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]

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]