#Delhi HC Archives - Prime Legal

29 Mar

Article 21A guarantees the Right to Free and Compulsory Education but not the Right to Education in a Particular School of Choice: Delhi High Court

Blog #admission, #Article 21A, #Delhi HC, #Directorate of Education, #DoE, #Economically Weaker Section, #EWS, #Right to choose, #Right to free and compulsory education, #RTE Act, #school

Case title: Jiya through her Natural Mother Ms. Sushma Vs Maharaja Agrasen Model School & Anr.

Case no.: W.P. (C) 4683/2023 and CM APPL. 18067/2023

Decision on: March 22nd, 2024

Quoram: Justice C. Hari Shankar

Facts of the case

In this case, Jiya a 7 years old girl belonging to the Economically Weaker Section (EWS) of society, represented by her mother had filed an application to the Directorate of Education (DoE) for securing an admission under the EWS category in Class I for the academic session 2022-23. The draw of lots process conducted by the DoE granted her an admission in the Maharaja Agrasen Model School (Respondent 2). But, despite several representations made by Jiya’s mother the School refused to admit her. Further, the redressal of the same before the DoE also rendered fatal. Consequently, a writ petition was filed for the issuance of a writ of mandamus directing the Respondent 2 School to grant admission to her as an EWS student in Class II for the academic session 2023-24.

Contentions of the Petitioner

The Counsel submitted that the Respondent 2 School cannot refuse to admit Jiya, after her name was shortlisted for admission to Class I in the Respondent 2 School following the computerised draw of lots conducted by the DoE. He further, placing reliance on the email dated 13 April 2023 of the DoE which directed the School to admit the petitioner submitted the same not being challenged by the Respondent 2 School is therefore binding on it. He also referenced relevant notifications and circulars supporting their case.

Contentions of the Respondent

The Counsel representing the School through a counter affidavit sought to defend its decision in not admitting Jiya in Class I for the 2022-23 academic session. Further, he also placed reliance on the judgment of a Coordinate Bench of this Court in Bushra Riyaz v. GNCTD which held that the petitioner, in that case, could not be directed to be granted admission at the school in one academic session on the basis of an application filed for the previous academic session. Thereby, he defended School’s actions in refusing the admission to Jiya for the academic year 2023-24.

Court’s Analysis and Judgement

The Court emphasizing on the issuance of writ of mandamus to a school observed that that a child seeking an admission as an EWS student at an entry level must, at first instance have applied to the DoE for admission in that year and must be shortlisted for the same by the process of draw of lots. Moreover, detailing on the intricate exercise conducted by the DoE for EWS admissions it noted that no child, without her application suffering the rigour of this exercise, can directly claim a right to be admitted to a particular class in a particular school in a particular year as an EWS student.

The Bench asserted that the right guaranteed to every child under Article 21A of the Constitution or under the RTE Act is only for free and compulsory education till the age of fourteen. But however, it observed that the same does not confer, on any child, a constitutional right to be educated in a particular school of her choice.

It stated that Jiya had only applied to the DoE for admission as an EWS student, but had not complied with their draw of lots procedure. Hence, in the absence of draw of lots and resultant allocation of any school to Jiya for the academic year 2023-2024, she had no enforceable right in law to seek such admission in that year to any particular school. It highlighted the mere fact that the DoE had found her entitled for admission to Class I in the Respondent 2 School for the academic year 2022-23 could not ensure the same for the years to come.

The Bench observed that the RTE Act and Article 21A of the Constitution entitles Jiya only with the right to education till the age of 14 but not the right to get educated specifically in the Respondent 2 School. Therefore, rejecting the prayer of the petitioner, the Delhi High Court held that she is not entitled to admission to Class II in the Respondent 2 School. However, it directed the DoE to make every endeavour to ensure that the girl is granted admission as an EWS student in Class II in some other school.

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Judgement Reviewed by – Keerthi K

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29 Mar

Measures for ‘Reasonable accommodation’ necessary to ensure greater accessibility for the hearing and visually impaired persons: Delhi High Court

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Blog #CBFC, #Delhi HC, #digital accessibility, #Jawaan, #MIB, #OTT platforms, #Pathaan, #physical accessibility, #rights, #RPWD Act, #theaters, #visually and hearing impaired, #Yash Raj Films

Case title: Akshat Baldwa & Ors Vs Yash Raj Films & Ors

Case no.: W.P. (C) 445/2023 and CM APPL. 1752/2023, 67351/2023

Decision on: March 15th, 2024

Quoram: Justice Prathiba M. Singh

Facts of the case

The issue in the present case underscores the broader question of disability rights, particularly the right of individuals with disabilities to enjoy public and private spaces without discrimination.

The four Petitioners who were visually and hearing impaired field a writ petition against the Yash Raj Films producer of movie ‘Pathaan’, two Ministries and Amazon prime video. The Petitioners, who were the consumers of audio-visual entertainment, had filed the present petition, highlighting the challenges faced by persons with disabilities in accessing audio-visual content both in traditional theaters and online streaming platforms. Their grievance was that the existing physical and virtual spaces predominantly catered to able-bodied individuals, thereby excluding persons with disabilities from enjoying equal access.

The petitioners seeking for the enforcement of various rights and accessibility requirements as prescribed under the Rights of Persons with Disabilities Act, 2016(RPWD) sought to direct the films released in India to cater to the needs of the disabled, both in physical and digital spaces, in accordance with national and international legal frameworks and standards.

Submissions on behalf of the Petitioners

The Petitioner No. 2 appearing in-person submitted that apart from the subtitles having been approved by the Central Board of Film Certification (hereinafter, ‘CBFC’), the audio description and closed captions were not made available. Further, there provided English subtitles instead of being in the language of the film, i.e., Hindi which made it almost impossible for hearing and visually impaired persons to enjoy the said film. He also sought to direct the Ministry of Information and Broadcasting and the Department of Empowerment of Persons with Disabilities in the Ministry of Social Justice & Empowerment to notify required standards in this regard.

Submissions on behalf of the Respondents

The Counsel submitted that the film ‘Pathaan’ had already been approved by the Central Board of Film Certification (CBFC) and accordingly the producers provided the English subtitles. The Counsel pointing out to the arrangement between the Producers and OTT platform, Amazon Prime Video submitted that they are willing to take any reasonable steps which may be required to ensure that its films are enjoyed by hearing and visually impaired persons as well. Further, the Counsel for Respondent Nos.2 and 3 – Ministries, pointed out that the MIB had issued certain directions to the Film Producers Association and to the CBFC, way back in October, 2019, to use audio description and subtitles/closed captions in all films.

Court’s Analysis and Judgement

The Bench considering Section 42 of the RPWD Act 2016 which obliged the Government to take measures regarding the accessibility to persons with disabilities directed the producer Yash Raj Films to prepare audio description, close captioning and subtitles of the movie within two weeks and submit it to Central Board of Film Certification (CBFC) for a decision on re-certification. Consequently, the producers of ‘Pathaan’ movie complied with all the directions of the Court. But however, the Court also had to adjudicate on the broader question of disability rights regarding the audio-visual entertainment.

The MIB, following the directions of the Court filed an affidavit on the guidelines titled “Draft Guidelines of Accessibility Standards in the Public Exhibition of Feature Films in Cinema Theaters for Persons with Hearing and Visual Impairment.” The guidelines laid down Accessibility Standards for public exhibition of feature films for persons with hearing and visual impairment in cinema halls or movie theaters for commercial purposes.

Amidst these proceedings, an application seeking inclusion of accessibility features for the films “Jawan” and “Hi Papa” was also preferred before this bench, for which it directed the MIB was to identify and designate a specific officer to deal with these issues.

The Court considering the submissions made by the parties on the implementation of the said guidelines and on appointing a designated officer for the same, quoted various precedence on the subject. The authorities referred by this Court mandated to provide reasonable accommodation to persons with disabilities. It asserted that the accessibility is crucial and enforceable as a legal right.

The Bench stated that the private parties have to ensure that ‘reasonable accommodation’ measures are taken in order to enable greater accessibility for the hearing and visually impaired persons. Further, with regard to physical accessibility to film theaters, it stated that the State has a positive obligation to take that all possibly steps in this direction. Therefore, ruled that non-provision of accessibility features would constitute an offence under the RPWD Act and issued direction on the notification of the guidelines.

Judgement Reviewed by – Keerthi K

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27 Mar

Income Tax Orders cannot be a ground to discharge the accused from Corruption Charges: Supreme Court

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Blog # Supreme Court, #criminal proceedings, #Delhi HC, #IT orders, #ITAT, #Prevention of Corruption Act

Case title: Puneet Sabharwal Vs CBI and R.C. Sabharwal Vs CBI

Case no.: SLP (Criminal) No. 2044 OF 2021

Decision on: March 19th, 2024

Quoram: Justice Vikram Nath and Justice K.V. Viswanathan

Facts of the case

R.C. Sabharwal, an Additional Chief Architect at NDMC, owned assets disproportionate to his known sources of income. It was alleged that he was party to criminal conspiracy wherein, he amassed assets disproportionate to his income, with his son, Puneet Sabharwal who allegedly received Rs. 79 lakhs through encashment of Special Bearer Bonds and abetted the commission of the offence as a conspirator. This act contributed to the crime, as R.C. Sabharwal managed to purchase properties in the name of entities such as the M/s Morni Devi Brij Lal Trust and M/s Morni Merchants, among others which affirmed Puneet Sabharwal as the sole beneficiary. While Puneet Sabharwal was charged under Section 109 IPC read with Section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988, the charge against appellant R.C. Sabharwal was under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988.

The appellants approached the Delhi High Court to dismiss the charges against them. The Court dismissed the petitions based on the following reasons. (i) Puneet Sabharwal being a minor, would not by itself be a reason to disregard the fact that he was a major for 7 long years of investigation; (ii) Immunities under S. 3(2) of Special Bearer Bonds (Immunities and Exemptions) Act, 1981 do not cover charges framed under the PCA; (iii) In State of Karnataka v. Selvi J. Jayalalitha & Ors., the Supreme Court held that IT orders are apropos tax liability on income and would not mandatorily establish the lawfulness of the sources of income and thereby, the Court upheld the charges framed against the appellants. The matter was preferred before the Apex Court challenging the decision of High Court.

Issue – Whether the Courts were justified in refusing to quash the charges against the appellants?

Legal Provisions

The appellants were convicted under Section 120B IPC and Section 109 IPC read with Section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988.

Section 13 of PCA – This provision deals with the Criminal Misconduct by a Public Servant.

Contentions of the Appellant

The Counsel for Puneet Sabharwal submitted that the Court has erred in discarding the fact that he was minor and endorsing the allegation solely on account of being named as a beneficiary in the trust deed of M/s Morni Devi Brij Lal Trust. It was contended that the criminal proceedings were saddled against appellant merely by virtue of being his father’s son. Moreover, the Court has ignored the exoneration of the appellant’s father by the ITAT. The Counsel for R.C. Sabharwal heavily relied on the ITAT order, asserting that he was not the owner of entities whose properties were wrongly added to his income. They quoted several authorities and contended that where there is exoneration on merits in a civil adjudication, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue since the underlying principle is that the standard of proof in criminal cases is higher.

Contentions of the Respondents

The Counsel submitted that at the stage of framing the charges, the availability of relevant material would suffice and the Court is not required to ascertain probative value of the evidence for convicting the accused. It was contended that the criminal prosecution does not depend upon the order of ITAT and hence, the same cannot be effectuated to nullify the order of framing charges by a criminal court. He also relied on various authorities and asserted that the findings of the IT authorities are not binding on a criminal court to readily accept the legality of the source of income.

Court’s Analysis and Judgement

The Court upon perusal of the submissions and evidence presented noted that the appellants have not made out a case for interference with the order on framing of charges. The Court observed that the decision in Selvi Jayalalitha would be fully applicable, as it examined in detail about previous rulings which laid down that the IT Returns and the Orders passed in IT Proceedings are not conclusive proof as mentioned under S.13 of Prevention of Corruption Act. The income tax returns/orders may at best be admissible as evidence, but the probative value of the same would depend on the nature of the information furnished and findings recorded. Hence, the same would not ipso facto either conclusively prove or disprove a charge.

The Court thereby held that the probative value of the Orders of the IT Authorities, including the Order of the ITAT and the subsequent Assessment Orders, are not conclusive proof which can be relied upon for discharge of the accused persons. In view of the same it upheld the decision of the High Court.

The Court, further refused accept the argument of the appellants that when there is an exoneration on merits in a civil adjudication, a criminal prosecution on the same set of facts and circumstances would not be permitted. Therefore, dismissing the appeal, the Court directed the trial to be concluded expeditiously considering its pendency for nearly 25 years.

Judgement Reviewed by – Keerthi K

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25 Mar

Delhi Excise Policy Case: AAP Leaders involvement in Liquor Scam

Prime Legal

Articles #AAP leaders, #arrest, #BRS leader Kavitha, #CBI, #delhi, #Delhi Excise Policy, #Delhi HC, #ED, #Kejiriwal, #Money Laundering, #scam, #Sisodia

Introduction

The controversial Delhi Excise Policy 2021-22 was introduced on November 17, 2021 with an aim to revolutionize the liquor retail landscape in the capital. Its objectives were to maximize revenue for the state, combat liquor mafia and black marketing, improve the consumer experience and ensure equitable distribution of liquor vends. It marked the withdrawal of the government from the business of selling liquor and allowed only private operators to run the liquor shops. The government also made the rules flexible for licensees, such as allowing them to offer discounts and set their own prices instead of selling on MRP fixed by the government. These reforms increased the Government’s revenue by 27 percent, generating around Rs. 8900 crore.

Under the new policy, the city was divided into 32 zones inviting firms to bid on the zones. Instead of individual licences, bidding was done zone-by-zone. Each municipal ward would have 2-3 vends. Also, licenses for 849 retail vends were issued through open bidding by the Excise department as opposed to 475 liquors shops run by the four government agencies, and 389 by the private operators under the old liquor policy.

For the first time, shops were allowed to offer discounts to retail customers, which attracted crowds and reduced the number of dry days from 21 to 3. The new policy also had a provision for home delivery of liquor. It even proposed lowering the drinking age from 25 to 21. It also suggested the opening of shops till 3 am. However, these were not implemented.

However, after a series of vehement opposition and allegations of procedural irregularities the Government of Delhi withdrew the policy on August 1st, 2022 and reverted to the old excise regime.

Report of Chief Secretary

The Chief Secretary found procedural lapses and irregularities in the new policy and submitted a report on the same to the Lieutenant Governor and Chief Minister of Delhi. According to the report, Manish Sisodia, Head of the Excise Department was accused of making changes to the excise policy without the approval of the L-G, such as allowing a waiver of Rs 144.36 crore on the tendered licence fee. Further, the arbitrary and unilateral decisions taken by then Minister resulted in financial losses to the exchequer, estimated at more than Rs 580 crore.

The law governing this subject states that if any changes are made to a policy that has already been implemented, the excise department needs to place them before the cabinet, and forward it to the L-G for final approval. However, the changes made by the Deputy CM did not comply with these mandates. Therefore, the policy implemented without the approval of the cabinet and L-G was illegal, and violative of the Delhi Excise Rules, 2010 and the Transaction of Business Rules, 1993.

Timeline of Events leading to the Arrest of AAP leaders

July 8, 2022: Chief Secretary submits report to L-G office alleging procedural lapses in excise policy implementation. L-G writes to MHA recommending CBI inquiry in matter.

July 30: Sisodia says Government to revert to old excise policy

Aug 6: L-G nod to suspend ex-excise commissioner, IAS officer Arava Gopi Krishna, Dy Commissioner Anand Tiwari

Aug 17: CBI files FIR

Aug 19: CBI Raids Deputy Chief Minister Manish Sisodia and Others on Delhi LG’s Recommendation, followed by Enforcement Directorate’s money laundering probe on liquor policy.

Sept 28 : CBI arrests Vijay Nair, the Aam Aadmi Party’s Chief of Communications.

Oct 10: CBI arrests Abhishek Boinpally

Nov 14: ED arrests Boinpally and Nair

Nov 24: CBI files Cargesheet; names 7

November 26: ED files first prosecution complaint/ chargesheet. Alleges excise policy “formulated with deliberate loopholes”, which “promoted cartel formations through back door” to benefit AAP leaders

January 6, 2023: ED files second prosecution com- plaint/supplementary chargesheet claiming CM allegedly spoke to one of main accused, Sameer Mahendru, asked him to continue working with co-accused Nair who he referred to as “his boy”.

January 14: CBI visits Sisodia’s office. He calls it “raid”, CBI denies

February 19: Sisodia says CBI called him for questioning again. Seeks week’s time

February 26: Sisodia arrested

March 2023: The Enforcement Directorate detains Manish Sisodia, the former deputy chief minister of Delhi.

October: AAP Leader Sanjay Singh is arrested by the Enforcement Directorate, and the first summons is issued to Delhi CM Arvind Kejriwal in connection with the liquor policy fraud.

November 2023: On November 2, Kejriwal flies to Singrauli, Madhya Pradesh, to address a political rally instead of responding to the ED’s first summons.

December 2023: Kejriwal ignores the second summons, saying it is ‘illegal and politically motivated’. The ED sends Kejriwal a third summons to appear for questioning on January 3.

January 2024: Kejriwal misses the third summons for alleged conspiracy by the Central government. In the same month, the ED issues a fourth summons to the Aam Aadmi Party (AAP) convenor, asking him to appear for questioning on January 18. Kejriwal responds to the Enforcement Directorate’s summons to him, asking the agency why notices were issued. The ED follows up by issuing its fifth summons.

February 2024: For the fifth time, Kejriwal ignores the Enforcement Directorate’s summons. An ED court filing from February said that the AAP politician was not following the summons. Kejriwal was granted a one-day reprieve from making a personal appearance by a Delhi court in February.

March 2024: In response to two allegations from the ED against Kejriwal for allegedly ignoring its summonses in the case, a sessions judge grants him bail.

Chief Minister Arvind Kejriwal files a petition with the Delhi High Court challenging ED summonses. He informed the Delhi High Court that he will not appear before the Enforcement Directorate due to a “clear intent” to arrest him during the upcoming elections.

The Delhi High Court refused to provide Kejriwal any protection from coercive action. Consequently, Kejriwal petitioned before the Supreme Court for protection against any coercive action by the ED.

Therefore, on account of ignoring nine summonses issued by the agency for questioning, the ED arrests Delhi Chief Minister Arvind Kejriwal.

Matter referred to CBI

The report of the Chief Secretary was referred to the CBI, which subsequently, led to the arrest of the then Delhi Deputy CM Manish Sisodia. 14 members belonging to AAP party were also made accused in its FIR.

Enforcement Directorate role in the case

Two cases, one by CBI and one on alleged money laundering being investigated by ED, have been registered in relation to the excise policy. The ED told the court that the alleged proceeds of crime amounted to more than Rs 292 crore, and that it was necessary to establish the modus operandi.

Manish Sisodia arrested in February 2023

AAP leader Sisodia has been under judicial custody since February 26 last year, after he was arrested by the CBI, which is also probing the “procedural lapses” in the policy execution. Sisodia is alleged to have “destroyed evidence” by changing his phone frequently, and the profit margin for wholesalers has been changed from 5 per cent to 12 per cent, among other accusations.

The case investigation began two months after Delhi LG VK Saxena assumed office in May 2022. He recommended a CBI probe into the malafide activities around the repealed policy.

BRS leader K Kavitha arrested on March 15

The Bharat Rashtra Samithi (BRS) leader K Kavitha also approached the Supreme Court over a plea against her arrest in the same probe. However, the court refused to take up her petition and asked her to approach the trial court first. Kavitha is alleged to have “plotted” with Kejriwal and jailed former Delhi deputy CM Manish Sisodia to get “favours” in excise policy. The agency claims that she is linked to a “south group” which paid about Rs 100 crore to AAP for skewing the policy in their favour.

Kejriwal arrested on March 21^st 2023

The Chief Minister filed a challenged his arrest before the Supreme Court. But, when the Court directed to try the case first before the lower courts in the similar matter involving Kavitha, the Minister withdrew his suit and contested before the High Court. A fresh plea in HC against ED, has been filed seeking protection from any coercive action by the ED.

References

13 Mar

Conflicting marks must be read in its entirety; No Exclusive Rights on the use of generic term like ‘Dish’: Delhi High Court

Prime Legal

Blog #Delhi HC, #Dish TV, #generic term, #Prasar Bharti, #Section 17 of Trademark Act, #Section 30, #Trademark law

Case title – Prasar Bharti VS Dish TV India Ltd.

Case no. – FAO (OS) (COMM) 267/2019 before the High Court of New Delhi

Decision on – March 06, 2024

Quoram – Justice Vibhu Bakhru and Justice Amit Mahajan

Facts of the case

The Appellant, Prasar Bharti also known as Doordarshan, is the public broadcaster of the country, providing free Radio and Television services to all subscribers and DTH services under the trademark and trade name ‘DD Direct Plus’ since the year 2004. However, in the year 2014, the appellant renamed it as ‘DD Free Dish’.

The respondent is a company also engaged in providing DTH services under the name ‘Dish TV’ since the year 2003. The respondent is a registered proprietor of the word mark ‘Dish TV’ and claims that there trademark ‘Dish TV’ has acquired distinctive character by virtue of its extensive and exclusive use. The appellant, on the other hand, had applied for registration of the mark “DD Free Dish” but had not sought registration for the standalone term “Dish”.

The respondent alleged that the appellant’s use of the term “Free Dish” infringes upon its trademark rights. The respondent initiated legal action seeking a permanent injunction to restrain the appellant from using the term “Free Dish” in its mark “DD Free Dish”.

The learned Single Judge of Delhi HC, allowed the application for interim injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 and directed the appellant to refrain from using the mark ‘DD Free Dish’ or any other mark incorporating the word ‘Dish’ during the pendency of the suit.

The Prasar Bharti, appellant in the present case, aggrieved by this order, has filed an Intra- Court appeal under Section 13 of the Commercial Courts Act, 2015.

Submission of the Parties

Mr. Rajeev Sharma learned Senior Counsel for the appellant submitted that the word ‘Dish’ being a generic word refers to a Dish Antenna without which DTH services cannot be availed. The respondent is not entitled to claim an exclusive right over such marks under Section 30(2) of the TM Act. The Counsel submitted that the respondent’s registered trademark ‘Dish TV’ is a composite mark, which must be looked at as a whole and thus cannot claim exclusivity over a part of the registered trademark.

On the Contrary, Mr. Sandeep Sethi, learned senior counsel for the respondent contended that the appellant, by using the impugned mark ‘DD Free Dish’ is infringing its registered trademark ‘Dish TV’. Further, the trade name and the impugned mark used by the appellant are deceptively similar to its registered trademark.

The Counsel further submitted that the appellant’s sudden and unexplained change of the name from ‘DD Direct+’ to ‘DD Free Dish’ is clearly an attempt to illegally encash upon the reputation and goodwill of the respondent. The argument that the term ‘Dish’ is common to the trade is incorrect as none of the other DTH players have used the respondent’s mark.

Court’s Observation and Analysis

The Court scrutinized previous judgments and legal principles related to trademark protection and held that the mere presence of the term “Dish” does not automatically confer exclusive rights to the respondent. The Court delving into Section 17 of Trademarks Act, emphasized the importance of considering the mark as a whole and not dissecting it into individual components. The Court thus held that the conflicting marks are to be compared by looking at them in its entirety rather than breaking the marks into parts for comparison.

The Court noted that a bare visual comparison of the two marks shows that apart from the word ‘Dish’, there is no other similarity. Thus, the Court held that the respondent’s claim for an injunction restraining the appellant from using the term “Dish” in its mark was not justified. Thereby, it set aside the lower court’s judgment.

The Court ruled in favour of the appellant, highlighting the generic nature of the term “Dish” and the lack of evidence indicating confusion among consumers.

The Delhi High Court therefore held that Dish TV India Limited cannot claim exclusive right to use the word “Dish” as it is generic in nature which refers to dish antenna and it will not be entitled to be protected under Section 30(2) of the Trade Marks Act, 1999, on a standalone basis.

Judgement Reviewed by – Keerthi K

Click here to view the Judgement