Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and R.I. Chagla, JJ., quashed and set aside the unreasonable restriction placed by the State of Maharashtra on prohibiting the actors, crew members, etc. who are above the age of 65 years from being present at the site of the shooting of films/television series/Over The Top Media (OTT) in light of the same being discriminatory.

Petitioner is an actor by profession who had challenged the condition imposed by the Government of Maharashtra’s Resolution according to which persons above the age of 65 years are prohibited from remaining present at the site of the shooting of films/television series/Over The Top Media (OTT).

Discriminatory and Arbitrary

The government resolution is discriminatory, arbitrary and violative of Article 14 of the Constitution of India because at the time the same was issued, Central, as well as the Maharashtra Government, had relaxed the general prohibition on the movement of persons above the age of 65 years.

Right to Carry on Trade and Occupation

As against this, a prohibition on the movement of persons above the age of 65 years continued to operate in the film and television industry. It is also submitted that the impugned condition is an unreasonable restriction on the petitioners’ right to carry on their trade and occupation, as also the impugned condition deprives the petitioner of his right to earn a livelihood with dignity.

Government Pleader for the Respondent State, Purnima H. Kantharia submitted that the Government of Maharashtra’s Resolution is based on Centres’ order passed under the DM Act.

Further, he added that, the restrictions are in the interest of persons with low or weak immunity as the disease is easily communicable.

The restriction is not absolute. Persons above the age of 65 years may work from home, over video conferencing, email, video sharing etc.

Until the Central and State Governments relax the guidelines, the Respondent is bound to strictly implement the aforesaid Orders issued under the DM Act, as the MHA Orders specifically provide for strict enforcement of the Lockdown Orders by the respective State Governments.

“…though the Impugned Condition reads as a prohibition, no coercive action will be taken against anyone above the age of 65 years who chooses to remain present at the site of the shooting of films/television series / OTT. The prohibition is issued in the interest of the health and safety of persons who are above the age of 65 years and is to be read as such.”

Analysis and Decision

Bench while analysing the facts and circumstances of the case, started while stating that Sections 38 and 39 of the DM Act empower the State Government to take measures to deal with the disaster at hand, which in this case is the Covid-19 pandemic.

Keeping the above in mind and being fully conscious of the hardship and risks posed by the Covid-19 pandemic, Court first considered the challenge to the impugned condition under Article 14 of the Constitution of India.

Intelligible Differentia

In Court’s opinion, impugned condition was not based on any intelligible differentia.

Whilst there may be a nexus with the object sought to be achieved, i.e. to protect vulnerable people from the Covid-19 pandemic, there is no intelligible differentia between persons who are 65 years of age or above in the cast/crew of films and TV shootings on the one hand and persons who are 65 years of age or above in other sectors and services, permitted under prevailing lockdown orders.

Thus, there is discrimination in the disparate treatment of persons who are 65 years of age or above in the film or television industry and in the other permitted sectors and permitted activities and no explanation on the said aspect has been given by the State Government.

Hence, Impugned Condition, therefore, cannot be sustained in view of the well-settled principles enunciated under Article 14 of the Constitution of India.

Further, the said impugned condition also failed to take into consideration the relevant material, namely the relaxation contained in orders dated 30th May 2020 and 31st May 2020 issued by MHA and the Government of Maharashtra respectively, which reads as an advisory for persons above the age of 65 years.

Impugned Condition in light of Article 21 of the Constitution

Citing the decision of Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545, it was stated that the Righto Earn a livelihood and the Right to Live with Dignity are well-established facets of the Right to Life guaranteed under Article 21 of the Constitution.

Court added that coming to the conclusion that the impugned condition cannot be sustained on account of it being discriminatory and arbitrary, stated 

“we are satisfied that the absolute prohibition as regards persons above the age of 65 years who earn their livelihood from the film industry (which is allowed to operate), is a measure that violates the Petitioner’s right to live with dignity under Article 21 of the Constitution and the restriction imposed by the Impugned Condition in relation to a specific sector or industry that is now allowed to operate, cannot constitute a valid procedure established by law.”

Hence, on perusal of the above observations, the Court held that if there are no general prohibitions on persons above the age of 65 years from working or practicing their trade in those sectors and businesses which are allowed to operate, an age-based prohibition in only one industry namely the film industry/television / OTT, without any material to support its differential classification, would constitute an unreasonable restriction.

The stated impugned condition was quashed and set aside in view of being an unreasonable restriction. [Pramod Pandey v. State of Maharashtra,  2020 SCC OnLine Bom 846, decided on 07-08-2020]


Also Read:

Bom HC | How a physically fit person of 65 years age or above is expected to live a dignified life if not allowed to go out & earn livelihood? Maharashtra Govt to respond

Case BriefsHigh Courts

Calcutta High Court: Sahidullah Munshi, J. allowed a writ petition assigned before the Court on the request for reference by the Single Bench of the Court in a matter pertaining to arbitrary termination of service of the petitioner.

In the present case, the petitioner was an emeritus professor of the Hooghly Engineering and Technology College Service (HETCS), which had been formed under the provisions of the West Bengal University of Technology Act, 2000. The college was affiliated to the University namely, Maulana Abul Kalam Azad University. On 23-03-2018, a termination letter was issued to the petitioner by the Secretary, HETCS and it showed that petitioner’s service was no longer required and with it, one month’s advance salary of Rs 40,000 in lieu of one month’s notice was deposited in the petitioner’s account. Prior to this, on 26-09-2017, he was also issued a show cause notice by the then Principal of HETCS. The very authority of the show cause notice issued by the Principal was the basis for the cause of action in the present writ petition.

The petitioner contended that the Principle had no authority to initiate any proceeding against the petitioner for his removal as on the day when the letter was issued he was not the Principal; and secondly, the allegations made against the petitioner were bald, unfounded allegations which could never be proved against him.

Kallol Basu appearing for the Secretary challenged the maintainability of the writ petition under Article 226 of the Constitution. He submitted that, “the institution is a private institution and having not been financed by the State it does not come within the purview of Article 12 of the Constitution and the writ proceeding is not maintainable.”

The Court held, “it is absolutely clear that Respondent 3/college received Government aid from the Government of West Bengal from time to time and thus there is no doubt that the said college comes within the purview of Article 12 of the Constitution and the writ petition can be held to be maintainable against any action of such college receiving Government aid.”

The Court also relied on the case of Andi Mukta Sadguru Shree Muktarjee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691, where it was held, “The term “authority” used in the context, must receive a liberal meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32.”  Thus, the writ petition was held maintainable.

Further, on the merits of the case, it was held, “In my view, all actions including the actions taken by the Secretary terminating the petitioner’s service are without jurisdiction and all actions taken against the petitioners have vitiated being unauthorised exercise of authority. The entire proceeding being unsustainable, the order of suspension and termination cannot remain alive and those are set aside.”

In the view of the above, the petitioner was entitled to his salaries (full salary from the day when he was placed under suspension) considering that no proceeding had been initiated against him.[Dr Sankar Prasad Mukherjee v. Maulana Abul Kalam Ajad University, 2019 SCC OnLine Cal 659, decided on 16-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench of S.K Seth, C.J. and Vijay Kumar Shukla, J. dismissed a writ petition challenging the conditions of Notice Inviting Tender and the relevant bid document.

The petitioner contended that, associated bid document imposed restriction and made bidder ineligible for submitting the impugned tender, it debarred previously blacklisted candidates from participating in the tender by the State-owned Power Generating Companies/NTPC/Govt./PSUs in India on the date of submission of tender.

Petitioner’s company was previously blacklisted by the Central Coalfields Ltd. at Ranchi due to non-performance of the contract, for a period of three years, and the said petition challenging the Order is pending before the High Court of Jharkhand. Petitioner contended that as the matter is pending for adjudication the decision of debarring is arbitrary, unreasonable and violative of Fundamental Rights guaranteed under Articles 14 and 19(1)(g). Further placed reliance on, Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, for proving the condition onerous.

The Court referred to the judgment of Supreme Court in, Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216, where it was highlighted, “that basic requirement of Article 14 is fairness in action by State and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose.” In Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272, it was held “that in the competitive commercial field in the matter of award of contract through tender, the conditions regarding bidder’s expertise and technical capability and capacity are decided by the experts”.

The Court further observed that, if the Government acts in conformity with norms the powers to interfere of Court are restricted. There are certain matters which have to be decided by the Executives, such as fixation of the value of tenders, and Courts have a very limited role to play in such matters. Courts can only interfere when such decisions of the Executives are arbitrary, malafide or irrational and only when the public interest is affected.

The Court from the principles deducible from judgments of Supreme Court, held, the employer of a project who has authored the tender is the best judge to decided the requirements to achieve the work; also Courts must not interfere unless the action of the authority is found to be malicious and the process adopted or decision made by the authority is irrational or arbitrary or is vitiated by him by favoritism or malafide. Hence, the Court dismissed the petition as it found no illegality or arbitrariness in conditions of NIT.[Punya Coal Road Lines v. M.P Power Generating Co. Ltd., 2019 SCC OnLine MP 766, Order dated 06-05-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of V. Chitambaresh and T.V. Anilkumar, JJ. dismissed writ appeals filed by administrative officers of this Court, assailing the invalidation of Memorandum pertaining to the appointment of temporary Munsiff-Magistrate.

An Official Memorandum and Guidelines were issued by this Court on 18-06-2018 for the appointment of temporary Munsiff- Magistrate. The Memorandum verbatim reproduced Rule 5(3) of the Kerala Judicial Service Rules, 1991, but Rule 5(3)(viii) pertaining to eligibility was omitted therefrom. As a result, officers working in the High Court, Subordinate Courts, Advocate General’s Office and Law Department in the Government Secretariat were excluded from consideration. The Memorandum also prescribed age limit of 52 years as on 01-06-2018 in order to be eligible to apply, though the Rules did not impose any such restriction.

A writ petition was filed by the Judicial Staff Organisation praying for quashing of Official Memorandum and Guidelines, and for a direction to issue a fresh notification in tune with the Rules. The learned Single Judge invalidated the process of selection holding that the same was not in accordance with the Rules and hence arbitrary. Hence, the instant appeal.

The Court noted that the method of appointment to the post of Munsiff-Magistrate was by direct recruitment and transfer in accordance with Rule 5(3) of the Rules. The categories from which recruitment by transfer could be made included officers working in the High Court, Subordinate Courts, Advocate General’s Office and Law Department. A category of officers eligible under Rule 5(3)(viii) of the Rules, as it then stood, was excluded from consideration in Official Memorandum and Guidelines without assigning any reason. The prescription of the age limit of 52 years was also a condition imported in Memorandum, though not sanctioned by the Rules

It was held that the Governor of Kerala (appointing authority for Munsiff-Magistrate) had, in consultation with the High Court, made the Judicial Service Rules. Thus, these Rules were required to be followed scrupulously. Any deviation therefrom attracted the vice of arbitrariness, rendering the entire selection process.

In view of the above, the instant writ appeals were dismissed.[K.K. Ashok v. Kerala Civil Judicial Staff Organisation, 2019 SCC OnLine Ker 1081, Order dated 02-04-2019]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Ravi Malimath, J. allowed a writ petition filed under Article 227 of the Constitution of India against an interim maintenance order on account of it being arbitrary against the husband.

The respondent filed an application under Section 24 of the Hindu Marriage Act in order to seek interim maintenance for which the petitioner was directed to pay Rs 5000 per month against which this writ petition was filed.

The petitioner contended that his only source of earning was a photostat machine shop and thus the amount awarded was too excessive for him. He brought into consideration the financial position of the respondent which comprises of her owning various landed properties in the State as well as she had a four-wheeler to her possession along with the fact that she was a practicing advocate.

The Court agreed with the petitioner that taking into account the low income of the petitioner against a considerably higher income of the respondent, the maintenance awarded was far too excessive. Accordingly, the amount was reduced to Rs 3000 per month.[Rachayya v. Bhagyalaxmi,2018 SCC OnLine Kar 1821, order dated 05-06-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: The petitioner, who challenged the eligibility of Respondent 5 to participate in the Tender process, was left high and dry when the Division Bench comprising of Hemant Gupta, CJ and Vijay Kumar Shukla, J. held that the Court in exercise of judicial review, will not sit as a Court of appeal over the decision taken by a committee of experts.

The eligibility of the said respondent to participate in the Tender for upgradation of Raipur-Sitapur-Paani Road was challenged by the petitioner. The alleged ground for the challenge was that Respondent 5 did not meet one of the conditions to participate in the process, viz. execution of the contractual works of the specified quantity during the last 5 years. The Chief Engineer, PWD (Rewa Division) sought information from Respondent 5 regarding the same but even before his response, the decision declaring him eligible for participating in the tender process was taken. The petitioner submitted that the decision of the respondents was arbitrary, irrational and unsustainable.

The High Court heard the parties and found no infirmity in the decision taken by the respondents. The Court held that “The question: as to whether the bidder is technically qualified or not, is a decision taken by the experts. Since the experts have taken a decision that Respondent 5 is eligible to carry out the work advertised, therefore, this Court in exercise of judicial review will not sit as a court of appeal over the decision taken by the committee of experts.” The Court found no merit in the petition which was accordingly dismissed. [TBCL Shiv Shakti Construction Co. (Joint Venture) v. State of M.P.,2018 SCC OnLine MP 351, dated 14-5-2018]

Case BriefsHigh Courts

Bombay High Court: In an highly structured and ornate decision concerning the deficiencies of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 placed in the form of a PIL, the Division Bench comprising of A.S. Oka and Riyaz.I.Chagla, JJ., have remarkably given the explanation on the objects of enacting the Trees Act, which clearly is a leading path towards the growth of trees rather than the destruction in urban areas.

The focal point of addressing the present PIL was the challenge placed by the petitioners on the validity of the amendment to the Trees Act. The talked about PIL in this case constitutes two petitions and the authorities involved in them are “Municipal Corporation of Greater Mumbai” and “Municipal Corporation of City of Thane”. The challenge in both the petitions is to the sub-section (6) added in Section 8 of the Trees Act and there is a challenge to the constitutional validity of the said provision on the ground of violation of Articles 14 and 21 of the Constitution of India.

The first and foremost submission posed by the petitioners was that in regard to the constitution of the Tree Authority and the kind of mindless decision making process they have adopted towards granting the felling of trees. Her contention is that the entire process is vitiated by illegality due to which they cannot be allowed to function. The next submission was made in regard to the primary challenge of the PIL which concerns sub-section (6) of Section 8, in which she states that, the said provision is arbitrary in nature and has no nexus with the purpose or object sought to be achieved and it certainly violates Article 14 of the Constitution of India. Along with the mentioned contentions, the other concern was that of the violation of a Fundamental Right of citizen under Article 21 of the Constitution of India due to the manner of exercise of power by the Municipal Commissioner under the above mentioned sub-section.

Further, even in the other writ, petitioner posed a similar issue by challenging his submission to sub-section (6) of Section 8 by stating that intelligible differentia is not present for the classification under the said sub-section which clearly carves the vagueness and ambiguity due to complete absence of guidelines.

Noting all the contentions posed by the petitioners and prioritising the issue by issuing various directions towards the alarming issue of decisions being taken for felling of trees by the authorities acting in an arbitrary manner, the Hon’ble High Court of Bombay has taken care of the issues by limiting the powers of the Municipal Commissioner by making the authorities a little more diligent towards the issue of felling of trees and therefore, allowing the citizens to appeal against such decisions. [Rohit Manohar Joshi v. Tree Authority, Thane; PIL No. 119 of 2017, dated 23.04.2018]