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DISPLAY OF NAME AND NATURE OF BUSINESS DOES NOT AMOUNT TO ADVERTISEMENT: SUPREME COURT

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In precedence of the case Bharti Airtel Vs. State of Madhya Pradesh the High Court of Madhya Pradesh declared the demand notices sent to the appellant for the payment of advertisement tax to be valid. This was challenged in the Hon’ble Supreme Court.

The appellant is a dealer of Hyundai passenger cars in Indore. He had a sign board outside the premise of the showroom displaying the business name and address of the place. Respondent number 2 issued a notice demanding Rs. 2,03,850 as advertisement tax under Section 189-A of the Municipal Act, 1965. The appellant contested that a sign board merely displaying the name of the business does not amount to “advertisement”. The objective behind putting up the sign board was only to inform the public about the business and what it deals in. The appellant filed a writ petition under article 226 of the Constitution of India but the High Court referred to the verdict given in the Bharti Airtel case and dismissed the petition. The appellant received notices to pay advertisement tax not only for the shop located within the jurisdiction of the Indore municipal corporation but also for the one located outside its jurisdiction.

The counsel for appellant contends that the facts in the Bharati Airtel case are not analogous to this case. This case deals with the issue whether a third party or a tax agency collect advertisement tax. Whereas in the present case, the issue is whether displaying the name and nature of the business amounts to advertisement. The counsel for appellant further contends that if tax is levied for the same it would be violative of article 19(1)(A) and 19(1)(G) of the Constitution.

The Indore municipal authority under sec 132(6)(1) of the municipal corporation act contends that it has rightfully demanded the advertisement tax from the appellant. The particular section states that the corporation can levy any tax contingent upon any special or general order taken by the state government, namely, ‘a tax on advertisement other than advertisements published in newspapers’ (Sub-clause (l)).

The court referred to the case of ICICI Bank and Another Vs. Municipal Corporation of Greater Bombay (2005) 6 SCC 404 which held that ‘advertisement’ must have a commercial aspect to it. It must attract the attention of the people in order to persuade them to engage in the activity of buying. Advertisement aims at providing information and is of a good or service. However, only displaying the name of the company does not amount to advertising unless it is a trade mark or trade name.

The hon’ble supreme court states that the sign board entailed the name of the business which itself is indicative of the kind of product the appellant deals with. Solely displaying the name of the enterprise or the business would not amount to advertising unless the enterprise in question in some way persuades the customer to purchase. Display boards and name boards are essential for the purposes of identification. If they are counted as advertisements, it would be impossible for customers to even identify such businesses. The context and circumstances must be taken into account.

In this case, the legislative provisions do not permit the municipal corporation to levy tax on sign boards. The objective of sign board is just to convey information about the kind of products dealt with by a business enterprise. The name of the business enterprise of the appellant shows what car he deals in and nothing more. It does not cause the public to purchase the products.

The Hon’ble court further stated that both the parties had objections to the demands made and they hastily rushed to the High Court under its extra ordinary jurisdiction. However, the court does not support the dismissal of the petition by the High Court. The outcome of the case remains unchanged and the first respondent was asked to review the objections filed by the appellant within eight weeks. In case, they decide against the appellant they cannot enforce the demands for another eight weeks. The appellants have the liberty to challenge any decision given by the Commissioner.

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Judgement Analysis written by- Rashi Hora.

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NON-ADHERENCE TO PROCEDURAL LAWS IS THE PRIMARY REASON BEHIND PENDENCY OF CASES AND JUDICIAL DELAY: SUPREME COURT.

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In the present case, the Hon’ble Supreme Court deals with the selection of the legal representative of the deceased Mrs. Urmila Devi. In 1982, a sale deed carried out by Shri Mangal Singh was challenged in court by late Urmila Devi praying to declare the same null and void by asserting ownership of the properties; and an order to possess the property in question with costs. The case was still at its primal stage when Mrs. Urmila Devi died. Hence, Mr. Manoj Kumar Jain filed an application to be the legal heir.

Mr. Manoj Kumar Jain presented a duly registered will before the court executed by Mrs. Urmila Devi and witnessed by the current appellant Mr. Yashpal Jain. He prayed before the court to be substituted as the legal representative of Mrs. Urmila Devi. He also claimed to be her legatee according to the will. The defendants by way of presenting a registered adoption deed stated that Mr. Yashpal is adopted. The trial court ruled in favour of Mr. Manoj Jain. The order was challenged by the legal heirs of Mangal Singh by means of a civil revision petition before the district judge. In the course of the revisional proceedings, Mr. Manoj mentioned that he does not wish to proceed with application filed by him to be the legal representative of Mrs. Urmila Devi. On the basis of the proceedings, the judgement given by the trial court was overruled. The district judge directed the trial court to accept the application of condonation of delay and impleadment of a legal representative by Mr. Yashpal. Mr. Yashpal filed an application for the same as well as to dismiss the abatement of suit. The trial court allowed the same and hence ruled in favour of Mr. Yashpal Jain being the legal representative of the plaintiff. 

The legal representatives of the aggrieved party filed a civil revision application before the district judge. The judge upheld the verdict of the trial court and dismissed the petition. The defendants moved to the high court challenging the orders passed by both, the trial court and the revisional court. The high court overruled the impugned orders and rejected the application by the current appellant, relying on the initial order passed by the trial court which substituted Mr. Manoj Kumar Jain as the legal representative on the strength of the registered will and directed the courts to conclude the proceedings within 9 months. The appellants were aggrieved by the orders of the high court filed the present appeal.

The counsel for the petitioner contended that the high court has made a mistake by overruling the orders of the trial court and revisional court taken after careful consideration. The lower courts have also taken diligence of the fact that Mr. Yashpal Jain is the sole living representative of Mrs. Urmila Jain and the stressed on the aforementioned fact that the defendants had pleaded to substitute the appellant in the suit pertaining to the sale deed of property by Mangal Singh. In the instance case the defendants can be seen contradicting their own stance.

The defendants contend that the appellants had not filed a counter-affidavit. On the basis of the doctrine of non-traversal this would amount to admission. The defendants mention two instances wherein the current appellant had supported Mr. Manoj Kumar Jain and his will. The appellant cannot plead ignorance for the delay.

In response to issue one the court has contended that the application filed by the defendants in regard to the writ proceedings is the very reason that the trial court and revisional court substituted Mr. Yashpal as the legal representative. The defendants cannot contend that the appellant had filed two affidavits admitting and confirming Mr. Manoj Kumar Jain as the legal representative. The affidavits were mere proof of the appellant being a signatory to the will. It did not intend to substantiate or prove any other fact to any effect.

On non-traversal of writ petition claims, the records state that Mr. Manoj himself filed an application along with an affidavit expressing his disinterest in continuing the application of being the legal representative. If the orders of the high court to not implead Yashpal Jain as the legal representative were to be sustained then the then this implies that the estate of the deceased would not be represented and the case would eventually be closed. Hence, the Hon’ble Supreme Court quashed the order of the high court and upheld the verdict given by the trial court and revisional court.

The hon’ble supreme court took cognizance of the fact that the case is ancient and long standing. In addition to the property suit, the death of Mrs Urmila devi brought in a plethora of suits to determine her legal representative. The current stage of the property suit is unknown but it is said to have been moving at a “snail’s pace” since her death. There are numerous causes for the delay. The hon’ble court mentioned that it is due this very reason that the general public becomes cynical of the justice delivery system. The court delves deeper into the numerous reasons for delay in delivering justice. Inconsistencies in the law, hefty paperwork, leniency in granting adjournments for no justifiable reason, misuse of the provisions of the CPC and CrPC are some of the reasons. The government has taken steps, formulated policies and amended laws to clear the backlog but it has only resulted in poor results. The amendments of the statutory laws have been unsatisfactory.  The court stresses on the fact that it is the responsibility of all the stakeholders to restrict the practices that delays the justice delivery process. The courts must introspect and come up with solutions to serve the public with an effective justice delivery system. The growth of a nation, in all aspects, depends on the strength of the judicial system. The Hon’ble court revisited the findings of various law commissions instituted over the years to find out the cause and remedies to the perpetual problem of huge pendency of cases and inefficient judicial administration. The various reports by law commissions talk about setting a time limit for both civil and criminal cases to be strictly followed by each of the courts and a plea to increase the manpower and immediate replacement in when there’s vacancy. In furtherance to the 77th report by the law commission, the 79th report provides an all- comprehensive guide for managerial judging, time bound trial procedures by trial courts, high courts and other appellate courts.

The court also mentions delays arising due to non-adherence of procedural laws majorly in civil trials. The courts have been frivolous with the grants of adjournment without ay justifiable reason. This is the primary contributory issue that leads to delays and ultimately losing confidence of the public in the justice delivery system. The court relied upon the case of T. Arivandandam vs. T.V. Satyapal & Another AIR (1977) 4 SCC 467 which held that the answer to an irresponsible suit or litigation would be a vigilant judge. The court acknowledges the importance of maintaining cordial relationship with judges and gives a stark remark to the lawyers to refrain from frequent adjournment requests especially while dealing with cases that have been pending since decades. Under order viii rule 1(a) of CPC a defendant must submit and present the written statement within 30 or 90 days and if he fails to do so without any genuine reason then costs must be awarded to the opposite party payable by the defendant. This rule is seldom followed.

Adjournments should be given only when the request is honest and with a bonafide intention expressed by way of affidavit. Frequent grants of adjournments defeat the purpose of the legislation. It is pertinent for all the presiding officers to strictly adhere to the time schedule provided under sub-rule 1 of rule 1 of order viii. It is the responsibility of the stakeholders to ensure the same. In the case of M. Mahalingam vs. Shashikala the intention behind the legislation was duly stated. The legislation has curbed the power of the courts to grant frequent adjournments because when a case has begun the evidence must be recorded on a daily basis and only, if necessary, adjournments should be given to the following day. This ensures that only bonfide reasons should be entertained by the court and it should be strict in it dispense of adjournments.

Innumerable legislations can be enacted to ensure speedy disposal of cases but it would be of no use until it is strictly implemented by the courts and constantly monitored by committees established for the very reason. The fundamental duties mentioned in article 51 A of the constitution must be given utmost importance in light of any problems faced by the stakeholders. The citizens must always strive towards excellency for the growth of the nation. It is important for the judiciary to regain the confidence of the public in litigation a be a ‘beacon of hope”. The Hon’ble supreme court thus directs all the lower courts to strictly adhere to the rules laid down in the procedural laws ensuring the proceedings take place as scheduled. Some courts shall be controlled by Principal District Judges who, after compiling all the statistics, shall present it before the constituted committee of the high court.

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Judgement Analysis written by- Rashi Hora.

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Constitutional Courts should refrain from directives unless exceptional circumstances warrant them.: Supreme court.

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High Court Bar Association v. State of U.P. & Ors Judgement is been delivered by Chief Justice of India, Dr Dhananjaya Y. Chandrachud, Justice Abhay S. Oka, Justice J. B. Pardiwala and Justice Manoj Misra. The case involves an order dated December 1, 2023, where a three-judge bench expressed reservations about the Asian Resurfacing case, suggesting reconsideration by a larger bench. Asian Resurfacing dealt with the framing of charges under the Prevention of Corruption Act, 1988, and introduced the automatic vacation of stay orders after six months.

Asian Resurfacing held that the framing of charges is neither interlocutory nor final, granting High Court’s jurisdiction to review framing orders. It emphasized the deleterious effects of trial delays, issuing directives for stays, emphasizing exceptional cases, and setting a six-month limit on stays. The order of reference questions whether, under Article 142, the court can mandate the automatic vacation of all interim orders after a set period and direct day-to-day hearings within a fixed period. The court expresses concern about the potential miscarriage of justice arising from automatic stay vacation without judicial scrutiny.

Submissions and Arguments made by the appellant argues that automatic stay vacation is judicial legislation, and Article 226’s powers are integral to the Constitution. They contend that granting interim relief requires judicial discretion, and the six-month limit is unjust. The Solicitor General supports these arguments and adds that laws must respect principles of natural justice. The court reflects on the object of interim orders, emphasizing their aid to the final relief sought. It underscores the cautious approach in serious cases and the need to prevent unnecessary remands, contributing to docket explosion.

When a High Court grants an ad-interim order of stay, it is a provisional measure issued without providing an opportunity for all parties to be heard. Ad-interim orders have a limited duration and are not problematic in nature. The High Courts retain the authority to vacate or modify such orders after granting an opportunity for all parties to present their arguments. High Courts can consider vacating or modifying interim relief orders under various circumstances, including:

  • Delay Tactics:If a litigant intentionally prolongs proceedings by seeking unwarranted adjournments or remaining absent during hearings, exploiting the order of stay.
  • Suppression or Misrepresentation:If the High Court determines that the interim relief order resulted from the suppression or misrepresentation of material facts by the party benefiting from the stay.
  • Material Change in Circumstances:If there is a substantial change in circumstances that justifies interference with the earlier interim order. The passage of time may lead to such changes. These grounds are not exhaustive, and the High Court may find other valid reasons to vacate or modify an order of stay.

An interim order can come to an end if the main case, in which the interim order was issued, is disposed of by the High Court. The disposal can happen based on merits, for default, or other reasons such as the abatement of the case. A judicial order is required to vacate interim relief, and this order must be passed after hearing all contesting parties. The case stresses that vacating interim relief without hearing the beneficiary of the order goes against the principles of natural justice.

The importance of applying principles of natural justice in vacating interim relief or modifying it is highlighted. Orders should be made only after hearing all affected parties to ensure fairness and the proper application of legal principles. The case argues against the automatic vacation of interim orders based solely on the lapse of time, especially when the delay is not the litigant’s fault. It emphasizes that a lawfully passed interim order should not be rendered illegal simply due to the passage of time.

The case of Asian Resurfacing is cited, where directions were issued regarding the automatic vacation of interim orders passed by High Courts. The passage questions the applicability of such directions to all cases. Legislative attempts to provide for the automatic vacation of stay orders, as seen in the third proviso to Section 254(2A) of the Income Tax Act. In Pepsi Foods Limited case where such a provision was held to be manifestly arbitrary and violative of Article 14 of the Constitution. It emphasizes that Article 142 powers should not be used to set aside valid interim orders without proper consideration.

In the case of Prem Chand Garg the scope of power under Article 142 is discussed, the court held that while the powers are wide, they cannot be used to ignore substantive rights or contradict statutory provisions. High Courts are constitutionally independent and not judicially subordinate to the Supreme Court. The case of Tirupati Balaji Developers is cited to explain the relationship between the Supreme Court and High Courts. In the case of L. Chandra Kumar is mentioned to highlight that the power of High Courts to review legislative actions is integral to the Constitution. The case also briefly touches on Clause (3) of Article 226, which deals with the vacation of interim orders. However, it notes that the clause is applicable primarily to ex-parte ad interim orders. The directions issued in Asian Resurfacing, where it was suggested that petitions with stays must be decided within six months.

In the case of Sanjeev Coke Manufacturing Company to highlight the reservations about answering academic or hypothetical questions, particularly on serious constitutional issues. The reference to the Abdul Rehman Antulay case elucidates the inherently relative nature of the term “speedy trial.” The passage posits that the swiftness of a trial depends on multifarious factors such as the complexity of the offense, the number of accused and witnesses, court workload, and logistical challenges. This complexity is underscored by a specific example involving the accused Ranjan Dwivedi, where the examination of 151 witnesses over five years is highlighted, emphasizing the impracticality of establishing universal time limits for criminal proceedings.

The subsequent discussion on the P. Ramachandra Rao case introduces the theme of prescribing periods of limitation for trial courts, beyond which proceedings must be terminated. The passage scrutinizes the court’s stance on such prescriptions, contending that such an endeavor constitutes legislation and falls outside the purview of judicial directives. The analogy to Chapter XXXVI of the Code of Criminal Procedure, 1973, is drawn to illustrate the fine but perceptible line between the judiciary’s role in declaring and interpreting laws and the legislative prerogative to enact and modify laws.

The narrative then critiques the Asian Resurfacing case, particularly challenging the wisdom of certain directions issued. Notably, it questions the automatic vacation of stay orders solely based on the lapse of time and the directive to decide all cases with interim stays on a day-to-day basis. The passage argues that such sweeping directions amount to judicial legislation and asserts that only the legislature can establish specific time limits for case disposal. It raises concerns about the lack of consideration for the diverse nature of cases and the priorities of different courts.

The conclusion the Chief Justice of India emphasizes the limitations of Article 142 and the necessity to respect substantive rights and principles of natural justice. It underscores the caution required when contemplating fixed schedules for case disposal, asserting that Constitutional Courts should refrain from such directives unless exceptional circumstances warrant them. Thus, advocates for a nuanced, context-specific approach to case disposal, recognizing the intricacies involved in different legal proceedings.

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Judgement Reviewed by: Namratha Sharma

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Granting of Permanent Commission (PC) to the Short Service Commissioned Officers (SSCO’s) in the Indian Navy must be executed without any prejudices: Supreme Court

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The issue in this case was regarding the grant of Permanent Commission (PC) to Short Service Commission Officers (SSCO’s) in the Indian Navy. The conflict arose when the Policy Letters dated 26 September 2008 was issued, which stipulated that only women from certain branches (JAG, Education and Naval Architecture), would be considered for grant of PC with a prospective application.

The case of Cdr. Seema Chaudhary versus Union of India and Others evolved as an aftermath of the Union of India vs Lieutenant Commander Annie Nagaraja case. In the case of Annie Nagaraja, the Lieutenant Commander Annie Nagaraja along with other officers challenged the above Policy Letter as being discriminatory and based on unreasonable grounds. The Court noted that the statutory bar on the enrolment of women in the Indian Navy was lifted by the notifications issued in the year 1991 and 1998. Moreover, this Court held that the policy decision of the Union Government dated 25 February 1999 would govern the conditions of service of SSCOs including women officers in regard to the grant of PCs. The Court held that the impugned PL being prospective and restricting it to specified cadres was invalid. Consequently, directed that all SSCOs in the Education, Law and Logistic Cadres who were “presently in service”, shall be considered for the grant of PC.

In the instant case, the petitioner Cdr. Seema Chaudhary is a JAG Branch officer recruited on Short Service Commission in 2007. Even after many years of service, she was denied PC due to lack of vacancies. The petitioner approached the Armed Forces Tribunal (AFT), which issued directions, considering the petitioner along with the Law Cadre officers from previous batches.

The petitioner aggrieved by the directions issued by AFT,  filed a civil appeal before the Supreme Court. The petitioner contended that considering her candidature alongside the officers of previous batches was prejudice to her appointment.

The respondents contended that such a consideration with subsequent batches was made in order to ensure that a fair opportunity was granted to all concerned officers and to widen the field of consideration.

The Supreme Court hearing the contentions of both the parties analyzed the directions issued by AFT. The court noted that by considering the candidature of the petitioner for the grant of PC along with the batches of 2011 and 2014, the AFT has deviated from the judgement passed by this court. Further, stated that to do so would amount to introducing a condition to the Lieutenant Commander Annie Nagaraja case. The court held that any directions which de-hors the judgment of the Court could not be issued.

The Court also clarified that the increase in the vacancies which is created to accommodate the petitioner shall not create any precedence for the future. The court, thus, exercised its powers under Article 142 to ensure principles of Natural Justice and Equality.

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Judgement reviewed by – Keerthi K

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The Amendment of the Plaint, which sought to challenge decree, was time barred and sue diligences was not demonstrated: Supreme Court

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In the case of Basavaraj vs. Indira and Others revolves around an appeal in the Supreme Court of India concerning an amendment sought by respondent’s No. 1 and 2 in a partition suit. The primary issue was the permissibility of amending the plaint to include a prayer declaring a compromise decree null and void, particularly considering the timing, nature of the suit, and potential prejudice.

Respondents No. 1 and 2 filed a partition suit for ancestral property, initially making no challenge to an existing compromise decree dated October 14, 2004. Later in the proceedings, they sought an amendment to the plaint, adding a prayer to declare the compromise decree null and void. The Trial Court rejected the amendment, but the High Court allowed it, subject to costs.

Contentions made by Appellant: The appellant argued against the amendment, contending that the suit’s nature had impermissibly changed from partition to a declaration. They emphasized the time-barred nature of the amendment, citing the compromise decree’s passage in 2004. The appellant also raised concerns about potential prejudice and the failure to demonstrate due diligence by the respondents.

Substantial justice will be done to the parties. In support of the arguments, reliance was placed upon a judgment of this Court in Dondapati Narayana Reddy vs. Duggireddy Venkatanarayana Reddy and Others issue was whether the amendments and Avoidance of Multiplicity of Litigations, this case highlighted that amendments which are generally allowed to avoid multiplicity of litigations, but the court must consider whether the application is bona fide or mala fide and held that  Amendments are allowed to avoid multiplicity of litigations and Court needs to consider if the application for amendment is bona fide.

In Pushpa Devi Bhagat vs. Rajinder Singh and Others issues was whether Challenge to Consent Decree, the case clarified that no appeal is maintainable against a consent decree, and the only remedy is to approach the court that recorded the compromise to establish its validity, held that No appeal is maintainable against a consent decree and Consent decree operates as an estoppel and is valid unless set aside by the court

The Supreme Court, for the instant case held on February 29, 2024, upheld the appellant’s contentions. The Court highlighted the time-barred nature of the amendment, the lack of due diligence demonstrated by respondents, and the potential prejudice to the appellant if the amendment were allowed. It set aside the High Court’s order, dismissed the amendment application, and awarded costs of ₹1,00,000 to the appellant.

The Supreme Court, in its judgment, Justice Rajesh Bindal, held that the amendment sought by respondent’s No. 1 and 2 was not permissible. The Court emphasized that the amendment, which sought to challenge a compromise decree, was time-barred, and due diligence was not demonstrated. Additionally, allowing the amendment would cause prejudice to the appellant, as a right had accrued in their favour. The Court set aside the High Court’s order, dismissed the application for amendment, and awarded costs of ₹1,00,000 to the appellant, to be paid by respondents No. 1 and 2 jointly or severally on the next date of hearing before the Trial Court.

“PRIME LEGAL is a full service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime Legal fall into category of best law firm, best lawyer, best family law lawyer, best divorce lawyer, best divorce firm, best criminal lawyer, best criminal firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by: Namratha Sharma

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