ALS

π€πšππ«π’π€πšπš π‹πžπ πšπ₯ π’πžπ«π―π’πœπžπ¬ (𝐀𝐋𝐒)

Tag: #Facebook

  • Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Gujarat High Court has suspended the 15-year rigorous imprisonment imposed on two persons convicted in a commercial-quantity NDPS case and granted them bail pending their criminal appeals, after finding a prima facie issue of non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

    A Division Bench comprising Justice Ilesh J. Vora and Justice R.T. Vachhani, in Moneshkumar Sukhenbhai Garange v. State of Gujarat, passed the common interim order on 29 April 2026 in Criminal Misc. Application No. 1 of 2026 in Criminal Appeal Nos. 408 and 685 of 2026.

    The Court found substance, at the prima facie stage, in the contention that the raiding officer could not have offered the accused an option of being searched before himself, in addition to the statutory alternatives of a Magistrate or Gazetted Officer. The Bench accordingly suspended the sentence during pendency of the appeals.

    Importantly, the order is not a final acquittal. The High Court expressly clarified that its observations are tentative and prima facie and will not affect the final hearing of the criminal appeals.

    Two Accused Sentenced to 15 Years in Mephedrone Case

    • The applicants, original Accused Nos. 1 and 2, had been convicted under Sections 8(c), 22(c) and 29 of the NDPS Act by the Additional Sessions Judge, Ahmedabad, in Special NDPS Case No. 42 of 2023.
    • By judgment dated 25 November 2025, they were sentenced to 15 years’ rigorous imprisonment and a fine of β‚Ή2 lakh. They subsequently filed criminal appeals before the Gujarat High Court and sought suspension of sentence and bail during pendency of those appeals.

    Prosecution Alleged 118.240 Grams of Mephedrone Was Recovered

    • According to the prosecution, SOG Ahmedabad received secret information on 5 February 2023 that the accused had travelled to Rajasthan to obtain MD drugs and were returning to Ahmedabad in a Ford car.
    • Police recorded the information, transmitted it to a superior officer and intercepted the vehicle while it was allegedly entering Ahmedabad from the Gandhinagar-Koba Circle side towards Indira Bridge.
    • During the personal search, police claimed to have recovered 59.150 grams of mephedrone from Himesh Garange and 59.090 grams from Monesh Garange, making a total alleged recovery of 118.240 grams.
    • The prosecution examined 15 witnesses and produced 51 documents during trial. Accused Nos. 1 to 3 were eventually convicted under Sections 8(c) and 22(c) read with Section 29 of the NDPS Act.

    Accused Challenge Search Under Section 50 NDPS Act

    • Senior Advocate Yatin Oza, appearing for the applicants, raised several objections to the conviction.
    • A principal contention was that there had been non-compliance with Section 50 of the NDPS Act, which provides safeguards when an authorised officer is about to search a person.
    • The accused had allegedly been told that they could be searched before a Gazetted Officer, the nearest Magistrate, or before PW-8 B.P. Chaudhary himself, who was the raiding officer and a Gazetted Officer.
    • The defence argued that Section 50 does not contemplate such a β€œthird option” and that the raiding officer could not simultaneously offer himself as the Gazetted Officer before whom the accused could choose to be searched.
    • Other arguments were also raised concerning Sections 42 and 43 and the handling and custody of samples, including alleged inconsistencies concerning the colour of the contraband, dispatch particulars and non-examination of the person who carried the samples to the FSL.
    • The High Court, however, primarily focused on the Section 50 issue while considering whether the sentence should be suspended.

    State Invokes Commercial Quantity and Section 37 Rigours

    • The State opposed the applications, arguing that the trial court had correctly convicted the applicants on the basis of the evidence.
    • It maintained that the police officers were duly empowered to conduct the search and seizure and that the accused had been informed of their rights under Section 50 before consenting to the search.
    • The prosecution also relied upon the presumptions under Sections 35 and 54 of the NDPS Act and emphasised that the case involved commercial quantity. It therefore contended that the stringent requirements of Section 37 of the NDPS Act should apply even at the stage of considering suspension of sentence and bail pending appeal.

    Appellate Court Must Examine Whether Conviction Has Fair Chance of Being Set Aside

    • The Gujarat High Court referred to the Supreme Court’s decision in Om Prakash Sahni v. Jai Shankar Chaudhary & Anr., (2023) 6 SCC 123 on the principles governing suspension of sentence pending appeal.
    • The Court noted that, while deciding such an application, the appellate court may examine whether there is something apparent or gross on the face of the record that gives rise to a prima facie conclusion that the conviction may ultimately not be sustainable.
    • The Bench was conscious that the evidence could not be fully re-analysed at the interim stage. However, because the conviction was based upon the contraband allegedly recovered during the applicants’ personal searches, the Court considered compliance with Section 50 to be particularly significant.

    Section 50 Safeguard Must Be Properly Communicated

    • The High Court referred to the Constitution Bench judgment in State of Punjab v. Baldev Singh, (1999) 6 SCC 172.
    • The Constitution Bench had explained that an accused about to be personally searched must be informed of the existence of the right under Section 50(1) to be searched before the nearest Gazetted Officer or Magistrate. Failure to observe the statutory safeguard can render recovery from the personal search suspect and affect a conviction based upon that recovery.
    • The Gujarat High Court then considered the more specific issue of whether the searching officer could introduce a third alternative.

    Supreme Court’s Parmanand Judgment: β€œThird Option” Can Vitiate Section 50 Compliance

    • The Bench placed significant reliance on State of Rajasthan v. Parmanand & Anr., (2014) 5 SCC 345.
    • In Parmanand, the Supreme Court emphasised that communication of the right under Section 50 must be clear, unambiguous and individual, because the safeguard is intended to protect an accused against the possibility of false implication in cases carrying stringent punishments.
    • More importantly, the Supreme Court had disapproved of an accused being told that, besides the nearest Magistrate or Gazetted Officer, he could be searched before a senior police officer who was himself part of the raiding party.
    • The Supreme Court reasoned that the statutory safeguard is intended to give the accused the opportunity of a search in the presence of an independent officer. Providing a third option not contemplated by Section 50 could frustrate that protection.

    Searching Officer Cannot Act in Dual Capacity

    • The Gujarat High Court also discussed State of Rajasthan v. Ram Chandra.
    • The Supreme Court had explained that if the officer proposing to conduct the search is himself a Gazetted Officer and gives the accused the option of being searched in his own presence, the requirement of Section 50 would not be satisfied because the searching officer cannot act in a dual capacityβ€”both as the officer conducting the search and as the Gazetted Officer before whom the accused is offered the statutory choice of search.
    • This distinction became central to the Gujarat High Court’s consideration of the present applications.

    Raiding Officer Offered Himself as an Option: Gujarat High Court

    • On examining the evidence of PW-8 and the written notices at Exhibits 80 and 82, the High Court found that PW-8, who was himself the raiding officer, had informed the accused that they could be searched before him, a Magistrate or any Gazetted Officer.
    • The Bench consequently recorded a prima facie view that the raiding officer could not have given the accused an option to be searched before himself.
    • Relying on Parmanand and the Supreme Court’s decision in State of Himachal Pradesh v. Surat Singh, the High Court held that there was substance in the applicants’ argument concerning non-compliance with Section 50 of the NDPS Act.

    15-Year Sentence Suspended; Accused Granted Bail

    • Without undertaking an extensive examination of the merits, the Division Bench held that the circumstances justified exercise of discretion in favour of the applicants.
    • The Court therefore suspended the 15-year sentence imposed by the Special NDPS Judge during pendency of the criminal appeals and directed that the applicants be released on bail upon furnishing a personal bond of β‚Ή10,000 each with one surety each of the like amount.
    • The accused were directed not to leave India without prior permission of the High Court, to appear when the appeals are taken up for final hearing and to intimate any change in address to the concerned police station and the Court.

    Bail Order Does Not Set Aside NDPS Conviction

    • The legal effect of the order needs to be distinguished from a final decision on the appeals.
    • The Gujarat High Court has not acquitted the applicants or finally declared the search illegal. Their convictions remain under challenge in the pending criminal appeals.
    • The Court specifically stated that the observations in the suspension-of-sentence order are β€œtentative and prima-facie in nature” and shall not come in the way when the appeals are heard finally.

    Why the Order Is Significant

    The order reiterates the importance of strict adherence to procedural safeguards in cases involving personal search under the NDPS Act, particularly where the alleged recovery forms the principal basis of conviction.

    It also highlights a crucial distinction under Section 50: merely informing an accused about a Gazetted Officer or Magistrate may not necessarily cure the process if the notice simultaneously introduces a legally impermissible option that could dilute or confuse the statutory right.

    The Gujarat High Court’s prima facie reasoning therefore reinforces the proposition that the officer proposing to conduct the personal search cannot present himself as the independent Gazetted Officer contemplated by the Section 50 safeguard.

    At the same time, because the present order concerns only suspension of sentence pending appeal, the final determination of the legality of the search, conviction and evidentiary issues remains open.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Gujarat High Court

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com

    Ravi Shekhar Jha – Advocate, Bar Council of Delhi

  • Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Gujarat High Court has allowed an appeal filed by Lincoln Pharmaceuticals Private Limited against the rejection of its trademark application for β€œGLYPANTA”, holding that Section 20 of the Trade Marks Act, 1999 permits advertisement of a trademark application despite objections under Section 11(1).

    Justice Mauna M. Bhatt, by an order dated 20 November 2025 in Lincoln Pharmaceuticals Private Limited v. Registrar of Trade Marks & Anr., R/Civil Appeal No. 7 of 2025, quashed the Trade Marks Registry’s rejection order dated 11 August 2025 and directed the Registry to proceed with advertisement of the application within three months.

    The ruling does not amount to final registration of β€œGLYPANTA.” The Court directed advertisement of the application, leaving any opposition to be considered independently on its merits.

    Lincoln Pharmaceuticals Sought Registration of β€˜GLYPANTA’

    • Lincoln Pharmaceuticals had filed an application on 22 August 2023 under Section 18(1) of the Trade Marks Act, 1999, seeking registration of the mark β€œGLYPANTA.”
    • The application was examined by the Trade Marks Registry, which issued an examination report raising objections. Lincoln Pharmaceuticals responded through a detailed reply dated 30 October 2023, raising various grounds in support of registration.
    • According to the pharmaceutical company, however, the grounds raised in its response were not properly considered before the application was ultimately rejected on 11 August 2025.
    • The rejection prompted Lincoln Pharmaceuticals to approach the Gujarat High Court under Section 91 of the Trade Marks Act.

    Section 11(1) Objection Raised Over Similar Trademark

    • The principal objection before the Registry arose under Section 11(1) of the Trade Marks Act, which deals with relative grounds for refusal of trademark registration, including situations where similarity with an earlier trademark may create a likelihood of confusion.
    • Lincoln Pharmaceuticals argued that the objection was unsustainable and that its detailed response to the examination report had not been properly considered.
    • One of the company’s key arguments was that even where competing pharmaceutical trademarks fall within the same class, differences in the composition of the respective pharmaceutical products may constitute an additional mitigating factor while assessing likelihood of confusion.

    Delhi High Court’s Elyon Pharmaceuticals Decision Cited

    • To support this argument, Lincoln Pharmaceuticals relied upon the Delhi High Court’s decision in Elyon Pharmaceuticals Pvt. Ltd. v. Registrar of Trademarks, C.A. (COMM.IPD-TM) 153/2021, decided on 23 August 2023.
    • In that case, the Delhi High Court had considered the marks β€œELEMENTAL” and β€œELMENTIN” and observed that differences in the pharmaceutical composition of products could provide an additional mitigating consideration when examining the possibility of public confusion.
    • Lincoln Pharmaceuticals relied on this reasoning to argue that the Registry’s Section 11(1) objection against β€œGLYPANTA” should not have resulted in rejection of its application in the manner adopted.

    Company Says β€˜GLYPANTA’ Was Already in Use Since 2023

    • Another argument raised before the High Court was that the Registry had relied upon trademarks that were proposed to be used, whereas Lincoln Pharmaceuticals claimed that β€œGLYPANTA” had been in use since 2023 and had acquired a substantial market for the product.
    • The company also objected to the fact that its application had been rejected before publication in the Trade Marks Journal.
    • Its contention was that publication would enable the statutory process to proceed and, if any third party wished to oppose the application, such opposition could thereafter be considered in accordance with law.

    Section 20 Permits Advertisement Despite Section 11 Objections: Lincoln Pharmaceuticals

    • Lincoln Pharmaceuticals placed particular reliance upon Section 20 of the Trade Marks Act, 1999.
    • It argued that even where objections under Sections 11(1) or 11(2) exist, the statutory framework permits advertisement of a trademark application.
    • The company therefore sought an opportunity for its application to be advertised rather than being rejected outright before publication.
    • The Registry’s counsel also raised an issue concerning non-joinder of the opposition party. Lincoln Pharmaceuticals responded that no private respondent was required at that stage because the challenge concerned rejection of the application before publication.
    • The High Court recorded that counsel appearing for the respondents could not dispute the provisions of Section 20.

    Gujarat High Court Relies on Section 20

    • After considering the submissions, Justice Mauna M. Bhatt noted that Section 20 permits advertisement despite objections under Section 11(1).
    • On that basis, the Court allowed Lincoln Pharmaceuticals’ appeal and quashed and set aside the Trade Marks Registry’s order dated 11 August 2025.
    • The Registry was then specifically directed to proceed with advertisement of the subject trademark application in accordance with the proviso to Section 20 of the Trade Marks Act.
    • The Court directed that the exercise be completed within three months from receipt of its order.

    Any Opposition to β€˜GLYPANTA’ Must Be Decided on Its Own Merits

    • Significantly, the High Court did not direct the Registry to grant final registration of β€œGLYPANTA.”
    • Instead, the Court restored the application to the stage of advertisement. It expressly provided that if any opposition is filed against the trademark application after advertisement, such opposition must be decided on its own merits.
    • Thus, Lincoln Pharmaceuticals succeeded in having the rejection order set aside and obtaining publication of its application, but the ultimate registrability of β€œGLYPANTA” remains subject to the statutory process, including any opposition that may be filed.

    Why the Judgment Matters for Trademark Applicants

    • The order is significant for trademark prosecution because it highlights the distinction between an examination-stage objection and the subsequent advertisement/opposition process.
    • In the circumstances before it, the Gujarat High Court relied on Section 20 to permit the application to proceed to advertisement despite the Section 11(1) objection, rather than allowing the pre-publication rejection to stand.
    • The decision is particularly relevant to pharmaceutical trademark applications, where the Registry frequently examines competing marks closely because of concerns regarding similarity and confusion. The case also demonstrates that factors such as the nature and composition of competing pharmaceutical products may be raised by an applicant while responding to relative-ground objections, though the Gujarat High Court did not finally adjudicate the merits of the β€œGLYPANTA” mark’s registrability in this order.

    Key Legal Takeaway

    The immediate principle emerging from the order is that the existence of a Section 11(1) objection does not, by itself in the circumstances considered by the Court, prevent the application from being advertised under Section 20.

    At the same time, advertisement should not be confused with registration. Publication gives third parties an opportunity to oppose the mark, and the Registry retains the responsibility to determine any such opposition on its merits.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Gujarat High Court

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com

    Ravi Shekhar Jha – Advocate, Bar Council of Delhi

  • Gujarat High Court Directs Dissenting Members to Vacate Flats for Society Redevelopment; Holds 75% Consent and Section 41A Requirements Satisfied

    Gujarat High Court Directs Dissenting Members to Vacate Flats for Society Redevelopment; Holds 75% Consent and Section 41A Requirements Satisfied

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Gujarat High Court Directs Dissenting Members to Vacate Flats for Society Redevelopment; Holds 75% Consent and Section 41A Requirements Satisfied

    This Short Article has been prepared & written by Advocate Narendra Singh. The views expressed are based on his interpretation of the law. He can be reached at his email id amitnaren@outlook.com .  

    The Gujarat High Court has directed dissenting members of Amity Co-operative Housing Society Ltd. to hand over peaceful vacant possession of their flats within eight weeks, clearing the way for redevelopment of the nearly five-decade-old residential society in Paldi, Ahmedabad.

    Justice Mauna M. Bhatt, in Amity Co-operative Housing Society Ltd. through its Secretary and Chairman & Ors. v. State of Gujarat & Ors., R/Special Civil Application No. 10596 of 2024, held that the Society had followed the prescribed redevelopment procedure and fulfilled the conditions under Section 41A of the Gujarat Ownership of Flats Act, 1973. The judgment was delivered on 8 April 2025.

    The Court found that 72 out of 81 members had consented to redevelopment, comfortably exceeding the statutory 75% threshold, while the buildings were more than 25 years old and in a dilapidated condition.

    Nearly 50-Year-Old Housing Society Opts for Redevelopment

    • Amity Co-operative Housing Society is a registered society owning approximately 6,825 square yards (5,706.38 sq. metres) of land at Final Plot No. 9/A, Town Planning Scheme No. 6, Paldi, Ahmedabad.
    • A total of 81 flats were constructed on the property during 1974-75, making it one of the older residential societies in the Paldi area.
    • According to the Society, the buildings had deteriorated substantially over time. The record referred to corrosion in RCC slabs, beams, columns and foundations, major structural cracks and bending of balcony slabs, raising concerns over safety.
    • Considering repairs and renovation impracticable, the Society decided to pursue redevelopment. The process had commenced as early as 2016, when an advertisement was published inviting offers from builders and developers.

    Majority Members Approved Redevelopment

    • A General Body Meeting was held on 4 April 2021, followed by another meeting on 26 December 2021, to consider the redevelopment proposal.
    • The Court recorded that 72 out of 81 members consented to redevelopment and accepted the developer’s offer. The consenting members subsequently entered into an MoU with the developer in October 2022.
    • A structural engineer’s report described the buildings as more than 25 years old and unsound, unsafe and unstable.
    • The Ahmedabad Municipal Corporation had also issued a notice dated 1 April 2021 concerning the condition of the buildings. The photographs placed before the Court further supported the Society’s case regarding their dilapidated condition.

    Dissenting Members Object to Developer and MoU Terms

    • Respondent Nos. 6 to 14 opposed the redevelopment.
    • One of their objections was that the General Body meetings had contemplated redevelopment through BTI Infrastructure Developer LLP, whereas the MoU was ultimately entered into with the proprietorship concern Tameer Infrastructure.
    • They also objected to the MoU on the ground that it did not contain provisions for a security deposit and penalty, contending that this was contrary to Rule 23 of the Gujarat Ownership Flats Rules.
    • The developer responded that there had been a change in the constitution of the development entity and that the person undertaking the redevelopment remained connected with the project. It was further argued that neither a security deposit nor a penalty clause was mandatory under Rule 23.

    Section 41A Conditions Fulfilled: Gujarat High Court

    • The High Court found that the statutory requirements for redevelopment had been satisfied.
    • The Court specifically noted that the building was more than 25 years old, its condition was dilapidated, and 72 out of 81 members had consented to redevelopment, thereby satisfying the requirement of consent from not less than 75% of members.
    • The Court also examined the Society’s decision-making process and found that General Body Meetings had been held to discuss redevelopment and the developer’s offer. The majority-approved resolutions were followed by an MoU executed by the consenting members.
    • Accordingly, the Court found no defect in the procedure adopted by the Society for selecting and proceeding with the redevelopment proposal.

    Change in Developer’s Constitution Not Sufficient to Stop Redevelopment

    • The Court was also not persuaded by the dissenting members’ objection concerning the change from BTI Infrastructure Developer LLP to the proprietorship concern undertaking the redevelopment.
    • The judgment records that the Court did not find any material change sufficient to invalidate the redevelopment process and observed that the private respondents had failed to demonstrate a justifiable basis for the objection.

    Bank Guarantee and Penalty Clause Not Mandatory Under Rule 23

    • An important part of the judgment concerns the objections regarding the absence of a bank guarantee/security deposit and penalty clause.
    • The Court relied on an earlier coordinate-bench decision in Ratnamani Co-operative Housing Society Ltd. v. State of Gujarat and observed that providing a bank guarantee is not a mandatory requirement under Rule 23 of the Gujarat Ownership Flats Rules.
    • The MoU in the present case also provided for benefits including accommodation/transport-related arrangements, additional carpet area, gift money and rent.
    • The Court further held that a penalty payment was not mandatory in nature. Concerns relating to the project could also be addressed through project finance requirements and registration with the RERA authority, while the developer had filed an affidavit assuring compliance with the terms and conditions of the MoU.

    Minority Members Cannot Stall Redevelopment Once Statutory Conditions Are Met

    • The High Court referred extensively to the Gujarat High Court’s earlier decision in Rabari Tejmalbhai Gagabhai v. Ratnamani Cooperative Housing Society Ltd..
    • That decision identified the principal requirements under Section 41A for redevelopment, including the age of the building, its ruinous/dilapidated condition where applicable, and consent of at least 75% of members.
    • The earlier Division Bench had also observed that where statutory procedures have been followed, a relatively small group of dissenting members cannot stall redevelopment merely on their own suspicions and notions. Members nevertheless retain the ability to participate constructively and raise legitimate concerns regarding the terms of the Development Agreement.
    • This reasoning supported the Court’s conclusion that the objections of the dissenting members could not prevent redevelopment in the present case after the Society had complied with the statutory framework.

    Article 226 Can Be Used to Facilitate Redevelopment

    • The judgment also referred to Sarojben Kiritbhai Shah v. Ahmedabad Municipal Corporation concerning the High Court’s powers under Article 226 of the Constitution.
    • The precedent rejected the contention that a writ court could not direct non-consenting members to vacate merely because the Gujarat Ownership of Flats Act does not contain a summary eviction mechanism comparable to certain Maharashtra redevelopment laws.
    • Referring to Supreme Court decisions including Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 and Dwarka Nath v. Income Tax Officer, 1965 3 SCR 536, the earlier decision recognised the wide remedial jurisdiction available to High Courts under Article 226.

    Dissenting Members Given Eight Weeks to Vacate

    • Having examined the redevelopment process, the Gujarat High Court concluded that the petitioners had followed due procedure and satisfied the conditions necessary to bring the redevelopment within Section 41A of the Gujarat Ownership of Flats Act, 1973.
    • Exercising its extraordinary jurisdiction under Article 226, the Court allowed the petition and directed Respondent Nos. 6 to 14 to hand over peaceful vacant possession within eight weeks from receipt of the order.
    • The Court also requested all private respondents to cooperate with the redevelopment of the Society.

    Why the Judgment Matters for Housing Society Redevelopment

    The ruling reinforces an important principle governing redevelopment of co-operative housing societies in Gujarat: once the requirements prescribed under Section 41A and the applicable redevelopment rules are fulfilled, a minority of dissenting members cannot ordinarily bring an otherwise valid redevelopment process to a standstill merely because they disagree with the majority decision.

    At the same time, the judgment does not eliminate the rights of minority members to challenge genuine statutory violations, fraud, procedural irregularities or deficiencies in a Development Agreement. Rather, the decision rests on the Court’s finding that the statutory conditions and redevelopment procedure had been complied with in this particular case. For housing societies, developers and flat owners, the ruling highlights the importance of maintaining a clear documentary record of General Body Meetings, member consent, structural condition, developer selection, resolutions, MoUs and compliance with the Gujarat Ownership of Flats Act and Rules.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Gujarat High Court

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com

  • Delhi High Court: MSME Registration Cannot Operate Retrospectively; Pre-Registration Claims Cannot Be Revived Through MSEFC Arbitration

    Delhi High Court: MSME Registration Cannot Operate Retrospectively; Pre-Registration Claims Cannot Be Revived Through MSEFC Arbitration

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Delhi High Court: MSME Registration Cannot Operate Retrospectively; Pre-Registration Claims Cannot Be Revived Through MSEFC Arbitration

    This Short Article has been prepared & written by Arbitrator Shobhit Mallik. The views expressed are based on his interpretation of the law. He can be reached at his email id shobhit.Ica23@gmail.com .

    The Delhi High Court has dismissed an arbitration appeal filed by Shri Krishan Grit Co., holding that the benefits and dispute-resolution mechanism under the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) cannot be invoked for claims arising before the enterprise acquired the relevant status as a registered β€œsupplier”.

    Justice Tushar Rao Gedela, in Shri Krishan Grit Co. v. Continental Engineering Corporation, ARB.A.(COMM) 30/2024, upheld the Arbitral Tribunal’s decision that it lacked jurisdiction over the appellant’s claims. The appeal had been filed under Section 37(2)(a) of the Arbitration and Conciliation Act, 1996 against the Tribunal’s order under Section 16.

    The Court relied substantially on the Supreme Court’s decision in Silpi Industries v. Kerala State Road Transport Corporation, (2021) 18 SCC 790 and reiterated that MSME registration operates prospectively rather than retrospectively.

    Dispute Arose From Supply of Aggregates and TMT Steel Bars

    • Shri Krishan Grit Co., a sole proprietorship of Sanjeev Gupta, was engaged in supplying aggregates, variants of aggregates and TMT steel bars for construction and infrastructure projects.
    • The respondent, Continental Engineering Corporation, was described as a foreign company incorporated in Taiwan with a project office registered in India.
    • The appellant claimed that it had supplied aggregates and TMT bars to the respondent under various contractual arrangements, including an MoU dated 9 February 2016, and that disputes subsequently arose over unpaid dues.
    • The appellant initially invoked arbitration under the arbitration clauses contained in purchase orders issued under the MoU. A former Chief Justice of the Andhra Pradesh High Court was appointed sole arbitrator, but those proceedings were terminated because the appellant failed to file its Statement of Claim.

    Supplier Subsequently Approached MSEF Council

    • After termination of the earlier arbitration, Shri Krishan Grit Co. approached the Micro and Small Enterprises Facilitation Council (MSEFC).
    • Following unsuccessful conciliation, the Council referred the dispute to the Delhi International Arbitration Centre (DIAC) under Section 18(3) of the MSMED Act. DIAC thereafter appointed a former Delhi High Court judge as sole arbitrator.
    • Continental Engineering challenged the Tribunal’s jurisdiction under Section 16 of the Arbitration and Conciliation Act.
    • On 13 September 2021, the Arbitral Tribunal allowed that application and held that it had no jurisdiction and that the arbitration proceedings initiated by the appellant were not maintainable.

    Core Question: Can MSME Registration Cover Earlier Transactions?

    • The principal question before the Delhi High Court was whether claims pertaining to 2016 and 2017-18 could be maintained under the MSMED Act when the appellant’s relevant registration in Delhi was obtained only on 26 February 2019.
    • The appellant sought to rely upon another MSME registration relating to its manufacturing unit at Sikar, Rajasthan, for which it claimed registration from 20 October 2016.
    • It argued that the location of registration should not matter and that the mere fact of being registered as an enterprise should be sufficient to maintain the claims. It further contended that the effect of the Rajasthan and Delhi registrations required evidence and could not be decided summarily.
    • The High Court rejected this argument.

    Supreme Court’s Silpi Industries Ruling Governs the Issue

    • The Court extensively considered Silpi Industries v. Kerala SRTC.
    • In Silpi Industries, the Supreme Court held that an entity cannot obtain MSME registration after entering into contracts and completing supplies and then retrospectively claim the statutory benefits available under the MSMED Act.
    • The Delhi High Court noted that registration is prospective and applies to supplies of goods or services subsequent to registration; it cannot retrospectively transform earlier transactions into transactions covered by the MSMED Act.
    • The appellant attempted to argue that the relevant observations in Silpi Industries were merely obiter dicta. Justice Gedela expressly rejected that contention, finding that the observations represented a clear principle of law laid down by the Supreme Court.
    • The High Court consequently stated that the law was settled that only claims arising after registration of an entity as a micro or small enterprise would be maintainable under the MSMED Act framework.

    β€œSupplier” Status Arises Upon Registration

    • The Court also examined Sections 2(n), 8 and 18 of the MSMED Act.
    • Section 2(n) defines a β€œsupplier” as a micro or small enterprise that has filed the prescribed memorandum with the authority referred to in Section 8.
    • On a conjoint reading of these provisions, the High Court held that it is upon the requisite registration that a party acquires the status of a β€œsupplier” for purposes of the MSMED Act and becomes entitled to the benefits conferred by the legislation.
    • Accordingly, the Court held that a supplier can seek reference of disputes to arbitration under Section 18 only in respect of claims arising after such registration.

    MSEFC Jurisdiction Is Linked to Location of Supplier

    • The judgment also contains an important finding concerning the territorial jurisdiction of Micro and Small Enterprises Facilitation Councils.
    • Examining Sections 18(4) and 18(5), the High Court held that only the MSEFC where the supplier is located has jurisdiction either to arbitrate the dispute itself or refer it to an arbitration institution or alternative dispute resolution centre.
    • The Court further held that the MSMED Act contemplates separate competent authorities for different States and does not contemplate an overlap in their territorial jurisdiction.
    • Thus, in the present circumstances, the Delhi MSEFC could exercise jurisdiction in accordance with Section 18 only in relation to the supplier located within its jurisdiction. The separate question, however, was whether the appellant’s 2019 Delhi registration could bring earlier claims within the MSMED Act.
    • The Court answered that question against the appellant.

    Claims Pre-Dated Delhi MSME Registration

    • The appellant’s manufacturing unit was stated to have been registered in Rajasthan in connection with manufacturing activity, while its subsequent Delhi registration was in the category of services.
    • The disputed claims arose in 2016 and 2017-18, but the appellant invoked the Delhi MSEFC on the strength of a Delhi registration obtained in 2019.
    • The High Court held that such claims fell foul of the principle laid down in Silpi Industries because they related to a period prior to the appellant’s registration in Delhi.
    • The Tribunal had also recorded specific dates on which the supplies of TMT bars, sand and aggregates were completed. Those transactions were completed well before the relevant 2019 registration on which the appellant had relied before the Delhi MSEFC.

    Rajasthan MSME Certificate Did Not Rescue the Claims

    • The High Court also rejected the attempt to rely upon the Rajasthan MSME certificate.
    • The Arbitral Tribunal had found that the Rajasthan certificate related to an enterprise situated at Neem Ka Thana, Sikar, Rajasthan, and concerned β€œmanufacturing activity”, whereas the claimant before the Tribunal was Shri Krishan Grit Co. having its registered office at Narayana, New Delhi, whose certificate related to β€œservices.”
    • The Tribunal also found that the Delhi entity had signed the MoU and supplied the material.
    • Justice Gedela held that the Tribunal had reached a definite factual conclusion on the issue, which could not be interfered with within the limited scope of a Section 37 appeal. The Court referred in this context to C & C Constructions Ltd. v. IRCON International Ltd., 2025 SCC OnLine SC 218.
    • The High Court further observed that the appellant’s Statement of Claim itself had relied upon the Delhi registration dated 26 February 2019, rather than the Rajasthan registration.

    Delhi HC Says Earlier Contrary View Cannot Survive Silpi Industries

    • The appellant relied upon M/s Ramky Infrastructure Pvt. Ltd. v. Micro and Small Enterprises Facilitation Council & Anr., 2018 SCC OnLine Del 9671 to contend that MSME registration was not a sine qua non for arbitration concerning claims arising before registration.
    • The High Court rejected the reliance, holding that the Supreme Court’s authoritative pronouncement in Silpi Industries laid down the law to the contrary.

    Earlier Abandoned Arbitration Was Another Barrier

    • The Court also examined another significant aspect of the dispute.
    • Before approaching the MSEFC, the appellant had already invoked contractual arbitration concerning the same claims. A sole arbitrator had entered upon the reference, but the appellant failed to file its Statement of Claim, resulting in termination of those proceedings with costs.
    • The Tribunal held that the appellant could not abandon those proceedings and subsequently initiate another arbitration concerning the same subject matter after obtaining MSME registration. It described the course adopted as impermissible β€œforum hunting.”
    • The High Court noted that it was undisputed that the claims in the previous arbitration were the same as those raised in the subsequent proceedings and that the earlier proceedings had been terminated because of the appellant’s failure to file its Statement of Claim.
    • Referring to Harshbir Singh Pannu v. Jaswinder Singh, 2025 SCC OnLine SC 2742, the Court observed that an aggrieved party has appropriate remedies against termination of arbitration proceedings. Having failed to avail those remedies, the appellant could not reopen the abandoned claims merely by subsequently obtaining registration under the MSMED Act.

    Delhi High Court Dismisses Appeal

    • The Delhi High Court ultimately found no reason to interfere with the Arbitral Tribunal’s jurisdictional decision.
    • The Court held that the appellant’s claims pre-dated its relevant Delhi MSME registration and could not retrospectively be brought within the special dispute-resolution framework of the MSMED Act. The Tribunal’s view concerning the earlier abandoned arbitration was also upheld.
    • Accordingly, the Court held that the appeal was β€œunmerited” and dismissed it.

    Why the Judgment Matters for MSMEs

    The judgment carries important implications for businesses seeking recovery of delayed payments through the MSEFC mechanism.

    An enterprise obtaining MSME registration after contracts have been performed cannot, merely by virtue of that subsequent registration, retrospectively bring historical transactions within the statutory benefits of the MSMED Act.

    The timing of the supplier’s registration, the period during which supplies were made, and the territorial jurisdiction of the relevant MSEFC can therefore become decisive jurisdictional questions.

    The ruling also demonstrates that subsequent MSME registration cannot ordinarily be used as a procedural route to reopen the same claims after an earlier arbitration has been abandoned without pursuing the remedies available against its termination.

    Listen to this on our #YouTube Channel

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Delhi High Court

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com

  • Bombay HC Quashes Upa-Lokayukta Order Cancelling 1984 Mutation Entry; Holds Recommendatory Powers Cannot Replace Statutory Appellate Jurisdiction

    Bombay HC Quashes Upa-Lokayukta Order Cancelling 1984 Mutation Entry; Holds Recommendatory Powers Cannot Replace Statutory Appellate Jurisdiction

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Bombay HC Quashes Upa-Lokayukta Order Cancelling 1984 Mutation Entry; Holds Recommendatory Powers Cannot Replace Statutory Appellate Jurisdiction

    This Short Article has been prepared & written by Advocate Madhumita Jha. The views expressed are based on her interpretation of the law. She can be reached at her email id jhamadhumita27@gmail.com .  

    ​​​The Bombay High Court, Nagpur Bench, has set aside an order of the Upa-Lokayukta, Maharashtra, which had recommended cancellation of a decades-old mutation entry and recovery of possession of agricultural land, holding that the Upa-Lokayukta had exceeded the jurisdiction available under the Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971.

    Justice Pravin S. Patil, deciding Rajendra s/o Bhagirath Bansile & Ors. v. The Up Lok-Ayukta, Maharashtra State & Anr., Writ Petition No. 5794 of 2013, 2026:BHC-NAG:11956, held that while the Upa-Lokayukta possesses recommendatory jurisdiction, such powers cannot be exercised as a substitute for the statutory powers vested in authorities under the Maharashtra Land Revenue Code.

    The Court ultimately restored Mutation Entry No. 97 relating to Survey No. 84/3, Gat No. 216, in favour of the petitioners.

    Dispute Over Agricultural Land and Mutation Entry

    • The petitioners claimed to be co-owners of agricultural land bearing Gat No. 216, Old Survey No. 84/3, situated at village Pimpalgaon (Chilamkha), Tahsil Deulgaon Raja, District Buldhana.
    • According to them, Bhagirath Ramdas Bansile, father of the first two petitioners, had been cultivating and possessing approximately 5.05 hectares of land out of Survey No. 84/3, with his name appearing in the crop statement since 1973-74.
    • In March 1989, the land was partitioned between Bhagirath Bansile and his four sons, following which their names were mutated in the revenue records. Petitioners 3 to 5 subsequently purchased 3.05 hectares through a registered sale deed dated 5 February 2009 and their names were also entered in the revenue records.

    Complaint Before Upa-Lokayukta Questioned 1984 Revenue Entry

    • The controversy began when the second respondent lodged a complaint before the Upa-Lokayukta on 7 August 2009.
    • The complaint alleged, among other things, that certain lands had wrongly been reflected as Occupant Class-I instead of Class-II, and that the sale in favour of some of the petitioners had been effected without obtaining the Collector’s permission or depositing the alleged unearned income.
    • It was further alleged that Survey No. 84/3 had not been allotted to Bhagirath Bansile during consolidation proceedings in 1984 and that the Consolidation Officer had allegedly extended undue favour by causing the land to be mutated in his name.
    • Following the complaint, the Upa-Lokayukta initiated an inquiry and sought reports from revenue officers.

    SDO Had Already Ordered Regularisation in 2013

    • During the pendency of the Upa-Lokayukta proceedings, the Sub-Divisional Officer, Buldhana, by an order dated 24 May 2013, granted permission for regularisation of the land in the petitioners’ names and forwarded the matter to the Tahsildar, Deulgaon Raja for further action.
    • The revenue authorities also placed this development before the Upa-Lokayukta.
    • Nevertheless, on 7 August 2013, the Upa-Lokayukta passed the impugned order recommending cancellation of the mutation entries in favour of the petitioners and steps for recovery of possession.
    • The petitioners consequently approached the Bombay High Court.

    Three-Year Limitation Under Section 8(5)

    • One of the central issues before the High Court concerned Section 8(5) of the Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971.
    • The provision distinguishes between a complaint involving a β€œgrievance” and one involving an β€œallegation.”
    • Under Section 8(5), a complaint involving an allegation cannot be investigated if it is made after three years from the date on which the complained-of action is alleged to have taken place. The statutory proviso permitting consideration of sufficient cause applies to the period concerning a β€œgrievance,” rather than providing a similar extension for an allegation beyond the prescribed three-year period.
    • The Act defines an β€œallegation” in relation to a public servant to include assertions involving abuse of position to obtain gain or favour, improper or corrupt motives, corruption or lack of integrity. A β€œgrievance,” on the other hand, concerns a claim of injustice or undue hardship resulting from maladministration.

    Complaint Was an β€œAllegation”, Not Merely a β€œGrievance”: High Court

    • After examining the complaint, the High Court held that it fell within the category of an β€œallegation.”
    • The complaint accused the authorities of extending undue favour to Bhagirath Bansile while effecting the revenue entry. Consequently, the applicable limitation period was three years from the complained-of action.
    • The impugned Mutation Entry No. 97 was dated 30 April 1984, whereas the complaint before the Upa-Lokayukta was lodged only on 7 August 2009.
    • The High Court therefore found that the complaint was prima facie barred by limitation and held that, in view of the mandate of Section 8(5), the Upa-Lokayukta could not investigate the complaint.

    Upa-Lokayukta Has Recommendatory, Not Appellate, Jurisdiction

    • The second major issue concerned the nature and extent of the Upa-Lokayukta’s powers.
    • The State relied upon the Supreme Court’s decision in Additional Tahsildar & Anr. v. Urmila G. & Ors., (2023) 20 SCC 642, contending that the Lokayukta/Upa-Lokayukta exercises recommendatory jurisdiction.
    • The High Court accepted the principle that the Upa-Lokayukta can make recommendations to the competent authorities. However, Justice Patil emphasised that a Lokayukta or Upa-Lokayukta cannot act as an appellate authority over decisions of competent forums created under other statutes.
    • Where a statute creates its own appeal or revision mechanism, an aggrieved party must pursue those statutory remedies.
    • The Court succinctly observed that β€œRecommendatory powers cannot take place of statutory powers.”

    Upa-Lokayukta Effectively Exercised Land Revenue Powers

    • Although the impugned order was styled as a recommendation under Section 12 of the 1971 Act, the High Court examined its substance rather than merely its title.
    • The Court found that the Upa-Lokayukta had directed the Collector, Buldhana, to cancel Mutation Entry No. 97, forfeit the land to the Government and initiate disciplinary proceedings against the concerned officers.
    • According to the High Court, this demonstrated that the Upa-Lokayukta had effectively exercised powers of an appellate authority under the Maharashtra Land Revenue Code.
    • The Court consequently held that the order was unsustainable in law because the Upa-Lokayukta had exceeded the limits of its statutory jurisdiction.

    Failure to Consider SDO’s Regularisation Order

    • The High Court also took note of the fact that the SDO’s 24 May 2013 regularisation order had been brought to the notice of the Upa-Lokayukta before the impugned order was passed.
    • Despite this, the Upa-Lokayukta’s order did not consider the regularisation decision, even though the High Court regarded it as a fact capable of materially affecting the decision.
    • Thus, apart from the jurisdictional and limitation issues, the Court found that relevant factual and legal aspects had not been appropriately considered.

    Bombay High Court Restores Mutation Entry

    Allowing the writ petition, the Bombay High Court:

    1. quashed and set aside the Upa-Lokayukta’s order dated 7 August 2013 in Case No. ULA/COM/104/2010 (T-15); and
    2. directed restoration of Mutation Entry No. 97 concerning Survey No. 84/3, Gat No. 216, Mouza Pimpalgaon Chilamkha, Taluka Deulgaon Raja, District Buldhana, in favour of the petitioners.

    The Court made no order as to costs.

    Significance of the Judgment

    The judgment draws a clear institutional boundary around the powers of the Lokayukta and Upa-Lokayukta. Their statutory role may include investigation and recommendations, but that role cannot be transformed into an appellate or supervisory jurisdiction over authorities exercising powers under separate enactments.

    The ruling is also significant on limitation under Section 8(5) of the Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971. Where a complaint falls within the statutory category of an β€œallegation,” the High Court’s reasoning confirms the importance of the prescribed three-year period. Accordingly, the case reinforces two distinct safeguards: statutory limitation on the investigation of stale allegations and jurisdictional limits on recommendatory authorities interfering with decisions governed by separate statutory appeal or revision mechanisms.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Bombay High Court

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com

  • Karnataka High Court: Magistrate Must Apply Mind to Specific Allegations Before Taking Cognizance Against an Accused

    Karnataka High Court: Magistrate Must Apply Mind to Specific Allegations Before Taking Cognizance Against an Accused

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    Karnataka High Court: Magistrate Must Apply Mind to Specific Allegations Before Taking Cognizance Against an Accused

    This Short Article has been prepared & written by Advocate G Sridharamurthy. The views expressed are based on his interpretation of the law. He can be reached at his email id sriadv3@gmail.com . 

    The Karnataka High Court has quashed criminal proceedings against a police officer after finding that the complaint and sworn statement failed to disclose his involvement in the alleged custodial offences and that the Magistrate had taken cognizance without properly applying his mind to the allegations concerning the petitioner.

    In Meer Shariff Ali v. B.N. Shivanna, Criminal Petition No. 2054/2013, Justice R. Devdas allowed a petition under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of proceedings pending before the IX Additional Chief Metropolitan Magistrate, Bangalore. The order was passed on 2 December 2019.

    Background of the Case

    • The petitioner, Meer Shariff Ali, was a police officer who approached the High Court seeking quashing of proceedings in C.C. No. 42390/2010.
    • The proceedings originated from a private complaint filed by respondent B.N. Shivanna in PCR No. 3977/2004 before the Chief Metropolitan Magistrate.
    • The complainant alleged that he had been detained by police officers at Upparpet Police Station and subjected to custodial mistreatment. It was further alleged that signatures were obtained on blank papers and that money was demanded. The private complaint was presented on 5 March 2004, while the complainant’s sworn statement was recorded much later, on 26 July 2010, with a further statement recorded on 2 September 2010.

    Petitioner Claimed He Was Added as an Afterthought

    • The petitioner argued that he had been arrayed as Accused No. 10 as an afterthought. His counsel pointed out that his name appeared to have been added by hand in the complaint.
    • More importantly, it was argued that neither the body of the complaint nor the sworn statement contained any specific allegation connecting him with the alleged acts committed while the complainant was in custody.
    • The petitioner further submitted that, at the relevant time, he was serving as the Station House Officer at Jeevanbhimanagar Police Station, whereas the alleged custodial acts had occurred at Upparpet Police Station. On this basis, it was contended that the Magistrate had failed to apply his mind before taking cognizance against him.
    • The respondent, on the other hand, argued that the petitioner had filed the final report and had also been involved in the investigation.

    High Court Examines Complaint and Sworn Statement

    • The High Court closely examined the original allegations and found that the body of the complaint specifically named Accused Nos. 1 to 9.
    • The allegations concerning creation of documents, obtaining signatures and writings on blank documents, and extracting a confession were directed against various officers among Accused Nos. 1 to 9.
    • Crucially, the High Court observed that the petitioner’s name did not appear even once in the body of the complaint.
    • The Court noted that the complainant’s sworn statement substantially reiterated the written complaint. Towards the end of that statement, however, it was alleged that approximately four months after the complainant was produced before the Court, the petitioner summoned him to the police station and demanded β‚Ή1 lakh as a bribe, allegedly because the petitioner had authority to submit the final report.

    Magistrate Had Taken Cognizance of Several IPC Offences

    The Magistrate had taken cognizance for offences punishable under:

    Sections 167, 193, 194, 120B, 330 and 331 read with Section 149 of the Indian Penal Code, 1860.

    • The High Court observed that while taking cognizance, the Magistrate had simply recorded that the complainant had reiterated the allegations of the complaint in his sworn statement.
    • This approach did not satisfy the High Court.

    β€œNo Whisper” of Petitioner’s Involvement in Alleged Custodial Offences

    • Justice R. Devdas held that the Magistrate had not applied his mind while taking cognizance insofar as the petitioner was concerned.
    • The Court considered it significant that the alleged offences had occurred while the complainant was in custody at Upparpet Police Station, whereas the petitioner was the Station House Officer at Jeevanbhimanagar Police Station at the relevant time.
    • The High Court further found that there was not even a single sentence in the complaint or sworn statement explaining how the petitionerβ€”who was stationed at Jeevanbhimanagar and had submitted the final report after investigationβ€”was involved in the alleged acts committed against the complainant while he was in custody at Upparpet Police Station.
    • The Court therefore concluded that the complainant had not made out a case against the petitioner and that the Magistrate had failed to properly apply his mind while taking cognizance of the alleged offences against him.

    Karnataka High Court Quashes Proceedings

    • Allowing the petition, the High Court quashed the cognizance taken by the IX Additional Chief Metropolitan Magistrate against Meer Shariff Ali as well as all further proceedings in C.C. No. 42390/2010 insofar as they concerned the petitioner.
    • The relief was therefore specific to the petitioner; the judgment should not be read as adjudicating the allegations against the other accused police officers.

    Why the Judgment Is Significant

    The decision underscores an important principle governing criminal cognizance: the mere inclusion of a person’s name as an accused is not by itself sufficient where the complaint and supporting material fail to disclose how that person participated in the alleged offences.

    The order also demonstrates the role of the High Court’s inherent jurisdiction under Section 482 CrPC in preventing continuation of criminal proceedings where the material placed before the Magistrate does not disclose a case against a particular accused. At the same time, the judgment is fact-specific.

    The High Court’s conclusion was based particularly on the absence of allegations connecting Meer Shariff Ali with the custodial acts alleged to have occurred at a different police station and the Magistrate’s failure to separately examine the material against him.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Karnataka High Court

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com

  • CESTAT Delhi- Packaging Material Cannot Be Treated at Par with Imported Input Under Advance Authorisation

    CESTAT Delhi- Packaging Material Cannot Be Treated at Par with Imported Input Under Advance Authorisation

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 16.09.2026

    CESTAT Delhi- Packaging Material Cannot Be Treated at Par with Imported Input Under Advance Authorisation

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), New Delhi has allowed an appeal filed by M/s N.V. Distilleries and Breweries Ltd., setting aside an adjudication order that had sought recovery of customs duty on the allegation that the company violated the conditions of Notification No. 96/2009-Cus dated 11 September 2009 while fulfilling export obligations under the Advance Authorisation Scheme.

    The Principal Bench comprising Dr. Rachna Gupta, Officiating President, and Ms. Hemambika R. Priya, Member (Technical) delivered Final Order No. 51464/2026 on 15 September 2026 in Customs Appeal No. 50064 of 2020.

    The Tribunal drew an important distinction between an input physically incorporated in the exported product and packaging materials used for packing that product, holding that bottles, caps and labels could not be placed at par with the imported Vatted Malt Scotch used in manufacturing Indian Made Foreign Liquor (IMFL).

    The Dispute: Advance Authorisation and Rule 19(2) Benefits

    • N.V. Distilleries was engaged in the manufacture of Indian Made Foreign Liquor (IMFL), Country Liquor, PET bottles and un-denatured spirit. The dispute originated from intelligence received by the Directorate of Revenue Intelligence (DRI), Chandigarh Regional Unit concerning alleged violation of the conditions governing Advance Authorisations.
    • The Department alleged that the appellant had violated the condition contained in Notification No. 96/2009-Cus because, while using duty-free imported inputs under Advance Authorisations, it had also used domestically procured bottles, caps and labels under Rule 19(2) of the Central Excise Rules, 2002 in the exported IMFL.
    • According to the Department, exports manufactured using such domestically procured duty-free materials could not be counted towards discharge of the export obligation under the Advance Authorisations.

    Show Cause Notice Proposed Substantial Customs Duty Recovery

    • A Show Cause Notice dated 20 October 2016 proposed, among other things, recovery of β‚Ή1,93,62,179 in customs duty by invoking the bonds executed at the time of duty-free imports and Section 28(4) of the Customs Act, 1962, along with interest under Section 28AA.
    • A further customs duty demand of β‚Ή94,20,905 was proposed in respect of two Advance Authorisations on the allegation of failure to fulfil export obligations. The notice also proposed appropriation of amounts already deposited and penalties under Sections 114A and 114AA of the Customs Act, 1962.
    • The proposals in the Show Cause Notice were subsequently confirmed through Order-in-Original No. 14/2019 dated 30 August 2019, leading N.V. Distilleries to approach CESTAT.

    Appellant: Imported VMS and Domestic Packaging Were Different Materials

    • The appellant’s central argument was that the essence of the Advance Authorisation Scheme is that the imported input must be physically incorporated in the resultant export product.
    • In the present case, the appellant had imported Vatted Malt Scotch (VMS) under Advance Authorisation, which was incorporated into the IMFL subsequently exported.
    • However, the bottles, caps and labels were domestically procured under Annexure-45 and Rule 19(2) of the Central Excise Rules. Therefore, according to the appellant, there was no overlapping or double benefit because the imported material and the domestically procured materials were entirely different.
    • The appellant further argued that the Government’s export incentive framework is intended to neutralise domestic taxes and duties so that taxes are not exported. According to it, Advance Authorisation was availed for imported VMS, whereas Annexure-45 was utilised for domestically procured glass bottles, caps and labels, with the duty benefit being claimed only once in each case.
    • Reliance was placed upon the Punjab and Haryana High Court’s decision in R.P. International v. Union of India, 2017 (353) E.L.T. 307 (P&H).

    Revenue: Exemption Notification Must Be Strictly Construed

    1. The Revenue defended the adjudication order by contending that Condition (viii) of Notification No. 96/2009-Cus prohibited counting exports involving inputs sourced under Annexure-45 towards fulfilment of Advance Authorisation obligations.
    2. It alleged that the appellant had simultaneously used domestically sourced duty-free goods and imported duty-free material and had therefore breached the exemption conditions.
    3. The Department also relied upon the Supreme Court decisions in CCE, Chandigarh-I v. Mahaan Dairies, (2004) 11 SCC 798 and Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company, 2018 (361) E.L.T. 577 (S.C.) to argue that exemption notifications must be strictly interpreted and their conditions strictly complied with.

    CESTAT Examines Meaning of β€œMaterials”

    • The Tribunal identified the principal question as whether the importer had failed to fulfil its export obligations and violated Notification No. 96/2009-Cus, thereby attracting customs duty, interest and penalties under Sections 114A and 114AA.
    • CESTAT examined the Advance Authorisation framework and noted that the scheme permits duty-free import of inputs physically incorporated in the manufactured or resultant product that is required to be exported.

    Significantly, the Tribunal examined the definition of β€œmaterials” under the notification. It noted that the definition separately identifies:

    • raw materials, components, intermediates, consumables, catalysts and parts required for manufacture of the resultant product; and
    • packaging materials required for packing the resultant product.

    This statutory distinction became central to the outcome.

    Packaging Material Is Different From Manufacturing Input: CESTAT

    • CESTAT held that the notification itself differentiates between goods required for manufacture of the resultant product and goods merely used for packaging.
    • In this case, the raw material imported for manufacture of the resultant IMFL was VMS. Bottles, caps and labels, on the other hand, constituted packaging materials domestically procured under Annexure-45.
    • The Tribunal therefore held that the relevant condition of Notification No. 96/2009-Cus would apply to the imported material used in manufacturing the resultant product and that the packaging materials could not simply be equated with VMS.

    R.P. International Decision Relied Upon

    • CESTAT also relied on R.P. International v. Union of India to explain the distinction between the DFIA Scheme and the Advance Authorisation Scheme.
    • The Punjab and Haryana High Court had explained that while DFIA permits duty-free import of inputs β€œrequired for production of export product”, Advance Authorisation concerns inputs that are β€œphysically incorporated in the export product.”
    • Applying that distinction, CESTAT found that in the case of Advance Authorisation, the relevant imported input was the material physically incorporated into the resultant exported product.
    • The Tribunal consequently held that the packaging material had been wrongly placed at par with the imported VMS used in manufacturing IMFL. Since the packaging material was not physically incorporated in the IMFL itself, the exports were wrongly alleged to violate the Advance Authorisation conditions. The findings contained in the Order-in-Original were therefore liable to be set aside.

    DRI Jurisdiction Objection Rejected

    • The appellant also challenged the jurisdiction of DRI officers to initiate proceedings under Section 28 of the Customs Act.
    • CESTAT referred to the Supreme Court litigation concerning the competence of DRI officers to issue demand notices. It noted that although the earlier Supreme Court decision had held against DRI’s jurisdiction, the subsequent review judgment held that DRI officers, when appointed as customs officers and assigned the relevant functions of a β€œproper officer,” are competent to issue Show Cause Notices under Section 28.
    • The Tribunal therefore rejected N.V. Distilleries’ jurisdictional objection.
    • This aspect of the decision is important: the importer did not succeed on the DRI jurisdiction ground. Its appeal succeeded on the substantive merits of the Advance Authorisation dispute.

    CESTAT Sets Aside Order-in-Original and Allows Appeal

    Ultimately, CESTAT held that although the preliminary issue concerning DRI jurisdiction was decided against the appellant, the appellant succeeded on merits.

    The Tribunal accordingly set aside the Order-in-Original dated 30 August 2019 and allowed the appeal of N.V. Distilleries and Breweries Ltd.

    Significance for Advance Authorisation Holders

    The ruling is significant for exporters operating under the Advance Authorisation Scheme because it emphasises that the nature and role of each material must be examined before alleging violation of an exemption condition.

    The Tribunal’s reasoning distinguishes an imported input that is physically incorporated into the resultant export product from materials used for its packaging.

    The mere use of domestically procured packaging materials under another duty-relief mechanism cannot, on the reasoning adopted in this case, automatically justify treating those packaging materials at par with the imported manufacturing input. At the same time, the decision should not be read as permitting non-compliance with conditions attached to Advance Authorisations generally.

    The ruling turns on the wording of Notification No. 96/2009-Cus and the Tribunal’s finding that VMS and the domestically procured bottles, caps and labels occupied materially different roles in relation to the exported IMFL.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: CESTAT Delhi

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com

    Ravi Shekhar Jha – Advocate, Bar Council of Delhi

  • Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

    Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 15.09.2026

    Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Delhi High Court has held that an unexplained delay in sending a seized narcotic sample for forensic examination can prove fatal to the prosecution where the evidence fails to establish that the sample remained in proper and safe custody during the intervening period.

    In Rishi Dev @ Onkar Singh v. State (Delhi Administration), CRL.A. No. 757 of 2000, the High Court set aside the appellant’s conviction under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and acquitted him after finding serious deficiencies in the prosecution’s handling and preservation of the seized sample. The judgment was delivered by Justice S. Muralidhar on 1 May 2008.

    The Court held that where there is doubt whether the sample ultimately tested by the forensic laboratory was the very sample recovered from the accused, the benefit of that doubt must necessarily go to the accused.

    Trial Court Had Sentenced Accused to 10 Years’ Rigorous Imprisonment

    • The appeal arose from a judgment dated 25 November 2000 passed by the Additional Sessions Judge, Delhi, convicting Rishi Dev in FIR No. 290/90 for allegedly possessing 300 grams of smack.
    • The trial court had sentenced him to 10 years’ rigorous imprisonment and imposed a fine of β‚Ή1 lakh, with a further six months’ rigorous imprisonment in default of payment.
    • According to the prosecution, police personnel were checking passers-by near Tejab Mill, Bhola Nath Nagar, Shahdara, when the appellant allegedly attempted to move away and subsequently ran on being asked to stop.
    • After he was apprehended, the police claimed to have recovered a packet containing brown-coloured powder from his clothing. The substance was allegedly weighed at the spot and found to be 300 grams, from which a 50-gram sample was separated for forensic testing. The laboratory report subsequently stated that the sample tested positive for smack.

    Accused Challenged Chain of Custody and Delay in Forensic Testing

    • Before the Delhi High Court, the appellant raised several objections to the prosecution case.
    • These included alleged non-compliance with Section 50 of the NDPS Act, absence of independent public witnesses, questions regarding the weighing of the contraband, handling of seals, the presence of the FIR number on documents allegedly prepared before registration of the FIR, and significant delay in sending the sample for forensic analysis.
    • A particularly serious objection concerned the delay between seizure and forensic examination.
    • The sample had been collected in December 1999, but the first attempt to send it to the forensic laboratory was made only on 1 March 2000. The appellant argued that there was no satisfactory explanation for what happened to the sample during this lengthy intervening period.

    Delhi HC Notes NCB’s 72-Hour Requirement

    • The High Court referred to Parminder Singh v. State of Haryana, in which the Punjab and Haryana High Court had considered the Narcotics Control Bureau instructions requiring sealed sample parcels to be deposited with the Chemical Examiner within 72 hours.
    • Justice Muralidhar described the requirement as salutary because tampering with a sample recovered from an accused can have fatal consequences for the prosecution case.
    • The Court stressed the need for strict compliance with safeguards concerning the preservation and prompt forwarding of samples.
    • The Court also referred to Matloob v. State (Delhi Administration) and the Delhi High Court Rules requiring articles intended for chemical examination to be forwarded without the least possible delay.

    Evidence Raised Serious Doubts About What Happened to Sample

    • After examining the prosecution witnesses, the High Court found considerable uncertainty regarding the handling of the seized material.
    • The Court observed that for more than two months no attempt was made to send the sample for chemical examination. The first attempt occurred on 1 March 2000 when the sample was taken to Chandigarh.
    • It was subsequently returned and redeposited in the malkhana on 3 March. Another entry indicated that the sample was eventually sent to the FSL at Malviya Nagar on 15 March 2000.
    • More importantly, the evidence indicated that the investigating officer had put the FIR number on the parcels and recovery memo at the police station, but no entry was made regarding removal of the case property from the malkhana for that purpose.
    • These circumstances assumed particular importance because the sample remained within the control of police authorities for a considerable period before forensic testing.

    Delay Alone Is Not Always Fatal

    • The Delhi High Court clarified an important legal distinction: mere delay in sending a narcotic sample for testing is not automatically fatal in every NDPS prosecution.
    • Referring to the Supreme Court decision in Valsala v. State of Kerala, the Court explained that a delayed sample can still be relied upon if the prosecution satisfactorily proves that the seized material remained in proper custody and proper form throughout the intervening period.
    • What is critical is the integrity of the chain linking the seized substance with the sample ultimately examined by the forensic laboratory.
    • The Court also referred to State of Gujarat v. Ismail U Haji Patel, where the Supreme Court emphasised that the decisive question is not simply delay but whether the prosecution establishes that the seized articles remained in proper custody and that the samples examined by the chemical analyst actually related to the seized articles.

    Prosecution Failed to Establish Safe Custody

    • Applying these principles, the High Court found that the prosecution evidence merely disclosed dates on which the sample entered or left the malkhana.
    • It did not satisfactorily explain the nearly three-month delay or establish what happened to the sample during the intervening period.
    • The Court therefore concluded that it was not satisfied that the sample remained in proper and safe custody or that the material eventually sent for forensic testing was necessarily the same sample recovered from the appellant.

    Trial Court’s β€˜Practical Approach’ Rejected

    • The trial court had sought to explain the forensic delay by referring generally to the heavy workload of laboratories and the possibility that laboratory officials might refuse to accept samples because of overcrowding.
    • The Delhi High Court expressly disagreed with that approach.
    • It held that the case record should contain written entries demonstrating that an attempt was made to send the sample for testing within the prescribed period. Strict compliance was important because a sample retained in a police malkhana under seals belonging to police officers remained under police control, giving rise to the possibility of tampering and resealing.
    • The Court further held that where the prosecution seeks to explain a delay on the ground that the forensic laboratory could not accept the sample, the record must demonstrate a genuine attempt to dispatch it promptly and its return for reasons beyond the prosecution’s control.

    Such a deficiency in the documentary record cannot subsequently be cured merely through oral evidence.

    Doubt Over Sample Integrity Must Benefit Accused

    • The High Court emphasised that the reliability of a forensic report ultimately depends upon proof that the sample examined was actually the sample recovered from the accused.
    • Where safe custody itself becomes doubtful, the evidentiary value of the laboratory result is correspondingly undermined.

    The Court held:

    β€œIf there is doubt as to the safe custody of the sample that is recovered from the accused, then the benefit of such doubt, must obviously enure to the accused.”

    Three-Month Delay Held Fatal; Accused Acquitted

    • On the facts of the case, the Delhi High Court found that the prosecution had β€œfailed miserably” to satisfy the legal requirements concerning preservation and safe custody of the sample.
    • The nearly three-month delay was held fatal because the prosecution failed to establish that the seized sample had been properly preserved throughout that period and that the sample eventually tested was the same material originally seized.
    • Since the appeal succeeded on this ground alone, the High Court found it unnecessary to examine the appellant’s remaining objections.
    • Accordingly, the Court set aside the conviction dated 25 November 2000 and sentence dated 27 November 2000, acquitted Rishi Dev of the offence under Section 21 of the NDPS Act and directed that he be released forthwith unless required in another case.

    Significance of the Judgment

    The judgment is an important authority on the chain of custody and forensic integrity of seized narcotic samples in NDPS prosecutions.

    It does not establish that every delay beyond 72 hours automatically invalidates an NDPS prosecution. Rather, its central principle is that where there is substantial delay, the prosecution must be able to demonstrate through reliable evidence and contemporaneous records that the seized sample was properly sealed, preserved and safely kept and that the sample ultimately tested was the same sample recovered from the accused.

    In prosecutions carrying severe penal consequences, the forensic chain cannot rest upon assumptions. If an unexplained gap creates reasonable doubt about the identity or integrity of the sample, that doubt may go to the root of the prosecution case.

    Connected Matter

    Delhi High Court Grants Bail Under NDPS Act Over 51-Day Delay in Sampling

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Delhi High Court

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com

    Ravi Shekhar Jha – Advocate, Bar Council of Delhi

  • Delhi HC Cancels Deceptively Similar β€˜ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

    Delhi HC Cancels Deceptively Similar β€˜ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 15.09.2026

    Delhi HC Cancels Deceptively Similar β€˜ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Delhi High Court has ordered removal of a deceptively similar β€˜ROCKPAPA’ device mark from the Trade Marks Register, holding that the rights of a prior user can prevail over those of a subsequent user even where the latter has obtained trademark registration.

    In Kia Wang v. Registrar of Trade Marks & Anr., C.O. (COMM.IPD-TM) 2/2021, Justice Jyoti Singh allowed a rectification petition filed by Kia Wang and directed the Registrar of Trade Marks to remove the impugned device mark registered under Trademark No. 4400360 in Class 09. The judgment was delivered on 15 September 2023.

    The Court found the rival marks strikingly similar and concluded that the respondent’s adoption was tainted by bad faith and dishonest intention, aimed at encashing upon the goodwill associated with the petitioner’s mark.

    Dispute Over β€˜ROCKPAPA’ Device Mark

    • Kia Wang claimed that he and his wife founded the ROCKPAPA brand in 2014, primarily for products aimed at children, including headphones, pencil boxes and school bags, as well as audio-related products such as headphones, earphones, loudspeakers and portable media players.
    • According to the petition, the brand operated internationally, including in Australia, Canada, Europe, the United States and India. The domain name for ROCKPAPA was registered on 9 April 2014, and the products were also marketed through e-commerce platforms.
    • The petitioner also relied upon trademark registrations obtained abroad, including in the United Kingdom, Australia, United States, Japan and Canada.

    Respondent Obtained Registration in India in 2020

    • Respondent No. 2, Sachin Garg, proprietor of Pooja Creations, applied for registration of the impugned device mark on 7 January 2020. It was subsequently registered in Class 09 for mobile phones and accessories, including chargers, adaptors, batteries, screen protectors, power banks, mobile covers, memory cards, card readers and handsfree devices.
    • Kia Wang claimed that he discovered the registration only in June 2021 and thereafter approached the Delhi High Court seeking rectification of the Register under Sections 47, 57 and 125 of the Trade Marks Act, 1999.
    • Respondent No. 2 did not appear despite service and was eventually proceeded against ex parte. The Registrar did not file a counter-affidavit, though written submissions were placed before the Court.

    Prior User Rights Can Override Subsequent Registration

    • One of the central issues before the Court was the petitioner’s claim of being the prior adopter and prior user of the ROCKPAPA mark.
    • The Court relied upon the Supreme Court decisions in Milmet Oftho Industries v. Allergan Inc., (2004) 12 SCC 624; S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683; and Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672.
    • Referring to these authorities, the High Court reiterated that the β€œfirst in the market” test assumes significance where competing trademarks are similar.

    It observed that the β€œfirst user” rule is a seminal feature of trademark law and held that:

    A prior user’s rights will override those of a subsequent user even though the subsequent user’s trademark may have obtained registration.

    On the evidence before it, the Court accepted Kia Wang’s claim of use since 2014. His prior use, overseas registrations and continuous use of the mark established that the trademark had become distinctive of his goods and associated with him.

    Court Finds Rival Marks Strikingly Similar

    • The judgment contains a side-by-side visual comparison of the two device marks on page 15. Both use a substantially similar stylised face/hair/moustache device together with the word β€œRockpapa”.
    • The Court observed that the similarity between the two marks was β€œwrit large on a bare perusal.”
    • It held that the similarity of the marks, coupled with identity of the competing goods, created a likelihood of consumer confusion and could adversely affect the petitioner’s reputation and goodwill.

    Bad-Faith Trademark Registration Can Be Cancelled

    • The Court then examined Section 11(10)(ii) of the Trade Marks Act, 1999, which requires the Registrar to take into consideration the bad faith involved either on the part of the applicant or opponent while dealing with trademark registration.
    • Relying particularly upon BPI Sports LLC v. Saurabh Gulati, 2023 SCC OnLine Del 2424, the Court explained that β€œbad faith” essentially involves the absence of honest intention and may include dishonest commercial conduct, fraud, deception or an attempt to appropriate another party’s trademark.
    • Applying this principle, the Court found β€œlittle doubt” that Respondent No. 2 had acted with dishonest intention in adopting a similar mark for identical goods, including copying important visual characteristics of the petitioner’s device mark.
    • The Court concluded that the intention was to encash upon the goodwill of the petitioner’s trademark. It also noted that Respondent No. 2 had chosen not to contest the proceedings or rebut the petitioner’s claim of prior use.

    Maintaining β€˜Purity of the Register’ Is a Matter of Public Interest

    • The High Court went beyond the private dispute between the parties and emphasised the broader public-interest function of trademark rectification.
    • It referred to Khoday Distilleries Ltd. v. Scotch Whisky Association, (2008) 10 SCC 723, where the Supreme Court stressed the importance of maintaining the purity of the Trade Marks Register and considering the likelihood of deception or confusion.
    • The Court also relied on Hardie Trading Ltd. v. Addisons Paint & Chemicals Ltd., (2003) 11 SCC 92, while considering who qualifies as a β€œperson aggrieved” entitled to seek rectification.
    • The Court held that Kia Wang qualified as a β€œperson aggrieved” because the respondent’s registration operated as a restraint upon legal rights flowing from the petitioner’s prior, long, continuous and uninterrupted use of the mark.

    Important Finding on Section 11(1) and Well-Known Trademark Claim

    • An important nuance in the judgment is that the Court did not accept every ground advanced by the petitioner.
    • Kia Wang had argued that the impugned registration violated Sections 11(1) and 11(2) because ROCKPAPA was an earlier and well-known trademark.
    • The Court rejected this particular argument. It observed that, for purposes of Section 11, the petitioner’s mark did not qualify as an β€œearlier trade mark” because it was neither registered in India nor covered by the specified categories of Indian/international/convention applications. The Court also found that the material and pleadings were insufficient to classify ROCKPAPA as a well-known trademark under Section 2(1)(zg) read with Section 11(6).
    • This makes the judgment particularly significant: the petition succeeded principally on prior-user rights, deceptive similarity, bad-faith adoption and the need to maintain purity of the Registerβ€”not because ROCKPAPA was judicially declared a well-known trademark.

    Delhi High Court Orders Trademark Removed Within Four Weeks

    • Ultimately, the Court allowed the rectification petition and directed the Registrar of Trade Marks to remove Trademark No. 4400360, registered on 7 January 2020 in Class 09, from the Register.
    • The Registrar was directed to complete the rectification within four weeks from receipt of the judgment.

    Key Legal Principle

    The judgment reinforces three significant principles of Indian trademark law: prior user rights may prevail over subsequent registration; bad-faith adoption of a deceptively similar mark can justify cancellation; and rectification jurisdiction serves the wider public interest of maintaining the purity of the Trade Marks Register.

    At the same time, the decision demonstrates that foreign registrations or international popularity alone do not automatically make a mark an β€œearlier trade mark” or a β€œwell-known trademark” in India for the purposes of Section 11.

    Connected Matter

    Delhi High Court: Prior Formal Declaration Not Required to Claim Protection as a Well-Known Trademark Under Section 11(2)

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Delhi High Court

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com

    Ravi Shekhar Jha – Advocate, Bar Council of Delhi

  • Supreme Court: Developer Cannot Be Penalised for NOIDA’s Failure to Provide Promised 45-Metre Access Road

    Supreme Court: Developer Cannot Be Penalised for NOIDA’s Failure to Provide Promised 45-Metre Access Road

    Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

    Date: 15.09.2026

    Supreme Court: Developer Cannot Be Penalised for NOIDA’s Failure to Provide Promised 45-Metre Access Road

    This Short Article has been prepared & written by Advocate Narendra Singh. The views expressed are based on his interpretation of the law. He can be reached at his email id amitnaren@outlook.com .  

    The Supreme Court has dismissed appeals filed by the New Okhla Industrial Development Authority (NOIDA) and upheld the grant of β€œZero Period” benefit to M/s Sunshine Trade Tower Pvt. Ltd., holding that a development authority cannot deny contractual and policy relief to a developer when its own failure to provide adequate and legitimate access materially prevents development of the allotted commercial plot.

    In New Okhla Industrial Development Authority & Ors. v. M/s Sunshine Trade Tower Private Limited & Anr., Civil Appeal Nos. 10900-10902 of 2025, 2026 INSC 975, a Bench comprising Justices Pamidighantam Sri Narasimha and Alok Aradhe upheld the Allahabad High Court judgment granting Zero Period benefit to the developer. The Supreme Court delivered its judgment on 8 September 2026.

    The Court importantly held that a policy such as NOIDA’s Zero Period Policy should not be interpreted in the same manner as a statute. Its provisions must instead be construed in light of the policy’s purpose and broader objective.

    β‚Ή133.86 Crore Commercial Plot Allotted in Noida

    • The dispute arose from a scheme launched by NOIDA on 22 September 2011 for allotment of commercial plots to builders and developers.
    • Sunshine Trade Tower emerged as the successful developer, following which a lease deed dated 11 January 2012 was executed for Plot No. 5-A, Sector 94, Noida, for a total consideration of approximately β‚Ή133.86 crore. Possession was handed over on the same date.
    • Under the approved site plan, the commercial plot had a 45-metre-wide Front Road and a 24-metre-wide Side Road. The developer was to construct a commercial complex comprising facilities such as shopping malls, showrooms, retail outlets, hotels, restaurants and offices.
    • The developer, however, claimed that proper construction could not proceed because the 45-metre Front Road was encroached upon while the 24-metre Side Road was sandy, unpaved and non-motorable.

    NGT Order Also Stopped Construction Near Okhla Bird Sanctuary

    • Another obstacle emerged in September 2013 when the National Green Tribunal directed stoppage of construction within 10 kilometres of the Okhla Bird Sanctuary.
    • Since Sunshine Trade Tower’s plot was located within approximately 600 metres of the sanctuary boundary, construction was stopped.
    • The restriction continued until the Central Government issued a notification on 19 August 2015 specifying the relevant eco-sensitive limits. Even after removal of this restriction, however, the developer contended that full-fledged construction remained impossible because the 45-metre road continued to be encroached and the 24-metre road remained incomplete.

    What Is NOIDA’s β€˜Zero Period Policy’?

    • NOIDA formulated its Zero Period Policy on 28 March 2016 to deal with projects that could not progress because of circumstances beyond the developer’s control.
    • Among other situations, Clause 5 contemplated relief where possession and lease had been completed but there was no access road to the allotted land, preventing construction or development.
    • The policy also provided for rescheduling instalments falling within the Zero Period and stipulated that penal interest would not be charged for the relevant period.
    • Sunshine consequently sought Zero Period benefits both for the NGT restraint and for NOIDA’s failure to provide proper access roads.
    • NOIDA initially granted limited benefit relating to the NGT restriction but did not accept the developer’s wider claim concerning access to the plot.

    NOIDA’s Own Tehsildar Found 45-Metre Road Blocked

    • A crucial piece of evidence was a report submitted by NOIDA’s Tehsildar on 14 February 2019.
    • The report found that the land earmarked for the 45-metre road fell in Khasra No. 684, was recorded as Abadi land, had not been acquired by NOIDA and continued to be occupied by villagers.
    • The Tehsildar consequently recorded that the access road to the commercial plot was blocked.
    • Despite this report, NOIDA rejected the developer’s request for Zero Period benefit, maintaining that adequate access was available.

    UPRERA Also Recorded NOIDA’s Failure to Provide 45-Metre Road

    • The dispute subsequently reached UPRERA. Although the developer’s complaint was rejected as not maintainable and it was asked to pursue other statutory remedies, UPRERA’s technical inspection recorded important factual findings.
    • It found that the 24-metre road was completed only in 2020, nearly eight years after allotment, while the promised 45-metre road had still not been constructed because of existing habitation.
    • UPRERA recorded that NOIDA had failed to provide the 45-metre-wide approach road contemplated under the lease arrangement.

    State Government Partly Granted Relief

    • The matter thereafter went through revisional proceedings before the Uttar Pradesh Government.
    • In its second revisional order dated 14 September 2022, the State Government found that the 45-metre road was blocked by encroachment and that its non-availability affected the project’s commercial viability.
    • It granted the developer waiver of penal interest and a one-year COVID-related extension and directed NOIDA to take consequential steps.
    • The State Government specifically recognised that the commercial project had been designed on the assumption that the 45-metre road would constitute the principal access/frontage. Its absence meant that the project’s layout and commercial attractiveness would have to be reconsidered.

    NOIDA Raised β‚Ή100.39 Crore Demand

    • The dispute continued, and NOIDA ultimately issued a demand notice dated 23 February 2024 seeking payment of approximately β‚Ή100.39 crore towards principal and premium, without interest.
    • The developer challenged this demand as well as NOIDA’s refusal to sanction its revised building plan before the Allahabad High Court.
    • The High Court held that the cumulative circumstances prevented adequate access to the plot and concluded that Sunshine Trade Tower was entitled to Zero Period benefit.
    • It directed NOIDA to make a fresh calculation after granting Zero Period relief, raise a revised demand, and thereafter approve the revised building plan subject to statutory formalities.
    • NOIDA challenged that judgment before the Supreme Court.

    NOIDA: Some Access Was Available, So Zero Period Could Not Apply

    • Before the Supreme Court, NOIDA argued that Clause 5 of the Zero Period Policy should be interpreted strictly.
    • According to the Authority, relief was available only where there was absolutely no physical access to the allotted land and construction was therefore impossible.
    • NOIDA maintained that Sunshine had some access through the 24-metre road and portions of the 45-metre road and had even undertaken construction activity. It also contended that the developer’s own excavation contributed to the delay in completion of the side road.
    • The developer countered that the real issue was not whether it could somehow physically reach the property from one corner, but whether the commercial project could be developed in accordance with the sanctioned plan.
    • The promised 45-metre road was the project’s principal frontage. Its permanent non-availability required fundamental alterations to the building’s frontage, orientation, setbacks, entry and exit points and overall configuration.

    Supreme Court: Policy Cannot Be Interpreted Like a Statute

    • Rejecting NOIDA’s narrow construction, the Supreme Court laid down an important principle concerning interpretation of government and development policies.
    • The Court held that provisions of a policy such as the Zero Period Policy β€œare not to be interpreted like the provisions of a statute.”
    • Instead, courts must consider both the immediate purpose of the particular clause and the broader objective of the policy.
    • The Supreme Court found that Clause 5 was intended to ensure that a developer received easy, effective and legitimate access to the allotted property so that construction could meaningfully proceed.
    • The mere fact that the developer could somehow obtain limited access could therefore not absolve NOIDA of its obligation.
    • The Court held that where adequate access had not been provided for reasons attributable to NOIDA, Zero Period benefit could not be denied merely because β€œsome access was available.”

    Supreme Court Finds NOIDA Failed to Provide Promised 45-Metre Road

    • The Supreme Court examined five important official documents: the Tehsildar’s report, UPRERA order, Additional CEO’s inspection report, State Government’s revisional order and Deputy Collector’s report.
    • The cumulative effect of these documents, the Court said, left β€œno doubt” that the 45-metre Front Road was never made available to Sunshine by NOIDA.
    • The Court further observed that NOIDA, as the statutory development authority, possessed the means to remove encroachments and open the access road but had failed to do so.

    Frontage Is Not Merely an Architectural Issue

    • The judgment contains significant observations concerning the commercial importance of frontage, accessibility and elevation in real-estate development.
    • The Supreme Court observed that frontage and elevation are not merely architectural aesthetics; they are important determinants of a property’s commercial value and marketability.
    • For commercial developments in particular, visibility and accessibility directly affect footfall, branding and business prospects.
    • Uncertainty concerning frontage can therefore affect project viability, investor confidence and the expectations of purchasers and commercial occupants.

    Changing From 45-Metre to 24-Metre Frontage Fundamentally Affected Project

    • Applying those principles, the Court observed that Sunshine’s original sanctioned plan treated the 45-metre road as the project’s principal frontage.
    • Since that road could no longer realistically be provided, the 24-metre Side Road would have to become the new frontage.
    • This was not a minor internal modification. It required reconsideration of setbacks, building orientation, entry and exit points, permissible configuration and other planning parameters.
    • The Court held that changing the frontage from 45 metres to 24 metres directly affected the development potential and commercial attractiveness of the property.

    Developer Cannot Be Made Liable for NOIDA’s Own Failure

    • The Supreme Court ultimately held that Sunshine could neither be expected to proceed under the original site plan nor be burdened with liability arising from NOIDA’s failure to provide the promised 45-metre road.
    • It characterised NOIDA’s denial of Zero Period relief and its continuing refusal to sanction a revised site plan as β€œunreasonable and untenable in law.”

    Supreme Court Dismisses NOIDA’s Appeals

    • Finding no error in the Allahabad High Court’s judgment, the Supreme Court dismissed all three civil appeals filed by NOIDA and upheld the relief granted to Sunshine Trade Tower.
    • The Court did not find it necessary to examine the developer’s additional pleas concerning discrimination or comparison with other similarly situated developers.
    • The developer also gave a statement before the Supreme Court that the project would be completed within four years from approval of the revised site plan and that amounts due would be paid in eight instalments.
    • The Supreme Court directed NOIDA to take note of this statement and issue necessary directions for commencement of the project with revised schedules. No order as to costs was passed.

    Why the Judgment Matters

    The ruling is significant for real-estate developers dealing with government development authorities. It establishes that policy benefits cannot necessarily be denied through an excessively literal interpretation when the very purpose of the policy would thereby be defeated.

    More importantly, where a statutory authority promises infrastructure forming an essential component of an allotment and sanctioned development plan, it cannot ordinarily impose financial consequences upon the developer for delays materially attributable to the authority’s own failure.

    The judgment also recognises the commercial reality that access and frontage are integral to the viability of a commercial real-estate project.

    The existence of some physical means of reaching a plot is not necessarily equivalent to providing the effective and legitimate access contemplated by the allotment and sanctioned plan.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Supreme Court

    Disclaimer

    Handy Download:

    “Handy Order for Download”Download

    Write to us at office@aadrikaalaw.com

    Tel: +91-11-4999 2707

    www.aadrikaalaw.com