Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., expressed that,

In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment.

Factual Matrix

Petitioners owned agricultural lands adjacent to a National Highway and on the said lands, they had their residential houses, wells, fruit trees, bore-well, etc. which were also adjacent to National Highway.

The said road came to be converted into State Highway without payment of any compensation while expansion of the same.

It has been submitted that, respondents are trying to take forcible possession of the lands of the petitioners and respondent authorities cautioned the petitioners to use police force while taking possession. Though petitioners made it clear that they are not opposing the road widening in question but the authority should acquire their respective lands for up-gradation of the roads as per the due procedure of law.

The said up-gradation is being done in phase wise manner and petitioners are concerned with the phase of Dhangar Pimpri to Wadigodri for which the authorities are attempting to take the forceful possession of their lands under the pretext of resolution regarding adjacent lands of road which need not require acquisition.

Further, it was added that the action initiated by the respondent-authorities thereby taking forcible possession of the lands belonging to the petitioners for road widening by showing the Government Resolution was contrary to the provision of Article 300-A of the Constitution of India.

Respondent authorities stand was that they are expending the road on the existing road of 30 meters. They are upgrading the same and there is no need to acquire the lands of the adjacent land holders as they won’t be affected by the same.

Analysis, Law and Decision

Width of the road – 12 or 30 metres?

As per standards, the width of the State Highway should be 30 meters. The road in question was a District Road. As per standard width of the District Road is 12 meters. By way of notification dated 19th April, 1967, the road in question was declared as State Highway in the year 1967. The question comes when District Road came to be declared as State Highway. How the width of the road is enhanced to 30 meters. Was there any acquisition of lands of adjacent land owners by way of proceedings under the old Land Acquisition Act of 1894? No record is forthcoming from both sides in order to clear the position.

Bench stated that merely, producing maps of certain villages and copies of road development plans, may not be helpful to arrive at a conclusion and record finding to that effect as the said would be an erroneous exercise. Further, it was noted by the Bench that at some places the width of the road of 30 meters and at some, it was less than 30 meters.

The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300 A of the Constitution.

Article 300 A provides that no person shall be deprived of his property save by authority of law.

 Is there an obligation to pay compensation under Article 300 A?

High Court remarked that obligation to pay compensation, though may not expressly included in Article 300 A, can be inferred from that Article. To forcibly dispossess a person of his private property without following due process of law is certainly violative of human right and so also, constitutional right provided under Article 300 A of the Constitution.

Elaborating more, High Court held that depriving persons of their immovable properties, was a clear violation of Article 21 of the Constitution.

It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

In view of the present facts of the case, High Court expressed that, respondents are the State authorities and Central authorities constructing National Highway. They are expected to be model litigants and are expected to respect the rights of petitioners and follow due procedure of law when property is likely to be acquired.

In a society governed by rule of law, there should not be arbitrariness in any decision.

In the instant case, there was no conclusive proof to establish the width of road to be 30 meters and no question of acquiring lands of petitioners.

Hence, there should be a joint measurement of road in presence of the petitioners and respondents under the supervision of District Collector, Jalna and if the width of the road at respective villages is found to be 30 meters, there shall not any question of acquisition of adjacent lands of the petitioners and if otherwise, then Centre and State shall follow due process of law in acquiring the same. [Bhagauji v. State of Maharashtra, 2021 SCC OnLine Bom 982, decided on 3-07-2021]


About the Bench:

JUSTICE SANJAY VIJAYKUMAR GANGAPURWALA

He was born on 24-05-1962.

Stood third in the order of merit in LL.B. examination. Started practice in the year 1985 and joined Chambers of advocate Shri S.N.Loya. Practiced in trial Court, High Court and Debt Recovery Tribunal. Was an advocate for Financial Institutions such as Central Bank of India, Bombay Mercantile Cooperative Bank, Jalgaon Janata Sahakari Bank, many Corporate bodies and Dr.Babasaheb Ambedkar Marathwada University. Also represented Government before Justice Mane Commission. Had privilege to be the advocate of the Hon’ble the Chief Justice of the Bombay High Court.

Extracurricular activities: Is a keen sportsman played lawn tennis at National level. Represented Dr. Babasaheb Ambedkar Marthwada University six times and captained it twice in All India University Tournament. Played Basketball at State level. He was the Honourary part-time lecturer in M.P.Law College since 1991 till date of elevation as Additional Judge of the Bombay High Court on 13-3-2010.

JUSTICE SHRIKANT DATTATRAY KULKARNI

Graduated in Commerce (Hons.) from G.A. College of Commerce, Sangli. Completed LL.B. in the year 1984 from N.S. Law College, Sangli. Did LL.M. from Bharti Vidyapeeth, Pune and Diploma in Cyber Law (D.I.C.L.) from Government Law College, Mumbai and enrolled as an Advocate with Bar Council of Maharashtra & Goa in the year 1985.

Practiced at various places in Sangli District and joined judiciary in the year 1990. Promoted as Addl.District Judge in the year 2002.

Worked as Registrar (Personnel) and Registrar (Judicial) at Principal seat Bombay from 2013 to 2015. Appointed as Principal District & Sessions Judge, Ahmednagar and worked from the year 2015 to 13th July 2017.

Worked as Member Secretary, Maharashtra State Legal Services Authority from 14th July 2017 to 13th January 2020.

Elevated as Judge of Bombay High Court on 14th January 2020.


SOURCE: Bombay High Court Website

Hot Off The PressNews

As reported by PTI, the Division Bench of D.N. Patel, CJ and Prateek Jalan addressed an issue wherein Delhi Labour Union sought that women be provided special casual or paid leave as menstruation is intrinsically related to human dignity and by not providing separate toilet facilities or breaks to maintain hygiene, the authorities are depriving the employees of their human dignity.

In the PIL, it was sought that 4 days leave be granted to all classes of women employees and to pay overtime allowance to menstruating women employees if they opt to work during that period.

Various other reliefs such as period rest, clean and separate toilets along with the provision of sanitary napkins be provided to women during their menstruation period.

About the daily wage, muster roll, contractual and outsourced workers, the plea had said they also face severe difficulties during menstruation as their work places lack adequate sanitation and clean toilets and they are not given the facility of earned or sick leave by their employers. [PTI]

In view of the above, Court directed Centre and Delhi Government to treat as a representation a PIL seeking grant of paid leave to women employees during menstruation.


[Source: PTI]

Hot Off The PressNews

The fare bands within which the airlines have to operate have been extended upto 24th February, 2021 by the Ministry of Civil Aviation. These fare bands came into force with effect from 21st May, 2020.

            The daily passenger traffic has reached 2.05 lakh on 1st November, 2020. When the domestic aviation opened in May 2020, the airlines were enabled to fly upto 33%  of the normal capacity (as per summer schedule, 2020).   At that time, the average daily traffic was about 30,000. This cap was enhanced to 45% w.e.f.  26th June, 2020. This cap was further revised to 60% w.e.f. 2nd September, 2020. At present, the airlines can operate upto 60% of their capacity.

              Ministry of Civil Aviation is monitoring the traffic every day, and it is expected that the traffic would further pick up because of the festival season and as the passenger traffic increases, the upper cap would be revised to 70-75% of normal capacity in the coming days.


Ministry of Civil Aviation

[Press Release dt. 05-11-2020]

[Source: PIB]

Hot Off The PressNews

As reported by the media reports, Centre by an Advisory has asked the State Governments to not lower the penalties as prescribed under the amended Motor Vehicles Act that came into force on 01-09-2019.

With the enforcement of the amended MV Act, the penalties were enhanced.

As reported by Hindustan Times

‘The transport ministry advisory was triggered by the Gujarat government’s announcement to reduce steep fines for traffic violations that was cleared by Parliament in the amended Motor Vehicles Act last September.

Several other states had proposed to emulate Gujarat and amend the penalties listed in the central law, provoking the Centre to ask the law ministry if the states had the powers to tweak penalties in the first place.’

Motor Vehicles (Amendment) Act, 2019 is parliamentary legislation and the state governments do not have the power to lower the penalties as prescribed under the same.

Article 256 of the Constitution of India provides that the executive power of every state shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that state, and the executive power of the Union shall extend to the giving of such directions to a state as may appear to the Government of India to be necessary for that purpose.


*Please read the Act here:

The Motor Vehicles (Amendment) Act, 2019

Hot Off The PressNews

Supreme Court: CJI Ranjan Gogoi has said that the Court will look into the plea of the Government of NCT of Delhi has sought constitution of a larger bench to expeditiously decide the issue of who controls the services in Delhi.

The bench of Dr. AK Sikri and Ashok Bhushan, JJ had, on February 14, put an end to ‘almost’ all the issues related to the powers exercisable by and functions of the elected Government of National Capital Territory of Delhi (GNCTD) vis-a-vis the Central Government. However, the judges differed on the question relating to ‘Service matters’.

While both the judges agreed that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Delhi Legislative Assembly as Entry 41 of List II deals with ‘State Public Services’ and ‘State Public Service Commission’ and that State Public Service Commission does not exist in NCTD, they differed on the issue of power to transfer and appoint certain officers.

Justice Sikri Justice Bhushan
The transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly. For other levels, including DANICS officers, the files can be routed through the Chief Minister to Lieutenant Governor. In case of difference of opinion between the Lieutenant Governor and the Chief Minister, the view of the Lieutenant Governor should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard. I having held that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Legislative Assembly of GNCTD, there is no occasion to exercise any Executive power with regard to “Services” by the GNCTD, since the Executive power of the GNCTD as per Article 239AA(4) extend in relation to matters with respect to which Legislative Assembly has power to make laws. With regard to “Services” GNCTD can exercise only those Executive powers, which can be exercised by it under any law framed by the Parliament or it may exercise those Executive powers, which have been delegated to it.

To read the full report report on February 14 verdict, click here.

Case BriefsSupreme Court

Supreme Court: The bench of Dr. AK Sikri and Ashok Bhushan, JJ has put an end to ‘almost’ all the issues related to the powers exercisable by and functions of the elected Government of National Capital Territory of Delhi (GNCTD) vis-a-vis the Central Government.

Difference on opinion on issue relating to ‘service’ matters:

While both the judges agreed that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Delhi Legislative Assembly as Entry 41 of List II deals with ‘State Public Services’ and ‘State Public Service Commission’ and that State Public Service Commission does not exist in NCTD, they differed on the issue of power to transfer and appoint certain officers.

 

 

Justice Sikri

 

Justice Bhushan

The transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly. For other levels, including DANICS officers, the files can be routed through the Chief Minister to Lieutenant Governor. In case of difference of opinion between the Lieutenant Governor and the Chief Minister, the view of the Lieutenant Governor should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard.

I having held that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Legislative Assembly of GNCTD, there is no occasion to exercise any Executive power with regard to “Services” by the GNCTD, since the Executive power of the GNCTD as per Article 239AA(4) extend in relation to matters with respect to which Legislative Assembly has power to make laws. With regard to “Services” GNCTD can exercise only those Executive powers, which can be exercised by it under any law framed by the Parliament or it may exercise those Executive powers, which have been delegated to it.

 

In the light of the aforementioned difference of opinion, a larger bench will be deciding the issue.

Concurrent opinions of the judges on other issues at a glance:

Setting up of Anti-Corruption Bureau Police Station

Centre

Setting up of Commission of Inquiry

Centre

Power to pass orders under Delhi Electricity Reforms Act, 2011 and Delhi Electricity Reforms (Transfer Schemes) Rules, 2001 appointing the nominee Directors on the Board of Electricity Distribution Companies

GNCTD

Power to revise the minimum rates of Agricultural Land (Circle Rates) under the provisions of Indian Stamp Act, 1899

GNCTD

However, the LG is also empowered to form its opinion ‘on any matter’ which may be different from the decision taken by his Ministers. In such circumstances, LG is supposed to refer the matter to the President for decision and act according to the decision given thereon by the President.

Appointment of Public Prosecutors under Section 24 of the Code of Criminal Procedure

GNCTD

 

Also read the related 5-judge Constitution Bench judgement that held that NCT of Delhi is not a State and Lt. Governor of Delhi is not an administrator.

[Govt. of NCT of Delhi v. Union of India, 2019 SCC OnLine SC 193, decided on 14.02.2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Ranjan Gogoi and U.U. Lalit and K.M. Joseph, JJ. while hearing petitions concerning the “Rafale Fighter Jets” asked the  Centre to submit the pricing details for the same within a period of 10 days.

The Bench stated that “strategic and confidential” information need not be shared. Further, the Court in response to Attorney General K.K. Venugopal’s submission regarding “reservations about disclosing the details of pricing of the jets which were not disclosed even in Parliament”, said that “if pricing is something exclusive and you are not sharing it with us, please file an affidavit and say so.”

Further, the bench also stated that “What has been questioned is bonafide of the decision making process and price/cost at which the same is to be procured.”

Therefore, in the present order the bench has stated that further details that could legitimately come in the public domain with regard to the induction of the Indian offset partner (if any) be also furnished to the learned counsels for the parties, as well as ,
the petitioners in person.

Background:
In its earlier order Manohar Lal Sharma v. Narendra Damodardas Modi, 2018 SCC OnLine SC 1920:

The Court stated in categorical terms that “information which was sought would not cover the issue of pricing or the question of technical suitability of the equipment for purposes of the requirements of the Indian Air Force.” The requisite information was directed to be placed before the Court in three separate sealed covers on or before 29 October 2018, to be filed with the Secretary General of the Court.

The matter is further listed for 14-11-2018. [Manohar Lal Sharma v. Narendra Damodardas Modi,2018 SCC OnLine SC 2278, Order dated 31-10-2018]

Hot Off The PressNews

Supreme Court: The notification proposing a social media hub that could act like a monitor regarding the online activities of the citizens has been turned down by Centre. The bench comprising of CJ Dipak Misra and AM Khanwilkar and Dr DY Chandrachud was informed by AG KK Venugopal that the stated notification about “social media hub” was being withdrawn.

The move of creating a social media hub was leading towards the creation of a surveillance state. The petition concerning the same was file by TMC MLA Mahua Moitra in which she stated that the government had issued a Request for Proposal (RFP). The tender will be opened on August 20 for a software that would do 360-degree monitoring on all social media platforms.

Therefore, the bench had sought AG KK Venugopal’s assistance for the same in Mahua Moitra v. Union of India, 2018 SCC OnLine SC 697, for which today the Supreme Court was told that the notification is being withdrawn by the Centre.

[Source: PTI]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi, R. Banumathi and Navin Sinha JJ., expressed it’s wholly unsatisfactory view on the affidavit filed by Centre on 23-07-2018 in regard to appointment of Lokpal.

During the hearing, Attorney General K K Venugopal submitted an affidavit and stated that a meeting of the selection committee was held but the names for the search committee were not finalised.

Advocate Prashant Bhushan, appearing for petitioner NGO Common Cause, said the Centre has not specified the date of the next meeting and they were actually delaying the appointment of a Lokpal despite passage of a law nearly five years ago.

In view of the dissatisfaction shown by the Supreme Court in regard to the affidavit filed, the Attorney General for India asked the Court to indicate the nature of the detailed particulars that are to be considered necessary to be incorporated in the affidavit to be filed. The matter to be listed in 4 weeks. [Common Cause v. Ajay Mittal, 2018 SCC OnLine SC 737, dated 24-07-2018]

Hot Off The PressNews

Supreme Court: The Division Bench comprising of AK Sikri and Ashok Bhushan JJ., expressed its disappointment in regard to non-compliance of its order given in Disabled Rights Group v. Union of India, (2018) 2 SCC 397, decided on 15-12-2017, which talked about disabled-friendly public institutions.

The bench stated that “We have not said anything new in our judgment of 15-12-2017. It was your (Centre) law and we just asked you to comply with it. We are not running the government. It’s you who has to follow the law and order.”

The Apex Court had issued an 11-pointer directive that included making public institutions, transport and educational institutions disabled friendly.

Further, in a fresh petition, the Supreme Court issued notices to the registrar generals of all High Courts and the Secretary-General of the Supreme Court in regard to making judiciary disabled-friendly.

Therefore, the Supreme Court giving due regard to its earlier directions in the above-mentioned case asked Centre to file an affidavit within a period of 4 weeks giving details of the steps taken so far and the timeline for completing the work as had been stated in Disabled Rights Group v. Union of India, (2018) 2 SCC 397.

[Source: PTI]