CBFC Certification Mandatory : Delhi High Court

Justice Muralidhar

The Delhi High Court has held that manufacturers, distributors or sellers of cinematograph films, will first submit the DVDs/ VCDs to the Central Board For Film Certification (CBFC) for certification and this rule will apply prospectively and not to the films which have already been produced. 

Thirty six petitioners, including T-series, who are producers, manufacturers, and sellers, and also replicators for music companies holding copyright in audio-visual materials, including devotional and religious songs in many regional languages, approached the court seeking to quash CBI cases against them for selling songs recorded on video compact discs (VCDs) and digital video discs (DVDs), without having CBFC certification. 

The VCDs and DVDs were labeled 'only for private viewing' and does not come under the CBFC certification, the petitioners contended. 

Justice S Muralidhar in his order passed yesterday said, 'Petitioners before this Court who are manufacturers and/or distributors or sellers of cinematograph films, each of them will adhere to the law as explained in this judgment and any film which is hereafter made by them will, before being sold or offered for sale or distributed by them to the public in DVD, VCD or any electronic or other format, be first submitted to the CBFC for certification. It is for the CBFC to decide whether it wants to increase its machinery to ensure that such certification takes place expeditiously. 

It is also for the Union Of India (UOI) to decide whether a film containing only religious or devotional material would require to be exempted from certification under Section 9 of the CG (Cinematograph Act, 1952) and on what terms, the court held. 

The court allowed the CBI to proceed with the prosecutions already launched in accordance with law and warned that the present judgment will apply prospectively and will not be used by the CBI to register any fresh cases in respect of the films already produced and offered for sale or distributed to public by any of the Petitioners, the court held. 

The CBI and the law enforcement machinery of the GNCTD will be free to proceed against any of the petitioners if they act hereafter in contravention of the law, the court added. 

The case pertains to 36 writ petitions filed in 2007 after raids were conducted by the police on the shops from where DVDs and VCDs similar to the ones being manufactured and sold by the petitioners were seized and prosecution launched against several persons for violation of Section 52A(2)(a) of the Copyright Act, 1957 (CR Act). 

The contention of the petitioners is that since they are themselves the manufacturers and sellers and, therefore, the holders of the copyright in respect of the material in these DVDs and VCDs, they were not required to obtain certification under Section 5-A of the CG Act, and consequently they cannot be prosecuted under Section 52A(2)(a) of the CR Act. 

The prayers in these writ petitions, filed in 2007 were more or less of a declaratory nature seeking that their films sought to be sold in the form of DVDs and VCDs and which are meant for private viewing do not require certification by the CBFC under Section 5-A CG Act, the court observed, and said such a declaration is sought with a view to avoiding prosecution under the CR Act.

The Court concluded as under;

62. The upshot of the above discussion is that: (a) Once a film is made or produced in a DVD or VCD or any other format and is made available or distributed to the public or offered for sale to the public, it will amount to publication of such film within the meaning of Section 52A(2)(a) of the CR Act.

(b) In the context of the present petitions, at the point where a member of the public, to whom the Petitioners films on DVD or VCD is made W.P.(C) No. 2543 of 2007 & batch Page 52 of 56 available, plays it on an equipment and views such film, whether in the confines of a private space or otherwise, prior certification of that film in terms of Section 5-A CG Act would become necessary, since for the purposes of Section 52A(2) of the CR Act the film is exhibited at that point.

(c) The maker or the distributor of a film made available to the public by sale or otherwise is expected to anticipate the exhibition of such film by such member of the public subsequently and to ensure therefore that the film bears a certificate under Section 5-A CG Act. (d) Whether such film, if it contains purely religious or devotional songs, should be exempted from the certification is a matter for the Government of India to take a decision on in exercise of its powers under Section 9 CG Act. However, absent such exemption under Section 9 CG Act, it must be held that the films being produced and manufactured by the Petitioners, even if they contain purely religious or devotional songs as claimed by them, would require prior certification by the CBFC under Section 5-A CG Act. The absence of such certificate in the film itself when it is exhibited will attract the violation of Section 52A(2)(a) CR Act.

Find the entire Judgment here. 

Right to Information on Judges Appointment : Referred to Constitutional Bench

Justice Reddy

In an important development, the Supreme Court referred to a Constitution bench a petition seeking details of appointment and transfer of judges in the higher judiciary. 

Using the Right To Information (RTI) Act, petitioner Subhash Chandra Agarwal has also sought information on the correspondence between the Chief Justice of India and the government on appointments and transfers of judges of Supreme Court and High Courts. 

A bench of Justices B Sudarshan Reddy and S S Nijjar, while referring the plea to a Constitution bench, said since the issue involved substantial questions of law and interpretation of the Constitution, the petition should be heard by a Constitution bench. 

'Having heard the learned Attorney General and the learned counsel for the respondent, we are of the considered opinion that are substantial questions of law as to the interpretation of the Constitution is involved in the present case which is required to be heard by a Constitution bench', the two-judge bench said. 

They said the issue raises important questions on the constitutional position of the Chief Justice of India and the independence of the judiciary on the one hand and the fundamental right to the freedom of speech and expression guaranteed by the Constitution on the other hand. 

The transparency law recognises the constitutional rights of a citizen to freedom of speech and expression, while independence of judiciary is a part of the basic structure of the Constitution. 

'The independence of judiciary and fundamental of right to free speech and expression are of a great value and both of them are required to be balanced,' the judges said. 

While framing the issue, they referred the following important questions of law to a Constitution bench:- 1. Whether the concept of independence of judiciary required and demands the prohibition of furnishing of the information sought? Whether the information sought for amounts to interference in the functioning of the judiciary? 2. Whether the information sought for cannot be published to avoid any erosion in the credibility of the decision and to ensure the free expression of honest opinion by all constitutional functionaries, which is essential for effective consultation and for taking the right decision? 3. Whether the information sought for is exempt under Section 8(i)(j) of the RTI Act? Mr Agarwal has sought complete files on the appointment of Justices H L Dattu, A K Gangualy and R M Lodha as Supreme Court judges superseding Justices A P Shah, A K Patnayak(at present an apex court judge) and V K Gupta. 

Chief Information Commissioner had directed the Supreme Court to provide the required information to the RTI applicant. But central public information officer of the Supreme Court had challenged the CICs order in the apex court.

Find the Judgment here.

Maintain Judicial Discipline : Supreme Court to High Courts

Source : Indlaw.com

The Supreme Court has issued stern warning to the High Courts in the country not to try to override its orders. 

A bench, comprising Justices Markandey Katju and Gyan Sudha Misra, taking serious note of the increasing incidents of the High Courts violating the principle of judicial discipline has said, 'Judicial discipline requires that the High Courts should not try to override orders passed by this court.' 'Such defiant attitude of the High Courts will not be tolerated by this court.' The apex court has sought an explanation from the Madras High Court asking how and why stay order was granted by it despite the apex court order dated May 14, 2010 vide which the petition of the petitioner was dismissed. 

It also issued contempt of court notice to the commissioner, corporation of Chennai holding that the commissioner was hand-in-gloves with the petitioner and it is for this reason that he passed the collusive and contemptuous order dated June 18, 2010 that the suit premises need not to be demolished, just to get over the orders of the Supreme Court. 

The apex court has directed an immediate eviction of the tenant D M Belgamvala saying that if anyone tries to obstruct this order he will definitely be sent to jail. 

The court has ordered the eviction of the tenant since the building was 100-year-old and needed demolition. The tenant, however, got an order from the Chennai corporation commissioner, revoking his earlier order saying that building need not be demolished. 

The High Court stayed the eviction despite the Supreme court order vide which eviction had already been ordered.

Supreme Court : Illicit relationship of married man is cruelty to his wife

Source : Indlaw.com

The Supreme Court has ruled that an illicit relationship of a married man with another woman amounts to cruelty to his wife. 

A bench, comprising Justices Harjeet Singh Bedi and R M Lodha, while dismissing appeal of Laxman Ram Mane from Raigarh district of Maharashtra, whose wife had committed suicide after being subjected to beating and humiliation by him when she objected to an illicit relationship, noted, 'We are of the opinion that an illicit relationship of a married man with another woman would clearly amount to cruelty within the meaning of Section 498-A of the IPC.'

Katju Slams Allahabad HC Judges for Nepotism & Corruption

Justice Katju

Outspoken Justice Markandey Katju of the Supreme Court was at his best when he slammed the Judges of the Allahabad High Court for corruption and lack of integrity. While dealing with an SLP regarding a single judge's direction to the Uttar Pradesh Sunni Central Waqf Board to allot waqf land to Raja Khan for running a circus and swings in the Bahraich district of Uttar Pradesh. The Bench observed;

The faith of the common man in the country is shaken to the core by such shocking and outrageous orders such as the kind which have been passed by the Single Judge. We are sorry to say but a lot of complaints are coming against certain Judges of the Allahabad High Court relating to their integrity. Some Judges have their kith and kin practising in the same Court, and within a few years of starting practice the sons or relations of the Judge become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of Judges could derive no benefit from their relationship and had to struggle at the bar like any other lawyer.

We do not mean to say that all lawyers who have close relations as Judges of the High Court are misusing that relationship. Some are scrupulously taking care that no one should lift a finger on this account. However, others are shamelessly taking advantage of this relationship. There are other serious complaints also against some Judges of the High Court.

The Allahabad High Court really needs some house cleaning (both Allahabad and Lucknow Bench), and we request Hon'ble the Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfers of the incorrigibles. We entirely agree with the view taken by the Learned Division Bench in the impugned judgment. In view of the foregoing, we find no merit in this petition which is accordingly dismissed.

Find a copy of the order here.

Justice V.B. Gupta Retires

Justice V.B. Gupta of the Delhi High Court bid farewell amidst a Full court reference this week. Justice Gupta, was born on November 25th, 1948. After completing his schooling, he pursued Four year’s specialized Diploma Course in Hotel Management from Institute of Hotel Management, Pusa, Delhi. After working for few months in leading hotels of India, he left this profession. He completed his graduation from Delhi University and later on obtained LL.B. Degree from Delhi University in 1972 and was enrolled as an Advocate on 09.10.1972. 

After practicing at Bar in Delhi for few months, he qualified for Delhi Judicial Service and was appointed as Sub-Judge on 01.02.1973. After a tenure of five years as Sub-Judge, was appointed as Metropolitan Magistrate dealing with Economic Offence Cases pertaining to Essential Commodities Act, Income-tax Act and Prevention of Food Adulteration Act. Thereafter, he worked as Addl. Rent Controller and Presiding Officer, Motor Accident Claims Tribunal (MACT). 

In 1991, he was promoted to Delhi Higher Judicial Service and was posted as Additional Chief Metropolitan Magistrate, dealing with Economic Offence Cases under the Companies Act and Income-tax Act.

In 1992, was appointed as Special Judge, CBI and remained as Special Judge for about eight years. During this period, he dealt with corruption cases against public servants. 

In 1996, while working as Special Judge (CBI) was appointed by name by Hon’ble Supreme Court of India to deal with “Jain Hawala” cases, exclusively. Later on, worked as Matrimonial Judge for a period of one and a half year, simultaneously, holding the additional charge of Director, Judicial Officers’ Training Programme. 

He was instrumental in establishing Delhi Judicial Academy at Karkardooma Court, Delhi and in February, 2002 was appointed as its first Director. During his tenure as Director, he developed various type of courses for Judicial Officers and carried out training programmes for them. He also started Journal of Delhi Judicial Academy and was its first Editor. In November, 2003, the then Hon’ble Chief Justice appointed him as Registrar General of this Court, where he continued till October, 2005.

In February, 2006, he was posted as Judge Incharge, Karkardooma Courts, Delhi. In July, 2006 was appointed as District & Sessions Judge, Delhi.

On 09.01.2007, was elevated to High Court of Delhi, as an Additional Judge and was made Permanent Judge of this Court on 01.09.2008. Retired on 24.11.2010.

Very interestingly, in a 2007 case, he found the order of a Sessions Court Judge amounting to contempt of court, and said as much in his order. The Sessions Judge had issued a warrant of arrest against an accused meant specifically for absconders, although the accused's bail application was pending. So angered was Justice Gupta by this order that he ordered the sessions judge to go back to law school.

"Since Mr R K Tewari does not have even elementary knowledge of the Code of Criminal Procedure, under these circumstances it would be appropriate if he undergoes a refresher course at the Delhi Judicial Academy in criminal law and procedure for three months. Director, Delhi Judicial Academy, should submit to this court the performance report with regard to this judicial officer," said Justice Gupta's order. However, contempt proceedings were not actually filed against the sessions judge.

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The Legal Blog

Supreme Court on 2G Scam : 'Why has A. Raja not been questioned'

Source : Indlaw.com

The Supreme Court slammed both the government and CBI for not taking the probe as well as CAG report in the Rs 1.76 lakh crore 2G spectrum scam seriously. 

A bench comprising Justices G S Singhvi and A K Ganguly first questioned Mr K K Venugopal, appearing for the CBI, for not naming the two companies named by the Chief Vigilance Commissioner (CVC) in his letter to CBI which was the basis of the FIR registered in October 2009 against unknown persons. 

The apex court also asked CBI counsel ‘why have you not questioned A Raja inspite of strong prima facie evidence against the ex-minister?’

Solicitor General of India Gopal Subramaniam was also reprimanded by the judges who asked him ‘why are you taking the CAG report non-seriously? CAG is also a Constitutional authority appointed by the Government and its findings cannot be treated in such a non-serious manner.’ The Supreme Court, adjourning the hearing till November 30, permitted CBI to file the status report in the Supreme Court in a sealed cover giving details of the investigation carried out during past 13 months, including the names of the companies and individuals who have been investigated and interrogated till date. 

The court permitted CBI to file status report when Mr Venugopal himself offered to file a status report. 

The apex court was irked with Mr Venugopal when he objected to the hearing of the PIL on merits. 

Justice Singhvi asked the CBI counsel, ‘Why were the two companies that have been named by the CVC not named in the FIR? The companies got the spectrum allocated for Rs 1500-1600 crore and sold the same for Rs 6000 crore within a few days. Was it not sufficient to name them as accused and investigate?’ Counsel for the petitioner Prashant Bhushan submitted before the court that the cut-off date was arbitrarily advanced from October 1, 2007 to September 25, 2007 leading to the elimination of 343 applicants out of total 575 applicants for spectrum allocation. 

The date was advanced in January 2008 with retrospective effect. 

Mr Bhushan also pointed out that on October 18, 2007 Tiger Trustee, a company owned by Reliance group of Anil Ambani, transferred 50 lakh shares for Rs five crore to some foreign company when it was having Rs 1000 crore in its bank account. 

The CBI has not tried to find out to whom these shares were transferred. 

The apex court was also surprised by the stand taken by DoT that accepting the advice of Law ministry for referring the matter to empowered group of ministers will lead to further litigation. 

Justice Ganguly reacted by saying, ‘Litigation is not a crime and it does not mean that you will not do the right thing only because people may go to the court.’ The Supreme Court brushed aside the objection of the CBI to the petition being heard on merit instead of confining to the limited issue of monitoring the investigation by the Supreme Court. 

Solicitor General of India Gopal Subramanium informed the court that the government was awaiting TRAI opinion on the issue of cancellation of licenses granted by former Communications minister A Raja.

Judges Appointed : Rajasthan gets new Chief Justice

Source : Indlaw.com

The appointment of Rajasthan High Court Chief Justice and four Andhra Pradesh High Court Judges was announced but more than 280 sanctioned posts nationwide have been vacant and the pendency of cases has been on the rise. 

Rajasthan High Court Judge Arun Kumar Mishra has been appointed Chief Justice of the High Court by President Pratibha Patil, a Law and Justice Ministry announcement said. 

Andhra Pradesh High Court Additional Judges Bejjaram Chandra Kumar, Nalla Bhuma Narayan Rao, Samudrala Govindarajulu and Noushad Ali, in that order of seniority, have been appointed Judges of the High Court, another Ministry announcement said. 

The Ministry said appointments take effect from the date of assumption of office. 

Vacancy in High Courts rose from 273 of 895 sanctioned posts-- reported by Law and Justice Minister M Veerappa Moily in Parliament in March 2010-- to 285 in September 2010-- reported by the Justice Department. 

Those and 2,980 vacancies in 16,990 District Courts have been a cause of concern in a nation facing serious discipline issues compounded by court delays and mounting pendency. 

The courts between them have an estimated 31.54 million cases pending, reflecting unresolved conflicts citizens live with-- a perspective on vacancies! The government knows that vacant judgeships contribute to increasing case pendency and arrears in courts. 

Dr Moily is on record having told Parliament that ‘delay in filling up the vacancies of Judges is one of the main reasons for accumulation of pending cases in courts.’ The government is often at pains to explain that appointment of Judges was turned over to the judiciary-- Chief Justice of India and Chief Justice of the concerned High Court-- by a 1993 Supreme Court judgement. 

The government ‘periodically’ reminds the Chief Justices to initiate proposals in time to fill up existing vacancies and those anticipated six months ahead, Dr Moily says. 

The process to fill vacancies is supposed to begin six months before a retirement is due-- a date known the moment a judge is appointed. 

But as the government acknowledged in Parliament in 2009, eleven High Courts were yet to initiate proposals to fill up all posts ‘that were vacant in 2007.’ It has been over a year since Prime Minister Manmohan Singh stressed the urgency of filling up Court vacancies. 

‘The existing vacancies in High Courts are quite high in number and need to be filled up urgently,’ he told a Joint Conference of Chief Ministers and Chief Justices. 

Notwithstanding the advent of internet and a clamour for transparency, opacity has remained a major issue. 

Even provisions of a Right to Information notified in 2005 and projected by Dr Singh as a major United Progressive Alliance achievement, have been questioned by the judiciary. 

Referring to the 1993 Supreme Court judgement by then Justice J S Verma, one expert says assuming there was merit in reducing executive role, it could well have been a move towards transparency. 

The expert saw no reason why public input is not encouraged by circulating names of proposed candidates before appointment-- a move that needed no Constitutional or legislative amendment, just norms. 

Experts agree that with 31 million plus cases pending, many for decades, and barely 18,000 judges sanctioned against a recommended 55,000 strength, vacancies may be the last thing Indian courts can afford.

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No Change in Judicial Appointment System : Moily to Rajya Sabha

Veerappa Moily
Union Law Minister

Source : Indlaw.com

Notwithstanding criticism of ‘dilatory and ineffective’ process of appointing Supreme Court and High Courts Judges, the government has no immediate plans to change the system, Rajya Sabha was told. 

‘There is, at present, no specific proposal to bring about any change,’ Law and Justice Minister M Veerappa Moily said in a written reply to Shiromani Akali Dal member Balwinder Singh Bhunder. 

Bhunder wanted to know whether the government will amend the Constitution to give the executive overriding powers in selecting Judges as the present procedure ‘has proved to be dilatory and ineffective.’ Moily said the procedure for Judges appointment based on a Supreme Court judgement ‘has been debated in various fora and there have been demands to change the same.’ ‘However, there is, at present, no specific proposal to bring about any change in the present system of appointment of Judges in the Supreme Court and the High Courts.'

No Benches of Supreme Court : Moily

Veerappa Moily
Union Law Minister

Source : Indlaw

The government does not centrally maintain information on appeals to the Supreme Court from High Courts across India or any disparity involved, Rajya Sabha was told. 

Law and Justice Minister M Veerappa Moily (Pictured) was answering Dravida Munnetra Kazagham member Kanimozhi on HC-wise rate of such appeals. 

Ms Kanimozhi wanted to verify if the appeal rate from Tamil Nadu, Kerala, Karnataka and Andhra Pradesh was 1.7 per cent, while that from Delhi, Punjab and Haryana, over six per cent. 

She also wanted to know if in the light of such disparity, the government considered increasing the number of Supreme Court benches, especially for southern States. 

Dr Moily replied that information on rate of appeal to the Supreme Court from the High Courts is not maintained centrally. 

He also said the government has ‘no proposal to establish Benches of the Supreme Court anywhere in the country.'

Add Section 302 IPC in case of Dowry Death : Supreme Court

We had earlier reported a Judgment of the Apex Court where the Bench had opined that Dowry Deaths fall under the category of 'rarest of rare' case and thus is liable to be punished with the death sentence.

In a significant order, passed today, the Supreme Court directed that all trial courts in the country shall add Section 302 IPC (murder) in a case of dowry death under Section 304 B so that death sentence can be given in heinous and barbaric crimes against women. 

A bench comprising Justices Markandey Katju and Gyan Sudha Misra also directed that the copy of this order be sent to Registrar Generals of all High Courts which will circulate it to all trial courts for compliance. 

The apex court disapproved the approach of the Punjab and Haryana High Court which reduced the life sentence given to the appellant Rajbir alias Raju, who killed his wife Sunita by striking her head repeatedly against the wall and finally throttling her, to ten years. 

The apex court issued notice to Rajbir, asking him to explain why life imprisonment awarded to him by the trial court should not be restored. 

The apex court, however, granted bail to his mother considering that she is about 80 years old. 

Sunita was killed within six months of her marriage for not meeting the dowry demands. 

The Supreme Court had in another case issued notice to Sukhdev Singh, asking him to explain why his life imprisonment should not be enhanced to death sentence. 

The apex court in order said, ‘We further direct all trial courts in India to ordinarily add Section 302 to the charge of Section 304 B, so that death sentence can be imposed in such heinous and barbaric crimes against women.’ Justice Katju had earlier described Indian society as sick in view of increasing incidence of murder of young married women to satisfy the lust and greed for dowry

Week 3 : 'Action Packed'

We have seen tremendous amounts of action this week in the legal fraternity. Be it the 'drama' in court by Sr. Advocate Shanti Bhushan to the guilty verdict against Justice Soumitra Sen. The last week (rather fortnight) saw the release of SPS Rathore from jail after the Supreme Court granted him bail in the Ruchika Girhotra case.

In other news, the week was dominated by the 2G scam and the antics of A.Raja and the DMK. Raja finally resigned, very reluctantly though, and Kapil Sibal has taken his place as the new Telecom Minister.

The Top News of the Week is as under;

Naik Paranjpe secures relief for Big Boss

Delhi HC issues notices to Centre and Delhi Government to prosecute Arundhati Roy

2G Spectrum Scam : SC directs Union Government to file affidavit

Government may introduce Judicial Standards and Accountability Bill, 2010

Supreme Court asks Vodafone to deposit Rs.2,500 crore

Set up Armed Forces Grievances Redressal Commission : Supreme Court

Government introduces another version of Enemy Property Amendment Bill in Lok Sabha

Delhi HC seeks reponse from the Centre on appointment of CMDs of BSNL and MTNL

Delhi High Court directs government to consult with DLSA to consider release of inmates unable to pay surety amount despite bail being granted 

SPS Rathore gets Bail from Supreme Court

Won't Say Sorry : Shanti Bhushan to Supreme Court

Ramalinga Raju & 5 others Surrender before Trial Court

Justice Soumitra Sen Guilty : Rajya Sabha Inquiry Committee

Supreme Court upholds conviction of Monica Bedi in a fake passport case

The Top Articles of the Week

Effect of Sub-Letting : Relevant Rate of Rent under Delhi Rent Control Act: The Law

Doctrine of Non Traverse : The Concept Explained

Trustworthy Evidence : The Doctrine of Falsus in Uno, Falsus in Omnibus

Tenant by 'Holding Over' and 'Sufferance' : The Law explained

Trademarks and Domain Names : The Law

Descriptiveness & Registration of Trademark : The Law

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Guest Post

Foreign Direct Investment : A Comparison of the Consolidated Policies of 2010

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Effect of Sub-Letting : Relevant Rate of Rent under Delhi Rent Control Act: The Law

Justice A.K. Sikri
Delhi High Court

An interesting question was raised in the instant case (M/s. Atma Ram Properties (P) Ltd. vs M/s. Pal Properties (India) Pvt. Ltd. And Others), where the Premises in question was let out to the tenant for a rent less than Rs. 3500/- per month and the said tenant further sub-let the Premises for an amount exceeding Rs. 3500/- per month. The question that arose for the consideration of the Bench was which rate of rent would be applicable to determine the question regarding jurisdiction of the Civil Court in view of S. 50 of the Delhi Rent Control Act.

The Bench held that once the tenant sublets the property for a rent exceeding Rs. 3500/- per month, then the relevant rent for the consideration of the Court would be the amount exceeding Rs. 3500/- per month. The Court held that once the premises fetches a rent exceeding Rs. 3500/- per month, the tenant loses the protection afforded by the Delhi Rent Control Act. The relevant Para(s) of the judgments are reproduced hereinbelow;

14. The last question which calls for determination is as to whether the tenancy of the defendants is protected under the provisions of Delhi Rent Control Act and the suit is not maintainable in view of Section 50 of the said Act. On this aspect facts are not in dispute. Defendants 1 to 3 are paying the rent of Rs. 1540/-. However, they have sub-let a part of the tenanted premises to defendant No. 4 and defendant No. 4 is paying the rent of Rs. 24,701.25 paise to defendants 1 to 3. Therefore, no evidence is required and legal question which calls for determination is as to whether it is a rent of Rs. 1540/- paid by tenants to the landlord or it is a rent of Rs. 24,701.75 paise paid by sub-tenant to tenants which would be a determinative factor in such proceedings. This issue is no more res integra. Identical question came up for consideration before the Division Bench of this Court in the case of P.S. Jain Company Ltd. Vs. Atma Ram Properties (P) Ltd. & Ors. . In para-5, the question which fell for consideration was posed. It reads as under:

"The point for consideration in the appeal is: Whether a tenant who is paying a rent of Rs. 900/- p.m. Section 3(c) of the Delhi Rent Control Act, 1958) can be evicted by a simple notice under Section 106 Transfer of Property Act, through the civil Court if he has lawfully sub-let there premises to two tenants, one for Rs. 40,000/- p.m. and another for Rs. 4,500/- p.m. (in each cases for more than Rs. 3,500/- p.m.)?

15. The answer to this question is found in paras 8, 9 and 12 of that judgment. After relying upon for Supreme Court judgments dealing with purposeful construction of a statute rather than adopting mechanical approach, in para-12 the Court observed as under:

"12. In our view, the intention behind Section 3(c) is that a premises which fetches a rent of Rs. 3,500/- p.m. should be exempt and that protection should be restricted to buildings fetching a rent less than Rs. 3,500/- p.m. In case a tenant paying less than Rs. 3,500/- p.m. to his landlord has sublet the very same premises may be lawfully for a rent above Rs. 3,500/- p.m., then the question naturally arises whether such a tenant can be said to belong to weaker sections of society requiring protection. By sub-letting for a rent above Rs. 3,500/- p.m., the tenant has parted with his physical possession. He is receiving from his tenant (i.e. the sub-tenant) more than Rs. 3,500/- p.m. though he is paying less than Rs. 3,500/- p.m. to his landlord. The above contrast is well illustrated by the facts of the case before us. The appellants tenant is paying only Rs. 900/- p.m. to the plaintiff, while one for Rs. 40,000/- p.m. and another for Rs. 4,500/- p.m. In regard to each of these units, the sub-tenants have no protection of the Rent Act. In our view, the purpose of Section 3(c) is not to give any protection to such a tenant.

16. Thus it is clear that the relevant rent is the one which is paid by sub-tenant to the tenant. In the instant case it is more than Rs. 3,500/- PM and, therefore, no protection under the Delhi Rent Control Act would be available to the defendants and the present suit is not hit by Section 50 of the Rent Control Act.

Doctrine of Non Traverse : The Concept Explained

Justice V.B. Gupta of the Delhi High Court has enunciated the 'Doctrine of Non-Traverse' in his judgment in Smt. Asha Kapoor v. Sh. Hari Om Sharda . The extract of the judgment is given below;

16. Order VIII Rule 3, 4 and 5 of the Code of Civil Procedure (for short as Code) read as under;

"3. Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the ground alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

4. Evasive denial- Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

5. Specific denial-[(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability; Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the fact contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]"

17. The effect of Order 8 Rule 3 read along with rr 4 and 5 of the Code is that, defendant is bound to deal specifically with each allegation of fact not admitted by him; he must either deny or state definitely that the substance of each allegation is not admitted. The main allegations which form the foundation of the suit should be dealt with in that way and expressly denied. Facts not specifically dealt with will be taken to be admitted under Order 8 Rule 5 of the Code.

18. Order 8 Rule 5 of the Code is known as doctrine of non-traverse which means that where a material averment is passed over without specific denial, it is taken to be admitted. The rule says that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation should taken to be admitted.

19. Supreme Court in M. Venkataraman Hebbar (D) By L.RS. Vs. M. Rajgopal Hebbar & Ors. 2007 (5) SCALE 598, observed;

"Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved."

Naik Paranjpe secures relief for Big Boss

Source : Sify.com

Viacom 18, which owns Colors channel has challenged the Central Government's decision to restrict the airing of the TV show 'Bigg Boss' only between 11 PM and 5 AM in the Bombay High Court.

On Thursday, it won a reprieve and the show will not have to move to the 11 pm slot for now.

Colors, which moved the court this morning, said: "No date has been mentioned as to when the show was against good taste and decency. The channel also said that its content cannot be described as obscene."

"The show has been on for one and a half months, what is the urgency suddenly?" asked Colors in court.

The channel further accepting that the government has the power to force a schedule change, said the advertisement commitment and content would have to be changed in that case.

Faced with mounting complaints from TV viewers and women outfits about objectionable contents, the Government had on Wednesday ordered channels airing TV shows 'Big Boss' and 'Rakhi ka Insaaf' to broadcast them only between 11 PM and 5 AM, virtually bracketing them as only for adult viewing.

"Both shows are not for universal viewing and can be aired only in the scheduled time slot," said Ministry of Information and Broadcasting officials.

While 'Big Boss' is being aired on Colors, 'Rakhi ka Insaaf' is aired on NDTV Imagine.

The decisions were reportedly taken at an inter-ministerial meeting represented by Additional Secretaries from the Ministry of Home, Women and Child Development, External Affairs and Information and Broadcasting.

Senior counsel Aspi Chinoy was instructed by Naik Paranjpe partner Ameet Naik in the writ petition filed before the Bombay High Court.

Delhi HC issues notices to Centre and Delhi Government to prosecute Arundhati Roy

Arundhati Roy

Source : Indlaw.com

The Delhi High Court has issued notices to the Centre and the Delhi government on public interest litigation, seeking directions to the governments to prosecute noted writer Arundhati Roy for her alleged seditious remarks on Kashmir made at a public function last month. 

Petitioner Salekchand Jain, through his counsel Sugrive Dubey, urged the court to direct the two governments to prosecute Ms Roy under the Prohibition of Seditious Meeting Act, 1911, and section 121 (waging and attempting to wage war or abetting the waging of war against the government of India) of the Indian Penal Code. 

Taking the petition on record, Justice Hima Kohli directed the respondents to file replies to the petition by January 23. 

The petitioner alleged that the writer had committed a crime under the Act and the IPC by making remarks on Kashmir at a seminar in the national capital last month. 

He said since the Union government had failed to take any action against her, it was the duty of the judiciary to step in and rein such people for making seditious statements. 

Another such petition in which Kashmiri separatist Syed Ali Shah Geelani is also named along with Ms Roy as an accused for making ‘anti-India’ remarks is pending in the Patiala House Court.

2G Spectrum Scam : SC directs Union Government to file affidavit

Supreme Court

Source : Indlaw.com

Solicitor General of India Gopal Subramanium today defending Prime Minister Manmohan Singh in the Supreme Court claimed that the Prime Minister has maintained high propriety in all communications including Janata Party leader Subramanian Swamy’s letter.

Dr Swamy submitted before a bench comprising Justices G S Singhvi and A K Ganguly that some senior officials may be permitted to file an affidavit on behalf of the Prime Minister. 

The apex court directed the government to file by Saturday an affidavit on behalf of the Prime Minister giving details of all communications between the Prime Minister and Dr Swamy. 

The apex court told the Solicitor General ‘It is an extremely serious matter and all submissions made so far are only oral and therefore, you should file an affidavit so that if ultimately it is found that something important has been kept back, the record should speak.’ The Supreme Court adjourned till Monday the hearing of the two petitions in the Rs 1.76 lakh crore 2G Spectrum scam in which former Communications minister A Raja is the main accused. 

Dr Swamy had written to the Prime Minister in November 2008, seeking sanction for the prosecution of Mr Raja under the Prevention of Corruption Act. 

PMO responded to the letter after about 15 months on March 10,2010 and the CBI registered a case in September 2009 against an unknown person. 

Dr Swamy has been given time till Saturday to respond to the affidavit of the government. 

Dr Swamy had sent another letter to Prime Minister yesterday demanding that security of Raja be stepped up as he faces threat to his life from a Dubai based hitman and has expressed the apprehensions that he may be silenced forever for being in possession of sensitive information on the scam.

Government may introduce Judicial Standards and Accountability Bill, 2010

Source : Indlaw.com

A Bill proposed to ensure ‘greater accountability and transparency’ in India’s higher judiciary provides for ‘rigorous imprisonment and fine for frivolous or vexatious complaints,’ Parliament was told. 

Law and Justice Minister M Veerappa Moily said in a written reply in the Rajya Sabha that the government ‘proposes to bring in The Judicial Standards and Accountability Bill, 2010,’ but did not say when it would do so. 

He was answering Janta Dal (United) member from Bihar Anil Kumar Sahani who wanted to know the salient objectives of the proposed Bill and steps to ‘check misuse of the legislation.’ The Bill will lay down judicial standards to be followed by the Judges of the Supreme Court and the High Courts, a mechanism for enquiring into complaints against Judges and provide for declaration of their assets and liabilities, Moily said. 

The Minister said it would also punish misuse. ‘The Bill provides for rigorous imprisonment and fine for frivolous or vexatious complaints.’ Moily told another member that the government was collecting information on the number Supreme Court judgements which are more than two years old and yet to be implemented. 

He was answering Indian National Congress member from Andhra Pradesh Nandi Yellaiah who wanted to know the number of such judgements and the steps taken for their implementation, especially in his State. 

Answering Bharatiya Janata Party’s Jai Prakash Narayan Singh from Jharkhand, Moily said that a proposal to give the Law Commission ‘statutory status is under consideration of the government.'

Supreme Court asks Vodafone to deposit Rs.2,500 crore

Source : Thaindian.com

The Supreme Court Monday asked telecom major Vodafone to deposit, within three weeks, Rs.2,500 crore as a component of its tax liability on its transaction with Hutchinson International Ltd. for acquiring its India operations Hutch Essar.

The apex court bench of Chief Justice S.H.Kapadia, Justice K.S. Radhakrishnan and Justice Swatanter Kumar asked the telecom giant to give a bank guarantee of Rs.8,500 crore for the balance tax liability calculated against it by the tax authorities.

The court said that Rs.2,500 crore should be deposited within three weeks and bank guarantee of Rs.8, 500 crore be given within eight months. The bank guarantee has to be from a nationalised bank.

The court said that if Vodafone succeeds in its case, the tax authorities would refund the excess amount with interest to be decided by the apex court.

Appearing for Vodafone, senior counsel Harish Salve said that after apportionment, its tax liability comes to Rs.1,330 crore. This was countered by Attorney General G. Vahanvati, who argued that the total tax liability was to the tune of Rs.11,000 crore.

The court then asked Vodafone to deposit an amount of Rs.2,500 crore and give a bank guarantee of Rs.8,500 crore.

Vodafone has challenged the Bombay High Court verdict that asked the tax authorities to go ahead with the assessment of the tax liability of telecom giant arising out its acquisition of India operations of Hutch Essar.

Vodafone has contended that it did not attract the jurisdiction of the Indian tax authorities as Vodafone PLC is a Netherlands based and Hutchinson International Ltd. was Hong Kong based.

It has also contended that the transaction of Vodafone acquiring Hutch Essar too took place on foreign soil.

The entire deal between the two telecom giants was to the tune of $11 billion and the tax liability works out to be $2 billion. Upon conversion in rupee, the tax liability along with interest component works out to be Rs. 11,128 crore, the tax athorities have claimed.

Set up Armed Forces Grievances Redressal Commission : Supreme Court

Source : Indlaw.com

The Supreme Court directed the Union government to set up within two months the Armed Forces Grievances Redressal Commission for speedy disposal of the grievances of the serving and retired servicemen and their family members. 

A bench comprising Justice Markandey Katju and Ms Justice Gyansudha Misra directed that the commission would be headed by a retired Supreme Court Judge and Mr Justice Kuldeep Singh shall be the first chairman. 

The Vice-chairman shall be a retired Chief Justice of a High Court and Justice S S Sodhi shall be the first vice-chairman. 

Retired Army Chief General V P Malik, Lieutenant General Vijay Oberoi (retired Vice Chief of Army Staff) and a civil servant to be appointed by the Centre would be the members. 

The commission office bearers would have tenure of two years, renewable after two years. 

The apex court also directed the commission would also frame and recommend to the Centre a scheme for proper rehabilitation of discharged soldiers who usually retire at the age of 40 years if promoted to the rank of Havildar. 

The apex court also recommended that a discharged soldier should be given alternative employment so that he can support his family and the commission will go into this matter also in detail and suggest appropriate scheme for rehabilitation of ex-army men who also include Air Force and Navy personnel who retire at a relatively young age. 

The commission will have its office in Chandigarh with recommendatory power and all authorities in India civil or military (including the secretary defence and the chiefs of the Army, Navy and Air Force) shall extend all cooperation to the commission to enable it to discharge its functions effectively and the Centre would issue the notification constituting the commission forthwith. 

Directions have been issued on the petition of Pushpavanti who was getting Rs 80 per month as pension after the death of her husband, an Army major who had fought 1948, 1962 and 1965 wars for the country and was a highly decorated officer with 14 medals. In these days a kilogram of Ahrar dal costs Rs 80. 

Her petition automatically stands transferred to the commission for speedy disposal and the next hearing of the case would be on February 7, 2011.


Find the Entire Text of the Judgment here.

Descriptiveness & Registration of Trademark : The Law

The Division Bench of the Delhi High Court has held that a descriptive word cannot be registered as a trademark. The decision was rendered in the matter Marico Ltd. v. Agro Tech Foods.

Marico, which uses the expressions “losorb” and “Lo-sorb” for its product Saffola and Sweekar, had filed the injunction application stating that it has coined the word and got the registration of it. However, the court held that the word was a common descriptive expression and while rejecting the appeal, held as under;

19. Our conclusion is that we have in fact totally failed to appreciate the argument as raised on behalf of the appellant. Surely, when rights are claimed over a word mark as a trademark and which word mark is in fact a mere tweak of a descriptive word indicative of the kind, quality, intended purpose or other characteristics of the goods, it is not open to urge that although the respondent is using the descriptive word mark in fact only as a part of sentence as a description (and even assuming for the sake of argument only the descriptive word mark in itself) alongwith another independent trademark, yet the use of descriptive words are to be injuncted against. How can it at all be argued that though the respondent is in fact shown to be using the disputed word(s) only with a descriptive intendment, yet, such use should be taken not in a descriptive manner but as a trademark. If we permit such an argument to prevail then what will happen is that what cannot be directly done will be indirectly done i.e., whereas the appellant is not entitled to succeed in the infringement action because the use by the respondent is in furtherance of its statutory rights of the user of the words which are descriptive of the kind, quality, intended purpose or characteristic of the goods, yet, merely because the appellant states that the respondent is using the same as a trademark, the same should be taken as infringement of the trademark of the appellant. Not only the plaintiff has no exclusive rights whatsoever to the trademarks because they are such which fall within the mischief of Section 30(2)(a), the respondent/defendant is always fully justified and entitled to use the descriptive words in any and every manner that it so chooses and pleases to do. If there are no rights of the plaintiff to exclusive user of the trademark then where does arise the question of disentitlement of a defendant to use the trademark of the appellant inasmuch as any person who adopts a descriptive word mark does so at its own peril in that any other person will also be fully entitled to use the same in view of a specific statutory rights thereto, and there are various other statutory rights including that under Section 30(2) (a), and which is what is being done by the respondent in the facts of the present case and its rights being further stronger because of the use alongwith the simultaneous use of its trademark "Sundrop". In the facts and circumstances of the present case, Section 30(2)(a) clearly applies in entitling the respondent to use the expression "WITH LOW ABSORB TECHNOLOGY" because that is only a descriptive use by normal English words in the English language indicative of the kind, quality, intended purpose of characteristic of the goods. There is no use of the expression "bonafide" in Section 30(2)(a) as is found in Section 35, and we do not propose to import in Section 30(2)(a) the expression "bonafide" because the subject matters of the two Sections i.e. Section 32(a) and Section 35 are though common on certain limited aspects, however the two sections do in fact operate in separate fields. Also looking at the issue in another way, "bonafide" aspect can in a way be said to be very much included in Section 30(2)(a) because the use of words which indicate their relation to the goods for the kind, quality, intended purpose or other characteristics etc. of the goods, is clearly only a bonafide user of the same and which "bonafideness" does not have to be additionally proved. In fact, there is ordinarily not only no lack of bonafides in using the normal descriptive word, and on the contrary there is in fact malafides of a plaintiff in adopting otherwise a descriptive word mark and for which adaption there is ordinarily an absolute ground for refusal of registration of the trademark. There is no malafides of the respondent as alleged by the appellant because the respondent is using the expression "LOW ABSORB" as part of a sentence in a descriptive manner and the respondent is also prominently using its own trademark "Sundrop", an aspect we have repeatedly referred to otherwise in this judgment. Merely because the respondent used "TM" earlier after the expression "LOW ABSORB TECHNOLOGY" is not such as to wipe out statutory rights/defences of the respondent. We are also of the opinion that once the person, against whom a suit is filed on the ground of infringement of a trademark which is in fact a descriptive word, then, if a defendant is using his own word mark as a trademark prominently in addition to the descriptive word mark which the plaintiff claims to be his trademark, nothing further is required to show the bonafides of the defendant against whom infringement of a registered trademark is alleged. In the facts of the present case, we have already adverted to in detail the prominent use by the respondent of its independent trademark "Sundrop", and, the fact that the expression "LOW ABSORB" is being used only as part of the sentence which reads "WITH LOW ABSORB TECHNOLOGY".

20. We may however note that when two identical trademarks are used by two parties in the market, or that a use of a descriptive word by a defendant can be confused with the trademark of a plaintiff, then a Court is always entitled to ensure that such distinction is brought or conditions are imposed qua the two identical or deceptively similar trademarks by imposing such conditions of use on both or either of the parties so that a third vital/important stakeholder in these Intellectual Property Rights (IPR) disputes viz. the public, is not in any manner deceived/confused and whose rights are not prejudicially affected. This has been held by us in a recent judgment in Cadila Healthcare Ltd. Vs. Diat Foods (India) decided on 29.9.2010, in which this Court (speaking through Sanjay Kishan Kaul, J) has relied upon another Division Bench judgment of this Court in the case of Goenka Institute of Education and Research Vs. Anjani Kumar Goenka & Anr. AIR 2009 (Delhi) 139: 2009 (160) DLT 417 as also Section 12 of the Act and held the entitlement of a Court to issue directions to ensure that there is no confusion in the public with respect to two separate products which are sold under identical or deceptively similar trademarks. Of course, in this case of Cadila Healthcare Ltd. use by the respondent/defendant was not as a trademark but only in the descriptive sense, and yet, to avoid confusion to the public, directions were issued. Similar would be the entitlement of a Court afortiorari when two parties use same or deceptively similar descriptive word marks as trademarks.

CONCLUSIONS

21. The following conclusions thus emerge:-

(i) A mark which is sought to used as a trade mark, if, is one falling under Section 9(1)(a) to (c), then the same ordinarily ought not to be afforded protection as a trade mark.

(ii) Before the marks which fall under Section 9(1) (a) to (c) are given protection as a trade mark, the distinctiveness must of an undisturbed user of a very large/considerable number of years, with the emphasis being on discouragement on appropriation of such marks which fall under Section 9(1) (a) to (c).

(iii) A civil court in a suit filed for infringement of a registered trade mark is entitled (if there is no earlier judgment which has achieved finality in cancellation proceedings) to consider the validity of registration for the purpose of passing an interlocutory order including of grant or refusal of an interim injunction- once the objection as to invalidity of registration is taken up in the pleading/written statement. 

(iv) A trademark which falls under Section 9(1) (a) to (c) cannot be registered on proposed to be used basis. Evidence on distinctiveness with respect to trade marks falling under Section 9(1) (a) to (c) should be the evidence of user evidencing distinctiveness as on the date of application for registration or at the best of evidence up to the date of registration.

(v) In infringement actions the court is entitled to consider the evidence of distinctiveness up to the date of registration for the purpose of passing any interlocutory order and not evidence showing distinctiveness post registration. However, in cancellation proceedings evidence of distinctiveness post registration of the trade mark can also be considered.

(vi) Even if there is finality to registration of a trade mark, yet the defendant in infringement action can take statutory defences under Sections 30 to 35 to defeat the infringement action.

22. In view of the above, we find that the appeal is not liable to succeed. The appellant does not have a prima facie case in its favour in view of the above discussion. The balance of convenience is in favour of the respondent who will be caused grave and irreparable injury if the injunction as prayed for is granted. The law is that as an appellate Court we should not interfere with the well reasoned judgment of learned Single Judge in terms of Skyline Education Institute (India) Private Limited Vs. S.L. Vaswani and Another (2010) 2 SCC 142. The appeal is therefore dismissed. We may state that ordinarily being a commercial matter where giant companies can afford to pay costs we would have imposed actual costs on the appellant, however, we desist from doing so because there is no authoritative pronouncement of a Division Bench of this Court on certain aspects we have dealt with in this judgment including with respect to an entitlement of a plaintiff to an infringement action with respect to a descriptive word trademark and related word marks which are otherwise such for which there is an absolute ground for refusal of registration.