a godown and further as a consequence of fire in the godown containing consignment of pesticides, gas escaped which caused loss of lives and injuries to people living in the neighbourhood. Accordingly, the rule in Ryland vs. Fletcher is attracted in the present case.
From the undisputed facts, it is apparent that respondent no. 5 was engaged in an inherently dangerous or hazardous activity as it had stored chemical pesticides and consequently, its duty of care was absolute. Accordingly, the exceptions to strict liability as evolved in Ryland Vs. Fletcher rule are not applicable. Therefore, respondent no.5 is liable to compensate the victims of the gas and fire tragedy in accordance with the strict liability principle evolved by the Supreme Court in M.C. Mehta case (supra).
Going further, the bunch of Supreme Court decisions were quoted to the effect of grant of compensation in cases involving strict liability on the part of those operating in hazardous substances. The High Court specifically noted that even the Municipal Corporation of Delhi (MCD) was liable as it was "remiss and negligent in discharging its statutory obligations and in ensuring that a citizen‟s fundamental right to health and pollution free environment was not infringed." In the aforesaid circumstances and declaration of law, the High Court granted stated compensation to all the victims and more importantly, directed the MCD to bear 15 percent of the compensation ordered. Have a look at the emphatic decision.

Khan Chacha gets interim relief from High Court

Faced against another unit being run with the name of 'Khan Chacha', the famous unit approached the High Court seeking the other unit from being run with the same name. It was argued that Khan Chacha Restaurant was being run since 1972 and therefore they had acquired a right/interest in stopping others from using the same name. Delhi High Court, faced with the suit, agreed and allowed interim relief to Khan Chacha and temporarily restrained the other party from running their unit with the same name from any place in Delhi. Have a look at the interim order.

25 Oct 2009

Polluter to pay, the trend reaffirmed ...

Environmental law is indeed one of the ticklish areas of law of the judges. Not for the fact that it requires the judges to balance competing interests of different segments of society (for that is what judges always do) but because of the fact that it requires approximation and estimation of how much wrong-doing can be permitted currently so that it is not too much for the future. Plus, all this decision-making amidst the reluctant and non-supportive attitude of the executive or even the legislative machinery, which is more concerned with the existing vote-bank and current scenarios rather than effectively planning for the future. It is only recently that an exclusive 'Environmental Protection Authority' has been proposed for India (of which we wrote recently) otherwise a quick look at the major environmental initiatives in India would reflect that the Courts have done more than the Ministry of Environment itself. Whether it be for the CNG buses in Delhi, the Taj-pollution case of Agra, illegal mining in Aravilis, or for that matter even the aftermath of the Bhopal Gas leak case, all along the courts have been instrumental in ensuring that environment is protected even if it commits a current wrong for it can translate in disaster for the future.

In this process of becoming the 'Green Benches', the Courts have also evolved. Beginning with the calm notion of 'Sustainable Development', the courts were quick to more to a more conservative approach of 'Precautionary Principle' intermittently employing with vigourous zeal the 'Strict Liability' principle for those carrying potentially harmful activities. And then to put environmental protection as a cost to the business, the transition to 'Polluter-Pays Principle' shows the rising concern on the part of the judiciary to translate the euphoria of environmental development from a mere academic debate to a practical-implementable solution.

In a recent decision, relating to the "preservation of ecology and for keeping the Noyyal river in Tamil Nadu free from pollution" from the dyeing and bleaching works at Tirupur area which had been "discharging the industrial effluents into the Noyyal river which created water pollution to the extent, that the water of the river was neither fit for irrigation nor potable", the Supreme Court has reaffirmed the 'Polluter-Pays principle' to direct the polluters to bear the cost of cleaning the area and improving the habitat.

In the first round of litigation, a petition filed before the High Court of Madras, the dyeing and bleaching units were directed to contribute an amount to meet the expenses of cleaning of the area around a dam built on the river. This was met to some extent by the industries. Thereafter a study was conducted by the State Government only to find that there had been no improvement in the quality of water. Thereupon another public interest litigation by filed before the High Court by an NGO seeking directions against the polluting units to contribute for the clear up and the prevention of pollution. On the petition, the High Court directed the units to pay specific amounts proportionate to the discharge made by them in the river and as well as pay for the monitoring committees and experts involved. Against these directions the units approached the Supreme Court expecting relief.

Besides arguing on account of high costs involved in the directions of the High Court (and thus the non-proportionality in terms of costs), the units put forth before the Supreme Court that "the High Court failed to appreciate that there are more than 40 thousand families to earn their livelihood on dyeing and bleaching industry. Several lakh persons are employed in its ancillary industries who directly depend on this business and most of them are basically the erstwhile agriculturists who could not earn their livelihood because of the barren nature of their land and for want of proper rain over several years. A large number of people have indulged in transport activities because of such heavy industries in Tirupur area." Defending the decision of the High Court, the Government sough to argue that the units were "bound to compensate the persons who have suffered the loss because of the activity of its members, as water of the river is neither worth for irrigation purpose nor potable. The members of the appellant association being responsible for the pollution, cannot escape the responsibility of not meeting the expenses of removing the sludge from the river and cleaning the dam and treating the water to make it pollution free."

The Supreme Court, not oblivious to the competing interests, noted the ground-realities as under;
As per the pleadings of the case, Tirupur is the place exporting the finest garments like T-shirts, inner wears to all foreign countries. The competitors are Bangladesh and China. Tirupur is an industrial hub providing employment to  5 lakh persons. The State Government has granted Sales Tax exemption to the units indulged in bleaching and dyeing units, considering the importance of the place and taking into account the nature of the industries. The country earns about 10,000/- crores in foreign exchange annually. The industries have provided the means of livelihood to a large number of persons indulged in transport of passengers and goods in the area to the extent of 80 kilometers radius for the purpose of fetching labourers residing away from the city and to deal with the export business. 

... The High Court constituted an Expert Committee and also the Monitoring Committee to assess the damage caused to the dam and the river and to find out the modalities to remove the effect of pollution. It also got the assessment of the amount required for removing the sludge from the river and for the treatment of the water, making it worth for irrigation and human consumption.
... The Committee had taken note of all previous developments and assessed the loss to ecology and environment in the affected area. It also identified the individuals and families who suffered because of pollution and further determined the amount of compensation to be paid to each affected individual or family. It also fixed the liability for making the payment of compensation.
On these facets and the other facts relating to the high-levels of pollution in the river water, the Supreme Court concluded thus;
Undoubtedly, there has been unabated pollution by the members of the appellant Association. They cannot escape the responsibility to meet out the expenses of reversing the ecology. They are bound to meet the expenses of removing the sludge of the river and also for cleaning the dam. The principles of "polluters-pay" and "precautionary principle" have to be read with the doctrine of "sustainable development". It becomes the responsibility of the members of the appellant Association that they have to carry out their industrial activities without polluting the water. A large number of farmers have suffered because of the pollution caused by them. They could not cultivate any crop in the said land.
Noting as above, the Supreme Court affirmed the order of the High Court in full and directed the units to pay the amounts as directed and pending for cleaning-up and as compensation to the victims of such pollution and other actions required to be undertaken by the units for the clean-up. Have a look at the decision. One can only hope that instead of the courts directing, the units which discharge such stuff in the environment will on their own accord provide for the clean-up as well.

24 Oct 2009

High Court not to interfere in Police Investigation: Supreme Court

In a restatement of law, having far-reaching implications, the Supreme Court has recently declared that High Courts, even in exercise of their wide powers, cannot interfere with the investigations carried out by the Police. Quoting earlier decisions as far as back from 1945, the Supreme Court noted that;
It is well settled and this Court time and again, reiterated that the police authorities have the statutory right and duty to investigate into a cognizable offence under the scheme of Code of Criminal Procedure (for short ‘the Code’). This Court, on more than one occasion, decried uncalled for interference by the Courts into domain of investigation of crimes by police in discharge of their statutory functions. The principle has been succinctly stated way back in Emperor v. Khwaja Nazir Ahmad and the same has been repeatedly quoted with respect and approval. The Privy Council observed that “just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly, acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry”.
These observations came in the background of an order passed by the High Court of Madras in a petition filed before it. The case related to termination of a MOU entered into by a party with another on the ground that the latter was unable to perform is part of the agreement.Upon such termination the other party filed an FIR before the police authorities alleging commission of various offences relating to cheating against the first party. Within a week of filing the FIR, the same party also filed a petition in the High Court against the Police authorities for not taking proper action/investigation in the case. The record of the decision of the Supreme Court notes that "the High Court, within a period of one month from the date of filing of the petition, finally disposed of the same observing that 'it is obligatory on the part of the respondent police to conduct investigation in accordance with law, including recording of statements from witnesses, arrest, seizure of property, perusal of various documents, filing of charge sheet. It is also needless to state that if any account is available with the accused persons, or any amount is in their possession and any account is maintained in Nationalized Bank, it is obligatory on the part of the respondent police to take all necessary steps to safeguard the interest of the aggrieved persons in this case.' The Court accordingly directed the police to expedite and complete the investigation within six months from the date of receipt of a copy of the order."

In appeal against this decision of the High Court, the first party argued that the second party "virtually sought to recover the amounts from the appellants in a proceeding filed under Section 482 of the Code which is impermissible in law. It was further submitted that the High Court exceeded its jurisdiction in issuing directions to the investigating agency to act in a particular manner which is unsustainable."

Commenting on the wake of the consequences of the order of the High Court, the Supreme Court further went on to observe,
It is too fairly well settled and needs no restatement at our hands that the saving of the High Court’s inherent power is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. It is unfortunate that it is the exercise of the inherent power by the High Court in this case that had ultimately resulted in harassment of the appellants as is evident from the subsequent events. Pursuant to the impugned order, the investigating authorities have approached the appellant ... took him into custody and exhibited him on television channel. The police have demanded to pay an amount of Rs.2,28,00,000/- and threatened that he would be arrested if he fails to comply with their demand. Accordingly, the appellants have paid Rs.10 lakhs in cash in the police station itself and issued a cheque for an amount of Rs.2.18 crores. ... The police offered explanation stating that the matter was settled voluntarily between the parties and therefore, the accused were not arrested and remanded to custody. It is difficult to buy this idea that there was a settlement between the parties in the police station. It is not difficult to discern as to how and under what circumstances the appellants may have agreed to pay the amounts and also issued a cheque. It is not known as to how and under what authority the police could intervene and settle any disputes between the parties. It is needless to observe that the police have no such authority or duty of settling disputes. It is the statutory obligation and duty of the police to investigate into the crime and the Courts normally ought not to interfere and guide the investigating agency as to in what manner the investigation has to proceed.
To avoid the travesty of justice, the Supreme Court held nothing back to set aside the order of the High Court. It declared, 
Tested in the light of the principles aforesaid, the impugned order, in our considered opinion, must be held to be an order passed overstepping the limits of judicial interference. It was observed by this Court on more than one occasion, that even in Public Interest Litigation proceedings, appropriate directions may be issued and the purpose in issuing such directions is essentially to ensure performance of statutory duty by the investigating agency. The duty of the Court in such proceedings is to ensure that the agencies do their duties in compliance with law. The inherent power of the High Court is saved to interfere with the proceedings pending before a Criminal Court if such interference is required to secure the ends of justice or where the continuance of the proceedings before a Court amounts to abuse of the process of Court. Such a power under Section 482 of the Code is always available to the High Court in relation to a matter pending before a criminal Court. 
... The High Court interfered with the investigation of crime which is within the exclusive domain of the police by virtually directing the police to investigate the case from a particular angle and take certain steps which the police depending upon the evidence collected and host of other circumstances may or may not have attempted to take any such steps in its discretion. It is not necessary that every investigation should result in arrest, seizure of the property and ultimately in filing of the charge sheet. The police, in exercise of its statutory power coupled with duty, upon investigation of a case, may find that a case is made out requiring it to file charge sheet or may find that no case as such is made out. It needs no reiteration that the jurisdiction under Section 482 of the Code conferred on the High Court has to be exercised sparingly, carefully and with caution only where such exercise is justified by the test laid down in the provision itself.
... The High Court in the present case, without realizing the consequences, issued directions in a casual and mechanical manner without hearing the appellants. The impugned order is a nullity and liable to be set aside only on that score.
With these scathing observations, the Supreme Court set aside the order of the High Court and directed the police to carry out the investigations independently and without favour. It is hoped that this recent decision would deter vexatious petitions being filed in courts for the litigants would be aware that the higher courts would not tolerate travesty of justice. 

Carriers presumed liable for damage in transit !!!

Stating the obvious, the Delhi High Court in a recent decision has reiterated the 150 year old law to declare a public (transport) carrier liable for for loss of goods during transport for presumed acts of negligence. The Carriers Act of 1855 provides that "in any suit brought against a common carrier for the loss, damage or non-delivery of goods including containers, pallets or similar articles of transport used to consolidate goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents." 

"In Arvind Mills –vs- Associated Roadways 2004 (11) SCC 545, the Supreme Court remarked that Section 9 is a procedural provision, enjoining that a presumption should be drawn about carrier’s liability. Hussainbhai –vs- Motilal Agarwal AIR 1963 Bom 208, a Division Bench ruling of the Bombay High Court, establishes that the presumption of liability without proof of negligence arises, by virtue of Section 9 and the onus of proving an exception to that rule, is upon the carrier", noted the High Court to hold the public carrier liable in this case, which was brought about by an insurance company (on payment of claim of the insured) against the transport company for damage of the colour television sets during transport from Delhi to Chennai.

In these circumstances, the High Court allowed the claim of the insurance company against the transporter observing thus "in this case, the plaintiffs have proved existence of an insurance policy, that it covered the consigned goods; the plaintiffs also proved that the consignment was accepted by Bombay Transport, for a consideration, and it issued a consignment note; the goods were to be delivered at Chennai, to KELTRON. The certificate issued by Bombay Transport, after the consignee protested about the condition of the goods, establishes that the goods were damaged while in the custody of the carrier. The insurer appointed a surveryor; its report establishes the extent of damage. The insurer paid the insured (Jupiter) the amount, in accordance with the surveyor’s valuation; Jupiter issued a subrogation letter authorizing United India, to claim the sum from the carrier. These are proved by clear documentary evidence. The defendant, on the other hand, has not cared to prosecute these proceedings, and enter its defence. In these circumstances, it did not discharge the onus which lay upon it, by virtue of Section 9 of the Carriers Act. The basic claim of the plaintiffs, therefore, has to succeed."

Strikers to be prosecuted for damage: High Court

Taking a suo motu action in view of a death which took place due to strike called out by political parties, the Punjab and Haryana High Court has directed the Government to initiate criminal proceedings against those involved in the strike and cause loss of life and property to others. The Court on its own motion initiated the proceedings upon the report that a person died on the way to the hospital as "a mob comprising several leaders of Shiv Sena, Vishav Hindu Parishad and other members of political party, namely, BJP had stopped the passage" and the person was not allowed to be taken to the hospital.

Taking note of the consistent judicial opinion against calls of strike and participation therein, the High Court observed as under;

From the above judicial pronouncements of Courts of law from time to time, it is evident that those who want to commute and undertake their journey cannot be forced or compelled to shelve off their travelling by the organisers who had given call for strike. Forcibly preventing the common man by the strikers is unlawful. It has been well recognised that resorting to such kind of strikes, the sufferer is society and the public at large. The Courts have often held that there cannot be any right to impose or enforce a bandh which interferes with the exercise of fundamental freedom of other citizens. Such a call of chakka jam, bandh or strike, not only causes national loss in many ways but as is depicted in the present case, has caused loss of precious life.
In these circumstances, coming heavily against those calling and participating in the strike, the High Court directed registration of case and submission of charge sheet against the erring participants of the chakka jam/bandh. The High Court also directed the State administration to take necessary precaution that nobody be allowed to forcibly restrain or compel any person who does not want to become part of strike or chakka jam and to ensure free flow of traffic.

One may have a look at this decision here, however (as it we had earlier written to this effect) it is only unfortunate that each time the judiciary has to come into action to direct against the damage to life and property while the executive machinery of the State, which is actually responsible for ensure that such incidents do not take place consider their work sufficed by giving undertaking in courts of such events not happening again, only to be found to give such undertakings again and again and ...

Half Ticket passangers to get full seats: High Court

Deciding in the wake of a public interest litigation filed before it, the Punjab and Haryana High Court has issued directions to the effect that children in the age of 3-12 years, for whom half-ticket is given in buses, would be given full seats in the buses. Noting the actuating circumstances; 'plight of a mother traveling in a bus, having 2 ½ years old baby in the lap and another child aged 8 years standing in the passage' behind the moving of the litigation; the High Court took into account the allegation made by the petitioner that the "notice, displayed in writing in each bus, stating that half ticketed passenger is not entitled to seat, amounts to cruelty to the children, especially when seats are reserved for Members of Parliament, Members of Legislative Assembly, ladies and physically handicapped persons." It was also pleaded before the High Court that it "should come to the rescue of a child, who is entitled to love and affection because of tender age and is made to stand in a bus."

From a perusal of the decision it transpires that concerned authorities were not oblivious to the plight of the children and therefore were sensible enough to act on their own accord to issue instructions that such children for whom half-ticket was taken be provided full seats, which the decision of the High Court notes. 

In view of the authorities having accepted the plea of the Petitioners, the High Court directed as under;

Counsel for the State of Punjab and Haryana have made a statement that the instructions issued shall be strictly adhered to and half ticketed child will be provided a full seat. They have also assured that the process of amending the Rules is being followed in right earnest and till the Rules are amended, children of the age between 3 to 12 years, having half ticket, shall be provided full seat. Counsel for the petitioner has also expressed satisfaction.
In these circumstances, all that we need to say is that in all the buses, operated in States of Punjab and Haryana, it shall be displayed in writing at a conspicuous place in the bus that half ticketed passenger will be entitled to full seat.

Speedy decisions based on admissions permissible

In a recent decision the Delhi High Court has invoked the provisions of the Code of Civil Procedure (1908) to hold that once a party admits to a fact in its submissions, decision of the court can be based solely upon that to grant relief to the other party. The case related to a claim by the land-owner of the non-payment of the lease-rent and unauthorized possession by the lessee. "According to the plaintiff, the total monthly rent payable was Rs. 2,16,000/-. It is contended that in terms of the lease deed, the defendant’s lease was to end on 31-12-2004; they could, however, continue in the premises on payment of enhanced rent. It is submitted that the defendant continued in the premises for a further period of 27 ½ months, without existence of a valid lease deed, since the lease period was never extended", the decision notes.

On been served notice, the lessee/defendant claimed that "the plaintiff had been instrumental in causing mischief to it, by blocking water supply and electricity from the generator installed on the top floor, in spite of the previous owners (of the premises) not objecting to the activity. It is contended that the defendant spent more than Rs. 4.4 crores in renovating the premises. The defendant sets up a case of “suspension” of its liability to pay rent, saying that the plaintiff’s acts disentitled it to payment of any amount, since the amenities were intentionally denied to it." 

Upon the perusal of the submissions made by the rival parties, the court found that the lessee/defendant did not deny claims of the land-owner/plaintiff but only made allegations not related to the claims of the land-owner. It noted, "the defendant does not deny having executed the lease deed; it does not also deny that the lease period ended in December 2004. In the circumstances, the lease ended by efflux of time. Its main defence is that the plaintiff’s predecessor – and also the plaintiff agreed to sell the suit property to it. No details are given in support; even the date is not averred. Instead, the defendant banks on copies of demand drafts supposed to have been prepared, to be given for the agreement to purchase, and photocopies of stamp paper, said to have been purchased by it. However, the defendant has not set up any substantive claim in this regard; concededly, the period of limitation to enforce such a claim has ended. Equally, the plea about it having spent Rs. 4.4 crores, appears to have been made casually; there is no claim for that amount. Assuming that such amount was spent, at the time the defendant secured the premises, the period for recovering it has long since expired. As regards the plea of “suspension of rent” apart from the averment, there is no basis; no letter or document, entitling the defendant to withhold such rents, has been brought to this court’s notice. In view of the above circumstances, the court is of the opinion that the written statement contains unambiguous admissions about the lawful tenancy of the defendant having expired on 31-12-2004; there has been no extension of the lease arrangement, which ended by efflux of time, and the plaintiff sent notices asking the defendant to vacate the premises."

In this factual matrix, the High Court relied upon the stipulations of Order XXII, Rule 6 of the Code of Civil Procedure will grant the Court liberty to pass judgments based solely upon the admissions made by the parties. The said provision states;
6(1) Where admissions of fact have been made either in pleadings or otherwise, whether orally or in writing the court may at any stage of the suit, either on the application of any party or of its motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit having regard to such admissions.
The Court also noted a decision of the Supreme Court on similar lines which noted that "As to the object of the Order 12 Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that ‘where a claim ia admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled.’ We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed."

In view thereof, the High Court allowed the claim of the land-owner based solely upon the admission made by the lessee/defendant and order for the arrears of rent to be paid and possession of property be delivered. 

11 Oct 2009

WADA 'whereabouts' clause: Exploring the controversy !!!

The plan of International Cricket Council (ICC) of imposing the World Anti Doping Authority (WADA) rules on doping in international cricket seems not only to have backfired but also having generated much controversy as cricket itself. Be that as it may be, in our quest for examining the legal perspectives of things, we herein undertake to analyze the genesis, reasons for controversy and the legal barriers which face the effective implementation of the WADA rules. 

Even though 'doping' is not new to sports and athletes, WADA as an organisation is fairly one and its history can be traced back to the last decade which is explained by the WADA website in the following terms;
After the events that shook the world of cycling in the summer of 1998, the IOC decided to convene a World Conference on Doping, bringing together all parties involved in the fight against doping. The World Conference on Doping in Sport held in Lausanne on 2-4 February 1999 produced the Lausanne Declaration on Doping in Sport. This document provided for the creation of an independent international anti-doping agency to be fully operational for the Games of the XXVII Olympiad in Sydney in 2000.Pursuant to the terms of the Lausanne Declaration, the World Anti-Doping Agency was established on 10 November 1999 in Lausanne to promote and coordinate the fight against doping in sport internationally. WADA was set up as a foundation under the initiative of the IOC with the support and participation of intergovernmental organizations, governments, public authorities, and other public and private bodies fighting against doping in sport. The agency consists of equal representatives from the Olympic Movement and public authorities.
It was in this perspective that WADA formulated detailed rules and regulations towards its two fold objectives; (i) "To protect the Athletes' fundamental right to participate in doping-free sport and thus promote health, fairness and equality for Athletes worldwide, and (ii) To ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping." The Code, first of its kind, was promulgated in 2003 and the version which operates toward is of 2009 effective from first of January this year. 

About the Code, WADA professes that "the Code is the fundamental and universal document upon which the World Anti-Doping Program in sport is based. The purpose of the Code is to advance the anti-doping effort through universal harmonization of core anti-doping elements. It is intended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented."

One may have a look at the complete code to find that its the edifice on the basis of which doping in international sports is sought to be regulated, rather eliminated. However we are concerned with the root of controversy: the so-called 'whereabouts clause' of the anti-doping rules. The relevant clause stipulates that;
Athletes or other Persons shall be responsible for knowing what constitutes an anti-doping rule violation and the substances and methods which have been included on the Prohibited List. 
The following constitute anti-doping rule violations:
2.4 Violation of applicable requirements regarding Athlete availability for Out-of-competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.
Therefore, failure to provide the required whereabouts information regarding the availability of the sportsperson during the out-of-competition period is considered to be a violation of the anti-doping rules. The same Code further prescribes the whereabouts information requirement as under;
14.3 Athlete Whereabouts Information: As further provided in the International Standard for Testing, Athletes who have been identified by their International Federation or National Anti-Doping Organization for inclusion in a Registered Testing Pool shall provide accurate, current location information. The International Federations and National Anti-Doping Organizations shall coordinate the identification of Athletes and the collecting of current location information and shall submit these to WADA. This information will be accessible, through ADAMS where reasonably feasible, to other Anti-Doping Organizations having jurisdiction to test the Athlete as provided in Article 15. This information shall be maintained in strict confidence at all times; shall be used exclusively for purposes of planning, coordinating or conducting Testing; and shall be destroyed after it is no longer relevant for these purposes.
Therefore the sportspersons are required to inform their accurate current location information to the WADA authorities even out-of-competition such that the tests which are scheduled during those periods can be carried out. By when then WADA code applies to Olympics etc., why this fuss in cricket. Because Article 20.3 of the Code makes it peremptory on the part of International Federations (and ICC is one such) "to require all Athletes and each Athlete Support Personnel who participates as coach, trainer, manager, team staff, official, medical or paramedical personnel in a Competition or activity authorized or organized by the International Federation or one of its member organizations to agree to be bound by anti-doping rules in conformity with the Code as a condition of such participation." Therefore the ICC is obliged to ensure that the players taking part in its competitions abide by the WADA Anti-Doping Code. This is why the ICC required the member national cricket associations to sign up their players for WADA and start following its Code.

Things however took a different turn when the players of the Indian Cricket team refused to agree to the Code alleging it was in violation of their right to privacy guaranteed under the Indian Constitution and could compromise on their security. While the issue of player-safety is one subjective factor to the player and the Board, the issue that the so-called whereabouts clause is a violation of their right to privacy is a bit hard to digest given the law on this issued declared by the Supreme Court of India and also despite the fact that WADA takes full note the right to privacy of the athletes under their respective jurisdictions and to this effect provides in its Code as under;
14.6 Data Privacy: When performing obligations under the Code, Anti-Doping Organizations may collect, store, process or disclose personal information relating to Athletes and third parties. Each Anti-Doping Organization shall ensure that it complies with applicable data protection and privacy laws with respect to their handling of such information, as well as the International Standard for the protection of privacy that WADA shall adopt to ensure Athletes and non-athletes are fully informed of and, where necessary, agree to the handling of their personal information in connection with anti-doping activities arising under the Code.
Thus the objection raised by the Indian cricket team must have been on a rationale much higher than what WADA provides for otherwise there was hardly any scope of contest. Let us examine the merit in this allegation.

To begin with, one would be intrigued to note that there is no such specific 'right of privacy' under the Indian Constitution. The nearest equivalent (and perhaps also the most generic of rights) is Article 21 of the Constitution which only states that "no person shall be deprived of his life or personal liberty except according to the procedure established by law". Though judicial interpretation, it has come to be established that this fundamental right is one of wide magnitude and the 'right to privacy' is only an off-shoot of this provision. It has also been held time and again that 'right to livelihood' is an integral part and facet of the right to life. Therefore to deprive one of his livelihood in a manner which is opposed to a civilized treatment would be violative of this fundamental right.

The right to privacy, if one can say so, can be traced as emanating from a 1975 decision of the Supreme Court in Govind v. State of Madhya Pradesh. Speaking in the context of the challenge made to the validity of the Regulations framed by the State on Surveillance of habitual offenders and having quoted extensively on the position of the law prevailing in other jurisdictions, the Supreme Court observed as under;
Individual  autonomy,  perhaps the central  concern  of  any system of limited government, is protected in part under our Constitution by explicit constitutional guarantees. In the application  of the  Constitution our contemplation cannot only be  of what has  been  but what may be. Time works changes and  brings into existence new condition subtler and far reaching  means of  invading privacy will make it possible to be  heard in the street what is whispered in the closet. Yes too  broad a, definition of privacy raises serious questions about this propriety  of  judicial reliance on a right  that  is not explicit  in the Constitution of course,  privacy  primarily  concerns  the  individuals. It therefore  relates  to  and overlaps  with the concept, of liberty. The  most  serious advocate  of  privacy must confess that there  are serious problems  of  defining the essence and scope of the  right. Privacy interest  in autonomy must also be  placed  in the context of other right and values. Any right to privacy must encompass and protect the personal intimacies  of the home, the family  marriage, motherhood, procreation .and child rearing. This catalogue approach  to the question is obviously not as instructive as it does not give analytical picture of that distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the  concept has  been  the    assertion that a claimed  right must  be  a fundamental  right  implicit  in  the  concept of ordered liberty. Rights   and freedoms of  citizens are set  forth  in the Constitution in order' to guarantee that the individual, his personality  and those things stamped with his personality shall  be  free from official interference  except  where  a reasonable  basis  for intrusion exists. 'Liberty  against government" a phrase coined by Professor  Corwin  expresses this idea  forcefully. In  this  sense,  many   of the fundamental   rights  of  citizens  can be   described as contributing to the right to privacy. 
However, on a word of caution, the Court also noted that this right could not be viewed in isolation and rather was required to be balanced in the context of other competing interests and therefore if the so-called obstructions to these privacy were well placed, they could indeed override the individual'a right. It was on such account that even though the Court recognized the right to privacy of the so-called habitual offender, according to the Court the concern to protect the society from such people with known antecedents far outweighed the individual's right to privacy and therefore the challenge to the regulations was turned down by the Court. 

There have been a number of other decisions also wherein this right has been found to be worth a mention, especially against journalists seeking access to particular photographs; rights of a patient not to have his medical status disclosed to others; unauthorised tapping of telephones of third parties; etc. However the legal position is arguably clear that there is no blatant and unfettered right of privacy under the existing Indian law. 

Therefore what does one say of the stand adopted by the Indian authorities; is it the correct enunciation of the legal position existing in India? According to the advice meted out by the legal experts advising the BCCI, the answer seems to be in the affirmative. Yet it is only the course of time (and a challenge in the court) that will exactly test the proposition. However the approach yet begs the question that how can the clause be an invasion on privacy if the bigger competing interest is to keep the sports clean of doping menace? If the clause is found to be invasive, let the players not sign and also let they not participate for if that the disclosure be a part of the 'conditions of play', they can't cut the cake and eat it too. Even the Supreme Court recognizes (as quoted above) that the right of privacy is not uncontrolled and unfettered against all other rights which the society has to regulate is own being. In fact even the reliance placed upon Article 21 is not without scrutiny for the jurisprudence in this regard is equally well settled that it only protects against procedural violations and if a substantive law does take away a right, there is no scope of argument against it.

Further, one is compelled to ask that if the clause requiring the sportsperson to provide the whereabouts indeed a violation of the Right of Privacy of the Indian sportsperson, why did the Indian National Anti-Doping Authority (headed by no less than the Sport Minister of Government of India) accept the WADA Code at its very first meeting and still has not considered going back to WADA seeking a review of the conditions?

Nonetheless the current situation is that following its players objections, BCCI  (choosing to disagree with the official stand of the Indian Government) placed its objections to the whereabouts clause to ICC and ICC has now suspended the operation of the whereabouts clause and has sought the involvement of WADA to find an alternative to the so-called constitutional issue facing the Indian Crickets. But yet, as we stated this, one has to really figure out in what context it is claimed that there is an invasion of the privacy of the sportspersons. It might be a case of practical difficulties, clashing egos but to say a constitutional issue, one needs to atleast state the foundational claims thereto.