delhi high court Archives

2 May

Pfizer’s Landmark Victory: Delhi High Court Upholds Patent Rights, Affirms Innovation Protection in Pharmaceutical Industry

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Case Name: Pfizer Products INC v. Renovision Exports Pvt. Ltd. And Anr.

Case No.: CS(COMM) 378/2018

Dated: May 1, 2024

Quorum: Justice Sanjeev Narula

FACTS OF THE CASE:

The facts of the case are so that by requesting a permanent injunction and other ancillary reliefs, Pfizer Products Inc., the Plaintiff, hopes to protect its trademark rights in the well-known allopathic drug “VIAGRA,” which is used to treat erectile dysfunction. The defendants are trying to stop Pfizer Products Inc. from marketing their homoeopathic medicine under the confusingly similar trademark “VIGOURA,” which is purportedly used to treat sexual disorders.

Pfizer’s primary goal in filing the lawsuit was to defend their common law rights to the aforementioned mark. But later, the scope of reliefs was expanded, and Pfizer also claimed passing off in addition to trademark infringement, after securing statutory rights through the trademark registration of “VIAGRA.” As a result, the case calls into question the cross-border reputation and trademark protection of medications with names that are similar but are used for different purposes—one is a conventional allopathic drug, while the other is a traditional homoeopathic medicine.

By answering these queries, the Court will decide whether or not the Defendants’ use of “VIGOURA” constitutes a passing of trademark infringement on Pfizer’s “VIAGRA” brand.

CONTENTIONS OF THE PETITIONER:

The petitioners adamantly maintain that Pfizer is a preeminent international pharmaceutical corporation that is largely involved in the development, production, and distribution of medications for use in human and veterinary medicine. Pfizer was named the “No. 1 Company” by Fortune Magazine in 1998, and their goods are widely available in more than 150 countries.

Pfizer registered the trademark “VIAGRA” in 1995 for their ground-breaking erectile dysfunction medication, sildenafil citrate. The medication “VIAGRA” was released into the US market in 1998 after the Food and Drug Administration of the United States Department of Health and Human Services approved it on March 27, 1998, stating that it was a significant advance in the treatment of erectile dysfunction.

It was found by Pfizer that Defendant No. 1, operating under the name Renovision Exports Pvt. Ltd., was using the trademark VIGOURA to sell goods marketed as “Nervine Tonic for Men” and “Homoeopathic Medicine Invented in Germany.”

Later research uncovered “VIGOURA” product variations, including “VIGOURA 2000,” “VIGOURA 5000,” and “VIGOURA 1000.” Defendant No. 2 is said to be the producer of these items. The defendants received a cease-and-desist letter from Pfizer’s lawyers on February 3, 2005, as soon as they responded to the matter. The first day of March, 2005, a reminder letter was sent.

On March 11, 2005, Defendants received a response to the aforementioned letters in which they refuted Pfizer’s allegations and reaffirmed their ownership of the “VIGOURA” trademark. Applications for the registration of the marks “VIGOURA 2000” and “VIGOURA 5000” were submitted by Defendant No. 1.

The petitioners added that. The “VIGOURA” mark of the defendants is confusingly similar to Pfizer’s well-known “VIAGRA” trademark. The defendants’ deliberate endeavour to profit from the goodwill and reputation attached to “VIAGRA” is evidenced by this resemblance. Both marks are similar in that they have three syllables, start with the letter “Vi,” and end with the letter “Ra,” making them phonetically similar. Furthermore, there is a greater chance of confusion regarding the source and association of the products because they both cater to the same market segment—those looking for solutions for medical ailments.

CONTENTIONS OF THE RESPONDENTS:

The defendants contended that the defendants are well-known experts in the field of homoeopathy. Defendant No. 1 is a licenced oil company that has a solid track record of producing homoeopathic remedies, such as “VIGOURA 1000,” “VIGOURA 2000,” and “VIGOURA 5000.”

The products in dispute are specific medications designed to treat various medical conditions. “VIGOURA 1000” is different from the Plaintiff’s product, which treats male erectile dysfunction, in that it concentrates on women’s vitality and menstrual regulation. The product “VIGOURA 1000” is no longer relevant to the current controversy because of this differentiation.

The homoeopathic remedies “VIGOURA 2000” and “VIGOURA 5000” are made to act as non-steroid aphrodisiacs by promoting metabolic processes. Homoeopathic remedies function according to distinct principles from traditional allopathic medications, such as Pfizer’s “VIAGRA.” While “VIAGRA” is used to provide immediate relief, the defendants’ “VIGOURA” has effects that take two to three months to manifest. Customers are less likely to become confused because of the two medications’ different types and compositions as well as the fact that they are both prescribed medications.

It is sincere, real, and legitimate that Defendants have adopted the contested mark “VIGOURA.” The whimsical symbol is a play on the word “vigour” in English. Additionally, “VIGOURA 2000,” which was initially produced and sold by the Defendants in 1999, has a long history in the market for the products under dispute. In addition, on January 21, 2003, Defendant No. 1 requested trademark registration for “VIGOURA 2000” and on December 30, 2003, for “VIGOURA 5000” in class 05. Furthermore, on April 27, 2005, Defendant No. 1 accomplished the registration of a copyright for the creative work contained in the “VIGOURA 2000” package. Therefore, a considerable amount of time passed before Pfizer registered its trademark for the products made by the defendants.

Long before Pfizer, a number of other organisations obtained registration rights in trademarks that used the same name as “VIAGRA” for pharmaceutical or Ayurvedic medical products classified as class 05.

The defendants maintained that Pfizer Inc., the trademark’s owner, had not granted the plaintiff an assignment of the mark “VIAGRA.” The Plaintiff is therefore unable to assert proprietorship over the aforementioned mark.

LEGAL PROVISIONS:

Section 38 of the Trademarks Act- Assignability and transmissibility of registered trade marks. Notwithstanding anything in any other law to the contrary, a registered trade mark shall, subject to the provisions of this Chapter, be assignable and transmissible, whether with or without the goodwill of the business concerned and in respect either of all the goods or services in respect of which the trade mark is registered or of some only of those goods or services.
Section 18(1) of the Trademarks Act- Anyone claiming to be the owner of a trademark that they have used or intend to use and who wants to register it must submit an application in writing, following the prescribed process, to the Registrar.

ISSUES:

Whether the Defendants are infringing the registered trade mark of the Plaintiff “Viagra”?
Whether the Plaintiff is the proprietor of the trademark “VIAGRA”?
Whether the Plaintiff is entitled to any damages? If so, the extent thereof?
Whether other trademarks resembling and similar to the trademark of the Plaintiff have been registered, as alleged by the Defendants? If so, to what effect?
Whether the use of the mark “VIGOURA” by the Defendants amounts to passing off the goods as that of the Plaintiff?

COURT’S ANALYSIS AND JUDGMENT:

The meaning and concept of a “proprietor” are crucial to this issue, the court noted brand. A “registered proprietor” is described as under the Trademarks Act as the individual named in the Trademarks Register as the owner of the brand. Consequently, the legitimate owner is acknowledged as being the registered proprietor of the brand, with the sole authority to use the brand in relationship with particular products or services.

The court also decided that a “proprietor” means anyone who has exclusive possession of a property, not only the registered owner. rights to use the trademark in connection with particular goods or services. This possession can be proven by using the trademark in commercial actions in the market, giving rise to common law rights. Furthermore, these rights could be obtained by officially registering with the Trademarks Register. So, proprietorship can be thought of as a spectrum- from its first application in the market to its official acknowledgement by signing up.

Legal principles and factual analysis are combined in the evaluation of trademark infringement and passing off. The degree of resemblance between the contested trademarks and the events leading up to the adoption of the challenged mark are the main areas of overlap in the appraisal of each claim, even if each one calls for different legal considerations. Despite the fact that the infringement claim surfaced after the initial lawsuit filing, it is appropriate for the Court to address it first given this overlap.

The court held that misrepresentation can take many different forms, such as using identical trademarks, packaging, or marketing techniques that lead to confusion among consumers regarding the source of the products or services. The Plaintiff’s final burden of proof is to demonstrate that the Defendants’ deception caused them harm or that they will likely cause them harm. Possible manifestations of this harm include a decrease in sales, a dilution of goodwill, or damage to the Plaintiff’s trademark’s reputation.

The Defendants’ argument failed to persuade the Court. A well-established rule in trademark law states that a plaintiff may still obtain an injunction against a particular defendant in a trademark infringement case even if they choose not to file a lawsuit against other parties who might own marks that are similar to their own.

The court held that the defendants or any representatives working on their behalf are irrevocably prohibited from producing, offering for sale, or marketing, promotion, or in any other context where the trademark “VIGOURA” or any mark that is misleadingly similar to the plaintiff’s “VIAGRA” trademark in respect to any of their products as would constitute violating or passing off the Plaintiff’s registered trademark “VIAGRA.”

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Judgment reviewed by Riddhi S Bhora.

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1 May

Delhi High Court Upholds Claim of Retired Personnel; validates Eviction Notice based on seniority.

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Case Name: Satpal Singh Sarna & Ors v. Satya Prakash Bansal

Case No.: RC.REV. 626/2019

Dated: April 29, 2024

Quorum: Justice Girish Kathpalia

FACTS OF THE CASE:

In their eviction petition under Section 14(1)(e) of the Act, the petitioners assert that they are the owners of the ground floor shops No. 3 and 4, which are part of a larger premises. They filed this petition against their tenant, the respondent, on the grounds that the subject premises were previously owned by their mother, Smt. Kulwant Kaur, who bequeathed them to them after her death, and that the petitioners became the owners of the subject premises upon the probate of that Will. Rented to the petitioners until December 2015, the respondent acknowledged them as landlords. The subject premises have been closed and unoccupied for the past five years because the respondent moved his business to another location around five years ago.

The petitioner No. 1 resides in and operates his business out of the remaining larger premises along with his wife and two married sons. The petitioners Nos. 2 and 3 with their spouses and kids live in Canada and continue to travel to India, but they struggle to find enough room to stay at the larger premises mentioned above. The petitioners are the owners of the aforementioned larger premises, which consist of five stores, two of which are used as godowns by the sons of petitioner No. 1 who operate under the names Sunny Shoe Point and Sunny Punjabi Juti.

That of the three rooms on the ground floor of the Girish Kathpalia digitally signed by Girish Kathpalia, the aforementioned larger premises are divided into two rooms occupied by one son of petitioner No. 1, one room serving as a guestroom, and two rooms and a store on the first floor occupied by the other son of petitioner No. 1. Because the larger premises are in a dilapidated state and petitioners No. 2 and 3 intend to return to India in order to marry and settle their children here, they have a legitimate need for the subject premises and do not currently have any reasonably suitable alternative accommodation available to them. As a result, they want to reconstruct the larger premises in accordance with their needs.

Once permission to contest the proceedings was granted, the respondent/tenant filed a written statement acknowledging a legal relationship of tenancy with the petitioners. However, the statement further pleaded that the requirement set up by the petitioners is not legitimate because the mother of the petitioners had previously filed an eviction petition under Section 14 of the Act, which was dismissed.

While it is unknown when and for how long the petitioners and their families, who live in Canada, want to visit India, it is possible that they have already been there. Following the property’s eviction, the petitioners want to relet the subject space at a higher rent. Petitioner No. 1 has been engaging in a range of activities with the intention of intimidating the respondent in an attempt to have the subject premises removed.

CONTENTIONS OF THE PETITIONER:

The petitioners’ attorney argued that there is no legal basis for the contested order. Invoking the intervention of this court, learned counsel representing the petitioners argued that the impugned decree exhibits perversity on its face.

Invoking the intervention of this court, learned counsel representing the petitioners argued that the impugned decree exhibits perversity on its face. Expert legal representation for the petitioners contended that the petitioners’ genuine want to return home at this advanced age is a prerequisite for the petition to be successful. Knowledgeable counsel for the petitioners relied on the ruling of a coordinate bench of this court in a historic case to bolster his claims.

It was argued that insufficient information had been presented to demonstrate that Petitioners Nos. 2 and 3 were ending their business ventures, jobs, or commercial activities in Canada or that they intended to sell their Canadian assets in order to relocate permanently to India. The experienced Rent Controller determined that there was no need to review the other provisions of Section 14(1)(e) of the Act after concluding that the petitioners had not demonstrated that they are a bona fide requirement of the subject premises.

CONTENTIONS OF THE RESPONDENTS:

The respondent’s experienced counsel contended that this court cannot reappreciate evidence and that its authority to intervene in proceedings under the proviso to Section 25B(8) of the Act is quite restricted. The reply contended that the petitioners had neglected to provide the Aadhar cards of the petitioners’ children on file, which would have verified their adult age. A knowledgeable attorney representing the respondent further contended that the petitioners’ requirements aren’t legitimate because they’ve been attempting to kick the respondent out in a number of ways.

The respondent’s learned counsel contended that this court cannot reappreciate evidence and that its authority to meddle in proceedings under the proviso to Section 25B(8) of the Act is quite limited. The respondent contended that the petitioners had neglected to provide documentation of the Aadhar cards of the petitioners’ children, which would have demonstrated their adult age.

The respondent argued that the petitioners had failed to produce proof of the petitioners’ children’s Aadhar cards, which would have proved their adult age. The respondent’s learned counsel further contended that the requirements set forth by the petitioners are not legitimate because they have been attempting to evict the respondent through a variety of tactics.

LEGAL PROVISIONS:

Section 14(1)(e) of the Delhi Rent Control Act: Tenant eviction is covered under this clause. It gives landlords the right to file for eviction if they legitimately need the space for themselves or any members of their family. This clause was triggered by the petitioners’ contention that they required the subject premises for their own purposes.
Proviso to Section 25B(8) of the Act: A review request against the Rent Controller’s ruling is permitted by this clause. Through this revision petition, the petitioners contested the way their eviction petition was dismissed.

COURT’S ANALYSIS AND JUDGMENT:

The court noted that on the directions of his client GIRISH KATHPALIA, learned counsel for the respondent addressed a particular question during the closing arguments based on the competing pleadings. He strongly asserted in a digitally signed document that was present in the courtroom that the respondent is still using the subject premises for his business. However, after the petitioners’ skilled counsel asked and the court granted their request to name a Local Commissioner to find out the facts, the respondent and his attorney made a U-turn and acknowledged that the respondent had not been using the subject premises for a number of years.

The court, after determining the appropriate level of leverage to offer a tenant is contingent upon this factor. It was typical for the tenant to keep the leased property locked because they were unable or unwilling to utilise it, hoping to intimidate the landlord into accepting an offer of money in exchange for leaving. It was necessary to stop these activities since they seriously undermine the goals of the rent control laws.

The court noted that there is no question about the fact that petitioner No. 1 and his family live in India, while the other petitioners and their families live abroad. Furthermore, there is no substantial disagreement, as demonstrated by the pleadings and documentation, about the fact that the petitioners are at least sixty years old and their children are mature adults. The petitioners’ want to go back home and live out the remainder of their lives in their country of origin cannot be viewed suspiciously in these circumstances.

The court ruled that it is common for Indians who live overseas to experience a deep yearning to pass away in their birthplace. It is impossible to reduce such a powerful emotional need to a mere whim or common want. In a case heard by the entire bench of this court, it was acknowledged that a landlord’s desire to live out his final years in his own home was a natural aspiration. This is especially true when the tenant withholds information that would contraindicate their desire.

In summary, the court found no reason to doubt the veracity of the petitioners’ stated desire to return home and settle down here after their children are married here in their birth country due to the complete lack of specific pleadings from the respondent, the complete lack of affirmative evidence, and the lack of a productive cross-examination. The petitioners’ plan to re-construct the larger premises is justified by the fact that, given the size of their families and the growing families of their grown children, the space available to them in the said premises would undoubtedly be insufficient. As a result, their requirement of the subject premises is certainly bonafide.

Judgment reviewed by Riddhi S Bhora.

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30 Apr

Central Registrar of Cooperative Societies may choose an arbitrator in accordance with Section 84 of the Multi State Cooperative Societies Act, 2002: Delhi High Court

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Case Name: Appolo Handloom Manufacturing Co-Op Society Ltd v. All India Handloom Fabrics Society and Ors

Case No.: ARB.P. 1261/2023

Dated: April 8, 2024

Quorum: Justice Pratibha M Singh

FACTS OF THE CASE:

For more than thirty years, Apollo Handloom Manufacturing Co-Op. Society Limited, the petitioner, has been a member of the All-India Handloom Fabric Society. The Petitioner filed a petition seeking the appointment of an arbitrator by the Central Registrar of Co-operative Societies, Ministry of Cooperation.

In order to have an arbitrator appointed by the Ministry of Cooperation’s Central Registrar of Cooperative Societies, the petitioner submitted a petition. Among the disagreements the petitioner brought up are issues, including but not limited to monetary dues, unlawful election of office bearers, and other issues brought up by the respondents.

Section 84 of the Multi State Cooperative Societies Act, 2002 was cited by the petitioner as the basis for the Arbitration Clause. On May 26, 2023, the petitioner requested the appointment of an arbitrator; however, the Central Registrar did not do so as required by Section 84 of the Act.

Disappointed by this, the petitioner filed an application under Section 11(6) of the Arbitration and Conciliation Act (A&C Act) requesting the appointment of an arbitrator through the intervention of the court. According to the Court’s ruling, the Central Registrar may be directed to nominate the arbitrator even though it is not permitted to do so itself.

Apollo Handloom Manufacturing Co-op. Society Limited, the petitioner, complained that the Central Registrar had not appointed an arbitrator in spite of their request. The petitioner was dissatisfied with this inaction and looked for another way to settle the problem.

The Central Registrar is required by Section 84(4) to designate the arbitrator; but, in the event that the Registrar is unable to do so, the aggrieved party may petition the High Court for guidance. This was clarified by the Court.

CONTENTIONS OF THE PETITIONER:

The petitioner’s position is that, as a member of respondent, it has a number of disagreements with how respondent operates, including the unpaid balance of certain of the petitioner’s financial obligations. Furthermore, the Attorney maintains that Respondent No. 1’s office bearers were elected in a way that was illegitimate and forbidden.

A request for the appointment of an arbitrator with another respondent, in the form of a representation, was filed on May 26, 2023. This request pertained to other disputes pertaining to the constituent of Respondent No. 1, for which it had invoked the Arbitration Clause in terms of Section 84 of the Multi State Cooperative Societies Act, 2002 (hereinafter, “the Act”). Moreover, the Petitioner asserts that it has additionally submitted a request for the appointment of an arbitrator on Respondent No. 6-Central Registrar’s website.

The petitioner claims that because the Central Registrar did not appoint an arbitrator, this court’s jurisdiction is invoked under Section 11(6) of the Arbitration and Conciliation Act, 1996, and a petition has been filed seeking the appointment of an arbitrator in accordance with Section 84 of the Act.

By way of representation, the petitioner claims that on May 26, 2023, a request was made for the appointment of an arbitrator alongside another respondent. In accordance with Section 84 of the Multi State Cooperative Societies Act, 2002 (hereinafter, “the Act”), Respondent No. 1 had invoked the Arbitration Clause in relation to various conflicts involving its constituent under consideration. In addition, Petitioner also states that it has also filed a request on Respondent No. 6-Central Registrar’s website for the appointment of an arbitrator.

Under Section 84 of the Act of 2002, the disputes were addressed. Section 84(5) requires the appointment of an arbitrator, which the Central Registrar, as the appointing authority, failed to accomplish. In the absence of an arbitrator, the petitioner was left with no option except to request the appointment through the court.

CONTENTIONS OF THE RESPONDENTS:

First, the argument is made that the claims and conflicts that need to be sent to arbitration are unclear. The Counsel for Respondent No. 1 further argues that the Petitioner did not provide the Respondent with any notice pursuant to Section 21 of the Arbitration and Conciliation Act, 1996.

In support of Respondent Nos. 2 through 4, it is argued that an office bearer’s election may only be contested within 30 days and not after that. A petition under Section 11 of the Arbitration Act may also be contested as unmaintainable in light of Section 84(5) of the Act. Respondent Nos. 2 to 4’s legal counsel argues that the petition itself cannot be maintained in light of the Supreme Court’s decision in a precedent-setting ruling that is currently before the highest court.

The petition’s maintainability was contested by the respondent for the following reasons: It is purported that the petitioner did not supply enough information on the parties’ disagreement. Prior to submitting the application, no notification under Section 21 of the A&C Act was given. The petition under Section 11(6), according to the respondent, could not be maintained because the Central Registrar alone had the authority to appoint.

LEGAL PROVISIONS:

Section 84 of the Multi State Cooperative Societies Act, 2002: This provision, which addresses arbitration in cooperative groups, was cited by the petitioner. It offers a way for conflicts in these kinds of communities to be settled through arbitration.
Section 11(6) of the Arbitration and Conciliation Act (A&C Act): An application under this section was filed by the petitioner. It gives the court the ability to step in and appoint an arbitrator in the event that the authorised authority—in this example, the Central Registrar—fails to act.

COURT’S ANALYSIS AND JUDGMENT:

Counsels representing each party were present, and the court reviewed the documentation. The provisions of the Arbitration Act would only be applicable in the absence of any additional provisions enacted under the Act, as far as maintainability under Section 84(5) of the Act is concerned.

The Central Registrar of Co-operative Societies, Ministry of Cooperation, is required by Section 84(4) of the Act to designate an arbitrator; the court noted that this need cannot be questioned. On the other hand, if the Central Registrar is unable to choose an arbitrator, the Petitioner may be left without recourse. It cannot be maintained that the Court lacks the authority to refer the case to the Central Registrar for the appointment of an arbitrator in such circumstances.

According to Section 84(5) of the Act, the court ruled that there was a clear arbitration clause. As a result, the claim that a petition under Section 11(6) of the Arbitration Act could not be maintained was dismissed. The High Court is authorised under Section 11(6) of the Arbitration Act to take the required actions to ensure the appointment of an arbitrator, particularly in cases where a person or organisation, in this instance, the Central Registrar, has neglected to take the necessary actions n accordance with the protocol outlined in Section 84 of the Act.

Regarding Respondent Nos. 2 through 4, this Court believes that they are individual office bearers of Respondent No. 1, which is a society. Thus, the primary legal relationship is that of the Petitioner and Respondent No. 6. The Central Registrar, the aforementioned respondent, has only informed the court that it will choose an arbitrator in two weeks without contesting the maintainability of the current case.

Judgment reviewed by Riddhi S Bhora.

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30 Apr

Empowerment of Private School Employees is a Constitutional Right- Justice Manmeet Singh Arora

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Case Name: Social Jurist v. Government of NCT of Delhi & Ors

Case No.: W.P.(C) 888/2024

Dated: April 29, 2024

Quorum: Justice Manmeet Pritam Singh Arora

FACTS OF THE CASE:

The facts of the case revolve around The Right of Children to Free and Compulsory Education Act, 2009 (the “RTE Act”), read with the Delhi School Education Act, 1973 and the Delhi Right of Children to Free and Compulsory Education Rules, 2011 (the “RTE Rules”), has been filed as a public interest lawsuit (PIL) to draw attention to the fact that 2,69,488 students enrolled in schools run by the Directorate of Education, GNCTD, and 3,83,203 students enrolled in schools run by the Municipal Corporation of Delhi (MCD) are being denied access to the statutory benefits like uniform, writing materials, books, stationery items, school bags, scholarships, etc.

The Fundamental Right to Education, which is protected to pupils under Article 21-A of the Constitution, is violated when GNCTD and MCD fail to provide the students with the aforementioned statutory advantages in a timely manner. This failure is arbitrary and unethical.

It is mentioned that all students attending GNCTD and MCD-run schools have the right to free textbooks, writing supplies, and uniforms under Rule 8 of the RTE Rules. Nevertheless, it is claimed that instead of giving away free text books, writing supplies, and uniforms, GNCTD and MCD are paying students directly from their bank accounts.

3,83,203 pupils enrolled in MCD-run schools have been denied these statutory benefits due to a lack of bank accounts from the 2016–17 academic year to the 2022–23 academic year, according to the Chief Auditor, MCD, in his Audit Memo of November 14, 2023. In a similar vein, the Directorate of Education, GNCTD (the “DoE”) letter dated December 29, 2023 notes that 2,69,488 kids enrolled in schools managed by the GNCTD have likewise been denied statutory financial advantages due to the lack of active bank accounts.

When GNCTD and MCD neglect to promptly supply the students with the aforementioned statutory advantages, they are infringing upon their constitutionally guaranteed Fundamental Right to Education (Article 21-A). This is an inequitable and arbitrary failure.

A civil rights organisation is the petitioner, Social Jurist. Nearly 10,000 unregistered and unrecognised schools in various Delhi neighbourhoods are at issue in this case. NGOs, institutions, and private persons manage these schools. These schools educate about 600,000 students in a range of classes from LKG to 12th grade, who are between the ages of 2 and 18.

CONTENTIONS OF THE PETITIONER:

The petitioners strongly contended that the reply to affidavit of the DoE dated March 23, 2023, filed in has been cited by Mr. Ashok Aggarwal, the petitioner’s learned counsel. He said that the GNCTD has testified in this affidavit before this Court that all students in government-run schools in classes “preschool” through “VIII” receive a full set of textbooks at no cost to them after having them printed by the Delhi Bureau of Textbooks, along with workbooks and other supplementary materials were provided.

The petitioners further contend that GNCTD has represented that writing supplies (notebooks and stationery) will be given “in kind” to students starting with the academic year 2023–2024. In this regard, the heads of the school(s) in question have been given permission to buy writing supplies and give them to the students enrolled in the aforementioned schools starting in the academic year 2023–2024. In addition, the GNCTD has announced that starting with the academic year 2024–2025, the Head of School(s) will have the authority to purchase uniforms and provide them to the students; in the interim, pupils will get payment in cash for the academic year 2023–2024.

Therefore, thye conteded, it is essential that the MCD immediately provide its students with the statutory benefits “in kind” in lieu of cash, pending the resolution of the bank account opening issue. This will ensure that the students’ Fundamental Rights are protected and they receive the statutory guaranteed uniforms, note books, stationery items, school bags, etc. for the current academic session of 2024–2025.

He said that the current petitioner has also brought attention to the issue of the lack of infrastructure in the form of dilapidated buildings, classrooms, etc. in the schools of GNCTD and MCD, and this Court is taking it into consideration. He said that there are schools that are set up and operated fully in a tin shed, and that the summer months are difficult for the pupils and teachers who work there, respectively. According to him, there are schools where there is no furniture and students attend classes while sitting on the floor. He declared that the problem of damaged chairs and desks in classrooms is an urgent one that affects every school.

CONTENTIONS OF THE RESPONDENTS:

The respondent’s counsel acknowledged that they are required to give statutory benefits, such as school bags, note books, stationery, uniforms, etc., to the students “in kind” rather than in cash. For the 2022–2023 academic year, these statutory benefits were given “in kind” to the students enrolled in MCD schools. It is said that, however, due to procurement difficulties, these statutory advantages could not be given to students “in kind” for the academic year 2023–2024. As a result, students with bank accounts received payment for these benefits in cash.

The absence of bank accounts is acknowledged as the reason 2,73,346 students were not able to receive the required benefits under the RTE Rules during the 2023–2024 academic year.

The respondent, who joined the proceedings via video conference on April 23, 2024, informed this court that the Standing Committee of MCD, which does have the necessary financial power, is non-functional, and that it is not possible for him to provide the students with “in kind” benefits for the academic year 2023–2024 because neither he nor the Commissioner have the necessary financial power to award contracts for the procurement of these statutory items.

The respondents further acknowledged that, in a similar vein, MCD has not been able to award contracts for the procurement of the aforementioned items because it lacks the necessary financial power, and as a result, has not been able to obtain the statutory benefits for the current academic session of 2024–2025, such as uniforms, note books and stationery items, school bags, etc. for distribution “in kind” to the students. According to the Commissioner, contracts over the financial limit of INR Five crores can only be awarded by the Standing Committee, which also has the authority to do so. As a result, he acknowledged that he was unable to fulfil his legal duties to the students.

LEGAL PROVISIONS:

Section 10(1) of the Delhi School Education Act, 1973 (DSE Act): The petitioner requested that the recommendations of the 7th Pay Commission be applied to the salaries of teaching and non-teaching staff at Delhi’s independent private schools. The argument was founded on DSE Act Section 10(1), which deals with the salary, perks, and allowances of staff members working in private schools.

7th Pay Commission Recommendations: Employees of private schools that operate independently should be covered by these guidelines, according to the petitioner. Whether the DSE Act required these suggestions to be implemented was a question the court addressed.

Article 21 of the Constitution of India: The petitioner claimed that it was a violation of their fundamental rights to deny access to specific medical facilities to individuals who were not Delhi residents. The right to personal liberty and life is guaranteed by Article 21.

COURT’S ANALYSIS AND JUDGMENT:

The non-constitution of the Standing Committee of the MCD since 2023 is a matter of record, and this court would like to note that the non-procurement and its effect of not providing the statutory benefits of uniforms, note books and stationery items, school bags, etc. to the students studying in the MCD schools, first for the academic session of 2023–24 and now 2024–2025, is an undesirable and regrettable state of affairs.

The MCD Commissioner further acknowledged that as GNCTD is still in the process of producing and acquiring the textbooks, kids in MCD schools have not yet gotten any from the organisation. School will be closed for summer vacation starting on May 10, 2024, and the current academic session began on April 1, 2024. For this reason, the first session has practically ended without the students’ use of textbooks, notepads, writing supplies, stationery, etc. Taking into account the previously mentioned details, this Court finds it difficult to envision the inadequate level of instruction provided to the pupils during this inaugural session without these essential resources, to which they are legally and constitutionally entitled.

In order to fill the void left by the Standing Committee’s unconstitutionality, the Court expressed a preliminary opinion that the Commissioner, MCD, should be given more financial authority by a suitable GNCTD authority. This will allow the Commissioner to grant contracts for the purchase of these statutory benefits for the MCD schools’ students.

The court noted that there was potential for regulation of the right to establish an educational institution. However, these regulations did not go so far as to impose a strict tuition schedule, prescribe the structure and makeup of the governing body, or require private school employees and instructors to be nominated.

Judgment reviewed by Riddhi S Bhora.

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8 Mar

DUE PROCEDURE HAS NOT BEEN FOLLOWED BY THE DELHI LEGISLATIVE ASSEMBLY: SUPREME COURT

Prime Legal

blog, Blog #due process, #judicial scrutiny, #Justice Subramonium Prasad, #procedural law, #Rules of Procedure and Conduct of Business in the Legislative Assembly of the National Capital Territory of Delhi, delhi high court

CASE TITLE: Ajay Kumar Mahawar and Ors vs. Legislative Assembly ……. And Anr

CASE NO: W.P.(C) 2482/2024 & CM APPL. 10180/2024

DECIDED ON: 06.03.2024

QUORUM: Hon’ble Mr. Justice Subramonium Prasad

FACTS OF THE CASE

The writ petitions in the instant case have been filed against a suspension motion passed in the 5^th session of the 7^th Delhi legislative assembly. The matter was further referred to the Committee of Privileges of the Legislation Assembly.

The petitioners were elected as members of the 7th Legislative Assembly. The 5^th session of the house was the budget session for 2024-25. The Secretariat of the Legislative Assembly of the House had provided a schedule. It informed the members that the Hon’ble Lieutenant Governor of Delhi should be addressing the house in its first session. On the day of the starting session, the petitioners are said to have interrupted the address of the lieutenant governor multiple times despite repeated warnings given by the Speaker. Since they did not comply with the warnings, they were marshalled away on the speaker’s order. After that, the motion was passed to suspend the petitioners till the Committee of Privileges submits its findings. The speaker suspended the members after getting majority votes for the motion. The speaker then challenged the motion.

PETITIONER’S CONTENTIONS

The counsel for the petitioners contended in the instant matter that when the petitioners were escorted outside the hall, the speaker already imposed the punishment under clause 44 of the fifth schedule. Contrary to this case, a punishment imposed under such a clause has to be for a definite period. Hence, punishing the petitioners yet again for the same conduct is unlawful. Additionally, the passed motion invoked Rule 6 of the fifth schedule rather than Chapter xi of the rules and procedure. Even if chapter xi could have been gathered in the instant case, the due procedure prescribed in rules 66 and 67 was not followed. Rule 68, which provides for the admissibility of such question, was also not followed. The petitioner was not allowed to be heard as per the rules, and even the reference to the committee of privileges was not done accordingly. Although the petitioner has not accepted their wrongdoings, they have submitted a written apology to the Lieutenant Governor and met the speaker in this regard. Under rule 277 of the act, the maximum punishment for breach is suspension from the house for three sittings, which in the present case has already been imposed.

RESPONDENT’S CONTENTIONS

The counsel for the respondent contends that immediate removal of the members creating a nuisance in the house is an implied rule to maintain the decorum and dignity of the house. It cannot be considered as a punishment. Immense immunity has been provided to the members of the house, but when it comes to maintaining the decorum of the house, no such unruly behaviour shall be entertained. Moreover, the courts can only intervene in such matters if the procedure followed by the legislative bodies is downright perverse, which has yet to be proved in this case. Regarding the reference of the case to the Committee of Privileges, the same has to be done with the speaker’s consent under Chapter xi rule 70. The speaker’s consent must be obtained at two stages: first, while raising a motion in the house and second, referring the matter to the committee of privileges. The counsel agrees that there have been some discrepancies in following the proper procedure in the act, but the principle of natural justice has been fulfilled. The petitioners were heard during the discussion in the house on 16^th February 2024. It is proposed that this matter be seen in isolation since there have been multiple occasions wherein the petitioners have misbehaved, which led to their suspension. It was also contended that non-compliance with the procedure in rule 67 is just a procedural fault that cannot be constituted as illegal.

LEGAL PROVISIONS

Rules of Procedure and Conduct of Business in the Legislative Assembly of the National Capital Territory of Delhi

Rule 66 of chapter xi delas with raising a question of breach of privilege or contempt

ISSUES

The issue, in this case, is whether the suspension of the petitioners until the committee submits its findings is sustainable and whether the house was correct in referring the matter to the Committee of Privileges without the independent consent of the speaker. Lastly, has the house followed the due procedure prescribed by law?

COURT ANALYSIS AND JUDGEMENT

The court relied on the case of Ashish Shelar v. Maharashtra Legislative Assembly (2022) 12 SCC 273 to justify the scope of interference. It was observed that if the powers and privileges of the legislative government are not unlimited, any arbitrary action undertaken shall attract judicial scrutiny. They are subject to the provisions of the Constitution and must compulsorily abide by it. Any ouster clause shall not stop the judiciary from reviewing the decision if the same has not been done in the proper jurisdiction if the due procedure hasn’t been followed, and if it is ultra vires to the constitution. The power to make laws is conferred to the state legislation under Article 246 of the constitution. In this case, laws must be interpreted as defined in Article 13 of the Constitution. The court stated that the state legislature can definitely deviate from the rules. Still, it must follow the specific requirements or the ‘express substantive stipulation’ under the rules stated in Article 208 of the constitution. These rules are not just procedural but hold substantive importance; hence, they must be followed. Clause 6 of the fifth schedule deals not only with the members’ code of conduct but also with the action that can be taken for such conduct after a motion for the same has been moved by the house member. Clause 44(e) of the fifth schedule empowers the house to suspend the member(s) for misconduct only for a definite period. Since the petitioners are suspended till the committee of privileges submits its findings, such a decision of the house is ultra vires to clause 44; hence, it is unsustainable.

In the instant case, since the house has unanimously decided, the rule 66 of chapter xi does not apply here. It was opined that once the house decided to take action, even rules 67 and 68 didn’t apply. If the contentions of the counsel for the petitioner are to accept that rules 67 and 68 apply immediately, then it is evident that the exception in rule 68 hasn’t been followed, i.e., the petitioners were not allowed to be heard before the matter was referred to the committee of privileges. The punishment given to the petitioners has also exceeded what is specified in rule 44 of the fifth schedule. In addition, they have been punished under rule 70 for an indefinite period without being heard. Hence, suspending the petitioners was not in accordance with the procedure established by law.

Considering that the house referred the issue to the committee of privileges instead of the speaker according to rule 70 under chapter xi and the decision taken by the house pertaining to the suspension of the petitioners until the committee findings are submitted ultra vires to both chapter xi and fifth schedule. The court further held that since the petitioners have already been suspended for 14 sittings, they shall be allowed to rejoin the house promptly.

Judgement Analysis Written by- Rashi Hora.

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