Tuesday, June 23, 2009
For the Professors of Law Schools
Ezra Rosser, On Becoming “Professor”: A Semi-Serious Look In The Mirror, available at http://ssrn.com/abstract=1423138. Ezra (he hates it when students calls him professor) ruminate on the baggage of professorship in law schools. His attack ranges from the pseudo-intellectual academic writing which is obsessed with form and class structure within authors to the much hierarchical structure of academia in which one may eventually lose self.
Andrew Tettenborn, Consequential Damages in Contract- The Poor Relation 42 Loy. L.A. L. Rev 177
In this Article, Andrew Tettenborn discusses the ways in which law treats direct and consequential damages differently. An interesting read.
The term "consequential damages" seems to be a misnomer as even direct damages are "consequential". Consequential damages are synonymous to indirect damages. Initially contracting parties used the term "direct and consequential" damages to refer to damages that arose as a natural consequence of the breach or which could be supposed to have been in contemplation of the parties at the time of signing of contract. contracting parties usually excluded "indirect and consequential damages". Drafting errors ("indirect or consequential damages") probably made the courts to construe "consequential" to mean indirect. Thus, the term "consequential damages" has come to refer to those categories of loss that were not in contemplation of the parties or that could not be supposed to have been in contemplation of the parties at the time of entering into the contract.
See, HOTEL SERVICES LTD. v. HILTON INTERNATIONAL HOTELS (UK) LTD.
The term "consequential damages" seems to be a misnomer as even direct damages are "consequential". Consequential damages are synonymous to indirect damages. Initially contracting parties used the term "direct and consequential" damages to refer to damages that arose as a natural consequence of the breach or which could be supposed to have been in contemplation of the parties at the time of signing of contract. contracting parties usually excluded "indirect and consequential damages". Drafting errors ("indirect or consequential damages") probably made the courts to construe "consequential" to mean indirect. Thus, the term "consequential damages" has come to refer to those categories of loss that were not in contemplation of the parties or that could not be supposed to have been in contemplation of the parties at the time of entering into the contract.
See, HOTEL SERVICES LTD. v. HILTON INTERNATIONAL HOTELS (UK) LTD.
Monday, June 22, 2009
Digest of Recent SC Decisions - May 20th to June 20th
Observation of Natural Justice in Departmental Enquiry
Union of India v. Bishamber Das Dogra. CIVIL APPEAL NO. 7087 OF 2002. Date of Judgment 26-05-09
Two interesting questions dealt were
1. Whether non furnishing of the copy of the enquiry report was not furnished and the respondent employee and not giving opportunity to file objections is violation of natural justice
2. Whether taking into consideration the past conduct while imposing the punishment vitiate the departmental proceedings
The court answered both questions in the negative. The reasons are given below
• Principles of natural justice cannot be put into a strait-jacket formulate and its observance would depend upon the fact situation of each case. Therefore, the application of the principles of natural justice has to be understood with reference to the relevant facts and circumstances of a particular case.
• natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.
• To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.
• It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside
• It is desirable that delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.
Testing the constitutionality of a statute
GLOBAL ENERGY LTD. V. CENTRAL ELECTRICITY REGULATORY
COMMISSION. CIVIL APPEAL NOS. 3457-3458 OF 2009. Date of Judgment 11-05-09.
The court was called to test the constitutionality of clauses (b) and (f) of Regulation 6A of the Central Electricity Regulatory Commission (Procedure, Terms and conditions for Grant of Trading License and other related matters) (Amendment), Regulation 2006 (hereinafter referred to and called for the sake of brevity as "Amended Regulation") is the question involved
• The standard for determining reasonableness of a statute so as to satisfy the constitutional scheme as adumbrated in Article 14 of the Constitution of India must receive a higher level of scrutiny than an ordinary statute. Such a higher level of scrutiny is necessary not for the purpose of determining the Constitutionality of the statute alone vis-`-vis the field of legislative power as envisaged under Article 245 of the Constitution of India but also having regard to the object and purpose, the statute seeks to achieve.
• For understanding the above, the appropriate doctrine would be that of purposive interpretation
• To evaluate the reasonableness of conditions, doctrine of proportionality may be employed
The grounds on which a subordinate legislation can be challenged
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules)
• It is now a well settled principle of law that essential legislative functions cannot be delegated. The delegatee must be furnished with adequate guidelines so that arbitrariness is eschewed.
Clauses (b) and (f) of Regulation 6A are declared ultra vires the Constitution of India as also the Act.
Marriage is not a mere "reciprocal possession" of the sexual organs nor can it be romanticized as "made in Heaven"
Smruti Pahariya V. Sanjay Pahariya. CIVIL APPEAL NO. 3465 OF 2009. Date of Judgment 11-05-09
A good read on the developments in divorce law.
Union of India v. Bishamber Das Dogra. CIVIL APPEAL NO. 7087 OF 2002. Date of Judgment 26-05-09
Two interesting questions dealt were
1. Whether non furnishing of the copy of the enquiry report was not furnished and the respondent employee and not giving opportunity to file objections is violation of natural justice
2. Whether taking into consideration the past conduct while imposing the punishment vitiate the departmental proceedings
The court answered both questions in the negative. The reasons are given below
• Principles of natural justice cannot be put into a strait-jacket formulate and its observance would depend upon the fact situation of each case. Therefore, the application of the principles of natural justice has to be understood with reference to the relevant facts and circumstances of a particular case.
• natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.
• To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.
• It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside
• It is desirable that delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.
Testing the constitutionality of a statute
GLOBAL ENERGY LTD. V. CENTRAL ELECTRICITY REGULATORY
COMMISSION. CIVIL APPEAL NOS. 3457-3458 OF 2009. Date of Judgment 11-05-09.
The court was called to test the constitutionality of clauses (b) and (f) of Regulation 6A of the Central Electricity Regulatory Commission (Procedure, Terms and conditions for Grant of Trading License and other related matters) (Amendment), Regulation 2006 (hereinafter referred to and called for the sake of brevity as "Amended Regulation") is the question involved
• The standard for determining reasonableness of a statute so as to satisfy the constitutional scheme as adumbrated in Article 14 of the Constitution of India must receive a higher level of scrutiny than an ordinary statute. Such a higher level of scrutiny is necessary not for the purpose of determining the Constitutionality of the statute alone vis-`-vis the field of legislative power as envisaged under Article 245 of the Constitution of India but also having regard to the object and purpose, the statute seeks to achieve.
• For understanding the above, the appropriate doctrine would be that of purposive interpretation
• To evaluate the reasonableness of conditions, doctrine of proportionality may be employed
The grounds on which a subordinate legislation can be challenged
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules)
• It is now a well settled principle of law that essential legislative functions cannot be delegated. The delegatee must be furnished with adequate guidelines so that arbitrariness is eschewed.
Clauses (b) and (f) of Regulation 6A are declared ultra vires the Constitution of India as also the Act.
Marriage is not a mere "reciprocal possession" of the sexual organs nor can it be romanticized as "made in Heaven"
Smruti Pahariya V. Sanjay Pahariya. CIVIL APPEAL NO. 3465 OF 2009. Date of Judgment 11-05-09
A good read on the developments in divorce law.
Tuesday, June 9, 2009
US SC on bias
Supreme Court of the United States has recently (Decided June 8, 2009) given a judgment on bias. The judgement can be found here. The issue involved in this case was whether a judge should have recused himself from deciding a case in which one of the parties had made substantial contribution to the election campaign of the judge. The US Supreme Court has held that the judge should have done so.
Monday, June 8, 2009
Wingsfield Knitwear Pvt. Ltd. v. Deepak Kumar and Ors
Parties: Wingsfield Knitwear Pvt. Ltd. v. Deepak Kumar and Ors
Case No: OMP 153/2009
Court: Delhi High Court
Decided on: 29.05.2009
Decided by: Shiv Narayan Dhingra, J.
Provision of Law: Arbitration and Conciliation Act, 1996 - Section 9
Prayer: Ex-parte injunction against Deepak Kumar and Ors from alienating, or dealing with the rented premises.
Facts:
A three year lease deed was entered into between Wingsfield and Deepak Kumar in relation to certain premises. The lease deed also contained a provision for lock-in period of three years. However, it was alleged that Deepak Kumar and others were trying to forcibly dispossess the petitioner out of the premises. Deepak Kumar's contention was that Wingfield pressurised Deepak Kumar to decrease the rent agreed upon between them. Further, Deepak Kumar also contended that no possession was handed over to Wingield. In fact, no rent was claimed from Wingfield for certain duration when interior decoration was being done in the premises by Wingfield.
Judgement:
The judge decided that Deepak Kumar's possession of premises was prima facie illegal, and hence restrained Deepak Kumar from re-letting, alienating or creating any third party interest.
Comment: The judge was right in pointing out that on the execution of the lease deed, possession had already gone to Wingfield. However, was he right in stating that Wingfield was at liberty not to pay any rent? Was the payment of rent during the period of forcible dispossession in issue, or was it argued by Wingfield? Was it one of the prayers of Wingfield?
Case No: OMP 153/2009
Court: Delhi High Court
Decided on: 29.05.2009
Decided by: Shiv Narayan Dhingra, J.
Provision of Law: Arbitration and Conciliation Act, 1996 - Section 9
Prayer: Ex-parte injunction against Deepak Kumar and Ors from alienating, or dealing with the rented premises.
Facts:
A three year lease deed was entered into between Wingsfield and Deepak Kumar in relation to certain premises. The lease deed also contained a provision for lock-in period of three years. However, it was alleged that Deepak Kumar and others were trying to forcibly dispossess the petitioner out of the premises. Deepak Kumar's contention was that Wingfield pressurised Deepak Kumar to decrease the rent agreed upon between them. Further, Deepak Kumar also contended that no possession was handed over to Wingield. In fact, no rent was claimed from Wingfield for certain duration when interior decoration was being done in the premises by Wingfield.
Judgement:
The judge decided that Deepak Kumar's possession of premises was prima facie illegal, and hence restrained Deepak Kumar from re-letting, alienating or creating any third party interest.
Comment: The judge was right in pointing out that on the execution of the lease deed, possession had already gone to Wingfield. However, was he right in stating that Wingfield was at liberty not to pay any rent? Was the payment of rent during the period of forcible dispossession in issue, or was it argued by Wingfield? Was it one of the prayers of Wingfield?
Thursday, June 4, 2009
Article: Wittgenstein and Contract Precedents
VAL D. RICKS, THE POSSIBILITY OF PLAIN MEANING: WITTGENSTEIN AND THE CONTRACT PRECEDENTS, 56 Clev. St. L. Rev. 767
While reading the above article, I was wondering why academicians are so obsessed by plain meaning rule, Ludwig Wittgenstein, HLA Hart, linguistic philosophy, Dworkin etc when they talk about contract interpretation when all they need to dois to think "pragmatically" (Posner?!!@%#$&^%) from the businessman's perspective for whom the contract was drafted...
While reading the above article, I was wondering why academicians are so obsessed by plain meaning rule, Ludwig Wittgenstein, HLA Hart, linguistic philosophy, Dworkin etc when they talk about contract interpretation when all they need to dois to think "pragmatically" (Posner?!!@%#$&^%) from the businessman's perspective for whom the contract was drafted...
Wednesday, June 3, 2009
News
Rephrase that - Editorial of the Indian Express on Justice Katju's recent remarks
Govt can't free convicts on religious, political considerations: SC
K'tka HC quashes proceedings against Karunanidhi
Tuesday, June 2, 2009
Monday, June 1, 2009
Recent Judgment
Hair-raising judgment: on both counts
M.K.Balakrishnan v. Union of India. WRIT PETITION(C) NO.230 OF 2001
Few sentences into judgment, it is amply clear who wrote it. The Katju touch is ubiquitous. Reading it complete, i am puzzled, isn't he the very same who rekindled the discourse on judicial activism with the 'Katju School of thought on judicial restraint.'
The judgment reiterate the right to water as a fundamental right, part of Art. 21, giving me goose bumps. The judgment also lays down policy to be followed by the government by illuminating us the need to be scientific - a true devout of the fundamental duty to follow 'scientific temper'. It not only suggest a committee, but lays down its structure, constitution and mandate, making the Executive all the more relaxed and comfy. It is also a clarion call for all patriotic Indians to act. The judgment do not stop there either, being insightful of the lethargy of the executive, the case will be posted on every alternate Tuesday for monitoring. A hair-raising experience ofcourse.
I am waiting for that day when Executive is going to take away judicial functions to make the backlog plagued judiciary more efficient.
M.K.Balakrishnan v. Union of India. WRIT PETITION(C) NO.230 OF 2001
Few sentences into judgment, it is amply clear who wrote it. The Katju touch is ubiquitous. Reading it complete, i am puzzled, isn't he the very same who rekindled the discourse on judicial activism with the 'Katju School of thought on judicial restraint.'
The judgment reiterate the right to water as a fundamental right, part of Art. 21, giving me goose bumps. The judgment also lays down policy to be followed by the government by illuminating us the need to be scientific - a true devout of the fundamental duty to follow 'scientific temper'. It not only suggest a committee, but lays down its structure, constitution and mandate, making the Executive all the more relaxed and comfy. It is also a clarion call for all patriotic Indians to act. The judgment do not stop there either, being insightful of the lethargy of the executive, the case will be posted on every alternate Tuesday for monitoring. A hair-raising experience ofcourse.
I am waiting for that day when Executive is going to take away judicial functions to make the backlog plagued judiciary more efficient.
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