High Court of Delhi

Sandhya Jain v. Union of India and Ors.

MANU/DE/1568/2017

31.05.2017

Criminal

Subjective satisfaction of Detaining Authority and consequent detention order vitiated as it was based on possibility of Petitioner's husband applying for bail again

In present writ petition, challenge is to order of detention passed by Joint Secretary to Government of India against husband of Petitioner directing his detention under Section 3(1) of Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). Assailing detention order, Petitioner contends that, vital and material documents which were necessary for arriving at subjective satisfaction were not placed before detaining authority and also not supplied to Narender Kumar Jain thus, seriously prejudicing him as he could not make a proper and effective representation in absence of documents

Since, Detaining Authority relied upon voluntary statements of carriers as noted in orders in original which were placed before detaining authority and legible copies of orders in original have been supplied to Petitioner's husband, subjective satisfaction of Detaining Authority and detention order cannot be held to be vitiated on this ground.

Original file shows that, after preparation of grounds of detention and based thereon Detaining Authority passed detention order on 10th October, 2016. Contention that, grounds of detention were ante dated was rejected on perusal of original file. Further, there is no presumption that, official duty is not performed on Saturdays and Sundays. Hence, contention of learned counsel for Petitioner that, grounds of detention were ante dated is rejected.

Detaining Authority has not noted that, there is any imminent possibility of Petitioner being granted bail except that, it noted that earlier also, when interim bail was granted on medical grounds, it did not deter Petitioner's husband from continuing his prejudicial activities. Satisfaction of Detaining Authority is on propensity of committing prejudicial activity and not imminent possibility of grant of bail.

Satisfaction of authority is not based on fact that, co-accused has been granted bail or that there is parity in role of co-accused who has been granted bail and Petitioner's husband. Satisfaction is in respect of propensity to continue to indulge in prejudicial activity and that there was a possibility of applying for bail again. No satisfaction was arrived at, that there was an imminent possibility of grant of bail to Petitioner's husband either because co-accused was granted bail or that in such like cases bail is granted or that he was earlier granted bail.

Satisfaction of Detaining Authority was based on fact that, there was a possibility of Petitioner's husband applying for bail again and not that there was an imminent likelihood of Petitioner's husband being released on bail, subjective satisfaction of Detaining Authority and consequent detention order dated 10th October, 2016 are vitiated. Detention order set aside.

Tags : Detention Subjective satisfaction Validity

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High Court of Delhi

Rahul Dev v. State

MANU/DE/1565/2017

31.05.2017

Criminal

Where primary witnesses itself are reliable, conviction can safely be based on testimony of said witnesses even in absence of corroboration from call records

By present appeal, Appellant challenges impugned judgment convicting him for offences punishable under Section 302/201 of Indian Penal Code, 1860 (IPC) and order on sentence directing him to life imprisonment and to pay a fine of Rs. 5,000/- for offence punishable under Section 302 of IPC and rigorous imprisonment for a period of four years and to pay a fine of Rs. 2,000/- for offence punishable under Section 201 of IPC. It is submitted that, Appellant has been falsely implicated, hence, he be acquitted of charges.

In a case of eye-witness, prosecution need to prove motive. However, from evidence of witnesses, prosecution has proved beyond reasonable doubt motive for commission of offence against Appellant. Supreme Court in case of Kamla Kant Dubey v. State of U.P. held- that, it is settled principle that, a conviction can well be founded on testimony of a single witness, if Court finds his version to be trustworthy and corroborated by record on material particulars.

Evidence of call records would have only been corroborative in nature and where primary witnesses itself are reliable, conviction can safely be based on testimony of said witnesses even in absence of corroboration from call detail records.

Evidence of witnesses (Seema, Umesh, Prakash, Ravi Kant Dubey and Rishabh) coupled with extra judicial confession of Appellant made to Umesh, human blood recovered from chest of Appellant at mid-night, coupled with recovery of amputated body of Diwakar, when he alone was present in house after Inspector reached third floor of premises which Appellant has failed to explain, prove case of prosecution beyond reasonable doubt. In view of cogent and convincing evidence led by prosecution, there is no infirmity in impugned judgment of conviction and order on sentence. Appeal is dismissed.

Relevant

Kamla Kant Dubey and Ors. vs. State of U.P. and Ors. MANU/SC/0694/2015

Tags : Conviction Evidence Validity

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Central Administrative Tribunal

Sanjay Kumar v. Union of India and Ors.

MANU/CA/0489/2017

30.05.2017

Service

A deputationist can be reverted to his parent cadre at any time

Applicant has filed present O.A. under Section 19 of Administrative Tribunals Act, 1985, seeking to set aside impugned order dated 12th February, 2017 and direct Respondents to allow Applicant to continue in FRRO/IB Headquarter till conclusion of departmental enquiry initiated against him. Further, to declare action of Respondents in repatriating Applicant prematurely as illegal and arbitrary and issue directions for considering case of Applicant for completion of deputation period of 3 years as well as further extension at par with other similarly placed persons as per OM dated 17thFebruary,2016.

Supreme Court in Ratilal B. Soni & others Vs. State of Gujarat & Others, has held that, a deputationist can be reverted to his parent cadre at any time. Further, in Kunal Nanda Vs. Union of India and another, Supreme Court has held that, basic principle underlying deputation itself is that person can always and at any time be repatriated to his parent Department to serve in his substantive position at instance of either of Departments and there is no vested right in such a person to continue on deputation in Department to which he had gone on deputation. In Gurinder Pal Singh Vs. State of Punjab, Hon'ble Punjab & Haryana High Court, has held that, a deputationist would have no vested right to continue in borrowing Department even till completion of stipulated period of deputation. It is a tripartite contract and can be continued only if all the parties like it to continue.

Order dated 6th August,2014, by which Respondent-BSF placed services of Applicant at disposal of Respondent-IB, clearly stipulated that, period of deputation of Applicant would be three years subject to premature repatriation on grounds of unsuitability and exigency of service as well as if any other unforeseen factor so demand. Applicant would be governed by standard terms and conditions of deputation as laid down by Ministry of Personnel & Public Grievances and Pensions (Department of Personnel & Training) O.M. No. 2/29/91/Estt. (Pay II) dated 5th January, 1994, OM No. 6/8/2009-Estt. (Pay II) dated 17th June, 2010 and as amended from time to time. Paragraph 9 of DoP & T's O.M. dated 17th June, 2010, stipulates that normally, when an employee is appointed on deputation, his services are placed at disposal of parent Ministry/Department at end of tenure. However, as and when a situation arises for premature reversion to parent cadre of deputationist, his services could be so returned after giving him an advance notice of at least three months to lending Ministry/Department and employee concerned.

In view of nature of allegations made in FIR registered against Applicant, Respondent-IB, i.e., borrowing Department found that, Applicant was unsuitable to continue on deputation and that continuance of Applicant on deputation basis would potentially jeopardize national security. Accordingly, Respondent-IB decided to repatriate Applicant to his parent Department (BSF) after giving him and his parent Department (BSF) three months' notice. Thus, there is no question of any stigma being attached to impugned notice/order of repatriation of Applicant to his parent Department (BSF). Impugned order of repatriation of Applicant to his parent Department (BSF) cannot also be termed as punitive in nature.

Rule 20 of CCS (CCA) Rules, 1965 stipulates that where services of a Government servant are lent by one Department to another Department, borrowing authority shall have powers of appointing authority for purpose of placing such Government servant under suspension and of disciplinary authority for purpose of conducting disciplinary proceedings against him. Rule 21(2)(ii) of CCS (CCA) Rules, 1965, stipulates, that where a disciplinary proceeding is conducted against a Government servant whose services have been borrowed by one Department from another Department, if Disciplinary Authority is of opinion that, any of penalties specified in Clauses (v) to (ix) of Rule 11 (major penalties) should be imposed on Government servant, it shall replace services of such Government servant at disposal of lending authority and transmit it to proceedings of inquiry for such action, as it may deem necessary.

In instant case, disciplinary proceeding has been contemplated by Respondent-IB, i.e., borrowing Department, against Applicant under CCS (CCA) Rules, 1965. When before initiation of disciplinary proceedings against Applicant, Respondent-IB, i.e., borrowing Department issued impugned notice/order dated 22nd February, 2017 giving three months' notice to Applicant and Respondent-BSF for repatriation of Applicant to his parent Department (BSF) with stipulation that, Applicant would stand repatriated to his parent Department (BSF) with effect from 22nd May, 2017 and that Applicant would report for duty to his parent Department (BSF), Respondent-IB has no other option than to transmit all papers/documents pertaining to contemplated disciplinary proceedings to the respondent-BSF for such action as it may deem necessary. Thus, after joining in his parent Department (BSF) Applicant would get full opportunity to defend him in the disciplinary proceedings, if at all his parent Department (BSF) decides to proceed with the said disciplinary proceedings. Therefore, Applicant's challenge to impugned repatriation notice/order dated 22nd May, 2017 on ground of contemplation/initiation of disciplinary proceedings against him by Respondent-IB is without any substance.

Neither order dated 6th August, 2014 issued by Respondent-BSF placing services of Applicant at disposal of Respondent-IB, nor DoP & T's O.Ms. dated 5th January, 1994 and 17th June, 2010, which govern conditions of deputation of Applicant in Respondent-IB, stipulate that, in event of any disciplinary proceeding against Applicant being contemplated/initiated by Respondent-IB, Applicant has to continue on deputation in borrowing Department-IB till conclusion of departmental enquiry contemplated/initiated against him. Applicant has also not placed before this Tribunal any rule, or instruction, or order, issued by Respondents stipulating that, where disciplinary proceeding has been contemplated/initiated against a deputationist-Government servant by borrowing Department, such deputationist-Government servant has to continue in the borrowing Department till conclusion of said disciplinary proceedings by borrowing Department. There is no infirmity or illegality in impugned order of repatriation of Applicant to his parent Department (BSF). Thus, Applicant is not entitled to any of the reliefs sought by him in O.A.

Relevant

Ratilal B. Soni & others Vs. State of Gujarat & Others,MANU/SC/0207/1990
: 1990 (Supp.) SCC 243, Kunal Nanda Vs. Union of India and another, MANU/SC/0302/2000
: AIR 2000 SC 2076, Gurinder Pal Singh Vs. State of Punjab, MANU/PH/1412/2004
: 2005 (1) SLR 629

Tags : Deputation Repatriation Validity

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High Court of Delhi

Shimla College of Education v. National Council for Teacher Education and Ors.

MANU/DE/1644/2017

05.06.2017

Education

When power has been exercised by Authority in a manner impermissible in law, Court is empowered to interfere with decision of Authority

Petitioner, which is an unaided and self financed educational institution, established by a registered trust namely Shimla Education Society Trust imparting education in various fields including teacher training courses, has approached present Court being aggrieved by action of Respondents in refusing to grant permission to Petitioner for starting M.Ed. course from 2017-2018 academic session based on decision taken in its 269th meeting held from 26th April, 2017 to 2nd May, 2017. Petitioner has also prayed for quashing of Regulation 8[4][iii] of National Council for Teacher Education [Recognition Norms & Procedure] Regulations, 2014 on ground of its being ultra vires the NCTE Act, 1993, Transfer of Property Act, 1882 and violative of Articles 14 & 19 of Constitution of India.

It is an admitted fact that, Respondents have granted recognition to Petitioner for B.Ed Course in year 2007 for same institution and land and this recognition is admittedly continuing as on date. Rejection of Petitioner's case for grant of recognition for M.Ed. course despite repeated orders having been passed by Respondent No. 1 in appeal clearly shows that, Respondent No. 2 has virtually exceeded its jurisdiction and tried to overreach order of its superior appellate authority. On one hand, Appellate Authority of Respondent No. 1 had been repeatedly accepting appeals of Petitioner and was fully satisfied that, Petitioner institution fulfilled all requirements under provisions of NCTE Act, Rules and Regulations and was providing adequate instructional and infrastructural facilities but regrettably Respondent No. 2 repeatedly rejected Petitioner's application without any valid reasons.

Approach of Respondent No. 2 qua Petitioner is biased as is manifested from orders of High Court of Himachal Pradesh. It was evident from orders passed by High Court of Himachal Pradesh that, a member of Committee of Respondent No. 2 was biased against Petitioner. He had in fact despite a restraint order dated 6th August, 2015 passed by High Court yet, he had not only taken part, but in fact chaired meetings relating to consideration of case of Petitioner compelling High Court to direct him to give a written unconditional apology. In present case, on account of highly unreasonable and arbitrary conduct of Respondents, not only Petitioner, which has been running a B.Ed Course in same institution and on same land for last seven years, but also hundreds of students, have been deprived of benefit of M.Ed Course for last four academic years i.e. from 2013-2014, 2014-2015, 2015-2016 and 2016-2017.

Respondent No. 1 is paramount body for granting recognition and Courts would not normally substitute their views. But, it is an equally well settled principle that, once it is found that, power has been exercised by Authority in a manner impermissible in law and shows complete non-application of mind on part of Respondents, Court would in exercise of powers under Article 226 of Constitution of India, be justified in interfering with decision of Respondents Authority.

Respondents have repeatedly rejected case of Petitioner on wholly unwarranted grounds ignoring basic admitted fact that, Petitioner/Institute has been granted permission by same body i.e. Respondent No. 2 for two other courses i.e. B.Ed. and Diploma of Elementary Education on basis of same documents and after specifically coming to conclusion that, it was satisfied that, Institution fulfilled requirements under provisions of NCTE Act, rules and regulations including instructional and infrastructural facilities.

It is an admitted fact that, present petition is twelfth case filed by Petitioner for same grievance before this Court. Petitioner has already suffered on account of highly unreasonable and arbitrary conduct of Respondents. Plea of availability of an alternate remedy is never an absolute bar. Each time Appellate authority has after returning factual findings in favour of Petitioner, remanded matter to Respondent No. 2 which has diverted matter into a series of untenable objections and rejection of prayers, necessitating multiple writ petitions. Therefore, alternate remedy in present case is not an equally efficacious remedy.

In view of fact that, Petitioner is not at all at fault for delay caused in deciding its application made in 2012 and also fact that, Petitioner has pursued its remedy as expeditiously as possible which is evident from fact that, Petitioner was compelled to file as many as ten writ petitions (seven writ petitions before this court, three writ petitions before High Court of Himachal Pradesh) besides one contempt petition before this Court, cut off date cannot be allowed to be used by Respondent as a tool to deny the relief to which Petitioner was also and so found entitled. In fact, it would be grave travesty of justice if Petitioner is not permitted to start course, especially since it is also an admitted fact that, course of M.Ed. has to begin only in September, 2017 and there is still adequate time to start course.

Where no fault is attributable to a candidate and the candidate is denied admission for arbitrary reasons, cut off date cannot be used as a technical instrument or tool to deny admission to a meritorious student. Principles laid down by Supreme Court in case of Asha v. Pt. B.D. Sharma University of Health Sciences & Ors., has been followed by various Single Benches of High Courts including High Court of Andhra Pradesh, High Court of Kerala. In present case, Petitioner has acted diligently and promptly responded to every query raised by Respondents. Impugned decision dated 1st May, 2017 of Respondent No. 2 is quashed and Respondents are directed to forthwith process application of Petitioner for grant of recognition for course of M.Ed. for academic year 2017-2018 ignoring reasons stated in its decision dated 1st May, 2017.

Relevant

Asha vs. Pt. B.D. Sharma University of Health Sciences and Ors. MANU/SC/0542/2012

Tags : Course Recognition Grant

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High Court of Rajasthan

Badiya and Ors. v. State of Rajasthan and Ors.

MANU/RH/0436/2017

01.06.2017

Tenancy

No court shall make any declaration where Plaintiff being able to seek further relief, than a mere declaration of title, omits to do so

Present writ petition is against judgments whereby, suit filed by Petitioners and appeals filed by them were dismissed respectively. Further, order dated 30th September, 1997 dismissing review petition filed by Petitioners before Board of Revenue has also been challenged. Plaintiff filed a suit under Sections 88 and 188 of Rajasthan Tenancy Act, 1955 on 29th August, 1973 seeking a declaration regarding ownership of land situated at village Shiv, correction in revenue record and injunction against Respondents from interfering in his possession and not to allot the land to anyone else.

Plaintiff sought declaration and injunction pertaining to land in question with allegation that, he had gone to Gujarat in Samvat Year 2024 and returned back after about 3 years and before his returning back, order dated 14/6/1968 was passed by Tehsildar under Section 63 (1)(viii) of Act,1955 wrongly alleging that, Petitioner went to Pakistan and consequently his tenancy rights allegedly stood extinguished. Plaintiff also claimed that, he was in possession of land in question and, therefore, sought injunction against dispossession. Plea was resisted by State by supporting order dated 14th June, 1968 passed under Section 63 of Act alleging that, Plaintiff was not in possession of land. Allottees of land, besides supporting allotment made to them, disputed that, Plaintiff was in possession of land in question and took a specific plea that, for lack of seeking consequential relief qua possession the mere suit for declaration was not maintainable.

In present case, S.D.O. besides holding that, Petitioner had not challenged order dated 14th June, 1968, held even on merits that, Petitioner had failed to prove that, he in fact had gone to Gujarat and has not gone to Pakistan. Petitioner in suit itself claimed that, since Samvat Year 2023, he had gone to Gujarat along with livestock and had returned back after three years. Though oral evidence was led by Petitioner and it was claimed that, he had gone to Gujarat, no documentary evidence regarding petitioner's stay at Gujarat was placed on record.

It is an admitted fact that, Petitioner left village in Samvat Year 2023 and before he returned back his tenancy rights in land have already been extinguished under Section 63 of Act and land in question had been allotted to Respondent Nos. 3 and 4, who consistently claimed to be in possession of land in question. S.D.O. framed issue regarding said aspect. Material which has come on record and has been produced in present writ petition also along with reply, though Jamabandi pertains to Samvat Year 2063-2066 as Annex. R-4/1, as it is not case of Petitioner that, he was dispossessed after filing of suit, fact remains that, Petitioner was not in possession of land.

Provisions of Section 34 of Specific Relief Act, 1963 provides that, no court shall make any declaration where Plaintiff being able to seek further relief than a mere declaration of title, omits to do so. The law in this regard is well settled. Section 209 of Act provides that, power can be exercised on application of Plaintiff and after framing necessary issues. Admittedly in present case, neither any application has been filed nor any issue in this regard has been framed and, therefore, provision has no application to facts of present case. Judgment of S.D.O., as upheld by Revenue Appellate Authority and Board of Revenue concurrently, does not call for any interference.

Tags : Land Ownership Injunction

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Competition Commission of India

Vinod Kumar Gupta v. WhatsApp Inc.

MANU/CO/0036/2017

01.06.2017

MRTP/ Competition Laws

Once consumer communication apps are installed on device, users can pass on from one app to its competitor apps in no-time

Present information has been filed by Informant under Section 19(1)(a) of Competition Act, 2002 against WhatsApp Inc. alleging contravention of provisions of Section 4 of Act. Informant has alleged that, by indulging in practice of predatory pricing, OP is abusing its dominant position in relevant market in contravention of provisions of Section 4 of Act. Further, It is alleged that, by mandating users to agree with its terms of service and privacy policy as updated in August, 2016, OP has been sharing information/data of its users with 'Facebook' which in turn is being used by 'Facebook' for targeted advertisements. It is alleged that, manner in which the so-called consent is taken by OP from its users is highly deceptive. Informant has alleged that, new privacy policy of OP is in contravention of provisions of Section 4 of Act. New privacy policy of OP enables it to copy/extract/download mobile's database and information including vital information of users such as contacts, etc. which is then used for commercial benefits of OP in violation of provisions of Information Technology Act, 2000. Informant has prayed Commission to enquire into abusive conduct of OP and pass order accordingly, prohibit OP from sharing users' data with 'Facebook' and direct OP not to discontinue its services to those users who have not agreed to 'opt in' change in its privacy policy.

As per Section 2(f) of Act, 'relevant market' means market which may be determined by Commission with reference to 'relevant product market' or 'relevant geographic market' or with reference to both the markets. In regard to relevant product market, Commission notes that, 'WhatsApp', an instant communication app for smartphones using standard cellular mobile numbers, is a platform for communication through texting, group chats and voice and video calls. 'WhatsApp' is a free to download communication application which does not charge any fee from its users for providing the services and just uses internet connection on the device to send instant messages, connect voice calls etc. Commission is of view that, relevant product market in present case may be considered as 'market for instant messaging services using consumer communication apps through smartphones'.

Functionality provided by consumer communication apps through smartphones is inherently cross-border. Competitive conditions, regulatory architecture and players may vary in different countries/regions. Since in present matter, allegations of Informant pertain to alleged anti-competitive conduct of 'Whatsapp' within geographic boundary of India and conditions of competition in market for instant messaging services using consumer communication apps through smartphones is homogeneous throughout India, Commission is of view that, geographic area of 'India' may be considered as relevant geographic market in instant case. Relevant market in this case may be considered as 'market for instant messaging services using consumer communication apps through smartphones in India''.

In India, a number of other players such as Apple with iMessage, BlackBerry with BBM, Samsung with ChatON, Google with Google Hangouts and Microsoft with Skype are providing consumer communication apps and are also active in the provisions of smartphone hardware and operating systems. Besides, many other consumer communication apps providers such as Hike, Viber, WeChat and Snapchat are also active in market. As per the information available in public domain, globally 'WhatsApp' is having a billion monthly active users and within India, it is having 160 million monthly active users. OP is in a dominant position in relevant market.

Data sharing terms of privacy policy of OP as updated on 25th August, 2016 relate to sharing of users' 'WhatsApp' account information with 'Facebook' to improve online advertisement and products experiences available on user's 'Facebook' page. OP provides option to its users to 'opt out' of sharing user account information with 'Facebook' within 30 days of agreeing to the updated terms of service and privacy policy. Moreover, OP has submitted that, 'Facebook family of companies' will use such information for purpose of improving infrastructure and delivery systems, understanding how their services are used, securing systems, and fighting spam, abuse or infringement activities. Commission also finds force in submission of OP regarding its users safeguards that, all types of 'WhatsApp' messages (including chats, group chats, images, videos, voice messages and files) and 'WhatsApp' calls are protected by end-to-end encryption so that, third parties and 'WhatsApp' cannot read them and also message can only be decrypted by recipient. Further, as stated in key updates summary of OP, nothing a user shares on 'WhatsApp', including his/her messages, photos, and account information, will be shared onto 'Facebook' or any other apps of 'Facebook family of companies' for any third party to see, and nothing a user posts on those apps will be shared by 'WhatsApp' for any third party to see.

Allegations of breach of IT Act, 2000 do not fall within purview of examination under provisions of Act. There are several other applications available in relevant market which does not charge any fee from users for availing their services for instance, Hike, Messenger and Viber are also available for free. It appears to be standard practice in industry/business that, all consumer communication apps are not charging any fee from the users. Commission observes that, ‘WhatsApp' was previously charging subscription fee from its users which was subsequently scrapped. This may be due to presence of many other service providers who are offering services for free of cost. Furthermore, from submissions of OP, Commission notes that, revenue model of OP is like other players in industry/business and it is still evaluating various modes that can be used to earn revenues from its services by providing value to its customers.

There are no significant costs preventing the users to switch from one consumer communication apps to another. Expansion of Hike Messenger to nearly 100 million user base within three years of launching their services into aforesaid market reflects that in this market, there are no significant barriers to entry and consumers appear to be price sensitive. Based on above, Commission is of view that, even though 'WhatsApp' appears to be dominant in relevant market, allegations of predatory pricing have no substance and OP has not contravened any of provisions of Section 4 of Act. Commission finds that, no prima facie case of contravention of provisions of Section 4 of Act is made out against OP in instant matter.

Tags : Dominance Contravention Provisions

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