Case Briefs

Supreme Court: The Division Bench of M.R. Shah* and A.S. Bopanna, JJ., quashed the judgment of Gujarat High Court wherein it had directed ONGC to accept modified bid of the writ applicant. The Bench held that the when High Court had permitted the writ applicant to modify its offer, the opportunity ought to have been given to the other applicants as well. The Bench remarked,

“The procedure adopted by the High Court while disposing of the writ petition by permitting/allowing the original writ applicant to modify its offer and that too in exercise of powers under Article 226 of the Constitution of India, as observed herein above, is unsustainable and unknown to law.”

Facts of the Case

By the impugned judgment, the High Court had directed the respondent-ONGC to finalize the contract with the writ applicant on the condition that the writ applicant shall lift the gas within 65 days from the date of allotment instead of 75 days as offered by it earlier. Noticeably, the respondent-ONGC had invited “Expressions of Interest” (EOI) on 22-07-2020 for demand assessment for natural gas produced from the two fields. As per the EOI, the demand assessment for the natural gas in the area was to be undertaken by ONGC and the ultimate approval for allocation was to come from Ministry of Petroleum and Natural Gas, Government of India. If allotted, the gas supply was to operate for a period of five years from the date of award.

Only three applicants were interested in sourcing the natural gas from two fields advertised by ONGC viz., (1) original writ applicant – Nobel Cera Coat, (2) Vaibhavi Enterprise (3) Tanish Cerachem Pvt. Ltd. Thereafter, ONGC sought approval of Ministry for gas allocation. When the matter was pending consideration before the Union Government, one of the applicant-Tanish Cerachem Pvt. Ltd. revised its response and offered to commence off take of gas within 65 days of allotment.

Evidently, the writ applicant had offered to lift gas from the field/block within a period of 75 days. However, considering the revised offer from Tanish Cerachem Pvt. Ltd., the ONGC had re-invited bids from all the three shortlisted applicants and accordingly it had asked them to place fresh bids.

The appellant contended that, it had submitted to the fresh tendering process and submitted its bid. However, the writ applicant did not submit any fresh bid and filed a writ petition before the High Court challenging the ONGC’s decision to re-invite the bid so far as it called for “expected period of readiness to off take gas from ONGC’s offer letter”, wherein the High Court had permitted the writ applicant to reduce the days for lifting gas from 75 days to 65 days, and had directed the ONGC to finalize the contract with the writ applicant.

Analysis and Findings

“It is required to be noted that before the High Court it was brought on record that there are two other applicants who submitted their EOI and even one of the applicants was ready and willing to lift the gas within 65 days.

Observing that the writ applicant had revised its offer only during the pendency of the petition, and unfortunately High Court had permitted the same that too in exercise of powers under Article 226 of the Constitution, the Bench remarked,

“We have our own doubt whether in exercise of powers under Article 226 of the Constitution of India, the High Court could have permitted one of the bidder to revise / modify its offer. Even in the facts and circumstances of the case, the High Court felt that instead of inviting fresh bids, the same could be allowed, in that case also, similar opportunity ought to have been given to the other applicants also.”

In the light of the above, the impugned decision was set aside and the matter was remitted to the High Court for its fresh decision in accordance with law and after giving fullest opportunities to all the respondents including ONGC, Union of India and the appellants.

[Vaibhavi Enterprise v. Nobel Cera Coat, 2021 SCC OnLine SC 954, decided on 21-10-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance by:

For the appellant: Santosh Krishnan,

For the Writ Applicant: Saurav Agrawal,

For ONGC: Vikramjit Banerjee, ASG

*Judgment by: Justice M.R. Shah

Know Thy Judge | Justice M. R. Shah


Case BriefsSupreme Court

Supreme Court: Stating that the creation and/or sanction of the posts is the sole prerogative of the Government, the bench of MR Shah* and AS Bopanna, JJ has held that High Court cannot, in exercise of the power under Article 226 of the Constitution, issue a Mandamus to direct the Department to sanction and create the posts.

The Court was deciding a case wherein the respondents-original applicants were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Chandigarh. There is no documentary evidence on record to establish and prove that the respondents were working continuously.

It is important to note that there are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working.

A regularization policy was framed considering the decision of this Court in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1. It provided that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure the services of such irregularly appointed, qualified persons, in terms of the statutory requirement of the Rules for the posts, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals.

By the impugned judgment and order, the Punjab and Haryana High Court directed to reformulate the regularization policy and to take a decision to sanction the post in a phased manner.

The Supreme Court, however, noted that since the Union of India/Department has already come up with a regularization policy in consonance with the law laid down by the Supreme Court, which does not apply to the part-time workers who do not work on the sanctioned post, the respondents were not entitled for the benefit of regularization.

The Court explained,

“As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.”

The Court took note of the decision in State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 wherein it was held that the status of permanency cannot be granted when there is no post and that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done.

Holding that part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held, the Court said that

“Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.”

Concluding that the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so, the Court held,

“The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.”

[Union of India v. Ilmo Devi, 2021 SCC OnLine SC 899, decided on 07.10.2021]


For appellants: ASG Madhvi Divan

For respondents: Advocate Rahul Gupta

*Judgment by: Justice MR Shah

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar CJ. and B. P Routray J. dismissed the petition being devoid of merits.

The facts of the case are such that the petitioner since the time of his forefathers is in peaceful possession over a piece of land. Being a landless person he applied to the Tahasildar, Sambalpur for settlement of the case land in his favour under the provisions of the Odisha Government Land Settlement Act (in short ‘O.G.L.S. Act’). Earlier he had approached this Court in W.P. (C) No.4576 of 2014 which was disposed of by this Court by order dated 15th April, 2014 with a direction to the Tahasildar to dispose of the Petitioner’s application in accordance with law. The Petitioner contends that during the pendency of his application, the Opposite Parties without disposing of his claim as per the earlier order of this Court are trying to dispossess him in an arbitrary and discriminatory manner. The instant petition is filed by the Petitioner praying that the case land be settled in his favour.

Counsel for the petitioners Mr B.P.B. Bahali submitted that the State is duty-bound to provide shelter to its citizen, who is a landless person. The Petitioner resides on the case land by constructing a house over a portion of the same and the remaining portion is used for cultivation purpose. The petitioner submitted that he earns his livelihood on daily wage basis and as such he fulfils all eligibility criteria for settlement of the land in his favour as per the provisions of O.G.L.S. Act and Rules.

Counsel for the respondents Mr S. Pattnayak submitted that averments made in the writ petition are not correct as the petitioner was never in possession of the case land. As per field enquiry conducted by the Revenue Inspector, the case land was found a vacant piece of land and alienation was initiated in favour of Western Electricity Supply Company Ltd. (WESCO) for establishment of Grid Sub-Station. It was further stated that the case land comes under Category-III (A) reserved for public developmental purpose in terms of Section 3(1) of the O.G.L.S. Act, hence submitting that neither the petitioner nor his forefathers were in possession of the case land at any point in time.

The Court observed that on detailed scrutiny of the entire materials, the Court is unable to find anything to support the Petitioner’s claim. The Petitioner has not brought anything on record to support his claim of being a landless person covered under the O.G.L.S. Act for settlement of the case land in his favour or that he was in possession of the same from the time of his forefathers.

The Court relied on judgment Grid Corporation of Orissa Limited (GRIDCO) v. Sukamani Das, (1999) 7 SCC 298 and held that the present writ petition raises highly disputed question of facts, which would require the leading of evidence and the examination and cross-examination of witnesses, and which are, therefore, not amenable to being adjudicated under Article 226 of the Constitution.”[Anil Palai v. State of Odisha, 2021 SCC OnLine Ori 632, decided on 31-05-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court:  The 3-judge bench of Ashok Bhushan, SA Nazeer and Hemant Gupta*, JJ has reiterated that the nomenclature under which the petition is filed is not quite relevant and it does not debar the Court from exercising its jurisdiction which otherwise it possesses.

The Court hearing a where a petition was filed against an order of the Wakf Tribunal before the High Court but was styled as a Writ Petition under Article 226 of the Constitution. The Court explained that when a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. In fact, in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition.

Further, the proviso to sub-section (9) of Section 83 of the Wakf Act, 1995 confers power on the High Court to call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination.

“The statutory provision is acceptance of the principle that the jurisdiction of the High Court under Article 226 or 227 of the Constitution of India cannot be curtailed.”

Relying on the decision in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, the Court said that if the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227 or Section 482 of the Code.

“Therefore, the petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and/or under Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial.”

[Kiran Devi v. Bihar State Sunni Wakf Board, 2021 SCC OnLine SC 280, decided on 05.04.2021]

*Judgment by Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and MR Shah, JJ has held that the presence of an arbitration clause within a contract between a state instrumentality and a private party does not act as an absolute bar to availing remedies under Article 226.

“If the state instrumentality violates its constitutional mandate under Article 14 to act fairly and reasonably, relief under the plenary powers of the Article 226 of the Constitution would lie.”

In the case where it was argued that a remedy for the recovery of moneys arising out a contractual matter cannot be availed of under Article 226 of the Constitution, the Court clarified that the recourse to the jurisdiction under Article 226 of the Constitution is not excluded altogether in a contractual matter. A public law remedy is available for enforcing legal rights subject to well-settled parameters.

“The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well-settled that the jurisdiction under Article 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena.”

The Court, however, made clear that though the presence of an arbitration clause does not oust the jurisdiction under Article 226 in all cases, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked.

[Unitech Ltd. v. Telangana State Industrial Infrastructure Corporation, 2021 SCC OnLine SC 99, decided on 17.02.2021]

*Judgment by: Justice Dr. DY chandrachud 

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Calcutta High Court: Shekhar B. Saraf, J., in the instant matter after a precedential examination with regard to judicial inquiry, laid down a few principles for the same.

Petitioners sought command towards Secretary of the West Bengal Central School Service Commission – Respondent 4 to allow petitioners to add their enhanced training qualifications, as prescribed in the Recruitment Rules, 2016 in the process of selection for appointment to the post of Assistant Teacher in Upper Primary Level of Schools in pursuance of the Appointment Notification dated September 23, 2016, as well as to consider their candidatures as trained candidates as per verifications to be submitted online in terms of the latest verification notification dated December 28, 2020.

Analysis, Law and Decision

Bench stated that in Aktarul Islam Kayal v. State of West Bengal, W.P.A. No. 9597 of 2019, Court did not set aside the advertisement published on September 23, 2016, and Commission was directed to hold a fresh selection of all candidates who were found to be eligible under Rule 12(2).

The above position clearly prevents the court from any intervention with regard to such advertisement.

Further, the fresh cause of action that arose was with regard to enhanced qualifications to be considered due to the fact that the selection process had been postponed by 4 years.

Supreme Court’s decision in Shankar K. Mandal v. State of Bihar, (2003) 9 SCC 519 which had also consciously considered the decision in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18, clearly reiterated the point of law that when there is no cut-off date provided for in the Rules, then such date shall be as appointed for the purpose in the advertisement/notification inviting such applications.

State or its constituent statutory bodies as the Commission have a right to fix a cut-off date in the advertisement for the purposes of such selection process. Furthermore, the cut-off date has to be adhered to and applied consistently for all persons and the same cannot be ignored for a particular person.

Bench expressed that one cannot lose sight of the fact that the Courts in this country including High Courts, are institutions tasked to adjudicate and not to legislate.

In the Supreme Court decision of Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356, Court had reiterated the scope of the powers of a High Court exercising its powers under Article 226 of the Constitution of India.

Moving on to the precedents of the Supreme Court that prescribe non-interference in policy decisions of the State under this Court’s judicial review powers, the Supreme Court had held in Ekta Shakti Foundation v. Govt. of NCT of Delhi, (2006) 10 SCC 337 as follows:

“11. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or [is violative of] the fundamental rights of the citizen or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the court, it cannot interfere.”

Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, dealt with the entrenched scope of judicial review concerning governmental policy.

3-Judge Bench headed by the then Chief Justice T.S. Thakur in Centre for Public Interest Litigation v. Union of India, (2016) 6 SCC 408, extensively discussed the scope of judicial interference in government policies.

Based on the above precedential examination, the following distinct principles emerged:

  • The scope of judicial enquiry apropos policy decisions/matters of the State is restricted to the “sole dimension” of whether such policy decision/matter is either :

i.against any statutory provision;
ii. violative of any fundamental rights of a citizen;

iii. in the teeth of any Constitutional provision;

iv. manifestly arbitrary/discriminatory;
v. based on irrelevant consideration.

  • Only the ‘legality’ of the policy decision, and not the wisdom or soundness of such decision can be a subject matter fir for judicial review under Article 226 of the Constitution of India.
  • Constitutional Courts, such as this Court ought to be hesitant in interfering in matters of such policy or the day-to-day functioning of any departments of the government or any statutory bodies.
  • Negligible interference in policy decisions when such decisions are the outcome of deliberations of technical experts as Courts lack the expertise to determine the basis/factors based on which such decisions might have been taken. This is also inclusive of “economic policies”.

In view of the above discussion, Bench stated that the policy decision of the Commission reflected through its initial notification/advertisement dated September 23, 2016, as a statutory body, in the present case does not touch the realm of arbitrariness and accordingly, no interference is called for.

Hence, Court doesn’t need to mould such advertisement to allow a change in the circumstances that may have taken place with regard to the enhanced qualifications of the writ petitioners. Attempt by this Court to allow the same would result in an unfair treatment for those who did not enhance their qualification and are not present before this Court, not to mention taking an erroneous step in encroaching into the domain of the executive branch of the government.

Therefore, the batch of writ petition was dismissed. [Subhasis Negel v. State of West Bengal, 2021 SCC OnLine Cal 194, decided on 19-01-2021]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjay Dhar J., while dismissing the present petition, discussed the scope of interference under Article 226 in Contractual matters and further called the present case a classic example of filing successive petitions for the same relief after failing to get the interim relief in the earlier writ petitions. Taking a lenient view of the matter, and considering that the petitioner is a student, Court did not impose any costs but only left with a severe warning against the same.

Through the medium of the instant writ petition, the petitioner has sought a direction against the respondents for release of all the instalments of fee in her favour and transfer of the same to a medical college in Bangladesh, so that she is able to pursue her MBBS course from the institution therein. Further, a writ of certiorari for quashing of communication dated 31-01-2020 has also been sought. Issue to be determined by the Court precisely was, whether the petitioner is entitled to seek a direction upon the respondent corporation to release the loan amount sanctioned in her favour to college different from the one mentioned in the sanctioned letter. It is to be noted that such borrowings/loan from a Financial Institution is purely contractual in nature governed by the terms and conditions of the loan agreement indicating a very restricted approach of the Court exercising writ jurisdiction.

Court referred to the following cases pursuant to its decision;

  1. Noble Resources Ltd. v. State of Orissa, (2006) 10 SCC 236; While answering whether a writ petition was maintainable in contractual matters and if so, what is the scope of jurisdiction of the Court in such matters, Supreme Court said, “It is trite that if an action on the part of the State is violative of the equality clause contained in Article 14 of the Constitution of India, a writ petition would be maintainable even in the contractual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract; whereas in the former the court’s scrutiny would be more intrusive, in the latter the court may not ordinarily exercise its discretionary jurisdiction of judicial review, unless it is found to be violative of Article 14 of the Constitution.” [Law laid down in Radhakrishna Agarwal v. State of Bihar, (1977) 3 SCC 457]
  2. Kisan Sehkari Chini Mills v. Vardan Linkers, (2008) 12 SCC 500; With respect to an administrative action involved in conclusion of the Contract, Court said, “…when there is a contractual dispute with a public law element, and a party chooses the public law remedy by way of a writ petition instead of a private law remedy of a suit, he will not get a full fledged adjudication of his contractual rights, but only a judicial review of the administrative action.”
  3. Rishi Kiran Logistics v. Board of Trustees of Kandla Port Trust, (2015) 13 SCC 233; Distinguishing between a remedy sought under the Contract Act, by means of damages, Specific Performance under the specified Act and invoking Writ Jurisdiction, Court observed in the words, “Ordinarily, the remedy available for a party complaining of breach of contract lies for seeking damages. He would be entitled to the relief of specific performance, if the contract was capable of being specifically enforced in law. The remedies for a breach of contract being purely in the realm of contract are dealt with by civil courts. The public law remedy, by way of a writ petition under Article 226 of the Constitution, is not available to seek damages for breach of contract or specific performance of contract. However, where the contractual dispute has a public law element, the power of judicial review under Article 226 may be invoked.

Narrowing down to the facts and circumstances of the present case, Court said that the terms and conditions of the loan agreement suggest that the institution in whose favour the loan was being sanctioned was an essential ingredient to the contract and the college in which the petitioner now seeks to take admission in, was not at all in picture during the grant of the first installment.

Therefore, “…the action of the respondent-Corporation in not releasing the second installment of loan in favour of the petitioner appears to be justified and the same cannot be termed either arbitrary or malafide”. Court further said, “So far as the action of the respondent Corporation directing the petitioner to refund the first installment of loan amount is concerned, the same also appears to be justified because the petitioner admittedly had, on her own, transferred the first installment of loan from the Community Based Medical College, Bangladesh to Khwaja Younis Ali Medical College, Bangladesh without informing the respondent Corporation which is a breach of terms and conditions of the sanction letter.” [Mubashir Ashraf Bhat v. Union Territory of J&K, 2021 SCC OnLine J&K 8, decided on 19-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

OP. ED.SCC Journal Section Archives

 A TWO judge bench of the Supreme Court,1 in Union of India v. Paul Manickam,2 a case challenging the preventive detention of the respondent’s daughter as unlawful has observed as under:3

It is appropriate that the concerned High Court under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to invoke jurisdiction under article 32 of the Constitution to approach this court directly, it has to be shown by the petitioner as to why the high court has not been approached, could not be approached or it is futile to approach the high court. Unless satisfactory reasons are indicated in this regard, filing of petition on such matters, directly under article 32 of the Constitution is to be discouraged.

This observation of the apex court that before a person complaining of violation of his fundamental rights approach the Supreme Court under article 32 should approach the high court first under article 226, raises serious questions as to the true scope and ambit of article 32.

In the instant case the respondent who is the father of the detenue who was detained under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for possessing a huge quantity of contraband articles, addressed a representation on her behalf to the President of India. He also filed a habeas corpus petition before the Madras High Court challenging the detention order. The court dismissed the writ petition but on his application for review it quashed the order of detention. Hence this appeal by the Union of India to the Supreme Court.

Thus, it was not the petitioner who approached the Supreme Court by way of a writ under article 32 for setting aside the order of detention. Instead it was the Union of India which approached the Supreme Court by way of appeal under article 136 of the Constitution by raising various contentions, inter alia, that:4

[R]enegades who disturb peace and tranquillity of citizens are like termites which corrode financial stability of the country with vicious designs file petitions full of falsehood and at times approach this court under article 32 even without approaching the jurisdictional High Court.

What made the Union of India to take this pea is not clear from the facts of the case since the petitioner had not approached the apex court directly. It was against this plea, the Supreme Court, while dismissing the appeal by the Union of India in the instant case expressed the above quoted view.

 To read the full text of the article, click here 

NOTE: This article was first published in the Journal of the Indian Law Institute 47 JILI (2005) 102.

* Associate Research Professor, Indian Law Institute, New Delhi.

1 Doraiswamy Raju and Arijit Passayat JJ.

2 (2003) 8 SCC 342 : AIR 2003 SC 4622.

3 Id. at 4630. (Emphasis added).

4 Id. at 4624.

Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Dr S. Muralidhar and Avneesh Jhingan, JJ., dismissed the instant petition upon discovery of availability of alternate remedies to the petitioner.

In the present case, the petitioner has questioned the demand for concession fees to the tune of Rs 2,19,10,897 sought from the Petitioner by the Respondent/Airport Authority of India, through minutes of meeting dated 25-05-2020 and letter dated 01-07-2020.

During the course of the proceedings, Article 22.1 of the Concessionaire Agreement (CA) dated 11-12-2019, caught the attention of the Court which affirmed the liability of the petitioner to pay the respondent for actual advertisement area made available to it at Amritsar Airport. The Dispute Resolution clause is reproduced below for reference-

“22.1 – Dispute Resolution – Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Concession Agreement (including its interpretation) between the parties, shall be governed and regulated in accordance with the provisions contained at Clause 5.16 of the RFP and in accordance with the provisions of Arbitration and Conciliation Act, 1996 as amended from time to time.”

On perusal of the above stated Clause 22.1 along with Clause 5.16 of the Request For Proposal (RFP), the Court was successful in grasping that any grievance under the CA has to be resolved via a two-tier mechanism. The mechanism includes submission of a written application before the Dispute Resolution Committee (DRC) and later, resolution under the Arbitration and Conciliation Act, 1996, if the same remains unresolved.

The petitioner invoked the dispute resolution mechanism subsequent to which a meeting of DRC was held on 25-05-2020. Counsel for the respondent, Vivek Singla has asserted that the petitioner ought to have availed all the further remedies in terms of the CA.

When the counsel for the petitioner, Varun Singh was catechized over the maintainability of the present petition, he referred to a plethora of cases such as Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107, Hindustan Petroleum Corpn. Ltd. v. Super Highway Services, (2010) 3 SCC 321 and Union of India v. Tantia Construction (P) Ltd., (2011) 5 SCC 697. However, unfortunately, the Court found all of them to be of no assistance in the petitioner’s case. The Court was not content with the arguments advanced by the petitioner with respect to the maintainability of the present petition.

Thus, the Court declined to exercise its jurisdiction under Article 226 of the Constitution of India since an “efficacious and effective alternative remedy” is available to the petitioner in view of the CA. In the event of a dispute, the parties could also plead for interim relief under the Arbitration and Conciliation Act, 1996.

Given the circumstances, the Court declined to examine the factual dispute leaving it open for the parties to avail other remedies under the law.

In view of the above, the petition has been dismissed by the Court.[Proactive In and Out Advertising (P) Ltd. v. Airport Authority of India, 2020 SCC OnLine P&H 1172, decided on 11-08-2020]

Kerala High Court
Case BriefsHigh Courts

Kerela High Court: The Division Bench of K. Harilal and P. Somarajan, JJ. dismissed a writ petition regarding the determining interim custody of the child of the parties. 

In the present case, the petitioner and the first respondent are the husband and wife, respectively and they were living with their child in Qatar. On the 07.10.2019, the respondent, picked the child from his school and arrived at Kochi, India, without any prior permission or knowledge of the petitioner. Thus, the child is under illegal custody of the respondent. 

Upon issuance of a notice by the present court, the mother of the first respondent, appeared before the court and submitted that the first respondent had already filled an application before the family court, Pala and had obtained an order of injunction restraining the petitioner from taking the custody of the child during the pendancy of the original petition.

High Court upon perusal of the arguments of the parties, stated that the dispute involved in the present writ petition relates to that of the custody of the child between a father and mother, hence a family court is a more competent forum for determining the custody, considering the welfare of the child. The bench also directed the family court to advance the matter and pass an interim order determining the interim custody of the child, till the final disposal of the original petition.  [Aurif Bin Thaj v. Besse Ann George,  2019 SCC OnLine Ker 3470, decided on 22-10-2019] 

Case BriefsHigh Courts

Gujarat High Court: The Bench of  Sonia Gokani, J. passed an order of release of the vehicle after levying certain stringent rules under Gujarat Prohibition Act. 

The petitioner was found carrying liquor without any pass or permit. The FIR was filed against the petitioner under the Gujarat Prohibition Act and the vehicle was confiscated. 

The Counsel for the petitioner, D.K. Patel argued that the vehicles have become junk within police station premises as they are kept unattended. Reliance was placed on the case of  Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SC 283.

The Counsel for the respondent, Jirga Jhaveri argued that some stringent condition should be put before releasing of the vehicle. She also contended that the power of the release of vehicle is to be exercised under Article 226 of the Constitution as powers of the Magistrate to order the interim release of the seized vehicle under Section 98(2) Gujarat Prohibition Act. 

The Court after hearing both the parties and exercising its power under Article 226 directed the concerned authority to release the Vehicle after imposing the terms and conditions, and in the event of any subsequent offence, the vehicle shall stand confiscated. [Yogeshbhai Arvindbhai Patel v. State of Gujarat, R/Spl. Crl. Application No. 762 of 2019, Order dated 03-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner had approached the Court before a bench of Sheel Nagu, J. under Article 226 of the Constitution praying for a direction to the respondents to pay the salary as per pay scale of the post of Mession Helper to the petitioner.

Petitioner was a Mession Helper who was classified as a permanent employee under the M.P. Industrial Employment (Standing Order) Act, 1961. Despite being a permanent employee, petitioner was not given the benefit of the regular pay scale. Further, he referred a case of Ram Naresh Rawat v. Sri Ashwani Ray, (2017) 3 SCC 436 where it was observed that though a ‘permanent employee’ has right to receive pay in the graded pay-scale but only minimum of the said pay-scale with no increments. It is only the regularization in service which would entail grant of increments etc. in the pay-scale.

High Court was of the view that as per the case referred petitioner was entitled to a minimum of the regular pay-scale without increments. Court directed respondents to consider the case of the petitioner in terms of the case referred and grant benefit if not granted already. [Raghuvanshi v. State of M.P., 2019 SCC OnLine MP 210, dated 28-01-2019]

Case BriefsHigh Courts

Manipur High Court: The Bench of Ramalingam Sudhakar, J. dismissed a writ petition holding that proper remedy for the petitioners to seek intervention of either the competent court or competent authority of the Government.

Petitioner who claimed to be the Maharaja of Manipur pleaded that as per the “Manipur Merger Agreement” dated 21-9-1949 between the erstwhile Governor General of India and the Maharaja of Manipur, certain private properties were allocated to the Maharaja to be administered by him on his own terms. It was further pleaded that some people were trying to encroach upon his property.

P. Tomcha, Advocate for the petitioner prayed for the relief of issuing a writ of mandamus directing the respondents to stop their illegal possession of the subject Multipurpose Community Hall. The documents on the basis of which the petitioner claimed his rights were disputed by the respondents.

The High Court was of the view that the matter involved disputed question of facts and therefore it was not inclined to entertain the petition. It was stated that the petitioner could approach either competent civil court or competent authority of the Government for establishing his rights as claimed. Thus, the petitioner was dismissed with liberty to petitioner to work out on his remedy in accordance with law. [Leishemba Sanajaoba v. State of Manipur, 2018 SCC OnLine Mani 171, decided on 14-12-2018]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Manoj K. Tiwari, J. dismissed a writ petition on account of it being a civil dispute.

The petitioner was a Dimri (Brahmin) having a customary right of vriti (worship) at Sri Badrinath Ji temple who was denied the right to discharge religious obligation on the ground that he was not eligible to perform vriti at Laxmi Aatka and Garud by the order of respondent.

Owing to the nature of relief sought, the Court was of the view that the respondent being a registered society the matter brought before it was a civil dispute adjudication of which was not permissible in view of the law laid down in Swati Ferro Alloys (P) Ltd. v. Orissa Industrial Infrastructure Development Corpn., (2015) 4 SCC 204 and Jacky v. Tiny, (2014) 6 SCC 508.

Accordingly, in lieu of Article 226 of the Constitution of India, the Court cannot exercise its powers and consequently, the writ petition was dismissed. [Govind Ballabh Dimri v. Sri Badrinath Kedarnath Temples Committee,2018 SCC OnLine Utt 956, decided on 28-11-2018]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench comprising of H.G.Ramesh and Mohammad Nawaz JJ., decided on a Writ Petition filed under Article 226 of the Constitution of India seeking to quash the proviso to clause 2.2 relating to ‘linguistic minority’ of chapter 4 of the Karnataka State Information Bulletin UG NEET 2018.

The facts in the present case state that the above-mentioned Clause 2.2 which specifies the criteria to determine a candidate’s categorization in the ‘linguistic minority’ group is violative of Articles 14, 29 and 30 of the Constitution of India.

The grievance of the petitioner was that of not being considered in the ‘Telugu Linguistic Minority’ in Karnataka. The criteria to claim linguistic minority was to have completed 10 years of study which in the opinion of the petitioner was ‘arbitrary and unreasonable’ and violative of Articles 14, 29 and 30 of the Constitution of India.

While noting the submissions of the parties, the High Court stated that ‘In law, for a person to claim the status of belonging to a linguistic minority in a State, he shall ordinarily be a resident of that State. Residence does not mean a temporary residence; therefore, State will be within its power to lay down reasonable criteria in that behalf.’ The Writ petition was dismissed following the observation of the High Court on finding no merits. [Mylepalle Vaibhavi v. Karnataka Examinations Authority,2018 SCC OnLine Kar 644, dated 12-07-2018]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a writ petition filed under Article 226 and 227 of the Constitution, a Single Judge Bench of Vineet Kothari, J. dismissed the petition holding that the petitioner has not allowed the respondent Authorities to consider the case on merits and proceed further in accordance with law and this amounted to abuse of process of law.

The petitioner was aggrieved by the Occupancy Certificate issued by the respondent Authorities in favor of the 5th respondent to develop and construct a building on the site owned by the petitioner. The petitioner alleged that the 5th respondent deviated from the sanctioned plan and thus the Occupancy Certificate needs to be cancelled and the building be demolished. It was also brought to the notice of the Court that the respondent Authorities had already withdrawn the impugned certificate.

The Court held the petition to be misconceived. There were various remedies available to the petitioner under the KMC Act, 1976. The main relief prayed for in the petition- withdrawal of the certificate- stood granted by the respondent, already. As regards the further process, the Court held that it was premature for the Court to direct the respondent Authorities at this stage.

The Court was of the opinion that even if the public bodies do not take appropriate step in the matter, the only remedy available to the complainant is to avail the remedy by way of civil suits in the competent Civil Court under Section 9, CPC. The complainant has to make specific factual averments and lead appropriate evidence in such Civil Courts before claiming any relief. The complainant should first pursue their remedy before the Departmental Authorities under the KMC Act and then the Civil Courts. Initiating such legal process from the top by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution is an abuse of process of law and bypassing the relevant remedies could not be appreciated. Accordingly the petition was dismissed without any order as to costs. [H.K. Chanchala Devi v. State of Karnataka,  2017 SCC OnLine Kar 1829, decided on August 16, 2017]


Case BriefsHigh Courts

Delhi High Court: In a writ petition under Article 226 before the Delhi High Court, the petitioner sought the relief of continuation as a teacher in the Dayanand Model School. She pleaded that the advertisement that guided her for applying in the school as a teacher did not mention that the employment was only on temporary basis and the same was not informed to her even after her appointment. On the other hand, respondent submitted that the employment was purely on ad hoc basis and the same was conveyed to the petitioner at the time of her interview even though it was not mentioned in the advertisement.

Hearing both the parties, the Court noticed that the petitioned had failed to produce before the Court her letter of appointment issued to her mentioning whether she was appointed on regular or temporary basis. The Court said that a contractual teacher could seek regularisation only after three years of service and for this, relied on several judgments, Hamdard Public School V. Directorate of Education, (2013) 202 DLT 111 and Army Welfare Education Society v. Manju Nautiyal, 2015 SCC OnLine Del 13072. The Court held that as the petitioner had still not completed three years of her service in the school, she therefore, was not entitled to the benefit of regularisation as had been granted by the Court in previous cases before it. [Arun Lata v. Dy. Director of Education, 2017 SCC OnLine Del 6909, decided on 06.02.2017]

Case BriefsHigh Courts

Gujarat High Court:A petition was filed under Article 226 of the Constitution praying to obtain a suitable writ for restraining the free public exhibition of the judgments and orders of the Court over internet by Google even if the cases are non-reportable. He pleaded that because of publication by the respondents the judgment is exhibited for free in public domain and is therefore, against the classification made by the Court.

It was also alleged that such an overzealous act of respondents is not just undisciplined and without authority, but also has had an adverse impact on personal and professional life of petitioner. The petitioner was accused in the impugned case that was published. Counsel for respondents simply pleaded that it was neither a proper nor a necessary party in the case as Google, being an automated search engine uses software known as ‘crawlers’ which would crawl the internet and find sites to add to its index and therefore, they were in no way connected to the publication on internet.

The Court observed that there are no specific provisions pointed out by the petitioner which have been violated by publication of the impugned judgment and as prayed by petitioner, it would not be covered under the ambit of Article 21 of the Constitution. It was clarified by the Court that reportable or non-reportable is the classification made for the reporting of a judgment in law-reporter and not its publication anywhere else while taking into consideration the important fact that High Court was a court of record. [Dharamraj Bhanushankar Dave v. State of Gujarat, 2015 SCC OnLine Guj 2019, decided on 19-01-2017]

Case BriefsHigh Courts

Karnataka High Court: In the petition dealing with relief sought against some public bodies and private parties in Bengaluru under Articles 226  and 227 of the Constitution of India without first approaching the bodies or their tribunals, the Single Bench of Vineet Kothari, J. held that it cannot be undertaken in the exercise of the extraordinary jurisdiction of the Court under Article 226.

In the present case, the petitioners prayed to quash a deed executed by the respondents declaring it to be illegal and invalid. The Court, while considering the writ petitions said that the petitioners ought to have brought their grievances to the notice of the  public bodies concerned themselves to take action according to law and pass appropriate reasoned orders. Also, noting that two of such appeals were pending before the competent Tribunal, the Court ruled that it would lead to undesirable scattering of litigation. An all-sweeping kind of petition under Article 226 should not be used by the parties unless the public bodies have dealt with their grievances and the appellate mechanism provided under the relevant statutes has been fully exhausted. Therefore, these type of writ petitions are not maintainable. [V. Dhamodaran v. Bruhat Bangalore Mahanagara Palike, Writ Petitions Nos. 3881-3883/2014 (LB-BMP), decided on 28.11.2016]

Case BriefsSupreme Court

Supreme Court: In an appeal filed by the Union Government against a judgment of the Rajasthan High Court which issued a direction to the Union Government and to its Secretaries in the Ministries of Civil Aviation and Home Affairs “to include the Chief Justices and the Judges of the High Court in the list of persons exempted from pre-embarkation security checks” at airports, the Full Bench of T.S. Thakur, CJ and D.Y. Chandrachud and L. Nageswara Rao, JJ. ruled that the High Courts in their power of judicial review are not entitled to suggest policies which they consider fit as it falls beyond the legitimate domain of judicial review.

This ruling of the Court came in light of a judgment of the Rajasthan High Court, wherein the High Court had taken sou moto cognizance of a breach of security matter at the Sanganer Airport, Jodhpur and conversely issued a direction of a nature that encroached upon the domain of the executive and lay outside the power of judicial review.

The Court held that preserving the sanctity of judicial power is necessary and for this, the power of judicial review is confined to cases where there is a breach of law or of the Constitution. It said that the judgment of the Rajasthan High Court is an example of a matter where the Court should not have entered. While combining a Transfer Petition T.P.(C) No. 75 of 2012 against an order passed by the Allahabad HC with this appeal, this Court categorically noted that that the directions issued by the HC must not be unrelated to the basis on which jurisdiction under Aticle 226 is invoked. [Union of India v. Rajasthan High Court, 2016 SCC OnLine SC 1468, decided on 14.12.2016]