0

Supreme Court: No evidence could be presented beyond the initial pleadings.

Blog , ,

Case Title : Srinivas Raghavendrarao Desai(Dead) By LRS versus V.Kumar Vamanrao @ Alok and Ors.

Case No: Civil Appeal No(S).7293-7294 of 2010

Quorum: Judge Rajesh Bindal

Facts of the case

The case involves a suit filed by Kumar Vamanrao, Kumar Vyas and Aruna against various defendants, including the parents of defendant No.1 and others. Defendant No.7 is in appeal before this court against the judgement and decree of the high court but passed away during the proceedings. His legal representatives have been brought on record later. Defendant No.8 on 11-07-2003 and defendant No.9 on 08-06-2005 were also impleaded in the suit at different times. Defendant No.9 did not appeal the High Court’s decision, leaving defendant No.7 alone . The High Court allowed defendant No.7 to argue based on pleadings and evidence. Trial Court gave authority to allocate shares in a partition suit. In the case, the plaintiffs sought oral petition by the plaint to include details about a 1965 partition, but the trial court rejected the application .The afore said order was not challenged any further. Therefore, the judgment on the 1965 partition issue became final. The specific amendments in the pleadings were sought by the plaintiff with reference to the 1965 partition but the same was rejected The High Court emphasized that evidence cannot be considered. The plaintiff attempt to introduce the 1965 partition in their replication was also deemed inadmissible.

Appellant Contentions

The appellant, defendant No.7, challenged the High Court’s judgment and decree, emphasizing common interests with defendant No.9 as a bona fide purchaser of the property. Defendant No.1’s taken stand that before the high court was a clear somersault as his counsel sought to argue relying upon the proceedings before the land tribunal which was not even his pleaded case before the trial court. The sale deed by defendant No.7 in 2001 was given to known of defendant No.1. The appellant’s counsel argued against the High Court’s decision to set aside a decree without any challenge from the involved parties. It was also mentioned that defendant No.7 sold property to defendant No.9 to protect his interests.

Respondent Contentions

The respondents argued that the High Court correctly relied on the 1965 partition, but raised regarding 1984 partition and exclusively fallen to the share in the family partition effected in them. They had convinced to deny rightful claim to the plaintiffs. Trail court passed the interim order that the appellant defendant no 7 in favor of defendant no 9 is in violation. The respondents cited relevant court judgments to support their position on evidence beyond pleadings and the validity of the sale deed.

Court Analysis and Judgement

The court analyzed that defendant no 7 has challenged the judgement and decree of the high court before the trial court. The trial court partly allowed the plaintiff appeal. The defendant No.7 specifically raised pleas regarding the 1984 partition and property allocations, supported by a decree from a Civil Court. The Court noted the rejection of the amendment application related to a 1965 partition, emphasizing that what was not allowed directly cannot be permitted indirectly. The High Court’s decision to allow defendant No.7 to argue based on pleadings and evidence was given, affirming the Trial Court’s authority in partition suits. The sale deed executed by the appellant in favor of defendant no 9 .

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

Judgement Analysis Written by – K. Immey Grace

Click here to view the judgement

 

 

 

 

 

 

 

 

 

 

 

0

Report of the Medical Council cannot be determinative, when it contradicts with the evidentiary findings of Consumer Forum on Medical Negligence: Supreme Court

Blog , , , , , , ,

Case title – Najrul Seikh vs Dr. Sumit Banerjee & Anr

Case no. – Civil Appeal No(S). OF 2024 [Arising out of SLP (Civil) No(s). 17437 of 2018]

Decision on – February 22, 2024

Quoram – Justice Vikram Nath and Justice Satish Chandra Sharma

Facts of the case

The Appellant is the father of Master Irshad, a 13-year-old boy. The appellant unable to finance the surgery at Disha Eye Hospital approached the Respondent 1 and 2 (Doctor and Megha Eye Centre). After the surgery, by Respondent No. 1, Irshad began experiencing irritation, pain, and blood clotting with no relief in his condition.

Respondent No.1 eventually referred them to the Regional Institute of Ophthalmology (‘RIO’). The Appellant and his son visited the RIO a month later and were informed that it was a case of Retinal detachment leading to permanent loss of vision in the right eye, caused due to the faulty operation conducted by Respondent No. 1.

The Appellant alleged negligent cataract surgery by the Respondents and filed a complaint under Section 12 of the Consumer Protection Act, 1986. The District Consumer Disputes Redressal Commission (DCDRC) relied on the uncontroverted expert evidence provided by Dr. Anindya Gupta and held that there was deficiency in the medical services provided by the Respondents and thereby, directed a payment of INR 9,00,000 as compensation.

However, the order of the DCDRC was set aside by the West Bengal State Consumer Disputes Redressal Commission (‘SCDRC’). The SCDRC relying on the report of the West Bengal Medical Council found contributory negligence on part of the Appellant in visiting the RIO a month later.

Thereafter, a revision petition preferred by the Appellant before the National Consumer Disputes Redressal Commission (the ‘NCDRC’) was also dismissed which was subsequently impugned before this Court.

Submission of the Parties

The Learned Counsel for the Appellant submitted that the NCDRC failed to notice a selective appreciation of evidence by SCDRC and completely ignored the report provided by Dr. Gupta regarding the lapses in pre-operative and post-operative care provided by the Respondents.

The Learned Counsel for the Respondents, on the contrary, submitted that both the NCDRC and the SCDRC have correctly placed reliance on the decision of the Medical Council to arrive at their conclusions regarding the absence of negligence on part of the Respondents.

Court’s Analysis and Judgement

The Court upon perusal of the orders of NCDRC and the SCDRC found merit in the Contention of the Appellants. The Court stated that DCDRC was right in holding the respondent for deficiency in services. Moreover, through the evidence of Dr. Gupta, it noted that a nexus was established between the lapses in post-operative care and the development of loss of vision after the operation, thereby held the expert evidence of Dr. Gupta as valid.

The Court pointed out that despite the presence of evidence regarding the negligence of the Respondents, both the SCDRC and the NCDRC failed to consider it and relied only on the report of the Medical Council. On a perusal of the Medical Council report, the court noted that it did not delve into the nuances of pre-operative and post-operative care.

The Court held that the report of the Medical Council can only be relevant in determining deficiency of service before a consumer forum, but not determinative, especially when it contradicts the evidentiary findings made by a consumer forum.

The Court, with the aforementioned findings, set aside the orders of SCDRC and the NCDRC. It upheld the decision of DCDRC and directed the respondents to comply with the order of the DCDRC within one month from the date of this order.

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

Judgement Reviewed by – Keerthi K

Click here to view the Judgement

0

Criticizing abrogation of Article 370 is not a Hate Speech; Intention of the accused is vital to attract the charges under the Section 153-A of IPC: Supreme Court

Blog , , , , , ,

Case title – Javed Ahmad Hajam vs State of Maharashtra & Anr

Case no. – Criminal Appeal No.886 OF 2024 (Arising out of SLP (Crl.) No.11122 of 2023)

Decision on – March 07, 2024

Quoram – Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the case        

The Appellant was a Professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra. He was a member of a WhatsApp group that consisted of parents and teachers. It was alleged that between August 13, 2022 and August 15, 2022, the appellant posted two messages in his status, which stated – “August 5 – Black Day Jammu & Kashmir”, “14th August – Happy Independence Day Pakistan.” Furthermore, the status included a message which stated “Article 370 was abrogated, we are not happy.”

A FIR was registered against the appellant, based on these allegations under Section 153-A of the IPC. The appellant filed a writ petition before the High Court of Judicature at Bombay for quashing the FIR. the High Court held that what was stated by the appellant regarding celebrating Independence Day of Pakistan will not come within the purview of Section 153-A of the IPC. But however, pointed out that the other part of the status attracted Section 153-A of the IPC and thereby, dismissed the writ petition.

Submissions of the Parties

The learned counsel appearing on behalf of the appellant submitted that the words written on WhatsApp status by the appellant did not attract the charges under the said section. He relied upon a decision of this Court in the case of Manzar Sayeed Khan v. State of Maharashtra & Anr and contended that the prosecution of the appellant was a complete abuse of the process of law.

The learned counsel representing the respondent submitted that whether the words or signs of the appellant on his WhatsApp status accounted to the offence under the said section or not is a matter of evidence. He submitted that examination of the witnesses is vital for the prosecution to establish the effect of the writings on the minds of people. He, therefore, submitted that the trial should be allowed without any interference.

Court’s Analysis and Judgement

The Court delved into the provisions of Section 153-A and observed that clause (a) and (b) of sub-section 1 need to be examined in relation to the instant case. The Court relied on the decision in Manzar Sayeed Khan Case which held that the intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153-A IPC, which needs to be proved by the prosecution.

The Court further relied on the view taken by Justice Vivian Bose in the case of Bhagwati Charan Shukla v. Provincial Government who held that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds.

The Court considering the first statement made by the appellant i.e. August 5 is a Black Day for Jammu and Kashmir and the message made in furtherance of it i.e. “Article 370 was abrogated, we are not happy” noted that 5th August 2019 is the day on which Article 370 of the Constitution of India was abrogated, and two separate Union territories of Jammu and Kashmir were formed. The Court observed that such statements were by the appellants to express his unhappiness and criticize the action of the Government.

In light of such observation, the Court highlighted Article 19(1) (a) which implicitly provides every citizen the right to criticize the decision of the State.

The Court pointed out to that intention is an essential ingredient for conviction under the said section. The Court, thus observed that the words of the appellant in the WhatsApp status does not reflect any intention to do something which is prohibited under Section 153-A.

The Court opined that at best it a right to dissent in a lawful manner which is protected under Article 19(1) (a) and Article 21. The Court, thus, held that describing the day of abrogation day as a “Black Day” is an expression of protest and anguish and does not attract the charges under Section 153-A of IPC.

The Court considering the impugned ruling of High Court, stated that the effect of the words used by the appellant on his WhatsApp status need to be judged from the standards of reasonable women and men and therefore, held that merely because a few individuals might develop hatred or ill will, would not be sufficient to attract clause (a) of sub-section (1) of Section 153-A of the IPC.

The Court, furthermore considering the second statement of the appellant, stated that extending good wishes to the citizens of Pakistan on 14th August which is their Independence Day is a gesture of goodwill and does not attract the Section 153A. The Court hence, stated that the motives cannot be attributed to the appellant only because he belongs to a particular religion.

The Court, therefore, held that the words of the appellant does not fall under the Section 153A of IPC and continuation of the prosecution on the same would be a gross abuse of the process of law. The Court, thereby, set aside the judgement of High Court and allowed the appeal.

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

Judgement Reviewed by – Keerthi K

Click here to view the Judgement

0

Delisting of Apps from Google Play Store: Google v. Indian Developers

Articles , , , , , , , ,

Introduction

The Android Smart phones occupy a large market in India. Google’s Play Store constitutes the main distribution channel for app developers in the Android mobile ecosystem, which allows its owners to capitalize on the apps brought to market. For app developers, app stores have become a necessary medium for distribution of their apps to the end users and the availability of app store(s) is directly dependent on OS installed on a smart device. The US tech-gaint Google, thus, exercises a dominant position over this market by providing a platform for app downloads of various companies and start-ups on Google Play store[i].

According, to the Google Play Billing System (GPBS) and Google’s payment policies for android phones, the companies are obligated to pay a fees ranging from 11% to 30% depending upon their revenue for the access of in-app features and digital services. The developers under the policy have to pay Google 15% service fee for the first $1 million revenue earned by them and 30% of over $1million. The regulation of internet which, decades ago, was governed by the legislations of the Government is now being determined by the tech giants Apple and Google.

The payment of service charge for using the platform was never an issue for the developers, but the amount levied to avail the services rendered expensive and burdensome for the Indian market.

Events leading to removal of Apps from Google Play Store

On March 1st morning, Google announced that it would remove the apps of over a dozen companies from its marketplace for android phones that are non-complaint with its payment policy. Following this, Google delisted at least 23 apps from nine Indian developers from its Play Store. These include all thirteen apps from Matrimony.com – such as Bharat Matrimony, Kerala Matrimony and Jodi; three apps from InfoEdge – Naukri.com, Naukri Recruiter and 99 Acres; People’s Interactive’s Shaadi.com; Alt Balaji’s streaming service ALTT, and streaming services aha and stage. This affected around 95% of Indian Smart Phones market as the users were unable to search and download the apps from Google Play Store.

This action transpired when the Supreme Court declined to restrain Google from removing apps from its Play Store if they don’t comply with its billing policy.

Google, however, reinstated dozens of apps in spirit of cooperation that were de listed by the company on March 1 for resisting the firm’s platform fees on in app payments.

CCI’s anti-trust battle against Google

CCI imposes a monetary penalty of Rs. 1337.76 Crore on Google for anti-competitive practices in relation to Android mobile devices.

The antitrust watchdog had on October 20 imposed a penalty of Rs 1,337.76 Crore on Google for abusing its dominant position in multiple markets with its Android mobile operating system (OS), and prescribed a set of about a dozen key measures that the company has to comply with.

It directed Google to refrain from participating in anti-competitive practices that were found to be in contravention of the provisions of the Competition Act, 2002 and modify its conduct within a defined deadline. Google however paid the entire penalty amount of Rs 1,337.76 Crore imposed by CCI in the Android case after contesting it before different forums.

CCI imposes a monetary penalty of Rs. 936.44 crore on Google for anti-competitive practices in relation to its Play Store policies 

This is the second ongoing case against the tech giant by the CCI. India’s anti-trust regulator, the Competition Commission of India (CCI), on October 25, 2023 imposed a penalty of Rs 936.44 crore on Google for abusing its dominant position with respect to its Play Store policies. The commission has also issued a cease-and-desist order in which the regulator prescribed eight corrective measures that Google Play needs to implement to correct the anti-competitive practices[ii].

Legal battle over the Google Play Billing System

Post the CCI order, Google expanded its User Choice Billing (UCB) policy to all developers in India and updated its UCB policy. Accordingly, Google started allowing the developers in India to offer alternative billing systems. Developers choosing to do so had their service to Google reduced by 4%.

To comply with the policy, Google has given developers three options: opt for GPBS, have an alternative billing system, or operate on a consumption-only basis without paying a service fee. But app developers in India are not satisfied for two main reasons- first, despite opting for an alternative billing system, they were still obligated to pay Google an 11% or a 26% fee, which they say is unfair, and second, this, they argue, violates, the CCT’s order. the service fee charged was as high as 26% (just 4 percentage points drop from its earlier policy).

Eventually, 14 companies, including those whose apps were delisted, challenged Google Play Billing System (GPBS) in Madras High Court Two additional lawsuits by Disney+ Hotstar and Test Book followed. The Madras HC granted interim protection to all of them, but 12 of the original 14 companies filed a special leave petition in the Supreme Court. On February 9, the apex court did not grant these 14 companies protection from getting delisted but Disney+ Hotstar and Test Book’s protection continued[iii].

Conclusion

Google’s dominance in the smart phone apps market in India and its control over the online search market has been the issue of tussle. The decisions serves as a reminder to tech giants that market dominance comes with a responsibility to operate fairly and to avoid engaging in anti-competitive practices that restrict competition and harm consumers. As the technology industry continues to evolve, it will be essential for companies to operate in a manner that fosters fair competition, innovation, and consumer protection. The Billing Policy of Google is a long-standing issue. It is high time the Government intervenes and make regulations and administer the dominant players in the market.

[i] https://pib.gov.in/PressReleasePage.aspx?PRID=1870819

[ii] https://legal.economictimes.indiatimes.com/news/litigation/googles-appeal-against-ccis-rs-936-cr-penalty-delayed-by-nclat/105518431#:~:text=On%20January%2011%2C%20the%20tribunal,it%20later%20withdrew%20the%20case.

[iii]https://www.thehindubusinessline.com/info-tech/google-moves-a-motion-before-madras-hc-seeking-dismissal-of-disneys-suit/article67202541.ece

iv www.hindustantimes.com

0

Supreme Court clears the Sabarimala Aravana Prasadam’s cardamom sourcing

Blog , , ,

Case Title: The Travancore Devaswom Board Versus Ayyappa Spices and Ors.

Case No: Civil Appeal NO.3866 – 3867 of 2024 arising out of SLP (C) NOS. 10361 – 10362 of 2023

Decided on:11-04-2023

Quorum: Judge Pamidighantam Sri Narasimha

Facts of the case:

The board, a legislative entity, is in charge of overseeing a few temples in southern India. It is an appeal of the Kerala High Court’s ruling to grant a writ petition brought as a public interest lawsuit by a business concerning the tender for obtaining raw materials for Aravana Prasadam preparation at the Sabarimala Temple in Kerala. Cardamom is one of the raw materials. With 9000 kg of cardamom, the responding first bidder in 2021 was successful. The appellant board released a tender on June 16, 2022, to purchase cardamoms for the period of November 1, 2022, to September 30, 2023. Due to the bids’ excessively high pesticide content, the next two were canceled. On August 24, 2022, a new tender was submitted once more. However, the new tender was also canceled for the same rationale. Due to the holiday season, the third tender was launched on October 12, 2022, after the first two failed. And Cardamom is in a dire situation. The Sabarimala Temple’s executive officer will purchase cardamom from nearby suppliers. After that, the four offers were obtained. The samples that the four bidders supplied were forwarded for analysis. Due to their failure to meet the maximum criteria, two of them are cancelled. They place an order with responder 2 for 7000 kg, which they then submit for further cardamom analysis. There were a lot of pesticides in the second respondent’s proposal. Next, a writ petition was filed by the first respondent.

Legal provisions:

The Writ of Mandamus stated that the respondents were to conduct an analysis of the cardamom that was purchased after the cancellation of the tender under the supervision of this court.

The Writ of Certiorari stated that to cancel the local purchase of cardamom as it was done without competition or advertisement.

Appellant contentions:

It was contended that Aravana Prasadam is not a sale for revenue or profits, but considered as an offering to devotees. It was submitted that the Aravana Prasadam holds religious significance to devotees, and is treated as an offering from the deity itself. FSSAI gave the quality check permission but the court did not dismiss the writ petition. It leads to loss of our business and affects our competition. Board itself takes all measures to ensure that the health of the devotees is never compromised Two questions emerge for our consideration – (i) whether the writ petition at the behest of respondent no. 1 should have been entertained by the High Court; and (ii) whether the appellant-Board qualifies as a “food business operator” as defined under Section 3(1)(j) of the Act. In a recent decision, UFLEX Ltd. V. Government of Tamil Nadu, Civil Appeal Nos. 4862-63 of 2021, this Court has held that constitutional courts should exercise caution while interfering in contractual and tender matters, disguised as public interest litigations.

 Respondent contentions:

It was contended that the High Court should not have entertained the writ petition and should have dismissed it at the very threshold. He relied on the decisions of this Court in S.P. Gupta v. Union of India, 1981 Supp SCC 87 and Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349 for this purpose .Learned counsel appearing for respondent no. 1 made submissions regarding their bonafide action in initiating the PIL in this case. It asserted that its primary intent was not to hinder the distribution of Aravana Prasadam but to highlight malpractices within the administration of the Sabarimala Temple, one such issue is the opaque manner in which the supply order was issued to respondent no. 2 i.e., without open tenders.

Court Analysis and Judgment:

The court orders that devotees can receive Aravana Prasadam on March 27, 2023. The appeal was granted by the high court, which also ordered that the appellant board be prosecuted for violating the Good Safety and Standards Act. The appellant board operates a food business, and the seized goods will be destroyed legally. Eventually, on April 11, 2023, the court granted the writ petition, allowing the FSSAI to inspect Aravana Prasadam for quality. The court makes it clear that humans can eat parsadam.

 According to the board, it is an untouchable ceremonial practice and offering. Our goal is not to make money from it. According to the court, the purpose of the Aravana Prasadam is to draw attention to the wrongdoings in the temple. The appeal was granted by the high court, which also ordered that the appellant board be prosecuted for violating the Good Safety and Standards Act. The appellant board operates a food business, and the seized goods will be destroyed legally.

Eventually, on April 11, 2023, the court granted the writ petition, allowing the FSSAI to inspect Aravana Prasadam for quality. The court makes it clear that humans can eat prasadam. According to the board, it is an untouchable ceremonial practice and offering. Our goal is not to make money from it. According to the court, the purpose of the Aravana Prasadam is to draw attention to the irregularities in the Sabarimala Temple’s management, not to evade distribution. A problem exists with both open and closed tenders. Lacking a suitable quality inspection.

The samples were sent to the FSSAI headquarters by the high court. According to them, the product was dangerous (KB 11-01-2023).It is not intended to satisfy one’s appetite, but rather is sacred and symbolic. The board made a judgment that is fair, legal, and transparent. The writ petition was filed by an interested party who wanted to use a judicial review process to further their own interests, and the High Court should not have granted the petition.

 Since the notice to buy cardamom was posted on the notice board, all potential bidders were given an equal opportunity to participate, and the appellant board’s judgment was made without bias or malice. Because the High Court is an independent body, it dismissed the writ petition on the grounds of maintainability. The inventory that was on hand should be destroyed in accordance with the government’s protocol, and fresh Aravana Prasadam will be kept for the upcoming season. Additionally, the contract that was awarded to the respondent was not unlawful. It dismiss the writ petition.

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

Judgement Analysis Written by – K.Immey Grace

Click here to view the judgement

1 … 13 14 15 16 17 … 23