Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and Alok Kumar Verma, J., dismissed a petition filed seeking laying of a road connecting the petitioner’s village with the district headquarters.

It was stated that though construction of the road had commenced, the said work was stopped and an alternate road was being laid. The petitioner claimed that the absence of the road had made the lives of the villagers extremely difficult.

The Court while dismissing the petition explained that it cannot undertake the task of determining whether and where a road should be laid, for these were all matters in the executive realm though the villagers facing difficulty has merit and these claims could only be addressed by the state government and they do not fall under the judicial review proceedings under Article 226 of the Constitution of India. The Court, however, directed the respondents to examine the matter and take a considered decision regarding the laying of the road. [Pushkar Singh v. State of Uttarakhand, 2020 SCC OnLine Utt 74, decided on 17-02-2020]

Case BriefsHigh Courts

Patna High Court:  A Division Bench of Dinesh Kumar Singh and Anil Kumar Sinha, JJ. allowed a civil writ application that was filed for quashing of an order passed by the District Magistrate, Bhagalpur in Misc (Excise) Case No. 159 of 2018-19, whereby the petitioner’s vehicle had been confiscated.

In the present matter, the writ application was filed to quash an order passed by the District Magistrate, Bhagalpur, whereby the petitioner’s vehicle was confiscated. The vehicle was confiscated in relation to a case registered under, Section 30(a) of the Bihar Prohibition and Excise Act, 2016, as amended by Amendment Act 8 of 2018, on charges of transporting illicit liquor.

Counsel for the petitioner, Vyash Kumar Mishra submitted that, petitioner was bona fide owner of the vehicle in question, confiscation proceeding had been initiated on 04-09-2018 and now vide the impugned order dated 26-07-2019, the vehicle of the petitioner had been confiscated. It was directed that the vehicle was to be sold by an open auction sale and after that deposition of the sale money in the treasury, hence, the petitioner had prayed for the quashing of the final order.

Counsel for the respondent, Rewati Kant Raman stated that the vehicle in question had already been confiscated, vide order dated 26-07-2019, passed by the District Magistrate, Bhagalpur, and there was provision of appeal against the final order passed by the District Magistrate, within ninety days before the Excise Commissioner by virtue of Section 92(2) under Chapter IX of the  Act.

High Court held that the Act provided an alternative efficacious remedy of appeal against the order passed by the Collector, so the court was not inclined to interfere in the matter. Relying on Whirlpool Corpn. v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1, it was further held that discretionary jurisdiction under Article 226 of the Constitution of India was subject to self-imposed restriction and such discretion could be normally exercised when there was no alternative efficacious remedy available or writ petition had been filed for the enforcement of any of the fundamental rights or where there had been a violation of the principle of natural justice or where the order or proceedings were wholly without jurisdiction or the vires of an Act was under challenge.

The Writ Application was disposed of with a liberty to the petitioner to prefer an appeal within a period of four weeks. [Shobha Singh v. State of Bihar, 2020 SCC OnLine Pat 80, decided on 16-01-2020]

Case BriefsHigh Courts

Kerala High Court: C.S. Dias, J. disposed of a writ petition filed under Article 226 of the Constitution of India.

The petitioner is the wife of one Senthil Kumar, accused under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The husband of the petitioner took a loan of Rs 30,000,00 from the State Bank of India (Respondent 1). The husband also created an equitable mortgage in respect of his property in favour of the respondent 1.

The petitioner contends that due to the financial crisis experienced by the husband, they were unable to pay off the monthly installments. But due to the delay in repayments, the Bank has declared the petitioner’s loan account as Non-Performing Asset and has already sent a possession notice under Section 13(4) of the SARFAESI Act.  The present petition is against the measures initiated under SARFAESI for recovery of the loan amount by the Bank. This Act enables the secured creditors to take possession of the securities of the defaulters, without any intervention of the Court and also alternatively to authorize any Securitization or Reconstruction Company to acquire financial assets of any Bank or Financial Institutions.

The petitioner also made representations to the Bank seeking time to settle the outstanding amounts in installments. In spite of the representations made, the Bank threatened to take possession of the mortgaged property on or before 31-12-2019.

The Court referred to the judgments in Union Bank of India v. Stayawati Tandon, (2010) 8 SCC 110 and State Bank of Travancore v. Mathew, ILR 2018(1) Ker 479. The judgment in the above-mentioned case was that, where any alternate remedy is available, the petition under Article 226 should not be entertained by the High Court. Section 17 of the SARFAESI Act provides for the right to appeal. It enumerates that any person who is aggrieved by the measures referred in Section 13(4) of the Act shall make an application to the Debt Recovery Tribunal within 45 days from the date on which measures have been taken. Though the rule of exhaustion of alternate remedy is a rule of discretion and not one of compulsion.

The counsel for the petitioner, Alexander George, contended that the petitioner is ready to pay the amount claimed by the respondent, in the possession notice, but he is just pleading to pay the amount in easy installments. He also pleads to regularize his loan account once he has repaid the said amount.

The counsel for the respondents, Jawahar George, affirmed that the Bank is ready to accept the defaulted amount towards the loan account in 4 monthly installments. The total amount due to that day was Rs 4,000,00.

After hearing both sides, the Court held that it will entertain this petition and the petitioner will be granted some time to pay off the loan amount and the defaulted amount. The Court directed the following-

  1. the petitioner is liable to pay Rs 4,000,00, due amount, with applicable charges and interest in six monthly installments commencing from 15-01-2020
  2. along with the defaulted amount, the petitioner will also pay the regular and equal monthly installments, as per the loan agreement
  3. when the above-mentioned payments are made in full by the petitioner, his loan amount will be regularized.
  4. in case of default, the benefit granted to him by this Court will stand to vacate and then the Bank will work according to the provisions of the SARFAESI Act and recover and auction the mortgaged property of the petitioner.
  5. the Court also made it clear that the judgment in this petition is peremptory in nature hence the petitioner should comply with the order. In case of non- compliance, the petitioner’s right to challenge the proceedings under the SARFAESI Act will stand foreclosed before any other alternative forum or Court.[Anu Senthil v. State Bank of India, 2019 SCC OnLine Ker 6018, decided on 31-12-2019]
Case BriefsHigh Courts

Kerala High Court: Anu Sivaraman, J. dismissed a writ petition filed by the petitioner to direct the respondents to allow her to participate in the item ‘Folk Dance’ in the State Kalotsav for CBSE Schools.

The petitioner, who is a student of a CBSE School had secured an ‘A’ Grade and a second prize in Folk Dance in a District Level competition. Going by the Manual with regard to the conduct of CBSE Kalotsav, it was clearly specified that the top two positions at the District Level competition will be eligible to participate in the State Level Kalotsav. However, only the two first place holders were permitted to participate and the petitioner was included only on the waiting list. The petitioner contended that she had secured the second prize and was, therefore, entitled to participate in the State Level Kalotsav. She contended that this was against the provisions of the Manual and she should be permitted to participate in the State Level Kalotsav. The respondent argued that that Kalotsav was conducted by the Confederation of Sahodhaya Schools and that the CBSE had no role in the actual conduct of the Kalotsav.

The issue raised in the present case was with regard to the conduct of a State Level Kalotsav for students of CBSE Schools. The Manual had all the guidelines issued for the conduct of the Kalotsav.

The Court, therefore, held that the issue with regard to the participation of students in a School Level Kalotsav is not a matter which was liable to be considered by the Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. Moreover, it was clear that the Manual was not a binding statutory guideline which would permit the petitioner to approach the Court complaining of a violation of the same. The Manual was only a guideline issued with regard to the conduct of Kalotsav and even in case there was a violation of the same, no writ would lie for enforcement of the same. The Court went on to state that this matter did not require any interference from their side in exercise of its powers of judicial review. [Aiswarya P v. Convenor, 2019 SCC OnLine Ker 4370, decided on 13-11-2019]

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Jharkhand High Court: Sujit Narayan Prasad, J. dismissed a writ petition under Article 226 of the Constitution of India whereby the petitioner sought for a direction upon the respondents to allot a shop situated at the Municipal Library in the name of the petitioner on the ground that he has been running the aforesaid shop since long. 

The petitioner was not the allottee of the shop, rather, the shop was sublet in his favour by the original allottee. As the period of lease of the original allottee had expired, the petitioner handed over the keys of the shop with an application for consideration for allotment of the shop in his favour, but the shop was allotted to someone else. The petitioner argued that he was not allotted the shop as he was not deemed fit or proper since he was a handicapped person. The petitioner further submitted that he has been running the shop for long, and therefore priority ought to have been given by the respondents in allotment of the said shop. Counsel for the State submitted that the petitioner had no right to claim the allotment of the said shop since the said shop was never allotted in his favour, rather, he was tenant of the original allottee and after expiry of the lease in favour of the original allottee, the petitioner had no right to remain in the said premises. Furthermore, the order of allotment made in favour of the other person was never assailed.

The Court heard both the parties and decided that the shop in question was never allotted in the favour of the petitioner, rather, he was claiming allotment of the said shop by virtue of the fact that he was in occupation by way of the tenant by the original allottee. The allotment of the shop by virtue of the expiry of the lease expired and therefore, the petitioner had no right to remain in possession of the said shop.  The petitioner had simply prayed in this writ petition for allotment of the said shop on the ground that he was handicapped and was running a shop in the said premises since long, but merely because the petitioner is handicapped, no sympathy could be shown by the Court ignoring the process of allotment of the shop. Also, the order of allotment was also never under challenge. The writ petition was dismissed. [Amarendra Kumar v. State of Jharkhand, 2019 SCC OnLine Jhar 1451, decided on 18-10-2019]

Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J, dismissed the writ petition on the ground of availability of alternative remedy.

In the pertinent case, the petitioner moved to the High Court under Article 226 of the Constitution of India being aggrieved with the decision taken by the Ranchi Regional Development Authority (RRDA) of not sanctioning the map of the Building Construction Map vide Building Plan.

The counsel for the respondents raised the preliminary objection on the ground of availability of alternative remedy of appeal before the Tribunal stating that various factual aspect is to be adjudicated in this writ petition and as such, the same is fit to be appreciated by the Tribunal since the statute has created the remedy to file an appeal against the decision taken by the RRDA.

The Court held that it is evident that the petitioner is questioning the building map plan, on various ground and Court is of the considered view that although there is no absolute bar in entertaining the writ petition under Article 226 of the Constitution of India but where question of determination of the issues on factual aspect is involved, the writ Court should refrain from adjudicating the issues, if alternate remedy is available for adjudication of the issues after appreciating the factual aspect. Hence, the writ petition cannot be entertained on the ground of availability of the alternative remedy of appeal before the Tribunal of the RRDA is available.[Prakash Munjal v. State of Jharkhand, 2019 SCC OnLine Jhar 1153, decided on 06-09-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., dismissed a petition filed under Article 226 Constitution of India to direct the respondents to register an FIR on the basis of the complaint made by her.

The main question before the High Court to decide was ‘whether a writ petition under Article 226 of the Constitution of India for registration of the FIR is tenable or not?’

The Supreme Court in the case of Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542 had held that the High Court in exercise of its power under Article 226 can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of the process as provided for in the Code. Even in cases where no action is taken by the police on the information given to them, the informant’s remedy would lie under Sections 190, 200 of CrPC, but a writ petition in such a case cannot be entertained.

Similarly, in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Supreme Court held that cases like these do not pertain to issue of entitlement to writ of mandamus for compelling the police to perform statutory duty under Section 154 CrPC without availing alternative remedy under Sections 154(3), 156(3), 190 and 200 of CrPC.

Therefore, the Court finally dismissed the petition as the petitioner still had an efficacious and alternative remedy of filing a criminal complaint before the Court of competent jurisdiction.[Mamta Prajapati v. State of Madhya Pradesh, 2019 SCC OnLine MP 2477, decided on 06-09-2019]

Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J., dismissed the writ petition as a writ petition after issuance of notice under Section 13 (4) of the SARFAESI Act, 2002 is not to be entertained.

The brief facts of the case of the petitioner is that the petitioner has extended with the credit facilities of an amount of Rs 80 Lakhs, a cash credit of Rs 70 Lakhs and a bank guarantee facility of Rs 10 Lakhs. The said account having been declared to be a non-performing asset, therefore, a proceeding has been initiated by issuing a notice under Section 13(2) of the SARFAESI Act, 2002, subsequent thereto, a notice under Section 13(4) of the SARFAESI Act, has also been issued. In course of that stage, the respondent-Bank has entered into a settlement under One Time Settlement Scheme by settling the account. The petitioner after entering into the settlement had started making a payment but the terms and conditions of the One Time Settlement were not been complied with, therefore, the One Time Settlement Scheme was cancelled by the impugned order, against which, the present writ petition has been filed by the petitioner.

The Counsel for the petitioner relied upon the judgement of A-One Mega Mart (P) Ltd. v. HDFC Bank, 2012 SCC OnLine P&H 17328, and submitted that the writ petition may be entertained and appropriate direction by quashing the One Time Settlement may be issued.

The Counsel for the respondent submitted that the proceeding has been initiated under the Debt Recovery Act, 1993 and subsequently the notice under Section 13(2) has also been issued now it is at the stage of the proceeding under Section 13(4) of the Act, 2002.

The Court held that the there is no absolute bar in entertaining the writ petition under Article 226 of the Constitution of India but simultaneously in numerous judgements of the Supreme Court it has been laid down that a writ petition after issuance of notice under Section 13(4) of the Act, 2002 is not to be entertained. In this regard, reliance was placed upon the judgement of State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85. On the basis of views expressed by the Supreme Court, this Court is of the view that this writ petition is not fit to be entertained, accordingly, dismissed.[Ace Sales & Logistics v. H.D.F.C. Bank Ltd.,  2019 SCC OnLine Jhar 1136, decided on 20-08-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. dismissed a writ petition seeking a writ of mandamus against official respondents for restraining private persons from encroaching of the suit property of the petitioner.

The petitioner herein had filed a writ petition under Article 226 of the Constitution of India read with Article 103 of Constitution of Jammu & Kashmir, seeking mandamus commanding the official respondents to restrain certain private persons from interfering in the peaceful possession of petitioner’s suit property.

The Court noted that the petitioner was claiming relief for restraining the encroachment of his land by private persons. It was opined that this was not the function of official respondents, because they are executive functionaries of State. Since, the dispute involved the civil rights of the petitioner, it would be proper for him to seek a remedy before a civil court by filing a suit for injunction.

While determining the petition before it, the Court relied heavily on Roshina T v. Abdul Azeez, (2019) 2 SCC 329 where it was held that “a regular suit is an appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged.” In that case, the Supreme Court had held that a High Court cannot use its constitutional jurisdiction for deciding disputes, for which remedies under the general law, civil or criminal are available. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.

In view of the above, the petition was dismissed but liberty was granted to the petitioner to approach the civil court.[Paras Ram v. State of J&K, 2019 SCC OnLine J&K 479, decided on 24-05-2019]

Case BriefsHigh Courts

Rajasthan High Court: Alok Sharma, J. allowed a civil writ petition filed by a person against his transfer order. As a result of which, another order was passed regarding its transfer, quashing the previous transfer order.

 In the instant case, the petitioner was transferred to the post of RTO Alwar and respondent 3 herein who was posted as RTO earlier, was transferred to the Transport Department. Since the petitioner was due to retire in just six months, he challenged his transfer order before the Rajasthan Civil Services Appellate Tribunal, Jaipur. The Tribunal quashed his transfer order. Consequently, respondent 3 was transferred back to his original post of RTO and the petitioner was directed to join Parivahan Bhavan, Jaipur. Aggrieved by the said order of the Department, the instant petition was filed.

At the outset, the Court observed that the order passed by Tribunal was a well considered and replete with cogent reasons. It remarked that a transfer is an incident of service and the discretion of an employer in transferring an employee is quite wide. Ordinarily, no interference is to be made with an order of transfer unless it violates a statutory rule or is malafide. But it was opined that the same is not an iron-clad opinion in law. The Court relied on the case of Manjula Pathak v. State of Rajasthan, (SB CWP No. 14577 of 2016), which was also considered by the Tribunal, and held that transfer of an employee, within a year of his imminent superannuation, deserved interference.

It was observed that an employee, who is to retire within one year, should not be transferred if there is no obvious cause, as such a transfer would cause avoidable disruption at the end of a government servant’s career and create difficulties in a post-retiral settlement.

The Court was of the view that it was for the State Government to satisfy the Tribunal as to the circumstances which made it manifest that transferring the petitioner was founded upon a careful evaluation of public interest and/or administrative exigencies and that the impugned transfer was not a casual and mechanical exercise of discretion. The State should also have satisfied the Tribunal that while passing the impugned transfer order, the fact of the respondent 3 superannuating in six months was consciously taken into consideration. Neither of the above was admittedly done.

In view of the above, it was held that the order passed by the Tribunal required no interference by this Court under Article 226 of the Constitution of India. No manifest injustice can be said to have been caused to the petitioner by the impugned order of transfer. The consequential order passed by respondents had thus to be sustained.

The writ petition was dismissed for being bereft of merits.[Rani Jain v. Government of Rajasthan, 2019 SCC OnLine Raj 1615, decided on 13-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J. allowed writ petition filed under Article 226 of the Constitution of India against the order issued by M.P. Public Service Commission. 

The petitioner contended that her name was kept in the waiting list at Serial 1 but despite the availability of post, she was not appointed. She appeared in the State Civil Services Exam, 2015, thereafter was selected under the waitlisted handicapped category. It was further contended that private-respondent had not been appointed on account of criminal cases registered against him and he was declared disqualified, the criminal cases registered against him were already decided by the Court against him. Thus it was submitted that the petitioner’s name cannot be kept in the waiting list for an unlimited period. 

Learned counsel for the respondents had submitted that although the petitioner was selected and her name was kept in the waiting list at Serial 1, but as the private-respondent had filed the petition, no order could be passed in favour of the petitioner due to the pendency of the said petition. 

The Court found that insofar the petition filed by the private-respondent was concerned, the said petition had been dismissed by the Court under a separate order and thus in its considered opinion the Court held, that there was no legal impediment in issuing the appointment order in favour of the petitioner, which difficulty has been expressed by the respondents in their reply. Hence, there was a direction to issue an appointment letter in favour of the petitioner. [Pooja Dwivedi v. State of M.P., 2019 SCC OnLine MP 1154, decided on 20-06-2019]

Case BriefsHigh Courts

Jharkhand High Court: The instant writ petition entertained by Sujit Narayan Prasad, J. was filed under Article 226 of the Constitution of India for quashing the Memo issued by the respondent whereby the water reservoirs in the urban area has been directed to be handed over in favor of the municipality.

The petitioner had contended that certain water reservoirs had been settled in favor of the petitioner for the year 2016-17 and in terms of the contract the petitioner carried out the fishing work in the aforesaid tanks but all of a sudden the impugned decision was taken on by which the tank was transferred in favor of the municipality therefore, the ground was raised that when the terms and conditions of the contract was in subsistence during the course when the impugned order was passed, the same cannot be done in the course of subsistence period of the contract, hence the impugned order was not sustainable in the eyes of law.

Counsel for the State-respondent Gautam Kumar, submitted that the impugned decision was taken in terms of the Cabinet decision which was issued by the appropriate authorities and the said Cabinet decision was taken in pursuance to the provision of Section 126 of the Jharkhand Municipal Act, 2011 wherein the provision was made about vesting of property which includes public tanks/reservoirs also, therefore, if the Cabinet took a decision to follow the statue and in terms thereof any decision which was taken, the same cannot be interfered with.

The Court observed that the tanks in question were settled in favor of the petitioner in the year 2016-17 by the order in that regard by the competent authority but in course of subsistence period of the contract the impugned decision was taken to transfer the tanks in favor of the municipality by taking aid of the decision by the State of Jharkhand. It further found no dispute about the settled position of law that if any Act has been acted upon, it was to be followed in its strict sense and there cannot be any deviation otherwise it will be said that the rule of law was not prevailing. It held, “It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect.” Hence, the petition was dismissed.[Somath Haldar v. State of Jharkhand, 2019 SCC OnLine Jhar 683, decided on 13-06-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan and R.C. Khulbe, JJ. contemplated a writ petition, where the petitioner who was an Assistant Professor, sought certiorari to quash the order of recovery of money along with interest. The petitioner further sought mandamus to direct the respondent-State University to re-examine petitioner’s case and subsequently withdraw the order.

The factual matrix of the case are, that the petitioner had earlier invoked the jurisdiction of Court wherein the validity of the order passed by the respondent-University directing the petitioner to deposit a sum of Rs 1,75,000 was questioned. For the aforementioned case the Divisional Bench had observed that it was an admitted fact that, when the petitioner had proceeded on study leave, he had executed a bond with the State of Rajasthan although the petitioner was a temporary employee of the Government of Rajasthan. Finding no merit in the writ petition, the Division Bench dismissed the same. But in 2019 the concerned officer from the department issued an order for recovery of the amount of the bond with interest, executed at the time of study leave granted to the petitioner to secure the Ph.D. Degree, which was in question in the instant writ.

S.S. Yadav, counsel for the petitioner, submitted that the Division Bench had erred in holding that the petitioner was a temporary employee, and that the Rules were applicable to temporary employees only. Since the petitioner was a permanent employee, Rule 110 (1) would alone apply in which event, the petitioner need not pay the said amount for not complying with the bond; the cause of action for both the writ petitioners were different, though the petitioner had filed an application, seeking review of the order passed by the Division Bench earlier. It was further submitted that the impugned order of 2014 made no reference to the petitioner having invoked the review jurisdiction of the Court; and consequently, the petitioner was entitled to again invoke the jurisdiction of the Court under Article 226 of the Constitution.

The Court, observed that petitioner’s contention that a new cause of action had arisen as a result of the Office Order of 2019 did not merit acceptance and, since it was the very same cause of action based on the order of 2014 whereby Rs 1,75,000 was sought to be recovered from the petitioner, on which the present writ petition was based, it is difficult to accept that the petitioner was again entitled to invoke the jurisdiction of Court, in effect, questioning the very same order of 2014. Further, it was stated that bare perusal of the order passed by the Division Bench clearly showed that, while dismissing the writ petition, liberty was not granted to the petitioner to again invoke the jurisdiction of this Court by way of a separate writ petition for the very same cause of action.

The Court held, “The judgment of a competent Court is binding inter-parties and cannot be re-agitated in collateral proceedings. An order or judgment of a Court/Tribunal, even if erroneous, is binding inter-parties. The binding character of judgments, of Courts of competent jurisdiction, is, in essence, a part of the rule of law on which administration of justice is founded.” Since a review petition was already filed by the petitioner the aforementioned writ was dismissed.[Vidya Sagar Singh v. G.B. Pant University of Agriculture and Technology, 2019 SCC OnLine Utt 473, decided on 16-05-2019]

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Orissa High Court: A Division Bench of S.K. Mishra and Dr A.K. Mishra, JJ., dismissed the writ petition against the judgment declining interference in the disciplinary proceeding and order imposing the punishment of compulsory retirement.

The facts of the case were that appellant-petitioner was appointed as an officer of the Indian Bank as Inspecting Manager at Kolkata. He was entrusted with the inspection of banks at different places for which the bank had to pay the bill for lodging. The Deputy Manager General, on finding the irregularity asked for the explanation which was duly submitted but was not appreciated and appellant-petitioner alleged to be dishonest under the Indian Bank Officer Employees’ (Conduct) Regulations, 1976. A disciplinary authority thus imposed a major penalty of compulsory retirement. The appeal and review petition filed before the reviewing authority was dismissed and hence, this writ.

The Judgment of the Single Judge Court after submission held that the court had the jurisdiction to entertain the writ petition. The court further held that the court could not interfere with the enquiry, appellate and reviewing authority in absence of the procedural irregularities. The Court further held that “The power of judicial review to scan the evidence, which had reached finality on the basis of concurrent finding, was found uncalled for in the facts placed and law analyzed.”

The matter was then called for Division Bench which observed the Judgment of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 in which the court made it clear that the writ of certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. where lower courts either without jurisdiction, or in excess of jurisdiction or acting in flagrant disregard of law or rules of procedure or acting in violation of the principles of natural justice, pass an order thereby occasioning failure of justice. Thus, the impugned judgment of the learned single judge was found to have the support of law and facts. Thus, writ dismissed. [Abhiram Samal v. Indian Bank, 2019 SCC OnLine Ori 198, decided on 01-05-2019]

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Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and N.S. Dhanik, J. entertained a PIL which sought mandamus to direct the respondents to constitute a Committee for management/trust of the affairs of the ‘Purnagiri Temple’; to prepare a list of important temples in terms of the order passed in Writ 2015; and a mandamus to direct the first respondent to appoint Commissioners in such important temples, where till date no management committee was appointed.

The learned counsel for the petitioner Ayush Negi and Amit Kapri, placed reliance on In the matter of ‘Constituting a Trust / Board at the Jageshwar Dham, (Jyotirlinga) Almora v. State of Uttarakhand, 2013 SCC OnLine Utt 4074,  whereby certain directions were issued regarding constitution of a Committee of Management for the Jageshwar Dham. The learned counsel also relied upon several judgments where recommendations to the State Government to frame suitable legislation for the proper functioning of Hindu Public Religious Institutions and Charitable Endowments were given, and had directed the State Government to prepare a list of all the public temples throughout the State to bring them within the Schedule. Counsel submitted that power was conferred both on Parliament and State Legislature under Article 246 of the Constitution of India. In the absence of any legislation (plenary or subordinate), power was also conferred on the Executive, under Article 162 of the Constitution of India, to issue administrative instructions.

The Court relied upon various judgments of the Supreme Court and stated that, no court can issue a mandate to a legislature to enact a particular law. Similarly, no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. The Court further stated that, while they had the power to strike down a law on the ground of want of authority, not necessarily Court would not sit in appeal over the policy of Parliament or the State Legislature in enacting a law. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State.

It was held by the Court that, “As the duty to formulate policies is entrusted to the executive, which is accountable to the legislature, the Court would not direct the executive to adopt a particular policy or the legislature to convert it into enacted law.” Court further relied upon the judgment in, Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796, where it was rightly held that, the exercise of making policy must be left to the discretion of the executive and legislative authorities. The Court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes the fundamental rights guaranteed by the Constitution of India or any other statutory right. As the petitioner had highlighted various illegalities in the manner in which the subject temple is being managed, the Court directed the respondent to consider it appropriate to examine the specific allegations made in the said representation.[Narendra Kumar v. State of Uttrakhand, 2019 SCC OnLine Utt 406, decided on 30-05-2019]

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

Calcutta High Court: Tapabrata Chakraborty, J. dismissed a writ petition filed by the petitioner, Dr Kashninath Ghosh Hazra, under Article 226 of the Constitution of India.

The petitioner claimed to be the owner of an un-partitioned land at plot nos. 4933, 4934, 4935 and 4936 of Mouza Sadpur, Block- Kandi, Khatian No. 714, P.O. & P.S. Kandi, Pin 742 137, District- Murshidabad, West Bengal. On 10-02-2019 the petitioner came to learn that the private respondents were demolishing the structures existing on the said property. The petitioner maintained that without taking steps towards the partition of the said property and without obtaining any appropriate sanction plan from the municipal authorities, the private respondents had started raising unauthorized construction including a boundary wall. Aggrieved thereby, this petition was filed.

The Court had passed an interim order on 26-02-2019 restraining the private respondent’s 14 to 20 from demolishing any structure existing on the said property and from raising any fresh construction till the end of April, 2019 or until further orders.

Respondent 14 by filing an affidavit-in-opposition and a vacating application stated that a partition suit pertaining to the said property, being T.S. No. 38 of 2003, was initially filed by Amala Bala Ghosh impleading the petitioner herein. The final decree was passed on 17-01-2014. The said decree was executed and the 3 parties obtained possession of the decretal property in the year 2014. Thereafter, the names of the respondent’s 14 and 15 were mutated and some portions of the said property had also been sold to third parties.

In reply, the petitioner submitted that he had no knowledge about the institution of the said partition suit and the preliminary decree and the final decree were passed ex parte.

The Court, in view of the arguments made by the parties, held that the said property had already been partitioned and hence no direction could be passed in the present writ petition. The Court observed that the grievance of the petitioner was that he was not given appropriate notice for which he could not appear and contest the partition suit. It was opined that such grievance ought to have been ventilated by the petitioner before the competent civil forum. But without taking such steps the petitioner had preferred the present writ petition involving the municipal authorities. In view thereof, the petition was dismissed.[Dr Kashinath Ghosh Hazra v. State of West Bengal, An application under Article 226 of the Constitution of India filed on 19-02-2019, In re, 2019 SCC OnLine Cal 655, decided on 15-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and N.S. Dhanik, J. dismissed a petition being wholly misconceived, as the directions sought for were not within the realm of the Court.

In the present matter the petitioner required appropriate actions to be taken by the Court to interconnect Pantnagar Airport, Jolly Grant Airport and Indira Gandhi International Airport; and ensure proper air transport between them and the respondents to gear up the working of the proposed unserved airports in Uttarakhand, i.e. Chinyalisaur, Gaucher, Haridwar, Pithoragarh (Naini-Saini) & Uttarkashi.

The High Court opined that, “where an Airport should be established, how many flights should be run every day at these Airports, whether or not the Airport at Pantnagar should be connected with the Airports at Dehradun and Delhi and if so, in what manner; and whether or not such inter-connectivity of Airports are economically viable, are all matters of policy which lie exclusively in the executive realm”. Further, it held that “it would not undertake the exercise of monitoring establishment or operation of Airports in different parts of the State, or to prescribe the frequency of flights to and from these Airports, in proceedings under Article 226 of the Constitution of India”.[Pankaj Miglani v. Union of India, 2019 SCC OnLine Utt 242, Order dated 03-04-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Anu Sivaraman, J. was hearing a civil writ petition filed by a minor girl aged 14 years, represented by her guardian, seeking direction to the Appeal Committee of Malappuram District School to permit petitioners’ team to participate in the item ‘Sangha Ganam’ in the State School Kalolsavam.

Learned counsel for the petitioners Mr N.K. Subramanian submitted that the petitioners stood second in ‘Sanga Ganam’ competition only because of defect in microphone and also due to noise from the bus stand beside the stage. It was stated that petitioner’s appeal to committee of Malappuram District School was dismissed without even considering the points raised by her.

The Court held that sitting in an extraordinary original jurisdiction exercising powers under Article 226 of the Constitution of India, this Court was not empowered or competent to decide the dispute as to competence or standard of performance of participants in art and cultural activities. As such, no orders could be passed, as the instant petition raised a factual issue as to petitioners’ performance vis-a-vis that of other participants.

In view of the above, the Court declined petitioners’ prayer for participation in further levels of the festival. However, it was opined that respondents should take care to see that the appeals preferred by the petitioner before school’s committee are considered without undue delay and proper orders are passed thereon, at least pointing out the basic reasons for non-consideration of the same.[Haritha Haridas. K. v. State of Kerala, 2018 SCC OnLine Ker 8258, Order dated 05-12-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench of Dama Seshadri Naidu, J., decided a writ petition wherein it held that the jurisdiction of Article 226 of the Constitution of India does not go to the extent of altering the terms of a contract.

As per the facts of the case, the petitioner took a loan of Rs 9 lakhs from the respondent bank and defaulted in making the repayment due to financial problems. As a result, the respondent bank initiated proceedings under the SARFAESI Act. The petitioner submitted that despite his best efforts, could not repay the loan because of his financial difficulties. Therefore, he approached the High Court to direct the respondent Bank to receive the outstanding loan amount in installments.

The High Court observed that its jurisdiction under Article 226 of the Constitution of India does not go to the extent of altering the contractual terms, especially in a financial transaction involving public money and, to compel the respondent bank to accept repayment in installment. The Court based on the bank’s concession to accept the repayment of the loan in twelve equal monthly installments directed the petitioner to pay the accumulated dues accordingly. The Court gave liberty to the respondent bank to proceed with recourse to the Court if the petitioner fails to pay any two consecutive installments within the stipulated time. The petition was accordingly disposed of.[Muhammed Saleem M.T v. State of Kerala,2018 SCC OnLine Ker 2998, dated 01-08-2018]