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Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal

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Title: LT COL PRAVAL PETER RETD & ORS. versus UNION OF INDIA & ORS.

Reserved on: 14th July, 2023

Pronounced on: 18 th July, 2023

+ W.P.(C) 3042/2023 & CM APPL. 11815/2023

CORAM: HON’BLE THE CHIEF JUSTICE MR. JUSTICE SATISH CHNADRA SHARMA

    HON’BLE MR. JUSTICE SANJEEV NARULA

Introduction

Delhi High Court Dismissed the writ of certiorari and granted petitioner liberty to argue their matter before Armed forces tribunal, Keeping in mind the principles outlined in the judgment of Squadron Leader Neelam Chahar and also keeping in mind a more prudent redressal path for petitioner which is more efficient and effective.

Facts of the case

The petitioners, who were ‘premature retirees’ from the Indian Army and Air Force, held Permanent Commissions before their early retirement. According to them, their retirement pension and other perks were Due to their failure to fulfil the required twenty years of service, which is a requirement for getting a full pro-rata service pension, it was unjustly denied to them.

The Petitioners were allegedly forced to retire early after successfully completing 10 years of service, but before reaching the twenty-year milestone, due to reasons beyond their control. Despite the fact that this early exit was approved by the appropriate authority, the petitioners argued that the respondents had conveniently ignored the pre-commissioning military training and reserve service periods, which when taken into account would total more than the required twenty years of service for the grant of a service pension. They should be qualified for the pension because these periods were essential and contributed to their overall service time.

The Petitioners demand service pension, even on a pro rata basis, due to them on reason of their early retirement, based on the afore-noted inconsistencies in computation of their service periods and application of criteria for providing benefits to them.

They had previously filed a writ petition [W.P.(C) 11893/2021], but due to the nature of the reliefs requested, it was rejected by order dated October 22, 2021, with the liberty to continue agitating the subject by launching a public interest lawsuit [“PIL”].

Petitioners elucidated their personal interest in the matter and urged the Court to consider their case within the ambit of the aforesaid writ petition, rather than as a PIL.

The policy dated February 19, 1987, which reportedly served as the basis for Respondents’ decision to deny benefits of pro-rata pension and other benefits like pension commutation and ex-servicemen status, was among the policies that Petitioners sought to have declared invalid in the instant petition in the nature of a PIL. They also sought a writ of certiorari to overturn the existing policy, non-statutory pension regulations, and other related instructions.

Analysis of the court

According to Regulation 34 of the Pension Regulations for the Army, 2008, which stipulates a minimum qualifying service of twenty years as a prerequisite for officers to receive service or retiring pension, the impugned communication, dated April 24th, 2019, cited in the aforementioned prayer clause, is Respondents’ decision.

Respondents claim that because the Petitioners are considered premature retirees, they are not eligible to benefit from Ministry of Defence policy dated 19th February, 1987.

It is important to emphasise at this point that the Petitioners fall under the purview of the Armed Forces Tribunal Act, 2007, and have access to a specialised forum for airing their complaints, the Armed Forces Tribunal (the “AFT”). However, the Petitioners opted to file a writ petition before this Court given to the ambiguity surrounding AFT’s ability to consider issues about the constitutionality of subordinate legislations, including rules, regulations, notices, and circulars.

Fortunately for the Petitioners, a recent decision by the full bench of this Court in Squadron Leader Neelam Chahar v. Union of India and Others, W.P.(C) 9139/2019, has clarified the issue surrounding the competence of the AFT to entertain petitions challenging circulars, statutory rules, regulations, and policies. The court held that the Armed Forces Tribunal is competent to hear the challenge to the vires of the subordinate legislations, rules, regulations, notification.

We feel that the AFT, given its specialised character, would provide a more swift determination for the Petitioners’ complaints given the recent clarification provided by the judgement mentioned above and taking into account the larger circumstances. There is no question that the Petitioners have a direct, personal interest in the issue, which usually precludes using a PIL. We are also aware that the petitioners who filed the current PIL did so with the freedom provided by a coordination bench, and that their perception of our decision to refer their case to the AFT may be unjust given that they have been exploring legal options since 2021 without receiving any redress.

However, our understanding relating to the jurisdiction of the AFT, has evolved in the wake of the judgment referenced above. Therefore, it becomes prudent to steer the Petitioners towards a path of redressal that is more fitting, efficient, and effective i.e., the AFT.

The current PIL is dismissed, together with any related ongoing petitions. The Petitioners are given the freedom to express the complaints made in their petition before the Armed Forces Tribunal while keeping in mind the guidelines provided in the aforementioned Squadron Leader Neelam Chahar judgement.

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Delhi High Court released the petitioner on bail in the case under NDPS act and held that trial is likely to take time, thus cannot be kept in prison for long.

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Title: ANITA @ KALLO versus THE STATE (NCT OF DELHI)

Date of decision: 18th July, 2023

+ BAIL APPLN. 957/2023

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Introduction

Delhi High Court released the petitioner on bail in the case under NDPS act and held that trial is likely to take time, thus cannot be kept in prison for long. It also took note that quantity seized from co-accused cannot be clubbed with the petitioner thus rigours of section 37 of NDPS Act would not apply.

Facts of the case

The petitioner is requesting regular bail in FIR No. 256/2022, filed at Police Station Crime Branch in Delhi, under Sections 21/29/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

The petitioner’s attorney claims that the disclosure statement of co-accused Shahban was the reason for the petitioner’s detention at the age of roughly 37. It is also claimed that the petitioner’s person contained just 89 grammes of heroin.

Even though the Forensic Science Laboratory (FSL) Report is still pending, the chargesheet has already been submitted.

Analysis of the court

In the current instance, 89 grammes of heroin were recovered from the petitioner, which is an intermediate rather than a commercial quantity. The recovery from the petitioner cannot be combined with the recovery from the co-accused, according to the ruling in Anita v. State (NCT of Delhi). As a result, in my opinion, the facts and circumstances of the current case do not meet the requirements of Section 37 of the NDPS Act.

The petitioners cannot be detained for an endless amount of time in light of the aforementioned reasons and the likelihood that the trial would drag out. As a result, the court finds it appropriate to give the petitioners bail.

 the petition is granted, and the petitioner is instructed to be freed upon submitting a personal bond for Rs. 50,000 along with one surety for the same value, subject to the pleasure of the Trial Court.

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The Delhi High Court: Petitioner allowed to file written statement; Can’t assume that it is not required in a divorce suit due to the filing for transfer petition before the SC.

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Title: Babita vs Manish Shoukeen

Date of decision: 18th July, 2023

+ CM(M) 752/2023 & CM APPL. 23729/2023

CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA

Introduction

Delhi High Court allowed the written statement to be filed by petitioner setting aside the order of the family court and held that by merely filing a transfer petition before the Supreme Court, the petitioner could not have assumed not to file her written statement in the Divorce Petition. Accordingly, the present petition is allowed. The petitioner shall file the written statement before the learned Family Court, within a period of one week from today. It is made clear that the petitioner shall not be shown any further indulgence in case of a default made in defending the Divorce Petition.

Facts of the case

In HMA No.1027/2019, Babita v. Manish Shokeen (hereinafter referred to as the “Divorce Petition”), the learned Principal Judge of the Family Court of Delhi issued orders dated 21.12.2022 and 21.03.2023 (hereinafter referred to as the “Impugned orders”).

The learned Family Court was happy to shut the petitioner’s opportunity to submit her written statement in this case and to dismiss the petitioner’s defence. The learned Family Court denied the petitioner’s request to have the order from 21.12.2022 recalled by the impugned ruling dated 21.03.2023.

The petitioner’s claim is that she lives in a hamlet in the Jhajjar District of Haryana. She had already filed a lawsuit in the Jhajjar Courts against the respondent here. She was served with the summons in the respondent’s divorce petition, and on May 30,2022, she appeared in court.

He adds that she had submitted a plea to the Supreme Court asking for the divorce case, Babita v. Manish Shokeen, TR.P.(C) 2395/2022, to be transferred from the learned Principal Family Court at Jhajjar, Haryana, to the learned Family Court at Tis Hazari Courts, Delhi.

Even though there were costs involved, she didn’t file the written statement.

The petitioner claims that she then got in touch with the attorney who was assisting her in the court proceedings in Jhajjar, who encouraged her to get her written statement ready and submit it with the application to have the order from 21.12.2022 recalled on 21.03.2023. However, the learned Family Court was happy to reject the aforementioned motion seeking to recall the ruling and declined to enter her written statement into the record.

Analysis of the court

It is undisputed that the petitioner has been living with her young kid, who is 7 years old, in a hamlet in the Jhajjar District of Haryana years. The fact that a lawyer attended on her behalf before the learned Family Court on her behalf on September 2, 2022, and November 9, 2022, plainly demonstrates that she has hired a lawyer to represent her interests in the divorce petition. Although it is true that the petitioner could not have assumed on her own that she was not required to file a written statement in the divorce petition by simply filing a transfer petition with the Supreme Court, in my opinion, the aforementioned circumstances would act to mitigate the default that the petitioner has committed in failing to file the written statement on time.

Additionally, it should be remembered that the Family Court’s current petition was not of a commercial or lucrative character. The parties’ social and family rights are to be determined there. On the petitioner’s argument, the Supreme Court has already moved the divorce suit to the learned Principal Family Court in Jhajjar, Haryana. In reality, it is important to note that although the divorce petition was filed in 2019, the respondent wasn’t served until about May 30,2022. Therefore, it had taken the petitioner three years to serve the respondent. Given these facts, the petitioner may have been given one final break by taking her official written statement.

As a result, the current petition is approved. Within a week from now, the petitioner must submit the written statement that was scheduled to be submitted to the learned Family Court in Jhajjar, Haryana, on March 21, 2023. It is made plain that if the petitioner fails to properly defend the divorce petition, additional leniency will not be extended to them

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Delhi High Court Set aside the order passed by the Motor Accidents Claims Tribunal and held that appellant cannot be saddled with contributory negligence merely on the basis of his cross-examination.

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Title: DILIP KUMAR SAH versus PARSHOTAM ALIAS PURSHOTAM LAL (SINCE DECEASED) THROUGH LRS & ANR.

Date of decision:18thJuly, 2023

+ MAC.APP. 133/2021

CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA

Introduction

Delhi High Court set aside the order passed by the Motor Accidents Claims Tribunal and held that there was no contributory negligence on the part of appellant and granted him the benefits of permanent disability and also held that appellant cannot be saddled with contributory negligence merely on the basis of his cross-examination.

Facts of the case

In MACT case number 174/2017, captioned Sh.Dilip Kumar Sah v. Sh. Parshotam @ Purshotam Lal & Anr., the learned Motor Accidents Claims Tribunal issued an award on January 13, 2021, which is being challenged in this appeal.

The appellant’s two grounds for the limited challenge to the contested award are as follows:

  1. a) Despite neither the owner of the at-fault vehicle nor the insurance company having submitted a written statement alleging any contributory negligence on the part of the appellant, the learned Tribunal has assigned the appellant 40% contributory negligence, reducing the compensation granted to the appellant;
  2. b) Despite the fact that the appellant’s right lower limb was deemed to have a 41% permanent handicap, the appellant has not received any compensation for his future possibilities.

Analysis of the court

It is undisputed that neither the owner nor the insurance company provided the learned Tribunal with a written statement. The significance of pleadings cannot be understated, even if the learned Tribunal will only conduct an inquiry rather than a full-fledged trial as in a civil complaint. Therefore, the respondent did not blame the appellant for any contributory carelessness in their arguments. Only during the cross-examination of the appellant was the appellant prompted to describe how the accident occurred. The appellant vehemently refuted any allegation that he may have contributed to the catastrophe.

Reading the cross-examination of the appellant would reveal that he claimed to be riding a rickshaw across the main road from left to right. The same cannot, in my opinion, be regarded as contributory carelessness. Although the offending vehicle was being driven at a high speed and the driver was unable to control the vehicle or apply the brakes at the appropriate moment, the learned Tribunal, influenced by the foregoing, in the impugned Award assigned 40% of the negligence to the appellant.

The learned Tribunal manifestly erred in assuming that the appellant might be charged with contributory carelessness only on the basis of his cross-examination in the absence of any pleading assigning contributory fault to the appellant.

Therefore, the contested award is revoked to this degree.

On the subject of the appellant’s future prospects not being granted, reliance has once more been put on the appellant’s cross-examination, which has been reported above. Reading the cross-examination will reveal that the appellant was not questioned about whether the accident he sustained had any impact on his ability to earn money or do his job. According to his disability certificate, the appellant’s right lower limb has a 41% permanent impairment. The learned Tribunal determined that the appellant’s entire body had a 20% functional impairment. There is no argument against the erudite Tribunal’s conclusion.

In Pappu Deo Yadav (supra), the Supreme Court allowed for a 40% reduction in future possibilities. In my opinion, the appellant should be allowed that fair degree of loss of future chances under the circumstances of the current case as well. The appellant used to pedal the rickshaw by himself while conducting business at a weekly market selling clothing. The appellant is deemed entitled to compensation under the heading of loss of future prospect at the rate of 40% due to a permanent handicap to his lower limb. As a result, the impugned Award, to the extent that it denies the appellant compensation for the loss of future prospects, is set aside, and is modified granting such compensation. 

The learned Tribunal is required to reassess the amount of compensation due to the appellant under the provisions of the contested award as amended by the current ruling. On August 20, 2023, the parties must appear before the knowledgeable Tribunal. The awarded amount, including the augmentation directed under the current judgement, along with interest thereon, shall be disbursed in favour of the appellant in line with the schedule set down by the learned Tribunal upon deposit of the re-determined/enhanced amount.

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Delhi High Court upheld the appeal filed under section 91 of the Trademarks act 1999, held that two parties can register identical or similar marks if there is honest and concurrent use.

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Title: MHG IP HOLDINGS (SINGAPORE) PTE. LTD. versus THE REGISTRAR OF TRADE MARKS, DELHI

Date of Decision: 18th July, 2023

+ C.A.(COMM.IPD-TM) 49/2021 and I.A. 9889/2023

CORAM: JUSTICE PRATHIBA M. SINGH

Introduction

Delhi High Court set aside the order of Registrar of Trade Marks by which the application of the Appellant being application no. 2835731 was refused registration and returned the matter to Registrar for re-consideration. It also held that two parties can register identical or similar marks if there is honest and concurrent use.

Facts of the case

The Appellant, M/s M & H Management Ltd., a Mauritius-based firm in the hotel sector, filed the appeal. The Appellant is a fully owned subsidiary of “Minor International PCL,” which asserts to own and manage more than 150 hotels and resorts in a number of nations in the Asia Pacific, Middle East, Europe, South America, Africa, and Indian Ocean regions.

In its defence, the appellant claims that one of the marks it adopted in 1933 was the mark “TIVOLI,” which it claims to have used in a vast number of nations throughout the world. Several other nations, including Argentina, China, Colombia, Ethiopia, France, Germany, Mexico, New Zealand, Paraguay, Spain, Sri Lanka, UAE, United Kingdom, and the United States of America, are listed as having registered the mark.

Additionally, the appellant is the registered owner of the domain name www.tivolihotels.com, on which it runs a website to advertise its many properties, resorts, and hotels. In 2014, the Appellant submitted an application for the mark under the number 2835731 in class 43.

The Registrar looked through the applicant’s application, and on May 19th, 2016, an examination report noting already-registered comparable marks was provided. The trademark registrar noted objections made in accordance with Section 11 in the examination report.

On September 29, 2016, the appellant responded to the aforementioned examination report. The Appellant argued in its response that the mark had been adopted and used since 1933 and had a global reputation. The Appellant claims that the registered/applied-for marks were not identical since there were discrepancies between the Appellant’s markings and the mentioned marks. In any case, the appellant argued that the mark has a strong global reputation in its favour and is therefore susceptible to registered. However, the Registrar vide its order dated 10th January, 2019 has refused registration and the review against the refusal order has also been rejected vide order dated 25th June, 2019. Hence, the present appeal.

Out of the three trademarks mentioned above, only mark #3 has faced opposition. The stated markings are registered marks and they belong to the same class as the mark in relation to the registrations at serial numbers 1 and 2. registered, as requested, by the appellant.

However, a review of the aforementioned registrations reveals that they were submitted after the appellant’s 1933 use of the mark. This Court is persuaded to believe that the Appellant’s case may qualify for the exemption under Section 12 of the Act since the domain name www.tivolihotels.com was registered in the Appellant’s favour and has been in use for a long time.

Honest and concurrent usage are recognised in the preceding clause. In accordance with the aforementioned clause, two parties may register identical or related marks if there is genuine concurrent usage.

 Given the substantial evidence that the Appellant has shown on the adoption and widespread usage of the in question mark, the Court believes that the Registrar of Trademarks should take this element into consideration.

In light of these facts, the contested ruling is overturned, and the matter is sent back to the Registrar of Trademarks for another review, taking into account the appellant’s previous adoption and extensive worldwide use of the trademark as well as the issue of the appellant’s honest and concurrent usage. In light of the particular circumstances of this case, the Registrar would consider the evidence before making a determination about whether the appellant’s mark merited to be treated as “Advertised before acceptance.”

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