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Condition to construct a house within a year of allotment under the Maharashtra Resettlement of Project Displaced Persons Act is unreasonable and arbitrary under Article 14 : HC of Bombay

Citation :  Writ Petition No. 4022 of 2021

Coram : Justice G. S. Kulkarni, Justice Jitendra Jain

Order date : 30th October, 2023

Introduction :

The petitioner has approached the appellate high court of Bombay under Article 226 of the constitution to quash the order which cancelled the appropriate land which is ought to be allotted to him.

Facts:

The petitioner, coming from a family of 15, under the Maharashtra Resettlement of Project Displaced Persons Act, 1976, was entitled to 8000 sq,ft of land after being displaced because of the Ujjani Dam Project. The subject matter, that is the land is divided into 3 individual lands measuring 2500 sq. Ft, 4000 sq. ft and the last 1500sq.ft.
In 1976, the petitioner was allotted the first plot but possession was handed over in the year 1989. There was a condition imposed that the petitioner must construct a house within a period of one year. In the year 1996, the petitioner was allotted the second plot measuring 4000 sq.ft. The pending 1500sq.ft still remains to be allotted.
One of the respondents filed a complaint on November 2015 claiming that the petitioner has not constructed a house in the first plot within a year and the subsequent allotment should be cancelled. The appropriate authority upon hearing the complaint had cancelled the allotment who are respondents 4 to the case.
The petitioner filed for a review of the order on 2019 in front of the Divisional Commissioner, Pune and directed the respondent to make an inquiry and the previous order was upheld. The petitioner had appealed challenging the 2019 order in the appellate court of Bombay.
The contentions of the petitioner were that, firstly, the condition imposed on the property is arbitrary, unconstitutional and without jurisdiction under the Act. Secondly, since the petitioner’s family consisted of more than 15 persons, a house under 2500sq.ft would not be sufficient and lacked civic amenities to sustain life. Thirdly, it was contended that the petitioner had only been allotted 6500 sq.ft of land out of the 8000sq.ft and was deprived of 1500sq.ft of land.
The respondents argued that the cancellation of the allotment of land was justified as it violated the conditions imposed and due to the non-issuance of notice for not constructing a house on the land, the state was justified to not allot the remaining land.

Courts Analysis and Judgement:

The court analysed the object of the condition to revoke the land and stated that the primary objective was to provide humanitarian assistance to the people under the project. The court stated that the condition does not fulfill the test of reasonability under Article 14 of the constitution. The court also stated that it is merely not reasonable to construct a house in 1 year and it is a subjective aspect. In furtherance, the court also stated that the Collector was out of jurisdiction and such revocation is draconian, arbitrary, unreasonable and contrary to the Resettlement Act.
The postponement of allotting the rest 1500sq.ft of land without a just reason was said to be unfair and unreasonable. The petitioner, on the basis of doctrine of legitimate expectation can seek allotment of the balance land of 1500sq.ft.
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Written by- Sushant Kumar Sharma

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Bombay High Court’s Landmark Wynk vs. Tips Judgment: A Game-Changer for Digital Music Platforms

Wynk Ltd v. Tips Industries Ltd

CORAM : G.S.Patel & Gauri Godse, JJ 

Decided on: 20th October 2022

Introduction

The Bombay High Court ruled down a major judgement in the case of Wynk vs. Tips, which has enormous consequences for the Indian music business. The court found in favour of Tips Industries Limited, a well-known record label, stating that online music streaming and downloading platforms are not eligible for reduced obligatory licences under Section 31D of the Copyrights Act. This blog will provide a description of this landmark decision and its potential implications for the music streaming business.

Facts of the case

Wynk filed a claim under Section 31D of the Copyright Act of 1957. Wynk acknowledged that the Copyright Board/Intellectual Property Appellate Board (which was still in existence at the time) had not yet established rates. Acknowledging this, Wynk consented to pay the first installment of royalties of Rs.10 lakhs. It appears to have concluded (on its own, by all accounts) that royalty should be paid at 10 paise per stream, totaling approximately Rs.1.41 crores from September 2016 to November 2017. Wynk issued Tips an demand draft for this sum.

Courts analysis and Decision

The Wynk vs. Tips case revolved around accusations of copyright infringement filed by Tips Industries against Wynk Music, a famous music streaming network operated by Bharti Airtel. Tips Industries claimed that Wynk Music was selling copyrighted music without legal licencing and demanded monetary damages for copyright infringement. The court had to decide whether Wynk Music was entitled to the benefits of a discounted compulsory licence under Section 31D.

The Copyright Act’s Section 31D addresses the statutory licencing of audio recordings and musical compositions for broadcasting organisations. It enables broadcasting organisations to make sound recordings and musical works available to the public for a charge without the need for specific licences from copyright holders. This provision aims to make it simpler for broadcasting organisations to use copyrighted music and sound recordings while additionally guaranteeing that copyright holders are fairly compensated.

The following are the key findings and major impact to the industry:

  • No Discounted obligatory Licences: The court ruled that online music streaming and downloading sites, such as Wynk Music, are not qualified for discounted obligatory licences under Section 31D of the Copyrights Act. Section 31D allows broadcasters to communicate copyrighted works to the public for a price without obtaining individual licences, but it excludes internet platforms from this benefit.
  • The importance of licencing agreements between music streaming companies and copyright owners was emphasised by the court. It was noted that Wynk Music had not obtained the required licences for the music it was offering, and hence could not benefit from Section 31D.
  • Copyright Protection for owners: The Bombay High Court’s decision strengthens the rights of copyright holders, such as record companies like Tips Industries. It states that online music platforms must secure adequate licences and are not permitted to use cheap compulsory licences to decrease their licencing expenses.
  • Compliance with Licencing Agreements: This judgement emphasises the significance of strict compliance with licencing agreements for music streaming companies. It serves as a reminder that platforms must follow legal standards and get licences in order to prevent claims of copyright infringement.
  • The decision may cause changes in the business models of streaming music services in India. Platforms may need to rethink their music acquisition and licencing policies, which could have an influence on their activities and price structures.

 

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Written by: Shivanshi Singh

 

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The Bombay High Court at Goa grants bail to two accused convicted of kidnapping, based on the grounds of prolonged trial, lack of criminal precedents and no flight risk.

The Bombay High Court at Goa grants bail to two accused convicted of kidnapping, based on the grounds of prolonged trial, lack of criminal precedents and no flight risk.

Title: Vijay and Anurag Kumar v. Police Inspector

Decided on: July 10, 2023

Citation: 2023 SCC OnLine Bom 1369

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa grants bail to two accused convicted of kidnapping for ransom, based on the grounds of prolonged duration of trial, lack of criminal precedents and flight risk.

Facts of the Case

This is an application for bail by each of the applicant for the offence registered vide FIR No. 18/2021 of Vasco Police Station. They have been charged with offences punishable under Sections 365, 364(A), 465, 471, 394, 120(B) read with Section 34 of IPC. The victim was kidnapped by the accused, who are 12 in number and was detained in a villa for ransom on pretext of providing visa to go to Canada. It is alleged by the victim that he was held as a hostage for ransom and was tortured. Due to alertness and smartness of the victim, an Afganistani national, who gave a clue to his fiancee, that the culprits could be apprehended.

Court Analysis and Judgement:

After taking into account the facts of the case, the Court considered the possibility of a long, stretched trial process. The Court said that the trial is likely to take a long time to conclude. The Court also found that the applicants did not appear to be flight risk and there were no criminal antecedents reported against them. Based on these grounds, the Court saw no reason to withhold their bail and granted both the applicants bail on a bond each costing rupees 25000.

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Written by- Reema Nayak

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The Bombay High Court at Goa grants bail to accused charged with raping a minor girl on grounds of recent statements of the victim and her mother taken under Sec 164 CrPC

The Bombay High Court at Goa grants bail to accused charged with raping a minor girl on grounds of recent statements of the victim and her mother taken under Sec 164 CrPC

Title: Sunil Vithal v. State of Goa

Decided on: July 11, 2023

Citation: 2023 SCC OnLine Bom 1365

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa granted bail to an accused charged with offences under Section 376(3) of the Penal Code, 1860, Section 8(2) of the Goa Children’s Act, Sections 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) against a minor girl.

Facts of the Case

This is an application for bail for offences punishable under Sections Section 376(3) of the Penal Code, 1860, Section 8(2) of the Goa Children’s Act, Sections 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The victim’s age at the time was 10 years and the accused’s was 46 years. The offence against the victim girl was committed in August 2020 when the victim had gone with her parents during Ganesh Chaturthi at the house of the accused where the victim’s mother was working as a house help. The incident was reported in May 2023 by the victim to the Counsellor of the boarding school. Apparently, the victim was traumatised and, therefore, did not earlier inform or report the incident to anyone.

Court Analysis and Judgement:

The Court took into account that after the applicant was arrested on 06.05.2023 and the investigation was completed, the statement of the victim was recorded under Section 164 of Cr. P.C. on 11.05.2023. In this statement, the victim stated that no incident has occurred with respect to her and she does not have any grievance or any complaint against anybody. The victim’s mother, in her statement, stated that she was not aware of any such incident that had taken place. The victim also refused to undergo a medical examination. The Court took into account all of these factors but refrained from making any observations on the merits of the contentions. The observations were limited to the consideration of this bail application and by taking an overall view of the matter, the applicant was released on bail for a bond of Rs. 25000.

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Written by- Reema Nayak

 

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The Bombay High Court at Goa upholds a writ petition after its maintainability was challenged by an order from the trial court owing to delay in filing of written statement.

The Bombay High Court at Goa upholds a writ petition after its maintainability was challenged by an order from the trial court owing to delay in filing of written statement.

Title: State of Goa v. Rajaram Bandekar

Decided on: July 18, 2023

Citation: 2023 SCC OnLine Bom 1456

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa upheld a writ petition after its maintainability was challenged by an order from the trial court owing to a delay in filing of written statement by the defendant.

Facts of the Case

This is a petition filed by the State of Goa challenging the order dated 12.12.2022, passed by the Trial Court refusing to condone the delay in filing the written statement. The facts are that the petitioners-original defendants had filed an application for condonation of delay of 16 days in filing the written statement on the grounds that the defendants were served with the summons on 06.04.2022 and on 13.05.2022, Advocate P. Joshi was appointed in the matter to defend the defendants. However, the concerned Advocate did not appear and returned the file stating that she is not willing to appear in the matter. On 14.06.2022, the matter was allotted to Advocate Priyanka Kamat. All the case papers were handed over to her on 27.06.2022. On 01.07.2022, an application was filed for extension of time and that application was fixed for reply and arguments on 20.07.2022. The period of 90 days had expired by then. There was thus a delay of 16 days in filing the written statement. The application was opposed by the plaintiff contending that the delay is not properly explained. The petition requests condonation of the delay.

Court Analysis and Judgement:

The Court found that the application for condonation of delay was accompanied by a written statement. The reason in the application for the delay is that there was a change in Advocate as the earlier Advocate and a new Government Advocate had to be appointed. As per, Postmaster General v. Living Media India Limited, the delay cannot be condoned mechanically merely because the Government or a wing of the Government is a party before the Court. However, the Court found the matter at hand was not a case of gross negligence or deliberate inaction or lack of bonafides. In the case of Postmaster General v. Living Media India Limited, there was a delay of 427 days by the Postal Department in filing the said appeal and there was no explanation of sufficient cause for such delay. In the present case, there is a delay of 16 days and the cause shown has to be regarded as sufficient. The Court proposed to condone the delay by imposing a cost of Rs. 5,000/- to be paid by the petitioners to the respondent within a month. A Writ Petition was allowed and the impugned order of the Trial Court was set aside by the Court.

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Written by- Reema Nayak

 

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