-Report by Anjana C

It has been held by the Hon’ble Supreme Court of India in the case of Union of India & Anr. v. Subhash Chander Sehgal & Ors. that If there is no lapse in acquisition proceedings under Section 24(2) of the 2013 Act, the land remains in the possession of the appellant. 

Facts

Unsatisfied with the decision of the Delhi High Court, the petitioner has appealed. The possession of the land was taken by the authority in 1987and was utilized as a park by the East Delhi Municipal Corporation. However, the High Court of Delhi held that the acquisition proceedings with respect to subject land had lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013.

The decision in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129 was cited and the following was said that has been applied to this case: 

• According to Section 24(1)(a), there is no lapse in proceedings if there is an award on the date of commencement of the 2013 Act. 
• If the award has been made within 5 years (excluding the period of an interim order of the Court), the proceedings will be according to the 2013 Act under Section 24(1)(b) under the 1894 Act, regarding it as not repealed. 
• If the possession of land has been taken over and compensation has not been paid, there is no lapse. 
• If compensation is not paid and possession has not been taken, there is no lapse. 
• If the compensation has not been deposited in court, all beneficiaries to the landholding will be entitled, as on the date of notification, to compensation under Section 4 of the 2013 Act.  
• Non-deposit does not result in a lapse of land acquisition proceedings. 
• If compensation has been tendered under Section 31(1) of the 1894 Act, he cannot state that the acquisition has lapsed under Section 24(2) as a result of non-payment or non-deposit of compensation in Court. 
• The obligation to pay is complete when the amount due is tendered in accordance with Section 31(1). 
• Landowners refusing to accept compensation/ who seek reference for a higher compensation are not in the position to claim lapse under Section 24(2) under the 2013 Act.
• The method of acquiring land under the 1894 Act under Section 24(2) is by making an inquest report/ memorandum. 
• Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act. It does not reopen cases/ proceedings nor allow landowners to question the legality of the mode of possession.

Judgment

It was observed that if there is no lapse in acquisition proceedings under Section 24(2) of the 2013 Act, the land remains in the possession of the appellant. There will be no question of payment of compensation to the petitioners. It was said that the writ petitioners were entitled to compensation according to the Land Acquisition Act, 1894. All of the above taken into consideration, the Court declared the High Court’s order to be quashed and set aside. The writ petition filed before the High Court was dismissed. The present appeal was allowed, and no order was given regarding costs incurred by the parties.

CASE NUMBER

Civil Misc. Petn. (Civil) No. 13066 of 1989 in Civil Appeal No. 2628 of 1980

EQUIVALENT CITATIONS

1990 AIR 464, 1989 SCR Supl. (2) 561, 1990 SCC (1) 259, JT 1989 (4) 573, 1989 SCALE (2)1426

BENCH

Sabyasachi Mukharji, V. Ramaswami, JJ

DECIDED ON

20^th December 1989

RELEVANT ACT

Contempt of Courts Act, 1971

OVERVIEW

The petitioner, in this petition, has prayed the court for convicting Respondents 1 and 2 for having committed contempt of court through violation of terms and conditions of the undertaking filed in the Civil Appeal No. 2628 of 1980.

ISSUE

Whether the Respondents 1 and 2 are guilty of contempt of court for violating the terms and conditions of the undertaking of the Civil Appeal No. 2628 of 1980?

BRIEF FACTS

Noorali Babul Thanewala, the petitioner has filed a suit against Respondents 1 and 2 of the Civil Appeal No. 2628 of 1980 for contempt of court stating that the terms and conditions of the undertaking have been violated and prayed the Hon’ble Supreme Court to direct to hand over the suit premises possession to the petitioner.

The petitioner, who is the owner and landlord of the Tika No. 3 City Survey House, bearing Nos. 344/345, Jambli Naka, Thane property, where the Ramakrishna Hindu Hotel or Ramakrishna Hotel restaurant is operated, filed Civil Suit No. 213 of 1970 in the Court of Civil Judge, Senior Division, Thane, against the first respondent and four others, by name P.A. Dange, V.A. Dange, Haribhan Shivale, and Giri Anna Shetty. The suit was decreed by the Trial Court.

Respondent 1 has alone filed an appeal against the decree before the district court and it was dismissed by confirming the order of eviction. He further approached the High Court of Bombay under writ petition No. 354 of 1975 and the court upheld the lower court’s decree and dismissed the appeal. Finally, on approaching the Supreme Court, the appeal was dismissed on 18^th August 1987. However, the court allowed the appellant to continue the business till 31^st March 1989, stating, “appellant and all those persons who are now occupying the premises as employees or staff and are staying in the premises file a usual undertaking in this Court within eight weeks from today stating inter alia that they will hand over and deliver over vacant possession of the premises on the expiry of the period mentioned above and also indicate that they will go on depositing the mesne profits until the possession is delivered. In default of furnishing or filing the undertaking in the manner indicating within the time aforesaid the decree of execution shall become executable forthwith.”

Raghuram A. Shetty, the second respondent in this petition, filed Civil Suit No. 306 of 1989 in the Thane Civil Court sometime in the early months of 1989 asking for a declaration that the eviction order obtained concerning the subject premises in Civil Suit No. 213 of 1970 cannot be executed against him and for a permanent injunction against the petitioner. He also filed a request for a preliminary ban on carrying out the aforementioned decree. An interim injunction was granted as requested by the Thane Civil Court. This is how the petitioner, in this case, filed this contempt petition against the first respondent, the plaintiff in Civil Suit No. 306 of 1989, as well as the original tenant, K.M.M. Shetty.

The second respondent has filed a reply statement in which he contended that on November 29, 1986, P.A. Dange acquired the hotel business that was being operated by the tenant, K.M.M. Shetty, on the ground floor of the suit premises under the name and style of Ramkrishna Hindu Hotel, and that, according to an agreement dated January 2, 1967, the said P.A. Dange, with the tenant’s consent, transferred the said business and the exclusive possession of the later, on January 8, 1972, the tenant and the second respondent signed a new agreement under which the second respondent agreed to pay the tenant a royalty. To the petitioner’s knowledge, the second respondent was still occupying the property and operating a business, but he was not named as a party in the eviction suit or the subsequent proceeding, so he was not subject to the eviction decree. The landlord-petitioner has submitted a reply to this response.

This Court stated “the order granting the injunction against the petitioner from executing the eviction decree against the second respondent shall not be effective and that the petitioner is entitled to execute the decree for eviction against all people who are in possession of the property after discussing in detail the various developments of the case brought about by the first respondent as well as by the second respondent herein. The court found the first respondent guilty of contempt for wilfully disobeying the undertaking he made in front of the court.”

DECISION

The question that had been raised in front of the Hon’ble Supreme Court was the punishment to be given to the first respondent and the relief to the petitioner. The learned counsel for the first respondent had stated on behalf of his client stated that his client was an 84-year-old man, and was willing to hand over vacant possession to the petitioner and that he was unable to comply with the undertaking bona fide given the facts and circumstances.

The court stated, “When an order is given on the basis of an undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceeding is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical.”

The court further stated, “To enforce an undertaking, it is treated as an order and if the terms and conditions of the undertaking are not complied by the party, there would be consequences upon them for the disobedience of an order for an injunction. It is established law that misconduct amounting to contempt includes violating an order of a court or an undertaking made by a party to a civil case in whose favour the court sanctions a certain course of action. In these situations, the remedy could be a warning to the contemnor to stop, a jail sentence, a fine, or any combination of those. We believe that a simple sentence of imprisonment or a fine will not serve the interests of justice in this case given the facts and circumstances and the fact that the undertaking was broken.”

The court decided that the first respondent is guilty of contempt of court due to the wilful disobedience of the undertaking. Accordingly, he was convicted and sentenced to pay a fine of Rs.500 within four weeks, failing which he would suffer simple imprisonment for one month, and also directed to deliver vacant possession of the premises forthwith to the petitioner to the extent possible by him. The court also further directed the District Magistrate, Thane, to evict all those who are in physical possession of the property including the 2nd respondent and his men, and if necessary, with police help and hand over the vacant possession of the premises to the petitioner. However, the court discharged the rule issued against the second respondent.

CONCLUSION

The courts are considered to be the administrators of justice in the nation. The order or decree passed by them is required to be followed. Apart from the Contempt of Courts Act 1971, the Constitution prioritizes the process of contempt of court to maintain justice and equality in society. Under the Indian Constitution, the Supreme Court of India, i.e., the Court of Record can hold any party liable for contempt of court, if anything wrong has been committed against the decision of the courts under Article 129.

Also, Article 142 (a) states that the Supreme Court has the full authority to issue an order securing anyone’s attendance, the production of any documents, or the ability to penalize anybody for disobeying any law passed by the Parliament regarding the requirements specified in clause 1 of this Article. Since the Supreme Court has the authority to impose penalties for contempt of court, this does not imply that it can take any action that violates an individual’s right to personal liberty. We are aware that because the Indian Constitution is the custodian of all our rights, it must protect them and cannot infringe on them directly.

The Hon’ble Supreme Court made it clear that any person disobeying the decree of the court would be tried for contempt. The party’s non-compliance with the decree would disrupt the process of justice. The court has also made it clear that any undertaking given by the parties to the court will be considered an order and not adhering to the terms and conditions would also be considered contempt of court.

This article is written by K. Mihira Chakravarthy, 2^nd year, B.A. L.L.B student from Damodaram Sanjivayya National Law University.

CITATIONS

1950 AIR 124, 1950 SCR 594.

BENCH

• Justice Fazal Ali, Saiyid
• (CJ) Kania, Harilal
• Sastri, M. Patanjali
• Mahajan, Mehr Chand
• Das, Sudhi Ranjan
• Mukherjea, B.K.

JUDGEMENT GIVEN ON

26 May 1950

FACTS AND BACKGROUND OF THE CASE

Romesh Thappar was a publisher of a weekly magazine called Crossroads; certain articles were published in his magazine regarding the doubtful nature of public policies especially foreign policy. These articles created suspicion among the public about governmental policies leading to a communist movement rising in some regions of Madras forcing the state government to impose a ban on circulation of the magazine in areas where the communist movement was going on with enthusiasm.

LAWS INVOLVED

1. Madras Maintenance of Public Order Act, 1949 Section 9 (1-A): It allows the government to stop the circulation, selling, and distribution of any journal in any part of Madras to ensure ‘Public Safety’ or preserving ‘Public Order’.
2. Constitution of India Article 19 (1) (a): Provides freedom of speech and expression to citizens of India. Freedom of speech and expression gives one a right to speak and express their opinions and ideas about something through traditional media or social media.
3. Constitution of India Article 19 (2): Provides for the reasonable restrictions to freedom of speech and expression granted under Article 19 (1) (a). These restrictions include the sovereignty and integrity and security of the state and friendly relations with foreign states.
4. Constitution of India Article 13: Provides for the laws that may or may not be passed before the commencement of the Constitution of India if violates fundamental rights mentioned in Part 3 of the Indian Constitution must be declared null and void.
5. Constitution of India Article 32: Provides an Indian citizen right to approach Supreme Court if their fundamental right has been violated by any government authority. The article goes as ‘Heart & Soul of Indian Constitution’ due to its protective nature towards other fundamental rights specified in Part 3.  
6. Constitution of India Article 226: Provides High Courts the power to issue writs for enforcement of fundamental rights.

ISSUES

1. Whether the violation of the fundamental right can be dealt with by Supreme Court before State High Court?
2. Whether the order passed by the government under Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) violate the freedom of Speech and Expression?
3. Whether the existence of Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was itself unconstitutional for it violates fundamental rights mentioned in Part 3 of the Indian Constitution?  

DECISION OF COURT

On the issue of whether the Supreme Court can be approached before the State High Court, the court believed that Article 32 gives power to Supreme Court to issue writs if any government authority violates fundamental rights provided in part 3 of the Indian Constitution, which in itself as a fundamental right that cannot be denied. Hence, the Supreme Court as the guardian of fundamental rights cannot refuse to entertain any petition for seeking against infringements of fundamental rights.

The order passed by the Madras government was declared unconstitutional as it violates the Freedom of Speech and Expression mentioned under Article 19 (1) (a) of the Indian Constitution. The ban imposed by the state government on the circulation of magazines prevents the freedom to propagate ideas, opinions, and viewpoints regarding any issue that concerns the general public.

The Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was made with the interest of issues like ‘Public Safety’ and ‘Public Order’. Here, ‘Public Safety’ means the security of health of the general public from dangers that vary according to the situation. ‘Public Order’ means to deal with events that may lead to disruption of peace and tranquility of the province. Regarding the question of the unconstitutionality of the law, the Supreme Court invokes the ‘Doctrine of Severability’ to ensure if severing any law defeats the entire purpose of legislation or not. Thereby, declared that the said order contradicts the fundamental right given under Article 19 (1) (a) hence ultra vires. However, Court is of the view that entire legislation cannot be considered void as Article 13 of the Indian Constitution states that the law can be declared null and void only to the extent of its inconsistency with fundamental rights.

This article is written by Simran Gulia, pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

While allowing an appeal for a partition suit, the Supreme Court said that there is a trend of delay in initiating final decree proceedings.

The plaintiffs, in this case, had filed for a partition, claiming half a share in the property. The property belonged to Kattukandi Edathil Kanaran Vaidyar. He had four sons, Damodaran, Achuthan, Sekharan and Narayanan. Achuthan had one son Karunakaran. Sekharan and Narayan did not have any sons. Damodar had married Chiruthakutty and they both had a son out of wedlock. The son of Damodar is the first plaintiff in this case. It was contended by the defendants that Damodar did not marry and therefore, the plaintiffs should not get any share in the property.

The Trial Court had framed issues and upon examination of the evidence, it had concluded that Damodar had married Chiruthakutty and the first plaintiff is their son. The trial court had accordingly passed a preliminary decree in the favour of the plaintiffs.

The defendants filed an appeal before the High Court where it was held that the first plaintiff is the son of Damodaram, however, he is an illegitimate child. The appeal had been filed before the Supreme Court challenging this order. A lot of evidence was examined by the Hon’ble Court and on the basis of which the court said:

“The documents produced by the plaintiffs were in existence long before the controversy arose between the parties.
These documents, coupled with the evidence of PW­2, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife……..27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co­habitation.”

The Supreme Court relied on a number of judgments and observed that when a man and woman have been living for a long time, it is usually presumed that they are married. Though the presumption is rebuttable, the burden lies on those who want to rebut this presumption. In the present case, the defendants have failed to rebut the presumption that no marriage took place between Damodaran and Chiruthakutty. On the other the documents produced by the plaintiffs proved it. In light of the above, Supreme Court allowed the appeal and restored the order of the Trial Court.

The Hon’ble court then went on to observe that, the litigants take a lot of time in moving an application for preparation of a final decree after a preliminary decree has been passed. The court relied on the observations it had made in the case of Shub Karan Bubna and said that this practice should be discouraged as it delays the realization of the fruits of the decree. It was observed:

” We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceeding. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state
that the suit comes to an end only when a final decree is drawn.”

It further directed the Trial Court to suo-moto start the proceedings for possession of the property without any separate proceedings and a copy of this judgment has to be sent to all registrar generals of the High Court, who then have to circulate it further to the trial courts.

case: KATTUKANDI EDATHIL KRISHNAN & ANR. vs. KATTUKANDI EDATHIL VALSAN & ORS.

https://main.sci.gov.in/supremecourt/2009/15653/15653_2009_2_1501_36142_Judgement_13-Jun-2022.pdf

The Hon’ble Supreme Court of India reiterated that all the provisions of a statute have to be read harmoniously. The Special Leave Petition was filed before the Supreme Court challenging the interlocutory orders of the Odisha High Court.

Construction work is being carried out near the Puri Jagannath Temple. The contentions of the petitioner were that subsection (4) of section 20A of the Ancient Monuments and Archaeological Sites and Remains Act(AMASR Act), 1958 clearly states that no permission can be given for carrying out any public work in the prohibited area(area within a radius of 100 meters from the protected monument) after the President has given assent to amendments to the AMSAR act. Therefore, construction in the prohibited area of the temple is illegal. Further, the NMA(National Monuments Authority) is not authorized to give permission for the work.

The respondents argued that the permission for the work which has been given by the NMA(National Monuments Authority) is valid as it is a competent authority as per section 2(da) of the AMASR Act. Further Section 2(dc) of the Act excludes the construction of toilets, drainages, etc. from the definition of ” Construction”.

The respondents also contended that the Hon’ble Supreme Court itself had ordered the construction of separate toilets for men and women in the case of Mrinalini Padhi vs. Union of India and Others. The Court had observed that inconvenience was being caused to the devotees who came to visit the temple in large numbers. This will further help in making the city of Puri a world heritage city. The ASI was also directed to cooperate for the same. Therefore the nature of construction is according to the directions of the Supreme Court.

The Supreme Court accepted the submissions of the respondents. It further held that as far as the provisions of the AMSAR Act are concerned, the provisions of the statute have to be read harmoniously. It observed that:

“ …………..40. It is a settled principle of law that all the provisions in the statute have to be read harmoniously. It is presumed that each and every provision has been brought by the legislature into the statute book with some purpose. A particular provision cannot be read in isolation and has to be read in context to each other. An attempt has to be made to reconcile all the provisions of the statute together, unless it is impossible.

41. At first blush, the arguments of the appellants on the basis of sub­section (4) of Section 20A of the said Act may
appear to be attractive. But when sub­section (4) of Section 20A of the said Act is read in harmony with clause (dc) of
Section 2 and the provisions of Sections 20C and 20D of the said Act, we find that the submission that no construction at all can be made in the prohibited area or the regulated area would be unsustainable.”

The Court held that such construction is necessary for the public interest. It also made a remark that these days Public Interest Litigations are either Publicity Interest Litigations or Personal Interest Litigations and filing of such PILs should be avoided to save judicial time.

Case: ARDHENDU KUMAR DAS vs. THE STATE OF ODISHA AND ORS.

The Bar Council of India (BCI) is all set to scrap the Master Degree Course in Law of one-year duration introduced in India in 2013.

The BCI Notification

As per the notification issued by BCI on 2nd January 2021, Legal Education (Post Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education) Rules, 2020 will increase the duration of post-graduation (LLM) from 1 year to 2 years.

As per the rule , it is mandatory to have LLB/BA LLB as qualification to take admission in any Master’s degree in any specialized branch of LAW (LLM) offered in the Open System to any graduate, such as Business Law or Human Right, or International Trade Law. The rule made it mandatory to have a 3 year or 5 year LLB for taking admission to LLM course.

“Bar Council of India (either directly or through its Trust) may annually conduct a Post Graduate Common Entrance Test in Law (PGCETL) for admission in Master Degree course in Law in all Universities and until the PGCETL is introduced, the present system followed by respective Universities shall be followed. Once the BCI introduces PGCETL it shall be mandatory to admit the students from the merit list of the Test,” the Rule states.

The Rule further states that, An LLM degree obtained from a Foreign University, without an equivalent LLB degree shall not be equal to an Indian LLM degree.
A one-year LLM obtained from any foreign University is not equivalent to an Indian LLM degree. But if the degree is from a highly accredited Foreign University, this may entitle the person concerned to be appointed as a visiting professor at an Indian University. They should be there for at least a one-year LLM degree with one year of teaching experience as a Visiting Faculty/internee faculty/clinical faculty to get their LLM degree in India.

Besides LLM, the Rule also prescribe the ration of  student-teacher not exceeding 1:10 and maximum student strength of 20 in each branch of the specialization subject to a maximum of 50 students overall in the LLM program of the institution.

The Petition

This change by the BCI has recently been challenged in the Supreme Court by Tamanna Chandan Chachalani, a law student. In her petition, Ms Chachalani apart from questioning the rationale behind such a drastic change, claims that the change will adversely affect her future career and liberty of choosing quality education.

The petition also challenges the power of the BCI to make such a change, as the same can only be done by the University Grants Commission (UGC), and the BCI’s action is ultra vires of Section 7 (1) (h) of the Advocates Act, 1961 that mandates the BCI to promote legal education in India and to maintain it’s standards only in with the consultation with the Universities of India.

Reported by – Aishwarya Daftari | Edited by – Dakshita Dubey

The Supreme Court recently announced its verdict on the Central Vista case. It was a transferred case from the Delhi High Court. The case dealt with several petitions filed against the Central Vista Project initiated by the Central Government. The petitioners including Rajeev Suri had opposed this project as it involved the change in land use of the lush green area surrounding the Rashtrapati Bhawan and the Vijay Chowk.

The central government and the Delhi Development Authority are given the power to modify the Master Plan of Delhi that was notified in 2007 to guide the direction of development of the National Capital Territory until 2021. This was modified in March 2020 to include the Central Vista project. Sections of land are assigned for specific purposes such as recreation, government, public and semi-public, which were modified to accommodate the Central Vista project. The petitioners argued that change in land use was not really a “modification” and also raised concerns on the manner in which the permissions were granted.

The Centre had intended to build a new parliament building and build spaces to accommodate the ministries that have been currently located at several different places. The project which is to be built at the 3- kilometre from the Rashtrapati Bhawan stretch was announced earlier in September 2019 and was to be constructed completely by 2022 August. It is going to be a triangular building with the Central Secretariat which will be completed by 2024. A Gujarat based architectural consultancy firm named HCP designs had won the bid for consultancy for the redevelopment project.

The judgment saw a split of 2:1 with Justices AM Khanwilkar and Dinesh Maheshwari delivered their majority opinion with Justice Sanjeev Khanna dissenting with the judgment. The delivered majority judgment comprised of 432 pages out of which 100 pages dealt with the questions of rule of law, judicial review power of executive with respect to the Central Vista Case.

For the complete case analysis, visit – http://lexpeeps.in/rajeev-suri-v-delhi-development-authority-ors/

Title of the case: Rajeev Suri v Delhi Development Authority & Ors.

Respondent: Delhi Development Authority and Union of India

Petitioner: Rajeev Suri

Equivalent Citation:  MANU/SC/0001/2021

Date of Judgement: 5.01.2021

Bench: Justice AM Khanwilkar, Justice Dinesh Maheshwari and Justice Sanjiv Khanna

Brief Facts:

The Supreme Court recently announced its verdict on the Central Vista case in the Centre’s favor on 5th January 2021. It was a transferred case from the Delhi High Court. The case dealt with several petitions filed against the Central Vista Project initiated by the Central Government. The petitioners including Rajeev Suri had opposed this project as it involved the change in land use of the lush green area surrounding the Rashtrapati Bhawan and the Vijay Chowk.

The central government and the Delhi Development Authority are given the power to modify the Master Plan of Delhi that was notified in 2007 to guide the direction of development of the National Capital Territory until 2021. This was modified in March 2020 to include the Central Vista project. Sections of land are assigned for specific purposes such as recreation, government, public and semi-public, which were modified to accommodate the Central Vista project. The petitioners argued that change in land use was not really a “modification” and also raised concerns on the manner in which the permissions were granted.

The Centre had intended to build a new parliament building and build spaces to accommodate the ministries that have been currently located at several different places. The project which is to be built at the 3- kilometre from the Rashtrapati Bhawan stretch was announced earlier in September 2019 and was to be constructed completely by 2022 August. It is going to be a triangular building with the Central Secretariat which will be completed by 2024.

A Gujarat based architectural consultancy firm named HCP designs had won the bid for consultancy for the redevelopment project.

On a prior hearing, the court had given permission to the Central Government to go ahead and lay the foundation stone for the project when the latter ensured that no construction work is going to take place there.

Also, the division bench of the Delhi Court on 28^th February had stayed an order of its single judge bench requiring the DDA to inform it before making any changes to the master plan.

The petitions heard by the apex court were majorly on the following issues:

1. The legitimacy of the permissions given to the project inclusive of the change of land use.
2. The validity of the grant of a no- objection certificate by the Central Vista Committee and the clearances of environmental protection for building a new structure there. (this was a major concern as it allegedly violates the right to life under article 21 for preventing people to access the green areas)
3. The order issued by the Delhi High Court regarding the DDA not informing before making changes to the master plan for allowing the project.

The Judgment

The judgment saw a split of 2:1 with Justices AM Khanwilkar and Dinesh Maheshwari delivered their majority opinion with Justice Sanjeev Khanna dissenting with the judgment. The delivered majority judgment comprised of 432 pages out of which 100 pages dealt with the questions of rule of law, judicial review power of executive with respect to the Central Vista Case.

The Court had adjudicated on the question of Rule of law along with Judicial Review and had held that a thin line of distinction must be drawn between the action of the executive and its impact on the individual’s action and the action of the executive which is comprised of administrative functions with no effect on liberty of an individual.

The court further went on to say that the petitioner had failed to show a case of an alleged deprivation of life and personal liberty of an individual. In order to establish their case before the Hon’ble Court, a cause- effect relationship had to be proved. Further, the court viewing the statutory processes is going to be unethical with the procedure established by law.

On the question of heightened judicial review, the court held that it won’t be justified on its part to exercise its power of judicial review on a matter where already a decision has been taken by the executive. It held that a publicly elected government is entitled to create errors as long as the constitutional principles are not violated. The court also adjudicated upon the question of participatory democracy and public participation. It held that a fine balance exists in our constitution between public participation and effective functioning of administration. Also, public participation is for inviting constructive suggestions from all the parties likely to be affected.

Moreover, on the question of change in land use, the court held that it was it was legal I nature as section 11A(2) of the DDA bestows the power with the Central Government to change the framework of the master plan for the development of the city in Public interest. The court finally concluded by saying that they are acknowledged as the repositories of public trust and faith but they cannot compel the government to function in a particular way without any legal basis.

The Dissent

Another important aspect of this case was the dissent shown by Justice Sanjeev Khanna. Although, in his judgment of 179 pages he mentioned that he agreed on the conclusions of the notice inviting bid, award of consultancy and the Urban Arts Commission’s order with the majority judgment announced by Justice AM Khanwilkar, he expressed his dissent on 7 major issues. They were respectively:

1. The invalidity of environmental clearances
2. The premeditated nature of the permission granted by the Central Vista Committee
3. The notice of development plan was not adequate
4. The project proposed the complete redevelopment of the Central Vista
5. The Central Govt. failed to take suggestions from the public
6. The public didn’t have adequate time at its disposal
7. There was no approval taken from the Heritage Conservation Committee

Analysis by – Tanuj Sharma

This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, explaining the topic considered to be a taboo but still dealt with, through legislations- Cyber Pornography.

Introduction

Cyber Pornography is a global problem now. The government has been taking crucial steps to ban websites possessing pornographic content following the Courts. However, people have found ways and means like VPN, DNS Server Change, downloading search engines with inbuilt VPN activation, to continue watching cyberporn. Now, this becomes a very controversial issue because can there be any decision as to if a person should be punished for watching such content? Or are the service providers to be held responsible for possessing pornographic content? Are the laws stringent enough to regulate cyberporn? 

Meaning of ‘Pornography’

‘Pornography’ is a Greek origin word, this can be divided into two “Porne” meaning prostitute and “graphos” meaning description. Pornographic content includes any video, pictures or other media that generally contain sexually loud acts considered to be indecent by the public.

The term pornography is used for the publication of the act instead of the act itself, and therefore, this does not cover the ambit of sex shows or striptease. People all over the world have been debating over whether pornographic content is just an artistic expression of the human body and sex as an act or is it an immoral act hurting people’s religious sentiments.

Concept of pornography has never been so broad as it is at this point of time. Pornography as a topic now been divided into softcore and hardcore pornography. The point of difference between the two being the depiction of penetration.

Cyber Pornography as a term means the publication, distribution and designing of pornographic content by using the medium of cyberspace. It is a product of the advancement of technology. Since the Internet has become so easily available in the modern times, people can view different porn on their devices, and even upload such content online. 

Cyber Pornography

Internet covers pornography as much as 30 per cent of its total content. But the catch here is only 10% of this content is on the web, rest can be found on dark work and the deep web. According to the statistics of the year 2005, there were almost 2 billion searches for porn, the revenue generated through this industry is also quite a lot, it is the fastest growing industry and is estimated to generate approximately $60 billion in the year 2007.  The U.S stands as a first ranker in the entire pornography industry. Almost  $12 billion of the U.S revenue is spent on porn followed by the country, Australia, which extracts a total of $1.5 billion revenue from the industry. The easy availability to the Internet has helped a lot of people to view pornographic content even without any hindrance to their privacy and without even disclosing their identity to the site developers.

Legal Aspect

Various legislations are enacted so as to regulate Cyber pornography in our country, India, this includes the Information Technology Act of 2000, the Indian Penal Code, the Indecent Representation of Women’s Act and Young Person’s (Harmful Publication) Act. These are explained briefly below-

Information Technology Act, 2000

Cyber Pornography is not legitimised or even banned under the IT Act of 2000.

• The IT Act restricts the production and even distribution of cyber pornography but it does not prohibit the viewers to view or download any pornographic content excluding child pornography.
• Section 67 of the IT Act, 2000 makes the below listed acts punishable, the punishment being imprisonment for a term of three years and fine up to Rs. 5 lakhs

Publication, Transmission, Causing to be published or transmitted

The Intermediary Guidelines provided under the Information Technology Act put the burden on the Intermediary or the Service Provider to exercise accurate due diligence so as to ensure that their portal/ site is not being misused.

So, viewing Cyber pornography is legitimised in India as merely downloading and viewing of content does not lead to an offence. Although publication of such content online is illegal storing the same is not an offence but again, transmitting such cyber pornography via messaging, emails or any other kinds of digital transmission is an offence.

According to Section 67 (B) of the IT Act, 2000, any individual not attained the legal age- 18 years is a child. Child pornography is illegal and below listed acts are considered as an offence-

• Publication or transmission of any material through electronic means that depict children engaged in a sexually explicit act or similar conduct.
• Depiction of children in an obscene act or similar in a sexually explicit manner.
• Normalising and encouraging child abuse online.

Although exceptions like media for religious education, for the study of sexology or even if a photograph of a child is utilised so as to explain the anatomy of a child won’t be considered as an offence.

Indian Penal Code, 1860

Section 292 of the Indian Penal Code, 1860 prohibits the sale of any obscene material or any sexually explicit content. 

Section 292(1) states the meaning of “obscenity” and also states that any content will be deemed as obscene in case it is lascivious or as prurient or even if any part of such content has the intention to probably corrupt people.

Whereas Section 292(2) briefly explains what will be the punishment for sale, distribution, such materials. This would be applicable to any person who sells, distributes, hires, exhibits publicly or puts any obscene material into circulation. This will also cover the imports or exports of such obscene material. A person involved in receiving profits or advertising content from any such business shall also be held responsible. Offers to do or attempts to do any act which is prohibited under the section.

• On the first conviction, a person may face rigorous imprisonment that may be up to 2 years and a  fine up to  ₹2,000.
• On the second conviction of such person, he/ she shall be awarded imprisonment for 5 years along with a fine that may extend to ₹5,000.

Section 293 of the Indian Penal Code, 1860, provides for the punishment of a person who is involved in selling, hiring or distributing any obscene material to any other person who is of age below 20 years.

• On the first conviction, a person shall be imprisoned for 3 years along with the fine up to ₹5,000, and
• On the subsequent second conviction, imprisonment may extend to 7 years with a fine up to ₹5,000.

Indecent Representation of Women’s Act, 1986

Indecent Representation of Women’s Act, 1986 is a legislation which seeks to prohibit the representation of any women or any of her body part in an indecent manner such that any such representation will hurt the public morality on grounds like indecency, hurting of religious sentiments etc. 

POCSO (The Protection of Children from Sexual Offences) Act, 2012

The latest and very popular ‘POCSO Act’ also regulates cyber pornography effectively. Actually, The POCSO Act, 2012 was specially enacted so as to prevent children from any kind of sexual offences. But the act also protects children from crimes such as sexual assault, sexual harassment, and child pornography. This act aims and works so as to protect the interests and well-being of minor children. The Act is gender-neutral and considers any individual below 18 years to be protected as a ‘child’ under this legislation. The provisions relating to ‘Cyber Pornography’ listed under the POCSO Act are explained below:

Section 13 of the POCSO (The Protection of Children from Sexual Offences)  Act, 2012, defines the offence of ‘child pornography’, and explains it as whosoever, uses any child in any type/kind/ form of media for purposes of sexual gratification shall be considered as guilty of the offence of child pornography. Also, Section 14 of the same,  POCSO Act, 2012, states the punishment for a person guilty of using any child for pornographic purposes.

Punishment for using a child for pornographic purposes in both POCSO Act, 2012 and the bill of 2018 is listed under-

Offence related to	Punishment under POCSO, 2012	Punishment under the 2018 Bill
Child Pornography	Maximum – 5 Years	Minimum – 5 Years
Child Pornography with sexual assault, penetrative, etc	Minimum – 10 Years; Maximum – Life	Same as Act
Child Pornography with extreme and harsh penetrative and sexual assault	Only Life Imprisonment	Minimum – 20 Years; Maximum – Life Imprisonment, Death Penalty
Child Pornography with other sexual assaults	Minimum – 6 Years; Maximum – 8 Years	Minimum – 3 Years; Maximum – 5 Years
Child Pornography with extreme sexual assaults other than above mentioned	Minimum – 6 Years; Maximum – 10 Years	Minimum – 5 Years; Maximum – 7 Years

According to Section 15 of the POCSO (The Protection of Children from Sexual Offences) Act, 2012, provides punishment for a person involved in storing pornography that involves a child, in any kind of form, in that case, he shall be awarded imprisonment up to a period of 3 years or fine or with both.

Conclusion

The regulations in India for cyber pornography are mediocrely stringent and readers should understand that such punishments are fine as ‘porn’ is still a very controversial topic, the most effective and safe method to curb such menace of cyber pornography and the other vices on the Internet is an attempt by the state so as to achieve social maturity by making people aware through education and even after so we live in a state where individual’s choice cannot be controlled, as to what a person wishes to see. Although child pornography resulting in sexual assaults is serious and cannot be neglected no matter what. Parents should be friendly and educate their children the same, that will be the best for under-aged kids curiosity to watch such content.

References

• https://www.psychologytoday.com/us/blog/all-about-sex/201611/dueling-statistics-how-much-the-internet-is-porn.
• https://pdfs.semanticscholar.org/d5ac/9d42834942df20b7224d4c45831cd487ce91.pdf
• https://indiankanoon.org/doc/1318767/
• https://www.itlaw.in/section-67b-punishment-for-publishing-or-transmitting-of-material-depicting-children-in-sexually-explicit-act-etc-in-electronic-form/
• https://indiankanoon.org/doc/776798/
• https://indiankanoon.org/doc/776798/
• https://www.advocatekhoj.com/library/bareacts/childrenprotection/13.php?Title=Protection%20of%20Children%20from%20Sexual%20Offences%20Act,%202012&STitle=Use%20of%20child%20for%20pornographic%20purposes
• The Protection of Children from Sexual Offences (Amendment) Bill, 2019; The Protection of Children from Sexual Offences Act, 2012: PRS
• https://www.advocatekhoj.com/library/bareacts/childrenprotection/15.php?Title=Protection%20of%20Children%20from%20Sexual%20Offences%20Act,%202012&STitle=Punishment%20for%20storage%20of%20pornographic%20material%20involving%20child

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This article has been written by Yash Dodani, a second-year at NALSAR University of Law. He has tried to set a distinction between ‘Offer’ and ‘Invitation to offer’.

Introduction

Contract is an area where the parties bargain with each other on terms and conditions and then have an obligation to work according to the conditions in the contract. It’s a private law where the role of the judiciary is very limited, not a law like Criminal law or taxation, where the role of State is very high. But still, the role of the state is there, as always will be in any law.

There was a confusion with regards to what is an offer and what exactly is ‘invitation to offer. And as always, the judiciary is called the interpreter of the law for some very important reason and that reason is to clarify the things as and when required. To this also the courts have given a very beautiful difference through many case laws on this front. Let me first get through the individual meaning of these terms and then set a distinction.

Offer/ Proposal

Offer or as it is said proposal has been defined in section 2[a] of the Indian Contract Act¹ as under:

“When one person signifies to another his willingness to do or abstain from doing something with a view to obtaining the assent of the other to such an act or abstinence, he is said to make a proposal”.

It means that when a person says something to another that he would do something or not do something, with a view to get an assent from the other person, he is said to make an offer to the other person. For instance, A, a party says to another person X that “I would buy your cycle for a sum of 6000 rupees”. If after negotiation, both the parties agree on the sale and the price, this would become an agreement and I made an offer by saying the above line quoted.

When an offer is accepted, it becomes an agreement. In an agreement, there is an intention to create legal obligations generally. But this is not always true [see Balfour v Balfour ²] due to the nature of the relationship between the parties. If the nature of the relationship between the parties is such that the agreement would not be intended anywhere to be legally binding, that it will not be legally asked to complete. However, this position is not followed in the Indian Context. If there is an agreement which is not unlawful or illegal, the agreement will be enforced even if there was no intention to create a legal obligation. [See CWT v/s Abdul Hussain Mulla Muhammad Ali ³]

There are other conditions of an offer and in what cases the offer can become an agreement like knowledge of offer and other such things but I will not go into the details of these things in this article. It will focus more on the distinction between an ‘offer’ and ‘invitation to offer’.

General and Specific Offers

Offer can be ‘general’ or ‘specific’. In an earlier judgment, the English courts have said that the offer can not be ‘general’ [See Weeks v/s Tybald ⁴ ]. But after a century or so, the courts said that the offer can be in ‘general’. In Carlill v/s Carbolic Smoke Ball Co ⁵, the court recognized that ‘an offer can be made to world at large as well. Whereas ‘specific offer’ means that an offer which is made to a specific person(s). There can be more than one specific person involved in a contract.

Invitation to Offer

When it comes to ‘Invitation to offer’, it is not necessary that parties do have an intention to enter into an agreement. It’s upon them whether to enter or not into an agreement. It can be said as a pre-negotiation stage before an actual offer. The best example to explain it in the shop. The goods displayed in a shop might not be on a sale, but as they are on display, it doesn’t mean that they are up for sale. The shopkeeper invites the customer to offer that good for sale. It completely depends on the shopkeeper that if they are willing to sell it or not. They are not bound to sell the product at the given price tag. It’s because they have the power to reject the sale, and it is called as ‘invitation to offer’. The buyer will select the best invitation and try to further negotiate on it. In a market condition, an invitation is made by the seller and offer is made by the buyer, if the seller accepts the offer, it becomes an agreement. Intention to enter into a legal obligation is nowhere seen in an invitation, but intention generally matters in an offer.

Finally, when it comes to the difference between, it is very important to discuss the very important case law named Carlill v/s Carbolic Smoke Ball Co. A company made an advertisement in a leading newspaper that it has made a product, the consumption of which will keep away disease such as a cold. If someone after consumption of it as prescribed, will attract those disease, will get a Compensation of 100 Euros. It has also said that to show that confidence, it also deposited the said amount in a bank account. The product was purchased by the plaintiff. After consumption in the said prescribed manner, he suffered from cold and filed a suit for recovery. The company contended that it was an invitation to offer and not offer. They also contended that it was a puff advertisement. But the courts rejected the contention saying that the advertisement is not an invitation to offer but an offer itself because they have deposited the amount in a bank, they do have intention here and hence the offer was accepted when the buyer consumed the product in the said manner. The plaintiff was allowed to get the compensation of 100 Euros.

Conclusion

Thus, it is essential to understand the difference between an ‘offer’ and ‘invitation to offer’. ‘Invitation to offer’ is a step before making an ‘offer’. ‘Invitation to offer’ is given by one party, then on reaction to the invitation, the another party makes an ‘offer’, then it is upon the previous party to either accept or reject it. The person inviting an offer is not bound by any condition which he has specified at the invitation stage.

References

1. The Indian Contract Act, 1872 [Act 9 of 2873]
2. (1919) 2 KB 571
3. (1988) AIR 1417
4. 74 ER 982.
5. [1892]

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