Case BriefsHigh Courts

Karnataka High Court: Suraj Govindaraj, J., allowed the petition and quashed the compromise decree in the original suit filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings.

The facts of the case are such that a compromise petition was filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings by a person claiming to be the power of attorney holder of the petitioner and as such the petitioner’s interest in the suit schedule property therein was compromised without the knowledge of the petitioner and therefore a fraud was committed on the petitioner by resorting to an abuse of the process of the Court and filing of a compromise petition in the Lok-Adalat. Thus instant petition was filed under Articles 226 and 227 of the Constitution of India praying to quash the compromise decree and restore the original suit before Principal Senior Civil Judge at Huballi on merits.

Counsel for petitioner Mr Mahesh Wodeyar submitted that the petitioner not having executed any power of attorney in favour of respondent 1, the power of attorney claimed by respondent 1 is fabricated one and as such neither the agreement of sale could be executed by respondent 1 in favour of respondent 2 nor could a compromise be entered into by the respondent 1 with respondent 2 for the Lok-Adalat to record. Thus, the petition needs to be allowed and the compromise recorded by the Lok-Adalat be set aside.

Counsel for the respondent Mr Padmanabha Mahale submitted that respondent 1 is the power of attorney holder of the petitioner and respondent 1 has entered into a compromise with the knowledge and consent of the petitioner with respondent 2. The compromise having been filed before the Court and the Court having forwarded the matter to the Lok- Adalat the compromise is one which is filed before the Court and as such the present petition is not maintainable since the trial Court having taken the compromise on record, only a suit challenging the compromise is maintainable.

The Court after perusing all the material facts observed that the plaintiff in a suit cannot array a defendant to be represented by power of attorney showing the address of the said power of attorney without even showing the address of the defendant. It was also observed that the net result of the entire proceedings and procedure followed is that the plaintiff who was not aware of the said proceedings, a compromise decree has been passed against the petitioner who though arrayed as a party to the preceding was never served with the notice nor did the defendant contest the said the proceedings. There is a procedural irregularity inasmuch as the compromise petition was filed before the Court and thereafter the matter referred to Lok-Adalat for recordal of the compromise.

The Court relied on Akkubai v. Venkatrao, 2014 SCC OnLine Kar 10110  and deprecated the said practice of recording compromise before the Court and thereafter referring to Lok-Adalat, as it is not contemplated in the Legal Services Authorities Act, 1987 and such compromise if recorded before the Lok Adalat is required to be set aside.

The Court also issued general directions in matters relating to compromise before the Lok Adalat which are challenged by way of writ petitions

(i) When a compromise is filed before the Court in terms of the decision in Akkubai v. Shri Venkatrao, 2014 SCC OnLine Kar 10110  it is for the Court to record the compromise and not refer the matter to the Lok- Adalat.

(ii) It is only if there is no settlement arrived at before the Court and the parties request for the matter to be referred to Lok-Adalat to enable a settlement then in such event the parties are to be referred to the Lok-Adalat and in the event of a compromise being arrived at before the Lok- Adalat, the same could be recorded by the lok- Adalat.

(iii) When the matter is referred to Lok-Adalat, separate order sheets would have to be opened and maintained by the said Lok-Adalat and the order sheet of the Court in the suit cannot be used by the Lok-Adalat.

(iv) The trial Court and or the Lok-Adalat while recording compromise is required to ascertain if the parties are present personally as also to ascertain and verify their identities by production of suitable documentary proof.

(v) In the event of a power of attorney appearing, it would be the bounden duty of the Court or the Lok-Adalat to ascertain if the concerned party has been served with notice.

(vi) The Court as also the Lok-Adalat would always have to be suspicious if the party were to enter appearance even before service of notice which is a red flag that there is something that is fishy in the matter.

(vii) When recording a compromise being entered into by a power of attorney, the original of the power of attorney is required to be examined by the Court and the Lok-Adalat and necessary endorsement made in the order to that effect and the original power of attorney returned to the parties.

(viii) As far as possible the trial Court and or the Lok- Adalat to secure the presence of the party and obtain signature of such party rather than the power of attorney.

(ix) The Trial Courts shall ensure that proper and acceptable proof of identity of the parties to proceedings as mandated by the Government for various purposes (such as Aadhar Card, Driving Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.

The Court allowed the petition and quashed the compromise decree dated 26-07-2014 in O.S. No.246/2014. [Renuka v. Ramanand, Writ Petition No. 103766 of 2018, decided on 31-03-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of S.K, Mishra ACJ. & N.S. Dhanik J., dismissed a petition filed against Claim Petition No. 05/NB/DB/2014. The petitioners prayed for quashing of the judgment and order dated 20-06-2018 passed by the Uttarakhand Public Services Tribunal and to issue a writ in the nature of certiorari to quash the Seniority List dated 01-04-2011 of the Assistant Engineer (Civil).

Seniority list dated 01-04-2011 of the Assistant Engineer (Civil) was promulgated after due promotion of the petitioners in the cadre of Executive Engineer. The petitioners alleged that they were shown juniors to the private respondents in the cadre of the Assistant Engineer (Civil) in alleged disregard of Rule 8(3)2(i) of the Uttarakhand Government Servant Seniority Rules, 2002. After long litigation before the High Court and the Supreme Court, respondent 2 to 12 were allocated the Uttarakhand cadre, vide allotment order dated 12-08-2010 and previous seniority list was revised. Now they have been placed above the petitioners in the seniority list, were also granted notional promotion to the post of Executive Engineer.

The Tribunal had earlier held that the promotion granted to respondents was not granted on the basis of their S.T. quota, but they were granted notational promotion on the basis of their seniority. However, the learned counsel on behalf of petitioner argued that notional promotion is illegal in view of the amendment of the Uttarakhand Government Servant Seniority Rules, 2002 in the year 2009.

The Court acknowledged that the private respondents were allocated the cadre of Junior Engineer (Civil) in the State of Uttarakhand by the Central Government  on condition that in case there is no vacancy in the Scheduled Caste and Scheduled Tribe category, they shall be absorbed in future vacancies. Thereafter the question before the Court was that

whether the Junior Engineers of the Uttar Pradesh cadre, who were transferred to the Uttarakhand cadre, will become senior to those persons, who are deemed to be their seniors in the State of Uttarakhand, as they were directly recruited to the cadre of Assistant Engineer.” The Court approved the observations made by the Tribunal. The Court was of the opinion that there was hardly any scope for interference in this case.

The Court while examining the jurisdictional issue held that

the High Court shall only examine the jurisdictional issue of the Tribunal, or the jurisdictional error committed by the Tribunal“.

Furthermore, it was held that

The Tribunal may decide a case wrongly, but that will not entitle the High Court to sit in appeal and re-appreciate the matter and pass an order.” A HC cannot treat itself a court of appeal while entertaining writ of certiorari as it is a settled principle of law. Hence, the Hon’ble HC dismissed the writ petition and expressed it opinion that “this is not a case, where the High Court should exercise the jurisdiction of writ of certiorari, or writ of supervision under Articles 226 and 227 respectively, of the Constitution of India.”

[Jagmohan Singh v.  State of Uttarakhand, 2021 SCC OnLine Utt 1450, decided on 24-12-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Counsel for the petitioners. : Mr Shobhit Saharia

Counsel for the respondents. : Mr Pradeep Joshi, the Additional Chief Standing Counsel for the State of Uttarakhand.

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., allowed a writ petition which was filed in the nature of the certiorari, seeking quashing of the order passed by the Uttarakhand Technical Education Board (Respondent 3) and subsequent order by the Additional Director of Education.

An advertisement was issued by Respondent 3 inviting applications for appointment on the, including Mathematics, post of Assistant Teacher L.T. Grade in various subjects at both the Region i.e. Garhwal region and Kumaon region. Petitioners had applied for the post of Assistant Teacher L.T. Grade (Maths) and had given their option for Kumaon region and second option for Garhwal region. After completion of counseling, the petitioners, on being selected against the vacant posts, as per their merits and preference, were selected for Kumaon Region by the Selecting Body. On the basis of the recommendation of the Selecting Body, the Appointing Authority, namely, the Additional Director (Secondary Education), Kumaon Mandal, appointed the petitioners as Assistant Teacher L.T. Grade at Kumaon Region. Petitioners had joined their duties as Assistant Teacher L.T. Grade at their respective postings. Thereafter, Respondent 5 raised his grievance before respondent 3 that as per his merit and option, he was entitled for Kumaon Region but he has been allotted Garhwal Region and the candidates who were less meritorious to him, belonging to same category were allotted Kumaon Region. When his case was not considered he had filed a writ where the co-ordinate Bench of this Court had directed respondent 3 to decide the representation of the petitioners. Consequently, respondent 3 passed an order stating that the four candidates who were lower in merit; their region is being changed with the candidates who were higher in merit. Thus, the instant petition was filed.

The counsel for the petitioner, Maneesh Bisht submitted that the Co-ordinate Bench of this Court had only directed to decide the representation of respondent 5 and that it was incumbent upon respondent 3 to give an opportunity of hearing to the petitioners at that point of time. He further submitted that the petitioners had joined their services at the place where they have been appointed at the recommendation of respondent 3 and which after being implemented the respondent 3 becomes functus officio.

The Court while allowing the appeal explained that it is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. In the present case, while passing the impugned order, opportunity of hearing was not given to the petitioners, which was against the principle of natural justice and the order impugned is not sustainable in the eye of the law. Petitioners were permitted to continue their services in Kumaon Region.[Kamal Kapri v. State of Uttarakhand, 2019 SCC OnLine Utt 1832, decided on 13-12-2019]

Suchita Shukla, Editorial Assistant has put this story together

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J. entertained a writ petition where the application sought certiorari for quashing the seizure and detention of the goods from his possession and to prohibit the respondents from seizing, detaining, and thereafter instituting and or continuing with any prosecution on that basis.

The story of the petitioner was that the cardboard boxes which contained cigarettes without any health warnings were allegedly seized and detained by the respondents during transportation and storage on the basis that such conduct of the petitioner violated Section 34 of the National Authority on Tobacco and Alcohol Act, 2006. The petitioner stated that such seizure upon failure to display health warnings on the “cardboard boxes” (which the Petitioner has named as “non-retail master cases”) was a misconstruction of the said Section and also against the intention of the legislature, which was to warn the end-user of the ill-effects of smoking.

The counsel for the petitioner submitted that case depended upon the meaning given to the word “carton” used in Section 34 of the Act. It was further stated that a bare reading of the Section highlighted that the scope was only limited to manufacturing, selling and offering for sale of only packets of tobacco products without health warnings.

On the contrary, the respondent contended that the stated Section was repealed and replaced by another Section which was read as, “Section 34A enacts in detail how to display health warnings. Then it is seen that this amended section covers manufacturing, importing, selling, offering for sale, supplying, distributing and storing of packets, packages and cartons containing tobacco products without health warnings.” Hence, it was further stated that after 16th amendment, Article 23 of the Constitution stated that ‘All laws and subordinate legislation shall be enacted or made and published in Sinhala and Tamil, together with a translation thereof in English.’ It was further noted that where there was any inconsistency between Sinhala text and English text, Section 7 of the Amending Act, 2015 came into force and gave prevalence to Sinhala text over English.

The Court further observed that Law in this regard was understood as it was stated in the Sinhala text, and not in the English text, which was only a translation of the Sinhala text. The Act had originally been enacted in Sinhala and Tamil languages. Hence it was unnecessary to understand the meaning of the word “carton” found in Section 34 of the English text as that was how the word “Sinhala text” found in Section 34 of the Sinhala text had been translated into English. If the English translation for “Sinhala text” as “carton” was incorrect; instead of “carton”, “cardboard box” or any other word or term was to be used. In short, the English word “carton” shall be understood by the meaning given to the Sinhala word “text”, and not vice versa.

 Court noted that It is abundantly clear that by the said amendment, the legislature wanted to extend the display of health warnings from packets, to packets, packages and cardboard boxes; and also to expand the activities from manufacturing, selling and offering for sale, to manufacturing, importing, selling, offering for sale, supplying, distributing and storing. That means, after the amendment, these cardboard boxes containing tobacco products, which were used inter alia for storage and transportation of packets of cigarettes, contained health warnings as prescribed in Section 34 of the amending Act. It was held that, “When the words of an Act are clear, there is no necessity to go into detail of the history of the law, the international conventions relating to the same and to apply various theories of interpretation of statutes to understand or to interpret the Law.

Hence, it was declared that the requirement was, the cardboard boxes contained tobacco products, which were used inter alia for storage and transportation of packets of cigarettes, contained health warnings as prescribed in Section 34 of the amending Act was completely in consonance with the purpose of the amending Act and the intention of the legislature. Thus, the petition was dismissed.[Ceylon Tobacco Company v. National Authority on Tobacco and Alcohol, 2019 SCC OnLine SL CA 9decided on 12-09-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J. entertained a writ petition where the petitioner sought, certiorari and to compel the Commercial Superintendent of Sri Lanka Railways by mandamus to allow him to continue to use the parking area which was allotted to him for the said purpose.

The petitioner contended that the Deputy Commercial Superintendent of Railways had allotted him a temporary parking area in the premises of the Wadduwa Station on a rental basis for the term of 1 year. The said document which gave authorization to the petitioner to run such parking area also had a condition that whenever required the petitioner will hand over unconditionally the allotted area back to the respondent. In the instant writ, the petitioner was aggrieved by the said condition imposed on him. He further contended that the parking area had been used to earn his living and now such a decision of the respondent will put him and his family in jeopardy.

The respondent contended that though by the informal document, temporary permission was given to the petitioner (to do business) only for one year; he had continued to use that area beyond the said permissible term for four years. Commercial Superintendent of the Railways had asked the petitioner to hand over the possession of the parking area to the Railway Master of the Wadduwa Railway Station as that area is required to the Railway Department.

The Court observed that, it was quite obvious that the order issued for dispossession cannot be quashed by certiorari as the said decision was neither illegal nor unjustifiable. By informal document, the petitioner had been temporarily allowed to use the State land for a period of one year, and thereafter he used it for another around four years (by payment of a monthly rent) without any objection from the respondents. The Court noted that such an allotment was temporary hence the argument of the petitioners was not sustainable. “There is no room for the petitioner to have a legitimate expectation that he could continue to use the State land in the Wadduwa Railway Station premises to carry out a business for a profit forever.”

The Court further held that, there was absolutely no public duty on the part of the General Manager/Commercial Superintendent of Sri Lanka Railways to allow the petitioner to occupy the said State land to conduct his private business. Nor the petitioner had any legal right to insist on the said officials to do so. Court observed that such writ had no public interest and was a merely private affair.[Kapuseekuge Sunil Fernando v. General Manager of Sri Lanka Railways, 2019 SCC OnLine SL SC 5, decided on 04-06-2019]

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]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and R.C. Khulbe, J. refused to entertain a writ petition which sought, certiorari, to call for the records of the selection process, to include the name of petitioner in OBC category, to direct CBI to investigate into the matter and to eventually quash the said result of Uttarakhand Judicial Services Examination, 2016.

Petitioner contended that Uttarakhand Public Service Commission, advertised for the post of Civil Judge (Junior Division) in 2017, a total number of 2 posts were reserved for OBC candidates. The petitioner further alleged that he secured same marks as of the last selected candidate but was declared unsuccessful in the preliminary exam, hence he challenged the procedure and was allowed provisionally by the Court to write Mains exam. Eventually, he cleared Mains and was called for the interview where he secured 31 marks and the selected respondent was given 32 marks. The petitioner herein alleged ‘nepotism’ in the selection process and collusion between one of the candidates and a member from the Selection Panel. Hence, he doubted the Selection Process as it was unfair and foul play was there. Hence, demanded a probe into the matter by CBI.

The learned counsel for the petitioner Ajay Pundir, submitted that respondent-Commission had granted lesser marks deliberately and acted in a malafide manner. The impugned action of the respondents was alleged violation of Articles 14, 15 and 16 of the Constitution of India; and rejection of petitioner’s candidature was malafide and illegal. It was again submitted that respondent-Interviewer was near relative of the respondent-selected candidate, and therefore, should not have been a Member of the Interview Board.

The learned counsel for the Commission, B.D. Kandpal, replied to the allegations that, 30% of the seats were reserved for Women, and the benefit of such reservation extended category-wise; since there were two posts reserved in favor of OBC category, 30% of two posts comes to 0.6 and, therefore, one post was reserved in favour of OBC Women against which the accused respondent-candidate was selected and the other candidate who was selected secured 60 marks. Hence, the two posts for OBC were satisfied in that manner. Addressing the issue of rejection in the preliminary examination, the counsel submitted that, petitioner obtained 146 marks in the preliminary examination, whereas the last selected candidate had scored 146.75 marks and he was, therefore, held not to have qualified by the Commission. In reply of the alleged ‘nepotism’ remark the counsel stated that, evaluation was done accordingly; there was no interference of any member or officials of the Commission in that process; after its receipt from the examiner, the marks were tabulated for preparing a merit list and, thereafter, results were declared merit-wise and category-wise; before the results were finalized. The petitioner’s objections were considered before the results were declared; however, in view of the interim order passed in an earlier writ, the petitioner was provisionally allowed to participate in the main examination and, since he qualified therein, he was called for interview.

The Interview Board contended that, marks in the interview were awarded by the Interview Board after judging the personality, intelligence, etc., of the candidate. The Panel had honorable personalities and expert in the subjects who awarded marks to the petitioner.

The respondent-Interviewer, contended that he was not a member in the Board but a mere observer according to the policy, as he was newly appointed member hence, was invited to watch and observe the proceedings of the Interview Boards, and the Departmental Promotion Committees, to enable him to undertake the same process independently in future.

The Court after contemplating the matter observed that, petitioner’s self-serving claim of exceptional merit cannot be examined in judicial review proceedings under Article 226, the Court was not justified in sitting in judgment over the decision of the Interview Board in selecting a particular candidate. It cannot arrogate to itself the power to judge the comparative merit of candidates, and consider their fitness and suitability for appointment.

The Court further noted the allegation of malafides by the petitioner against respondent-Interviewer required a very high proof as he was a mere spectator and not a member of the Board, also no malice is attributed to the Interview Board, nor any contention been put forth regarding its constitution, or the manner in which the process of interview was conducted, thus, Court not to sit in judgment over the decision of the Interview Board regarding allotment of marks, to each candidate, in the interview, hence, the petition was thereby dismissed.

The petitioner called for a probe by CBI, to which the Court stated, “The prayer sought for in the writ petition, that an investigation be caused into the matter by the Central Bureau of Investigation, is far fetched and deserves rejection. The High Court has the power, under Article 226 of the Constitution of India, to direct investigation by the Central Bureau of Investigation (CBI), which power must be exercised sparingly.”[Nirmal Singh v. High Court of Uttarakhand, WP (S/B) No. 111 of 2018, decided on 21-05-2019]

Case BriefsForeign Courts

United States Supreme Court: A Bench comprising of Sotomayor, Breyer and Kennedy, JJ., denied the writ of certiorari but gave directions for the constitutional rights of the prisoners.

These petitions address one aspect of what a prisoner subjected to solitary confinement may experience: the denial of even a moment in daylight for months or years. Petitioners were previously incarcerated in the Colorado State Penitentiary (CSP) and were held in what is often referred to as “administrative segregation,”. Now the state of theses prisoners undergoing their term of imprisonment was under question in this case. In administrative segregation often referred as solitary confinement, the offender was housed in a single cell approximately 90 square feet thereby restricting any vocal communication with other inmates except for prison staff and very limited opportunity for visitors. There was a small glass window that admits light but which because of its placement was inaccessible to look out. They remain in their cells at least 23 hours a day which was a case of complete isolation. It was also brought before the court that under then-operative Colorado Department of Corrections (CDOC) regulations, prisoners were allowed out of their cells five days per week, for at least “one hour of recreation in a designated exercise area which has metal grates consisting of holes and constitutes for the only exposure of any kind to fresh air being given to them.

The petitioners stated that during their time at CSP they were denied any out-of-cell exercise other than the prescribed hour which they alleged violated their Eighth Amendment rights to be free from cruel and unusual punishment.

The U.S. Court of Appeals for the Tenth Circuit reversed both denials, concluding that its prior precedents allowed “reasonable debate on the constitutionality of disallowing outdoors exercise for respected periods for which writ of certiorari has been instituted arguing that the Tenth Circuit had diverged from the common practice among the Courts of Appeals of allowing a deprivation of outdoor exercise only when it was supported by a sufficient security justification.

The Court being deeply grieved of the issue said that to deprive a prisoner of any outdoor exercise for an extended period of time in the absence of an especially strong basis for doing so was deeply troubling. Quoting Judge Kennedy from the 1979 ruling, Spain v. Procunier, 600 F. 2d 189, 200 (CA9 1979), that, in the absence of “an adequate justification” from the State, “it was cruel and unusual punishment for a prisoner to be confined for a period of years without opportunity to go outside.” The Court acknowledged that security concerns justified the non mingling of these offenders with other inmates but those generalized concerns did not explain why other exercise arrangements were not made owing to the vitality recognized by the Tenth Circuit keeping in mind the human rights issue as strictly the Constitution does not permit such total deprivation in the absence of a particularly compelling interest.

Accordingly Courts and corrections officials must remain alert to the constitutional problems raised by keeping prisoners in “near-total isolation” from the living world and even though the petitioners were correct that compelling security justification was essential in the analysis of the Courts of Appeals but the litigation before the lower courts here did not focus on the presence or absence of a valid security justification, as a resultant the factual record before this Court as well as the legal analysis provided by the lower courts was not well suited to the Court’s considering the question now and thus the writ of certiorari stood denied.[Apodaca v. Raemisch, No. 17-1284, dated 09-10-2018]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Ajay Lamba and Sanjay Harkauli, JJ., disposed of a petition for the issuance of the writ of certiorari, so as to quash the FIR filed under Sections 395 and 397 of the IPC, 1860.

In the present case, the Court took cognizance of the importance of the medico-legal report in cases pertaining to offences under the IPC, 1860, and stated that the precious time of the courts is wasted in making an effort to read the illegible penmanship of the doctors and medical professionals who author the reports, which had previously been observed in the case of Chhabiraj v. State of U.P, Misc. Case No. 6750(B) of 2012. The doctor who had authored the report had scribbled the information pertaining to the injuries in an illegible handwriting, as a result of which the court had to summon him so as to understand the nature of injuries as revealed by the report. Upon receiving the printed form of the report, the court found that the report was made in a negligent and irresponsible manner, which was not useful to understand the location of the injuries, a factor which is pivotal in the adjudication of criminal cases.

The High Court then observed that the conduct of doctors and medical professionals was in complete disregard to the circular that had been passed by the Director of Medical Services. The court reiterated the importance of medico-legal reports in cases pertaining to hurt, homicide or suicide and stated that it plays an enormous role in determining the manner in which the incident played out, the nature of the injuries etc. It is also used to verify the veracity of statements and claims made by witnesses and other ocular evidence provided therein. But the negligent and irresponsible attitude of doctors, as was present in this case, is antithetical to the aim of achieving justice. The court reprimanded the doctor by deducting Rs. 5000/- from his salary. Furthermore, as there was no incriminating evidence on the charges of Sections 395 and 397, and no investigation had been undertaken with respect to other charges, the petition was disposed of in favour of the petitioners. [Fahad v. State of U.P., 2018 SCC OnLine All 1817, order dated 25-09-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Shekhar Dhawan, J., addressed a writ petition in nature of certiorari for quashing of a notification for creation of new Panchayats.

Facts of the case are that the Punjab Government issued a letter seeking application for forming of new Gram Panchayats/Gram Sabha. The petitioner had submitted that respondent passed a resolution for the same without following the provisions of Punjab Panchayat Raj Act, 1994 i.e. Sections 23 and 24. They had applied to form new Gram Panchayat without the consent of 1/3rd population of the village and panchas of newly proposed Gram Panchayat. The petitioner pointed out that under Section 24 of the Act quorum was not complete. There were 10 members in the existing Gram Panchayat and only 4 members were present when the resolution was passed.

High Court observed that quorum was not in accordance with Section 24 of the Act at the time of passing of the resolution. In addition to that resolution was already set aside by competent authority. On perusing the facts of the case Court noticed that the impugned notification could not have been issued after the resolution was set aside. Therefore, impugned notification was quashed. [Labh Singh v. State of Punjab,2018 SCC OnLine P&H 1222, decided on 23-08-2018]

Case BriefsHigh Courts

Madras High Court: A Division Bench of CJ. Indira Banerjee and Abdul Quddhose J., addressed A writ petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari.

The writ petition was filed challenging a letter issued by the Commissioner, Prohibition and Excise Department, which directed the District Collectors to permit all F.L.I to F.L.II (Foreign Liquor) licensed shops within the limits of Municipal corporations, Municipalities and Town Panchayats.

The petition poses the question of whether the stated direction contravenes the judgment order of the Hon’ble Supreme Court in the State of Tamil Nadu v. K Balu ; (2017) 2 SCC 281.

Advocate General on behalf of the fourth respondent/TASMAC submitted that the order and judgment of the mentioned case of the Supreme Court in the State of Tamil Nadu v. Balu was modified in Arrive Safe Society of Chandigarh v. Union Territory of Chandigarh; 2017 SCC OnLine SC 1079, in accordance to the modification in the latter case, municipal areas are said to be exempted. The order of the Supreme Court never stated that there is any prohibition on the licensed establishments within municipal areas.

However, after careful observation of the stated records and contentions, High Court clarified the intent of the modified order saying that the decision in every case has to be taken on a case to case basis and the State authorities will have to carry out the exercise of determining if any liquor shop was covered by the order of the Supreme Court in Arrive Safe Society of Chandigarh v. Union Territory of Chandigarh; 2017 SCC OnLine SC 1079, therefore, it was held that the governments would have to take recourse to all relevant factors and the crux of the direction prohibiting the sale of liquor on National and State Highways.[ K. Balu v. State of  Tamil Nadu,2018 SCC OnLine Mad 1918, order decided on 28-04-2018]