Case BriefsHigh Courts

Here’s a short recap of what we covered under High Courts section in the month of April 2021.


Allahabad High Court


COVID-19

“Govt. is to blame for chaos; Harsh steps necessary before pandemic spirals to engulf entire population”: All HC orders closing of all establishments (exceptions listed) till 26th April in select districts, asks Govt. to consider complete lockdown for entire State

https://www.scconline.com/blog/post/2021/04/19/allahabad-high-court-4/

Compensation

All HC | What’s the purpose of keeping money in FD where claimant is unable to see colour of compensation?: HC directs Tribunal to disburse entire claim amount to claimant’s account

https://www.scconline.com/blog/post/2021/04/17/motor-vehicles-accident/

Maintenance

All HC | Wife’s appeal against divorce decree withdrawn due to reconciliation and cohabitation with husband. Later, husband passed away. Is she entitled to maintenance under Hindu Adoptions & Maintenance Act? Read on

https://www.scconline.com/blog/post/2021/04/07/maintenance-6/


Bombay High Court


COVID-19

Bom HC | Remdesivir and Tocilizumab injections to be regulated; Collector Nagpur to examine regarding feasibility of making beds available at Mankapur Stadium, Nagpur and Nagpur Nagrik Sahakari Rugnalaya

https://www.scconline.com/blog/post/2021/04/19/covid-19-4/

Bom HC | Reports of RT-PCR Tests to be made available on Whatsapp; COVID positive patients reports to be uploaded within 24 hours on ICMR portal

https://www.scconline.com/blog/post/2021/04/19/rt-pcr-test/

Bom HC | Rise of COVID-19 Cases in State of Maharashtra: State to file information on measures to de-congest jails, to control spread of virus & status of COVID cases

https://www.scconline.com/blog/post/2021/04/20/covid-19-cases-in-prisons/

Bom HC | MoH communication reducing oxygen supply to Maharashtra is “bolt from the blue”: Court directs PRAX AIR to keep supplying 110 MT oxygen per day

https://www.scconline.com/blog/post/2021/04/22/oxygen-supply/

Bom HC | Deficient Remdesivir Drug and Oxygen to COVID-19 Patients: HC directs to hold meeting with manufacturers and procure

https://www.scconline.com/blog/post/2021/04/22/deficient-remdesivir-drug/

Bom HC | “Elderly citizens being asked to choose between devil and the deep sea”: HC not impressed with Centre’s reply on petition for door-to-door vaccination for elderly and disabled citizens

https://www.scconline.com/blog/post/2021/04/23/door-to-door-vaccination/

COVID-19 and Article 25

Bom HC | Religious places of worship closed; Prayer offering in mosque during Ramzaan not allowed in wake of COVID-19: Court discusses scope of Art. 25

https://www.scconline.com/blog/post/2021/04/15/prayers-at-mosque/

COVID Vaccine and Intellectual Property Rights

Bom HC | “Serum Institute coined the term ‘Covishield’, took substantial steps towards development and manufacture”: Court finds no merit in Cutis Biotech’s passing off action

https://www.scconline.com/blog/post/2021/04/21/covishield/

CBI Investigation

Bom HC | Anil Deshmukh ‘prima facie’ committed cognizable offence, but No immediate FIR by CBI. Credibility of State machinery at stake: HC directs CBI to conclude preliminary investigation preferably within 15 days

https://www.scconline.com/blog/post/2021/04/06/anil-deshmukh/

Circumstantial Evidence

Bom HC | Circumstantial Evidence. Wife found dead, can husband be convicted on the basis of him being last seen with wife? Do Police Officers need to substantiate their stand on basis of documents? Read on

https://www.scconline.com/blog/post/2021/04/13/circumstantial-evidence/

Criminal liability

Bom HC | Can administrator of WhatsApp group be held criminally liable for objectionable posts of a group member? HC answers

https://www.scconline.com/blog/post/2021/04/22/administrator-of-whatsapp-group/

Minor’s consent

Bom HC | ‘Consent’ of minor for sexual act who conceived and delivered a baby will be immaterial

https://www.scconline.com/blog/post/2021/04/07/minors-consent-for-sexual-act/

Minor’s property

Bom HC | Minor’s property fraudulently transferred. Can application for such declaration and order for recovery lie in Guardianship Petition? HC elucidates

https://www.scconline.com/blog/post/2021/04/10/guardianship-petition/

Rape and conviction

Bom HC | Father rapes minor daughter, but conviction under S. 376(2) (i) IPC set aside. Why? Read Court’s opinion in light of S. 164 CrPC || Detailed Report

https://www.scconline.com/blog/post/2021/04/06/rape-2/

Quashing of proceedings

Bom HC | Daughter caught in crossfire between parents; Accused under DV Act by mother. HC decides whether allegations inherently probable? [Exhaustive Report]

https://www.scconline.com/blog/post/2021/04/20/domestic-violence-act/

Quota

Explainer | Bombay HC at Goa on Quota in Municipal Polls [Detailed Report]

https://www.scconline.com/blog/post/2021/04/26/elections-3/


Calcutta High Court


COVID-19

Cal HC | Resurgence of COVID-19 | Candidates, aides and associates engaged in election campaigning to encourage and unfailingly observe COVID rules to avert deadly disaster staring at our faces

https://www.scconline.com/blog/post/2021/04/15/resurgence-of-covid-19/

Cruelty by wife

Cal HC | Reckless allegations against husband corroborated by daughter. Affidavit of daughter how far can corroborate husband’s allegations? Court determines while confirming divorce decree against wife

https://www.scconline.com/blog/post/2021/04/08/illicit-relationship/

Election Commission

Cal HC | Issuing circulars and holding meetings not enough to discharge onerous duties of Election Commission of India: Court “unable to reconcile” that EC could not update it on enforcement of circulars

https://www.scconline.com/blog/post/2021/04/23/election-commission-of-india-2/

Maintenance

Cal HC | Pre-requisite for awarding maintenance under Hindu Marriage Act: Independent income of husband or wife to support either is enough? Read on

https://www.scconline.com/blog/post/2021/04/15/maintenance-7/


Chhattisgarh High Court


Bank account

Chh HC | Whether ‘bank account’ can be held to be `property’ within the meaning of S. 102(1) CrPC?  HC explains

https://www.scconline.com/blog/post/2021/04/21/bank-account-2/

Hindu Marriage Act

Chh HC | Application under Or. 9 R. 4 of CPC also attracts provisions under S. 24 of Hindu Marriage Act, 1955

https://www.scconline.com/blog/post/2021/04/05/section-151-cpc/

Mental cruelty by wife

Chh HC | Wife attempts suicide; throttles husband, daughter; assaults mother-in-law; consistently behaves abnormally. Is this mental cruelty, ground for husband to obtain divorce? HC elucidates

https://www.scconline.com/blog/post/2021/04/12/mental-cruelty/

Recruitment

Chh HC | Whether higher qualification presupposes lower qualification always for the purposes of recruitment? HC discusses

https://www.scconline.com/blog/post/2021/04/01/recruitment/

Telephone tapping

Chh HC | Dismissal from service based on telephonic recorded conversation offends Art. 21 of Constitution of India

https://www.scconline.com/blog/post/2021/04/06/telephone-tapping/


Delhi High Court


COVID-19

Del HC | INOX to honour its contract with Delhi hospitals and restore supply of 140 MT oxygen; State should utilise mid-day meal contractors in providing food to needy: Court issues directions

https://www.scconline.com/blog/post/2021/04/20/covid-19-6/

Del HC | Interim Orders pending before Subordinate Courts to stand extended till 16th July, 2021 or until further order

https://www.scconline.com/blog/post/2021/04/20/interim-orders-pending-before-subordinate-courts/

Delhi HC on status of availability of COVID Beds, supply of ventilators, need of medical oxygen and essential medications || “Wastage of a single dose of vaccine is a criminal waste”

https://www.scconline.com/blog/post/2021/04/21/covid-19-7/

9-key points of Delhi High Court decision asking Central Government to swing into action | Rakesh Malhotra v. State

https://www.scconline.com/blog/post/2021/04/21/delhi-high-court/

Del HC | Immediately work out logistics for procuring supply of oxygen; Comply with allocation orders; Supply on emergent basis: Court directs Del Govt. and suppliers

https://www.scconline.com/blog/post/2021/04/22/supply-of-oxygen/

Del HC | Ensure strict compliance of oxygen supply orders or face contempt, criminal, penal action; Provide adequate security to lorries transporting oxygen: HC to Authorities and Centre

https://www.scconline.com/blog/post/2021/04/23/shortage-in-oxygen-supply/

[Supply of Medical Oxygen] Del HC | Stoppage of tankers by one State would have snow balling effect: HC hopeful that with infrastructure for transportation of liquid Oxygen been augmented, the supplies to Delhi would considerably improve

https://www.scconline.com/blog/post/2021/04/27/supply-of-medical-oxygen/

Del HC | ‘We made no request for any hotel, much less Ashoka Hotel’: Notice issued to Delhi Govt. after it reserved 100 rooms in 5-star hotel as Covid facility for Judges, judicial officers, families

https://www.scconline.com/blog/post/2021/04/28/delhi-government/

Del HC | Hoarding of medicines or Oxygen cylinders/ flow metres leads to artificial scarcity, to an extent which may not be there || Detailed Order of COVID-19 Crisis

https://www.scconline.com/blog/post/2021/04/30/covid-19-crisis-2/

Del HC | Delhi Police should immediately release the seized Remdesivir or other Drug used for treating COVID-19 or any Oxygen Cylinders seized from the possession of patients or their attendants || Detailed Order on COVID-19 concerns

https://www.scconline.com/blog/post/2021/04/30/covid-19-crisis/

Delhi HC comes down heavily on Central government; Warns of contempt proceedings if it fails to supply allocated medical Oxygen on urgent basis

https://www.scconline.com/blog/post/2021/05/01/covid-19-delhi-hc-comes-down-heavily-on-center-government-warns-center-of-contempt-proceedings-if-it-fails-to-supply-allocated-medical-oxygen-on-urgent-basis/

Breach of privacy

Del HC | Including name or likeness of a person on pornographic website is breach of privacy: Court suggests template directions for meaningful compliance of injunction and restraining orders

https://www.scconline.com/blog/post/2021/04/26/breach-of-privacy/

Defamation

Del HC | Does CrPC allow amendment before taking cognizance and is there any provision to amend criminal complaint? Read Court’s opinion while deciding India Today’s Editor-in-Chief’s application in defamation case

https://www.scconline.com/blog/post/2021/04/09/defamation-4/

Delhi riots

Del HC | Allegations against rioter Shahrukh not confined to participation, but leading large crowd releasing open fire shots: Bail denied to Delhi Riots accused

https://www.scconline.com/blog/post/2021/04/15/riots/

Domestic violence

Del HC | If a proceeding is pending before Family Court, would this warrant the application under S. 12 Domestic Violence Act to be transferred to Family Court? Read on

https://www.scconline.com/blog/post/2021/04/08/family-court/

Ex-parte decree

Del HC | Scope of Or. 9 R. 13 CPC application: Whether summons duly served and/or whether defendant was prevented by ‘sufficient cause’ from appearing? Explained

https://www.scconline.com/blog/post/2021/04/27/sufficient-cause/

Guardianship and financial expenses

Del HC | If a person is incapacitated and relative taking care of his medical expenses requires money from his bank account, is that permitted under law? Can Bank permit withdrawal of money? Read on

https://www.scconline.com/blog/post/2021/04/09/incapacitated/

Investigation

Del HC | Is it within Court’s power to direct for further investigation on finding defects in the same? Death caused by suicide, Allegations of Dowry Death | Why FIR was registered after 10 months of deceased’s death? [Detailed Report]

https://www.scconline.com/blog/post/2021/04/06/dowry-death/

Public place

Del HC | Vehicle even if occupied by only one person would constitute a ‘public place’ and wearing of mask therein would be compulsory

https://www.scconline.com/blog/post/2021/04/08/covid-19/


Gauhati High Court


Citizenship

Gau HC | [NRC] Citizenship cannot be denied merely because linkage with relatives was not shown; HC sets aside order of Tribunal declaring man a foreigner

https://www.scconline.com/blog/post/2021/04/21/citizenship/


Gujarat High Court


COVID-19

Guj HC | ‘Harrowing Tales, Unfortunate and Unimaginable Difficulties’ HC takes suo moto cognizance due to upsurge in COVID-19 cases and asks what steps Government will take

https://www.scconline.com/blog/post/2021/04/12/covid-19-2/

Guj HC | Setup RT PCR test labs in all districts; Accept deficiencies publicly and take immediate remedial steps, etc.: Court flags issues for State’s consideration

https://www.scconline.com/blog/post/2021/04/19/rt-pcr-labs/


Himachal Pradesh High Court


Custodial interrogation

HP HC | A balance has to be maintained between the right of personal liberty and right of Investigating Agency to investigate and arrest an offender for the purpose of investigation

https://www.scconline.com/blog/post/2021/04/07/section-438-crpc/

Freedom of press

HP HC | If conduct of an editor of a newspaper is under scanner, suspension of accreditation till charges are cleared would not amount to violation of freedom of press

https://www.scconline.com/blog/post/2021/04/15/editor-of-newspaper/

Maintenance

HP HC│ Can a wife give up her right to an enhanced rate of future maintenance through a contract? Will such contract be valid or void? Read on

https://www.scconline.com/blog/post/2021/04/30/right-of-wife/

Will

HP HC | Where the document is written by one person and signed by another, the handwriting of the former and the signature of the later have both to be proved in view of S. 67 of the Evidence Act

https://www.scconline.com/blog/post/2021/04/27/will-3/


Jammu and Kashmir High Court


Promotion

J&K HC | “Right to consideration for promotion is a fundamental right”; HC directs government to obviate stagnation in service

https://www.scconline.com/blog/post/2021/04/23/promotion/

Teaching

J&K HC | “Their engagement in private coaching invariably slows down their performance in the Government schools”; HC upholds the ban on private tuition by Government teachers

https://www.scconline.com/blog/post/2021/04/06/private-tuition/


Kerala High Court


Fair elections

Ker HC| ‘Ensure ‘no double voting by any voter’; HC directs Election Commission of India to be on war footing to ensure fair and democratic election

https://www.scconline.com/blog/post/2021/04/01/ker-hc-ensure-no-double-voting-by-any-voter-hc-directs-election-commission-of-india-to-be-on-war-footing-to-ensure-fair-and-democratic-election/

Female employment

Ker HC | S. 66(1)(5) of Factories Act: Protective Provision or not? Can this provision act as a hurdle in the way of a woman being considered for employment? Employment Opportunity only for Male Candidates v. Female Candidates [Detailed Report]

https://www.scconline.com/blog/post/2021/04/20/women-employment/

Jurisdiction under Article 227

Kar HC | ‘thou art weighed and found wanting’; Writ Court exercising limited supervisory jurisdiction under Art. 227 Constitution of India cannot run a race of opinions with the Court of impugned order

https://www.scconline.com/blog/post/2021/04/05/writ-court/

Live-in relationship

Ker HC | Whether a Child born out of a live-in relationship is to be treated as a child born to a married couple? Status of Children in a live-in relationship & mother’s decision to recognize fatherhood of child || High Court unwinds

https://www.scconline.com/blog/post/2021/04/26/live-in-relationship-2/

Packaged drinking water

Ker HC | Packaged drinking water units not to continue without proper clearance and permits; no low-quality ice bars to be distributed: Detailed report on Unauthorised Packaged Drinking Water units operating in State

https://www.scconline.com/blog/post/2021/04/15/packaged-drinking-water-units/

Summons

Ker HC | Service of summons through Whatsapp; Is it valid in law? HC clarifies

https://www.scconline.com/blog/post/2021/04/27/service-of-summons/

Undertrials

Ker HC | “Their livelihood will be lost, if they fail to report back for duty”; HC directs Sessions Court to release passports of under-trial labours employed abroad

https://www.scconline.com/blog/post/2021/04/06/undertrial-labours/


Meghalaya High Court


Compromise in Non-compoundable cases

Megh HC | Whether a criminal proceeding involving non-compoundable offence can be set aside and quashed, all parties having reached a compromise? Court decides

https://www.scconline.com/blog/post/2021/04/05/criminal-proceeding/


Madras High Court


COVID-19

Madras HC | Survival and Protection: Only when citizen survives that he enjoys other rights that this democratic republic guarantees unto him || HC on COVID-19, Election Commission, Vote Counting

https://www.scconline.com/blog/post/2021/04/26/election-commission-2/

Madras HC | States’ failure in filing status report: HC remarks State’s indolence knows no bounds to use pandemic as excuse for acting in flagrant breach of Court orders

https://www.scconline.com/blog/post/2021/04/30/covid-19-pandemic/

Compensation

Madras HC | 4 Fishermen killed by Sri Lankan Navy. State & Centre to provide adequate compensation in wake of untimely deaths of fishermen

https://www.scconline.com/blog/post/2021/03/31/fishermen-killed/

Divorce

Madras HC | PCOS v. Impotency? Divorce on ground of no cohabitation. Is it a legitimate expectation of husband? HC explains while discussing concept of marriage and S. 12(1)(a), HMA

https://www.scconline.com/blog/post/2021/04/05/divorce-3/

Partition

Madras HC | Daughters filed partition suit while disowning their registered release deed. As per S. 92 of Evidence Act, burden to adduce evidence sufficient to exclude written evidence will be on the daughters? Read on

https://www.scconline.com/blog/post/2021/04/02/partition-suit/


Orissa High Court


Bail

Ori HC | Bail rejected subject to the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family

https://www.scconline.com/blog/post/2021/04/02/bail/

Circumstantial evidence

Ori HC | In cases where guilt is based only on circumstantial evidence; suspicion, however, grave may be, cannot be a substitute for a proof

https://www.scconline.com/blog/post/2021/04/19/circumstantial-evidence-2/

Compensation

[MV Act] Ori HC | Does compassionate appointment given to the widow allow deductions in compensation granted? HC decides

https://www.scconline.com/blog/post/2021/04/09/compassionate-appointment-3/

Economic offences

Ori HC | An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community; Bail rejected

https://www.scconline.com/blog/post/2021/04/27/economic-offence/

Sales tax

Ori HC | Once the material is offered for inspection, the delivery shall be “deemed to have been completed” on that very date, Freight charges were rightly raised separately

https://www.scconline.com/blog/post/2021/04/03/sales-tax/


Patna High Court


COVID-19

Pat HC | Explore possibility of procuring High Flow Nasal Canula; Speed-up RT PCR testing: HC directs State

https://www.scconline.com/blog/post/2021/04/19/rt-pcr-testing/

Judiciary

Pat HC | Bias and prejudices, conjectures and surmises and personal views contrary to material on record have no place in court of law: HC says Trial Judge needs special training at Judicial Academy. Read why

https://www.scconline.com/blog/post/2021/04/15/trial-judge-needs-special-training-at-judicial-academy/


Punjab and Haryana High Court


Custody

P&H HC | Welfare of minor is the paramount consideration to be kept in mind while appointing a guardian in regard to S. 17 of the Guardian Act r/w S. 13 of the Minority Act

https://www.scconline.com/blog/post/2021/04/06/custody-of-minor/

Fake allegations

P&H HC | It is not only an abuse to process of law but also an attempt to overawe the authorities; HC imposes cost of 1 lakh for fake rape allegation

https://www.scconline.com/blog/post/2021/04/07/rape-allegation/


Rajasthan High Court


Parole

Raj HC | Primary objective of parole is to facilitate family ties being maintained and cannot be rejected on flimsy grounds

https://www.scconline.com/blog/post/2021/04/01/parole/


Tripura High Court


Conviction

Tri HC | Conviction under S. 42 Indian Forest Act, 1927 upheld; Court dismisses petition

https://www.scconline.com/blog/post/2021/04/02/indian-forest-act/


Uttaranchal High Court


COVID-19

Utt HC | State to establish Real Time Portals for informing public about availability of beds, oxygen cylinders and flow-meters; HC lays down directions

https://www.scconline.com/blog/post/2021/04/29/covid-19-8/

Forest fires

Utt HC | Court issues guidelines issued in order to curb problems related to forest fires in the State; Vacancies in the forest department to be filled

https://www.scconline.com/blog/post/2021/04/13/forest-fires/

Legal RoundUpWeekly Rewind

7th Episode of SCC Online Weekly Rewind featuring Bhumika Indulia, Associate Editor bringing you the most important and interesting stories from the field of law is out now! Check out the written episode below.


Supreme Court 

♦ Chief Justice SA Bobde retires; Justice NV Ramana takes oath as the 48th Chief Justice of India

Faced with the unprecedented situation of COVID-19 pandemic forcing the Courts to function virtually, Justice SA Bobde retired on April 23rd after a stint of 17 months as the Chief Justice of India and a total of 8 years as a Supreme Court Judge.  

ON April 24th, Justice NV Ramana took oath as the 48th Chief Justice of India.  

Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19: https://bit.ly/3ve0DsR

3 Important rulings on pendency of cases and vacancies in High Courts

Right before his retirement, CJI Bobde, aling with Justice L. Nageswara Rao and Justice S. Ravindra Bhat, gave 3 important rulings to deal with the pendency of cases and vacancies in the High Courts. 

  1. All High Courts to take expeditious steps to incorporate the Draft Rules of Criminal Practice, 2021 as part of the rules governing criminal trials. This will help in removing the common deficiencies in criminal trials thereby leading to faster disposal of cases. 
  2. Taking note of the existing 220 vacancies in the High Court, the Supreme Court has stressed upon the importance of the Chief Justices of the High Courts making recommendations in time. 
  3. General guidelines for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts, which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent. In the extensive guidelines, the Court has also laid down 5 “trigger points” for activation of dormant Article 224A. 

♦ Allahabad High Court’s “lockdown” judgment stayed https://bit.ly/3aDX3QL


High Courts

♦  Bom HC | “Elderly citizens being asked to choose between devil and the deep sea”: HC not impressed with Centre’s reply on petition for door-to-door vaccination for elderly and disabled citizens

Bombay High Court while addressing a concern regarding the door-to-door vaccination for elderly and disabled citizens said that it is for the government and its appropriate department to explore ways and means to prevent contamination as well as exposure of vaccine beyond recommended temperature so that vaccination programme can be taken to doorsteps of elderly and disabled citizens. 

https://bit.ly/3erNlSR

2. Bom HC | “Serum Institute coined the term ‘Covishield’, took substantial steps towards development and manufacture”: Court finds no merit in Cutis Biotech’s passing off action

In an appeal with respect to passing of an injunction against the use of name COVISHIELD by Serum Institute of India for its COVID-19 Vaccine, Bombay High Court observed that 

A temporary injunction directing Serum Institute to discontinue the use of mark ‘Covishield’ for its vaccine will cause confusion and disruption in the Vaccine administration programme of the State

https://bit.ly/3tQ9D7c

COVID-19 Surge | Bom HC | Reports of RT-PCR Tests to be made available on Whatsapp; COVID positive patients reports to be uploaded within 24 hours on ICMR portal

While addressing the issue with regard to difficulties being faced by the patients in obtaining RT-PCR reports, Bombay High Court directed the laboratories that the said reports be made available on WhatsApp and to be uploaded on ICMR portal within 24 hours for the patients testing positive, whereas for the patients who test negative to be uploaded on the portal within 7 days. 

https://bit.ly/3nqjGgP

Del HC | “Wastage of a single dose of vaccine is a criminal waste”

While addressing the concerns arising out of the COVID-19 pandemic, High Court noted that 44 lakhs vaccines were wasted out of the 10 crores vaccines allocated to different State due to the restriction of age or category of people who were entitled to take the vaccine and hence remarked that: 

Wastage of even a single dose of vaccine, when the same is proving to be life–saving, would be a criminal waste. 

https://bit.ly/2Qy6V7M

 

Ori HC | Suo Moto matter taken regarding death of sanitation workers in two incidents; Directions laid down regarding abolition of manual scavenging

Division Bench of Orissa High Court directed compensation to the grieving families of the sanitation workers who were engaged in manually cleaning a sewer line and died of asphyxiation, made noteworthy observations regarding the sorry plight of manual scavengers 

https://bit.ly/3tRnquj

 

 


Legislation Updates

Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2021

https://bit.ly/32NQOWe

 

 

​♦ Union Health Ministry issues Regulatory Pathways for foreign produced COVID-19 Vaccines

https://bit.ly/3tPqbMD

Case BriefsSupreme Court

Supreme Court: In an appeal against the Himachal Pradesh High Court judgment which dismissed a petition after noticing that the appellant has an alternate remedy available, the bench of Dr. DY Chandrachud and MR Shah, JJ has summarised the principles related to the maintainability of a writ petition before High Courts.

Two important judgments on the “rule of alternate remedy”

Whirlpool Corporation v Registrar of Trademarks, Mumbai, (1998) 8 SCC 1

“Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Read full judgment

Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107

“In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Read full judgment

Principles summarised by the Court

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

Background

In the present case, the High Court had dismissed the writ petition instituted under Article 226 of the Constitution challenging orders of provisional attachment on the ground that an alternate remedy is available. The appellant challenged the orders issued on 28 October 2020 by the Joint Commissioner of State Taxes and Excise, Parwanoo provisionally attaching the appellant’s receivables from its customers. The provisional attachment was ordered while invoking Section 83 of the Himachal Pradesh Goods and Service Tax Act, 20172 and Rule 159 of Himachal Pradesh Goods and Service Tax Rules, 20173 . While dismissing the writ petition challenging orders of provisional attachment the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law.

[Radha Krishna Industries v. State of Himachal Pradesh, 2021 SCC OnLine SC 334, decided on 20.04.2021]


*Judgment by Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

For appellant: Senior Advocate Puneet Bali, learned senior counsel appearing on behalf of the appellant

For State of Himachal Pradesh: Advocate Akshay Amritanshu

NewsWeekly Rewind

The 4th Episode of our SCC OnLine Weekly Rewind was released on 4-04-2021. If you haven’t yet checked out the latest updates of that week, featuring Bhumika Indulia, Associate Editor, just click on the link below.

Supreme Court

♦ Mukhtar Ansari’s custody transferred to Uttar Pradesh: https://bit.ly/2PnnbIv

♦ Supreme Court refused to interfere with the scheme of sale of electoral bonds by the Political Parties which was challenged on the ground that it allows the donors of political parties to maintain anonymity which is not healthy for a democracy: https://bit.ly/3mhJQ4S

♦ Rapid Rail Case: HSVP to deposit 80% of debt due in Escrow Account: https://bit.ly/3wIparl


High Courts

♦ Madras HC | Quality of education being compromised in course of more law colleges being born in guise of creating opportunities : https://bit.ly/3sRahAI

♦ Madras HC | “Trying to develop the case brick by brick and construct something purposeful”: HC while arranging counselling for same-sex couple and parents: https://bit.ly/31Wpwgd

♦ Ker HC | ‘Ensure ‘no double voting by any voter’; HC directs Election Commission of India to be on war footing to ensure fair and democratic election: https://bit.ly/3rOcH1E

Tribunal

♦ CCI | No ‘opt-out’ option for WhatsApp users in the 2021 Update. Why? Data Sharing with Facebook, Unilateral terms and more. Read CCI’s take on WhatsApp’s conduct in the garb of the policy update: https://bit.ly/39DeG2N


Legislation Updates

♦ Extension of Last Date for Linking Aadhaar number with PAN from March 31, 2021 to June 30, 2021 : https://bit.ly/31GsfKf

♦ Finance Act, 2021 : https://bit.ly/3sSjcC4

Copyright (Amendment) Rules, 2021: https://bit.ly/2Px5oOP

♦ Insurance (Amendment) Act, 2021: https://bit.ly/2R4tiSo


Did you check out the 3rd Episode yet? If not, here’s the link:

SCC Online Weekly Rewind Volume 1 Episode 3

 

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 BriefsHigh Courts

Kerala High Court: The Division Bench comprising of S.Manikumar, CJ., and Shaji P. Chaly, J., heard the instant PIL whereby, MLA Ramesh Chennithal had approached the Court for seeking issuance of directions to the Election Commission of India (ECI) to ensure that fake/multiple entry voters in the electoral roll for the election to the Kerala Legislative Assembly were not permitted to vote. The Bench directed,

“Election Commission should also ensure that sufficient State/Central force is posted at all voting places, to ensure fair and democratic election.”

 The petitioner contended that there were multiple entries of the voters in various places, which according to the petitioner was about 3,24,441 double votes and 1,09,601 bogus votes in the final electoral roll published on 20-01-2021, spreading over 131 Assembly Constituencies, and in total 4,34,042 double/fake votes in the final electoral rolls. The petitioner further submitted that though complaints were made to the Election Commission to correct the electoral roll, no steps had been taken and the voting is scheduled on 06-04-2021.

Assessing the seriousness of the matter, the petitioner had sought for a mandamus, directing the respondents to take immediate actions, and rectify the electoral roll by deleting or freezing fake/multiple votes and also to ensure that those fake/multiple entry voters were not permitted to vote in the election in any polling booths.

To substantiate his allegations, the petitioner submitted a computerized printout of the voters of 134 Thiruvananthapuram Central Constituency and CDs. On perusal of the same, the Bench observed that while the photographs of the voters being the same, names, booth numbers and serial numbers were different.

The Bench asked the Election Commission of India, whether it had any mechanism to find out the chances of multiple entry, in case of absence/shifting or for any other reason. The Bench stated,

“We are of the prima facie view that there are discrepancies in the final voters list published by the Election Commission.”

 Agreeing with the argument of the petitioner that the presence of multiple entries in the voters list would facilitate a voter to cast twice, which is not permissible in law, the Bench directed the ECI to ensure that there was no double voting by any voter. ECI was further directed to ensure that sufficient State/Central force is posted at all voting places, to ensure fair and democratic election. Lastly, the Bench stated,

To implement the above, steps should be taken on war footing basis. Orders of this Court should be implemented in letter and spirit, without any room for compliant.”

[Ramesh Chennithala v. Election Commission of India, 2021 SCC OnLine Ker 1613, decided on 29-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court:

For the Petitioner: Adv. T. Asaf Ali,

For the Respondents: Adv. Deepu Lal Mohan

Case BriefsHigh Courts

Here’s a short recap of what we covered under the High Court’s section for the month of March 2021.


Allahabad High Court

Rule Making Power under the Motor Vehicles Act

All HC | Rule making power of Central and State Government under Motor Vehicles Act – Are the subject matters falling under Ss. 110 and 111 delineated and demarcated or do they overlap? HC explains

https://bit.ly/3m5cMwI

Maintenance

All HC | Rent Allowance vis-a-vis Maintenance Allowance: Whether under S. 125 CrPC, rent allowance is included under maintenance allowance? Read to know

https://bit.ly/3fpMKTL

Maintainability of Habeas Corpus Writ

All HC | Full Bench decides whether writ of Habeas Corpus will be maintainable against Judicial order or Child Welfare Committee’s order under J.J. Act? Decoded

https://bit.ly/31xr9QW

Marriage of a Minor| Void or Voidable?

All HC | If a minor girl marries a major of her freewill, will such marriage be void or voidable? Court explains while discussing validity of child marriage

https://bit.ly/3m3tfSg

Contract

All HC | During his lifetime, tenant enters into compromise with landlord and enjoys benefits thereof. After such tenant’s demise, can his legal heirs challenge the compromise? HC uncovers legal position

https://bit.ly/3dlLBtF

Land Title Dispute

All HC | Order reserved in Kashi Vishwanath Temple-Gyanvapi Masjid Land Title Dispute; Court to decide maintainability [Religious Character]

https://bit.ly/3rCXbWu


Bombay High Court

Maintenance to Widowed Daughter-in-Law

Bom HC | Father-in-law denies maintenance to widowed daughter-in-law and her children. Will he be obligated to maintain them if late son had a share in ancestral property? HC Decodes

https://bit.ly/39w2RLF

Fraud by Wife?

Bom HC | Husband alleged that wife hid her actual date of birth & since he intended to marry a ‘Mangalik Yog’ girl, fraud was played upon him. Here’s how HC solved the matter

https://bit.ly/31BByv0

Section 417 of Penal Code, 1860

Bom HC | Whether absence of ‘dishonest concealment of fact’ exempt a person from being punished under S. 417 IPC? Read on

https://bit.ly/3weIFHV

Legal Heirs | Property

Bom HC | Relinquishment of self-acquired properties of a deceased by legal heirs. Will such release enure to benefit of all other legal heirs? Court explains

https://bit.ly/3ftQQdG

Defamation

Bom HC | Can a person’s image be used for a commercial purpose, without his/her express written consent? Justice G.S. Patel elaborates directing Amazon Prime to take down the telecast of a movie using a person’s private image

https://bit.ly/3u9WTYU

Suicide

Bom HC | Woman commits suicide along with her infant daughter within 7 years of marriage. Can husband of deceased be held guilty for offences under Ss. 498-A, 304-B read with 34 IPC? Mere suspicion of Cruelty & Harassment is enough?

https://bit.ly/3m5Qknj

Agreement

Bom HC | Can a development agreement signed between Chairman of Society and one of the Managing Committee members be binding upon non-signatory? Court discusses while ordering redevelopment of building

https://bit.ly/3sH9HFJ

Copyright Registration

Bom HC | Does Copyright Act requires mandatory registration to seek protection under the Act? Justice G.S. Patel explains

https://bit.ly/3ue4FRz

Daughter approaches Family Court on behalf of father’s Marriage

Bom HC | Can a daughter approach Family Court on behalf of her father to challenge validity of his marriage? OR only parties to marriage can challenge validity? Read in light of S. 7 of Family Courts Act

https://wp.me/pcenps-11Vt

Others

Bom HC | Board of Directors of Co-operative Bank: Power of Registrar of Co-operative Societies under Maharashtra Co-operative Societies Act & RBI’s role || Detailed Report

https://bit.ly/2PN0htB


Calcutta High Court

Registered Society

Cal HC | Can a registered society file a writ petition on behalf of a group of people including those who are not members of the society? HC discusses while upholding shifting of market site in view of COVID-19

https://bit.ly/3sFJTtz

Marriage Conversion

Cal HC | Judiciary – The policy-making instrument on issues relating to marriage conversion and acceptability in terms of personal laws? Read on

https://bit.ly/3m6vqEw


Chhattisgarh High Court

Opportunity of Hearing

Chh HC | Does forfeiture of earned remission of a convict without giving reasonable opportunity of hearing would amount to violation of fundamental right under Art. 21 Constitution of India? HC observes

https://bit.ly/3sDdy6T

Benami Transaction

Chh HC | Principles governing determination whether a transfer is a Benami transaction has been reiterated; Petition allowed

https://bit.ly/3fuYFzM

Cooling Period

Chh HC | Guidelines regarding the waiver of cooling period as provided under S. 13B (2) of Hindu Marriage Act reiterated; Petition allowed

https://bit.ly/3dlQCm3

Contract

Chh HC | When terms of a contract have been reduced to the form of a document, no evidence shall be given or permitted to be adduced in proof of terms of such contract under Ss. 91 & 92 of Indian Evidence Act, 1872

https://bit.ly/3dlOtGX


Delhi High Court

Delhi High Court

Revisional Court Decision v. Lower Court Decision

Del HC | Can the revisional court’s conclusion substitute the lower court’s decision? Read HC’s analysis

https://bit.ly/31AUw4U

Defamation

Del HC | Complaint against Business Standard for defaming ‘member of RSS’ quashed: Who qualifies as an aggrieved person to file defamation complaint? HC explains

https://bit.ly/3fx3lVE

Payment of Rent

Delhi HC issues notice in a plea raising important issues concerning payment of rent by Cinema Halls during lockdown, doctrine of incorporation of arbitration clause, recourse in absence of force majeure clause

https://bit.ly/2PcCROF

Jurisdiction

Del HC | What is the scope of Court’s jurisdiction while examining application under S. 8, Arbitration and Conciliation Act. What is effect of ‘Chalk & Cheese’ case of non-arbitrability? HC examines in “Hero” electric bikes dispute

https://bit.ly/3fuRRBV

Virtual Hearing

Del HC | NCLT and NCLAT directed to regulate their own procedure for virtual hearing platforms so long as it is ensured that if any particular party requests for a link, same would be considered in a fair, transparent and non-arbitrary manner

https://bit.ly/3m7Ph6m

Sensitization of Citizenry

Del HC | Sensitization of citizenry has to precede, not succeed, galvanization of governmental machinery: Directions issued to Airlines and DGCA on noting an ‘alarming’ situation in Air India flight

https://bit.ly/3rF3Cbz

Vicarious Liability

Del HC | Vicarious liability under S. 138 NI Act. What is proper stage of raising defence of absence of knowledge  by the accused being held vicariously liable for offence committed by company? Explained

https://bit.ly/3ucGHG3

Arbitrator

Del HC | Whether disability of an appointing authority to appoint an arbitrator frustrate the arbitration agreement. HC unravels in light of Arbitration and Conciliation (Amendment) Act, 2015

https://bit.ly/2PKAna8

Unsoundness of Mind

Del HC | How to prove unsoundness of mind in absence of medical records? When does presumption of being under influence arise? On whom lies burden of proof? Court answers while rejecting challenge to a Will

https://bit.ly/3sHokZQ

Culpable Homicide

Del HC | What is the most crucial element to be determined while finding a person guilty under attempted culpable homicide – S. 308 IPC? Vegetable seller beaten up on failing to provide money for conducting business outside Okhla Sabzi Mandi

https://bit.ly/2PK242A

Emergency Arbitrator

[Amazon v. Future Retail] From Emergency Arbitrator to Group of Companies Doctrine – Delhi HC covers all while restraining Future Group from proceeding further with Disputed transaction

https://bit.ly/3sCdMes

Eviction Order

Del HC | Which is the proper forum for filing appeals from the eviction order passed by DM under Delhi Maintenance and Welfare of Parents and Senior Citizens Act? Court answers

https://bit.ly/3cEwYmh

Interim Maintenance

Del HC | It is for the wife to establish alleged source of husband’s income; Husband would have paid maintenance rather than going jail: HC reduces interim maintenance to wife and son

https://bit.ly/3frG0or


Gauhati High Court

Gau HC | [Artificial Ripening of Fruits] HC considers health hazards; lays down detailed guidelines to ensure chemical-free ripening of fruits

https://bit.ly/39x1pbQ

Culpable Homicide

Gau HC | “Nature of injury does not suggest that the appellant acted in cruelty”; HC converts conviction for murder into culpable homicide

https://bit.ly/3fuDP3A

Motor Accident Case

Gau HC | Deceased being below 40 years of age the future prospects shall be held at 40%; HC allows appeal against enhanced compensation in motor accident case

https://bit.ly/3rAFl6A


Gujarat High Court

Policy Decision

Guj HC | Court cannot undertake the activity of banking regulations upon itself and pass omnibus orders to come up with policy decision; Court dismisses appeal

https://bit.ly/2PGMcy6

Termination of Pregnancy

Guj HC | Termination of pregnancy application rejected keeping in mind health of the minor; Court issues directions

https://bit.ly/3m5kAPf


Himachal Pradesh High Court

Maternity Leave

HP HC | Whether a contractual woman employee is entitled to avail maternity leave in case of a surrogate child? HC analyses

https://bit.ly/3rA2vd7

Judicial Bias

HP HC | Merely because persons are related do not establish that the relationships were working or cordial; Crucial aspect is time period of knowledge

https://bit.ly/2PJQLHE

Eminent Domain

HP HC | Can a writ in the instant nature be allowed to direct Temple authorities to spend the amount collected through donations for construction of parking sites

https://bit.ly/3rDg5MP

Education Department

HP HC │ Lamentable state of affairs; Education Department is one of the biggest litigants before this Court and majority of writ petitions relate to transfer and adjustment of the teachers

https://bit.ly/31wtmML


Jammu and Kashmir High Court

Eviction of Unauthorised Occupants

J&K HC | “Government bungalows are Public property, it belongs to Public” HC directs State to ensure eviction of unauthorised occupants from Government accommodation

https://bit.ly/3m5lo6w

Magistrate’s Jurisdiction

J&K HC | When a CJM transfers a petition to a Magistrate subordinate to him, the Magistrate is conferred with jurisdiction to entertain the same even if the matter would otherwise fall outside his jurisdiction

https://bit.ly/3rLGloB


Jharkhand High Court

Arbitral Award

Jhar HC | [Galudih Barrage Irrigation Project] HC upholds arbitral award after certain modifications; explains principles of adjustment, counterclaim and set off

https://bit.ly/3rE9stC

Victim Compensation

Jhar HC | “Accused cannot be saddled with payment of victim compensation”; HC says such order is contradictory to S. 357A of CrPC

https://bit.ly/2Pen9mc

Jharkhand Staff Selection Commission

Jhar HC | Will a person claiming to be 41 years 11 months and 30 days of age be qualified for a post which prescribes upper age limit of 42 years? HC explains

https://bit.ly/3cAee79


Karnataka High Court

Contract

Kar HC | Whether the termination/cancellation of contract of the petitioner on the ground of the petitioner seeking maternity leave is justified? HC analyses

https://bit.ly/3fo4yi6

LIC Pension Rules

Kar HC | Benefit under Rule 27 LIC Pension Rules was rejected to a LIC Agent working as a field officer as no special qualification was required; Appeal dismissed

https://bit.ly/3ua0ru5

Immovable Property Registration

Kar HC | Immovable property which is compulsorily registrable under S. 49 of Indian Registration Act, 1908 may be taken as evidence for the purpose of collateral transaction

https://bit.ly/3cDxReJ

Abuse of Office

Kar HC | Assistant Commissioner and Tahsildar made a consorted effort to abuse their office to take possession of the properties, demolish them and dispossess the rightful owners

https://bit.ly/3fxT0ZB

Trademark Dispute

Kar HC | A case of deceptively similar trademarks; Quintessential ‘Common man’ is neither blessed with the wisdom of Solomon nor the trained eyes of Sherlock Holmes

https://bit.ly/3ftZrNu


Kerala High Court

Maintenance

Ker HC | If a neglected wife is being maintained by her eldest son, would that exempt the husband from his liability to maintain the wife under S. 125 CrPC? HC explains

https://bit.ly/2PjOLpK

Right to Protest

Ker HC | “Striking workers cannot resort to strong-arm tactics and violence”; HC explains the ambit of Right to Protest

https://bit.ly/3sEGhrU

Statutory Proceedings

Ker HC | Inappropriate for Court to interfere with statutory proceedings at show-cause stage; HC dismisses petition against SEBI

https://bit.ly/3dqoTAR

Dishonour of Cheque

Ker HC | Dishonour of cheque shall be proved to the hilt; Adverse inference cannot be drawn under S. 138 of NI Act merely because evidence is not adduced to prove a negative fact

https://bit.ly/31BLGE2

Divorce

Ker HC | In divorce petition under S. 13(1)(iii) of HMA, can Court order a party to appear before medical board for assessment of mental condition? Court discusses

https://bit.ly/3dkDHRd

OTT Rules

Ker HC | Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 challenged; HC restrains State from taking any coercive action for non-compliance of Part III of the impugned Rules

https://bit.ly/3m5f6UJ

Manual Scavenging

Ker HC | HC directs State to pay Rs 10 lakh compensation to the family of a deceased manhole worker

https://bit.ly/3rBi04z


Madras High Court

Forgery

Madras HC | Does buyer’s knowledge about dispute in title of subject property, will make him liable for offence of cheating, forgery and making false document? HC answers

https://bit.ly/3wdFKPQ

Ancestral Property

Madras HC | Under Hindu Succession Act, can an ‘ancestral property’ blend in with the ‘individual property’? Read to know

https://bit.ly/3ryfHPT

Sexual Harassment

Madras HC | Media and Political Parties restrained from indulging in any discussions on alleged sexual harassment of Lady IPS Officer – NO parallel ‘Media Trial’ || Restraint to continue

https://bit.ly/3fu9BNO

Madras HC | Why Special DGP who has been alleged to have sexually harassed the Lady IPS Officer been placed under ‘Compulsory Wait’ instead of being suspended? Does compulsory wait attach any stigma to it?

https://bit.ly/3fv8hdQ

Madras HC | Lady IPS Officer harassed by Special DGP. “Court is not going to be a mute spectator”: HC takes suo motu cognizance; decides to monitor investigation; issues directions

https://bit.ly/3cyCPt7

Right to use Postal Ballot

Madras HC | Political Party DMK challenged Constitutional Validity of S. 60(c) of Representation of the People Act 1951. Why HC held that EC provided right to use postal ballot to certain persons who otherwise would have been excluded? Know more

https://bit.ly/31yTRkx

Same-Sex Couple

Madras HC | Society still grappling to come to terms with same sex orientation: HC orders protection and in-chamber hearing

https://bit.ly/3diM0Nz

Madras HC | “Trying to develop the case brick by brick and construct something purposeful”: HC while arranging counselling for same-sex couple and parents

https://bit.ly/2PKahnq

COVID-19

Madras HC | Wear masks; maintain social distancing norms at all political gatherings: HC to candidates and political parties in election-bound State of Tamil Nadu

https://bit.ly/3wdGpAO

Law Colleges

Madras HC | Quality of education being compromised in course of more law colleges being born in guise of creating opportunities. Read what HC says

https://bit.ly/3uefCTb

Elections

Madras HC | Official Funds for Campaigning: One has to wear allegiance to a political leader, if not on the sleeve at least visibly crying out of pocket | Why? Read on

https://bit.ly/2QXbaKh


Madhya Pradesh High Court

Litigation

MP HC | Litigation in the Court is not a “game of chess”; Court dismisses appeal stating serious suppression of facts

https://bit.ly/2PKt42d

Preventive Detention

MP HC | Law of preventive detention is an exception to fundamental right to personal liberty under Art. 21 of Constitution and therefore has to be strictly construed; Court allows petition challenging preventive detention

https://bit.ly/3dm1foX


Meghalaya High Court

Injunction

Megh HC | Grant of injunction cannot be claimed by a party as a matter of right nor can it be denied by the Court arbitrarily; Court dismisses petition on the question of effective possession

https://bit.ly/31z16sO

 

 


Orissa High Court

Judicial Review

Ori HC | Power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes

https://bit.ly/31w4vbO

Quasi-Judicial Authority

Ori HC | A quasi-judicial authority vested with the power for cancellation of a license, could not have acted under the ‘dictation’ of another authority

https://bit.ly/3rEdPow

Strict Liability

Ori HC | Onus of proof, which lies on a party alleging negligence should be established on the touchstone of preponderance of probabilities

https://bit.ly/3dprCuf


Patna High Court

Toilet for Girls

Pat HC points out apathy on the part of State regarding the non-existence of ladies toilet in Colleges; Constitutes a Committee to examine existing conditions

https://bit.ly/3m6HS7e

Unlawful Association

Pat HC | To attract penalty for being a member of an unlawful association, the association must be one declared unlawful by a notification under UAP Act, 1967; HC declares seizure exercise illegal and arbitrary

https://bit.ly/39wQMWJ


Punjab and Haryana High Court

Panchayati Divorce

P&H HC | “Panchayati divorce has no recognition in law”; HC grants protection to the couple in spite of holding their marriage illegal

https://bit.ly/2PeswBS

Partnership Firm

P&H HC | Experience gained by erstwhile partnership firm could not be construed as experience of partners in an individual capacity; HC dismisses the petition

https://bit.ly/3m7Zn7g

Marriage

P&H HC | Muslim woman and Hindu man marries as per Hindu rites; HC holds the marriage is invalid

https://bit.ly/3m6DpS4

Contractual Live-in Relationship

P&H HC | Contractual live-in relationship has no recognition in law; HC terms it “misuse of process” and against morality

https://bit.ly/3rywBxz


Rajasthan High Court

Judgment

Raj HC | Judgment can be a binding precedent only for what has been considered and held in it; No Court can travel beyond facts mentioned and considered therein to cull out “ratio decidendi”

https://bit.ly/3cCamCL

 

 


Telangana High Court

Sale Notice

Telangana HC | If the bank sends sale notice following due procedure on the addresses mentioned in loan agreement, will the same amount to ‘service’ under Security Interest (Enforcement) Rules? Read on

https://bit.ly/3m801lc

Principles of Res Judicata

Telangana HC | Are principles of res judicata applicable to bail applications? Can repeated filing of bail applications without change in circumstances be accepted? Read on

https://bit.ly/3wgBUFu


Tripura High Court

Economic Abuse and Domestic Abuse

Tri HC | How are ‘economic abuse’ and ‘domestic abuse’ synonymous? HC explains in light of S. 3 of the Protection of Women from Domestic Violence Act, 2005

https://bit.ly/3ftbfQ3

Bail Application

Tri HC | Strong prima facie case leaves no ground for custodial immunity; Court rejects bail application in matter of Ss. 377 and 506 of IPC and S. 6 of POCSO

https://bit.ly/3sQjWrz

Public Interest Litigation

Tri HC | Every State and local authority to provide adequate facilities for instruction in mother tongue at the primary stage of education to children belonging to linguistic minority groups? Court decides on PIL

https://bit.ly/3rDFsyj

Writ Petition

Tri HC | High Court would not entertain a writ petition which is hopelessly delayed without proper explanation; dismisses petition with costs


Uttaranchal High Court

RTI Act

Utt HC | Delay in providing information under RTI Act does not amount to penalty, if valid reasons for the delay are proved; Court sets aside the penalty

https://bit.ly/3m5xGfn

Enquiry

Utt HC | Before proceeding in the matter, Court has to form an opinion that an enquiry is needed; Court dismisses application moved under S. 340 CrPC

https://bit.ly/31BktBn

NewsWeekly Rewind

Welcome to the SCC Online Weekly Rewind where we curate the most important and interesting stories to keep you abreast of all the latest developments in the field of law.

In the first episode featuring our Legal Editor Devika Sharma, we have brought significant judgments delivered by the Supreme Court and High Courts last week, along with legislation updates and fact check.

 


Supreme Court

A Winner All Along – Justice Indu Malhotra

https://bit.ly/3tGrvks

  • Under IBC, NCLT has jurisdiction to adjudicate disputes arising solely on the ground of insolvency: Supreme Court

https://bit.ly/3vOiebX

  • SC calls for an amendment to Sections 11(7) & 37 of the Arbitration and Conciliation Act, 1996 to bring Sections 8 & 11 at par on appealability. Read how Vidya Drolia judgment has led to an anomaly

https://bit.ly/312YYtb

  • 3 years’ limitation period ‘unduly long’; Necessary for Parliament to fill the vacuum by prescribing a specific period of limitation under Section 11 of the Arbitration and Conciliation 1996: SC

https://bit.ly/3c9ALYw


High Courts

Del HC | Sensitization of citizenry has to precede, not succeed, galvanization of governmental machinery: Directions issued to Airlines and DGCA on noting an ‘alarming’ situation in Air India flight

Delhi High Court

https://bit.ly/3cZkncf

Madras HC | Lady IPS Officer harassed by Special DGP. “Court is not going to be a mute spectator”: HC takes suo motu cognizance; decides to monitor investigation; issues directions

 

 

https://bit.ly/315Fu78

 

 

HP HC | Whether a contractual woman employee is entitled to avail maternity leave in case of a surrogate child? HC analyses

 

 

https://bit.ly/2QifzH5

 

 


Legislation Updates

MORTH issues Draft notification for prohibiting Renewal of Registration of Vehicles Owned by Central and State Government after 15 Years

https://bit.ly/3c99jdd

Rights of Overseas Citizen of India Cardholder, notified

 

https://bit.ly/3sefgv5

 

 

 


Fact Check

Fact Check: Do you need to verify your social media accounts with government ID within three months?

 

 

 

https://bit.ly/3tGZoSa

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Prakash Shrivastava and Vandana Kasrekar, JJ., dismissed a petition which was filed challenging a notice whereby the premises of the petitioner had been sealed under the provisions of The Central Goods and Services Tax Act, 2017 (for short “GST Act”).

The petitioner was the manufacturer of sweet betel nut and which has all the necessary licenses and permissions for this purpose and is regularly paying the GST case of the petitioner is that the Plot No.15-A/B-1, Sector-B, Industrial Area, Sanwer

Road, Indore belonged to Shri Kishore Wadhwani and he had taken this plot on lease from Shri Kishore Wadhwani and was running the manufacturing unit on this plot. The further case of the petitioner was that apart from the above, it had no connection with Shri Kishore Wadhwani. Earlier in the year 2011 Excise Department had taken certain action against the petitioner but nothing incriminating was found. On 20-06-2020, by the impugned notice the factory premises of the petitioner had been sealed. Counsel for the petitioner, Mr Sunil Jain and Mr Kushagra Jain submitted that though the action relating to search and seizure u/S.67 of the GST Act has been taken, but the requisite procedure had not been followed. They further submitted that the petitioner apprehended that the search and seizure may not be carried out in a fair manner and the confession of the petitioner may be recorded under pressure, therefore, a direction be issued for carrying out the search in the present of an Advocate. Counsel for the respondent, Mr Prasanna Prasad submitted that the officials of the respondents had approached the factory premises of the petitioner on 20-06-2020 for the purpose of search and seizure by following the due procedure in accordance with Sec.67 of the Act, but since the premises was found locked, therefore, the option was either to break open the lock and carry out the search or to seal the premises and thereafter carry out the search of the premises in the presence of the petitioner. He also submitted that the two independent witnesses will be kept as required by law and procedure prescribed in law will be duly followed in true letter and spirit.

The Court perused the Section 67 of GST Act and held that the search is yet to take place in the present case and the counsel for respondents had duly assured this court that the aforesaid provision will be complied with therefore no direction in this regard at this stage is required. The Court relied on the judgment of Poolpandi v. Superintendent, Central Excise, (1992) 3 SCC 259 wherein during the investigation and interrogation under the provisions of Foreign Exchange Regulations Act 1973 and Customs Act, a prayer was made for assistance of the lawyer and the Supreme Court had held that,

            “11- We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus: if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and

duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be “expanded” to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the ‘just, fair and reasonable test’ we hold that there is no merit in the stand of appellant before us.”

The Court dismissed the petition holding that there was no need for interference.[Subhash Joshi v. Director General of GST Intelligence, WP No.9184 of 2020, decided on 03-07-2020]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ravindra V. Ghuge and B.U. Debadwar, JJ., upheld the decision of Additional Sessions Judge wherein a woman committed suicide along with her infant daughter within 7 years of marriage and allegations were placed that she committed suicide on the pretext of cruelty and harassment, but same could not be proved.

Present appeal was filed under Section 378(1) of the Code of Criminal Procedure, 1973 against the Judgment and Order passed by Additional Sessions Judge, whereby the five accused were acquitted for the offences under Sections 498-A, 304-B and 306 read with Section 34 of the Penal Code, 1860.

Factual Matrix

Respondent 2 and 3 are the husband and wife, whereas respondent 1 and 5 are the son and daughter of the said respondents 2 and 3.

Deceased ‘Jyoti’ was the daughter of Haribhau Laxman Karkhile and Shakuntala Haribhau Karkhile.

Further, it was stated that, with the intervention of close relatives of both the families, the marriage of deceased Jyoti with respondent 1 Vijay was settled.

At the time of settlement of marriage, respondents had expressed their desire that marriage should be solemnized in a grand manner. Respondents did not demand any gift or dowry. Haribhau and his family members agreed to the performance of marriage of deceased Jyoti and accused 1 Vijay at Kedgaon in the best of possible manner.

Matrimonial life of deceased Jyoti was normal for about 10 months after marriage. Thereafter, husband and father-in-law started insisting on her for bringing balance dowry amount of Rs 25,000 and subjecting her to cruelty for that, in the form of beating and starving her.

Deceased Jyoti used to disclose about harassment and ill-treatment meted out by husband and in-laws on account of remainder dowry amount of Rs 25,000 to her parents and brothers, whenever she visited her parental house.

In the meanwhile, Jyoti became pregnant and gave birth to a girl child but as afraid to return back to matrimonial house without the remainder of dowry. However, after some time she returned to her matrimonial house and assured her husband/accused that Haribhau would soon arrange the money and requested not to harass her.

Though Haribhau failed to arrange the money and deceased was constantly harassed and the same was disclosed to her parents.

Later, Jyoti and her daughter were both found dead by a fisherman in decomposed condition under the shrubs in the Ghod river.

Haribhau lodged report narrating over all conduct of the accused and the crime was registered for the offences punishable under Section 498-A, 304-B and 306 read with Section 34 IPC.

Additional Sessions Judge on conducting trial found that the prosecution failed to provide demand of dowry and harassment of Jyoti by the accused of non-fulfilment of remainder dowry amount. Being aggrieved of the same, State preferred the present appeal.

Crux of the matter lies in the following issues:

  1. Whether Jyoti committed suicide, along with tender aged daughter Kranti, by drowning into Ghod river;
  2. Whether, soon before the death, Jyoti was subjected to cruelty or harassment by the accused in connection with demand of dowry;

OR

(iii) Whether, by their willful conduct, accused had driven Jyoti to commit suicide along with daughter Kranti.

Bench on taking into consideration the evidence on record, gathered that Jyoti along with Kranti committed suicide by drowning in Ghod river, hence resulting in suicidal death.

Court ruled out the possibility of accused getting annoyed when Jyoti gave birth to a daughter and started harassing Jyoti more, on the contrary, in light of the evidence placed, it was found that they were happy.

PW5 Shakuntala did not tell any relative that accused were ill-treating Jyoti for insisting her to fulfil their demand of remainder dowry amount of Rs 25,000. This conduct of PW5 Shakuntala cannot be lost sight of. In the normal course, every mother shares such aspects with kith and kin or relatives.

Evidence of PW5 Shakuntala was not worthy of credence.

Further, High Court added that when Haribhau, Deepak, Shakuntala and Sudam were well aware about the fact that since more than one year accused were harassing Jyoti, on account of non-payment of remainder dowry of Rs 25,000, in normal course it was expected on their part to disclose the same to police immediately, however, they did not disclose anything about the aforesaid conduct of the accused.

During the course of recording the statement under Section 313 of CrPC, accused 1 not only stated that after birth of daughter Kranti he deposited Rs 50,000 in the Bank of Maharashtra, in the name of Kranti in fixed deposit account, but also produced on record xerox copy of the said fixed deposit receipt. The said conduct of the accused in taking care of future of Kranti, immediately after her birth, by way of depositing substantial amount in her name in bank, creates every doubt about the case set out in the FIR and deposed by PW2 Deepak, PW5 Shakuntala and PW7 Sudam that after the birth of Kranti gravity of harassment of Jyoti by accused increased.

High Court found the allegations of harassment of Jyoti by accused vague and omnibus.

In view of the facts and circumstances of the case, Bench found that Jyoti committed suicide within 7 years of marriage with accused 1 Vijay, accused cannot be held guilty, either for the offence punishable under Sections 498-A, 304-B or 306 read with Section 34 of IPC, as evidence on the aspect of subjecting her to cruelty by accused persons on account of remainder demand of dowry of Rs 25,000/- soon before her death or driving her to commit suicide by their willful conduct, is doubtful for various reasons.

Presumption contemplated in Section 113A or Section 113B of the Evidence Act would not support the prosecution, since Jyoti being subjected to cruelty on account of dowry demand was found to be doubtful.

The reason alone that Jyoti committed suicide, cannot be a ground to hold the accused guilty for offences punishable under Sections 498-A, 304-B or 306 read with Section 34 IPC on suspicion, when the evidence as to the demand of dowry and harassment of Jyoti by accused of the same, adduced by the prosecution was doubtful and not worthy of credence.

On re-appreciating the evidence, High Court did not find the view taken by the Additional Sessions Judge to be incorrect or improbable.

Hence the Bench concurred with the lower court’s view and dismissed the appeal. [State of Maharashtra v. Vijay Dattatraya Kolhe, 2021 SCC OnLine Bom 338, decided on 11-03-2021]


Advocates before the Court:

APP for Appellant – State: Shri R. V. Dasalkar

Advocate for Respondents No. 1, 2, 4 & 5 — Shri Amol Joshi

Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., dismissed and disposed of a petition which was filed in order to challenge a final seniority list in the cadre of Radiographer, Department of Health.

The petitioner and respondents 4 and 5 (private respondents) were appointed to the post of Radiographer on 14-08-1987. Respondent 4 was shown at Sl. No.2 in the order of appointment, respondent 5 was at Sl. No. 1 and the petitioner was at Sl. No.4. The order provided that the appointee should join the duties within one month from the date of the issue of the order, failing which the appointment order shall be treated as cancelled. Petitioner raised objection to the draft seniority list wherein in the cadre of Radiographers petitioner was shown junior to the private respondents. Department again for a number of times drafted the seniority list and the petitioner raised objections, ignoring such objections the department issued the impugned final seniority list on 20-12-2015. The petitioner thereupon had filed the instant petition on or around 20-12-2018.

Counsel for the private respondents, Mr Tanmay Debbarma opposed the petition contending that the petition was barred by delay and laches. The select list showed the private respondents as higher ranked than the petitioner and that the seniority has been assigned by the department on the basis of ranking in the select list. He further contended that merely because the petitioner joined the duties a few days earlier, would not make him senior to the private respondents.

The Court found that the petition was frivolous and meritless and it suffered from gross delay and laches. The Court further pointed out that the petitioner never questioned this declaration or the higher ranking given to the private respondents in the selection process.

The Court while dismissing the petition explained that merely because the petitioner joined duty a few days earlier than the private respondents though both were selected in the same selection process and offered appointment under a common order cannot be the ground to upset the seniority position which would relate to the merit position of the respective candidates. The Court further imposed costs on the petitioner for dragging the private respondents into a case which was totally devoid of merits.[Suman Kr Ghosh v. State of Tripura, 2021 SCC OnLine Tri 148, decided on 18-03-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Lesotho, High Court: S.P. Sakoane, CJ, addressed a matter wherein the decision of summary indictment has been challenged.

Applicants in the present matter belonged to two political parties represented in the National Assembly. Both the applicants challenged the decision of the Director of Public Prosecutions to join them in an indictment in which 3rd, 4th, 5th and 6th respondents were facing charges of treason, murder and attempted murder.

Analysis

High Court noted that the applicant’s case rested upon three pillars, being:

First Pillar was that the Director’s decision to have them joined in a trial pending since 2018 is unlawful for want of compliance with the statutory requirement of first holding a preparatory examination before committal for trial in this Court.

Second pillar was that the stay of CRI/T/0001/2018 pending the review of the Director’s decision to charge the applicants with a political offence which was allegedly committed way back in 2014 against an administration which has long come and gone.

Third pillar: The applicants’ joinder in a criminal trial that had been pending served the Crown’s convenience in disregard of the applicants’ constitutional rights to trial within a reasonable and adequate time and facilities for preparation of their defences guaranteed by Section 12 (1) and (2) (c) of the Constitution.

“Our courts have deprecated instituting civil collateral proceedings to attack criminal proceedings outside the criminal process.”

It was observed by this Court that holding a preparatory examination in terms of Section 92 of the Criminal Procedure and Evidence Act, 1981 is a pre-requisite for committals and that summary trials in terms of Section 144 are an exception which must be justified.

Referring to the decisions in Rex v. Mahao Matete 1979 (2) LLR 304 (H.C.); Rex w Rampine & Another 1979 (2) 377 (H.C.); Mda And Another v. Director of Public Prosecutions & Another [2005] LSHC 72 (18 April 2005), Court expressed that “ an accused person is entitled to challenge the Director’s decision to summarily indict.”

Further, the Bench observed that, all the reliefs that the applicants sought are directed at attacking the indictment in a trial that is pending before Tshosa AJ. It is plainly in the interest of the administration of justice as well as the interest of the applicants and the Crown that, all objections must first be raised and decided by the Trial Judge. This also serves to avoid piece-meal litigation.

Decision

Hence, Bench held that the impugned joinder of applicants should be pursued before the trial judge since it would not be right for this Bench to be sitting as a non-trial judge to pronounce on one or all of the issues arising.[Mothejo Metsing v. Director of Public Prosecutions, CIV/APN/425/2020, decided on 09-02-2021]


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Case BriefsHigh Courts

Madras High Court: K. Murali Shankar, J., addressed the issue with regard to payment of maintenance, whether from the date of application or date of order.

Factual Matrix

In the present matter, the second respondent is the mother and respondents 3 and 4, brothers of the first respondent who had married the petitioner. After a while misunderstandings arose between the petitioner and first respondent due to which they started living separately.

Petitioner had filed a maintenance case earlier and the Magistrate passed an order directing the first respondent to pay monthly maintenance at Rs 5,000 per month to the petitioner and her minor children.

Petitioner’s case

Petitioner stated that in order to avoid the payment of maintenance, respondents conspired and took the petitioner and her children to Chennai so as to resume their cohabitation. In the period of two months that the petitioner lived with first respondent, she was harassed and tortured physically and mentally and the petitioner was forcefully sent out of the matrimonial home by forcibly retaining the minor children.

In view of the above petitioner invoked the provisions of the Protection of Women from Domestic violence Act, 2005.

Trial Court passed impugned order, wherein first respondent was directed to pay the maintenance of Rs 5,000. On not being satisfied with the maintenance amount also the order of the trial court directing the first respondent to pay maintenance from the date of the order, petitioner/wife came forward with the present revision.

Analysis

Section 12 of the Protection of Women from Domestic Violence Act, 2005 does not provide the date from which the maintenance to be awarded and there is no provisions in the Hindu Adoption and Marriage Act with respect to the date from which the maintenance order may be made effective. But, at the same time, Section 125(2) CrPC, contemplates that the Magistrate may award maintenance either from the date of order or from the date of application.

 In the Supreme Court decision of Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandras Vyas, (2015) 2 SCC 385, it was held that Section 125 CrPC, impliedly requires the Court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts.

It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of order or the date of the application in matters of maintenance.

As per Section 354(6) of the CrPC, the Court should record reasons in support of the order passed by it, in both eventualities and that the purpose of the provision is to prevent vagrancy and destitution in society and the Court must apply its mind to the options having regard to the facts of the particular case.

Supreme Court in its decision of Rajnesh v. Neha,2020 SCC OnLine SC 903, after analyzing the provisions in various enactment of the Judgments of the appeal and considering the divergent views taken by the various Courts issued necessary direction to bring about the uniformity in the orders passed by all the Courts.

Right to claim maintenance must date back to the date of filing of the application, since the period during which maintenance proceedings remained pending is not within the control of the applicant. Considering the above, the Supreme Court categorically directed that all the Courts award maintenance from the date of application.

 Conclusion

In the present matter, the petitioner had filed the case in the year 2014 and the impugned order was passed on 11-07-2017.

In view of the above discussion, Court held that it has no hesitation to hold that the impugned order granting maintenance from the date of order is liable to be set aside and the petitioner would be entitled to get maintenance from the date of application.

Hence, criminal revision case was partly allowed. [Mohamed Nisha Banu v. Mohamed Rafi, 2021 SCC OnLine Mad 801, decided on 17-02-2021]


Advocates who appeared for the parties:

For petitioner : S.M. Jinnah

For Respondent: No appearance

Appointments & TransfersNews

Appointment of Judges

President appoints S/Shri (i) Murali Purushothaman (ii) Ziyad Rahman Alevakkatt Abdul Rahiman (iii) Karunakaran Babu and (iv) Dr. Kauser Edappagath, to be Additional Judges of the Kerala High Court.

Read more about Judges:

Murali P., LL.B., was enrolled as an Advocate on 09.03.1991. He has 28 years of experience, practicing in High Court of Kerala from 11.03.1991 to 16.07.2019 in Election Law, Family Law, Labour Law, Cooperative Society Law, Contract Law, Constitutional Law and Service Law. He has specialisation in Election and Service Law. He was Standing Counsel for the State Election Commission, Delimitation  Commission of Kerala, Admission and Fee Regulatory Committee for Self Financing Professional Colleges and as Government Pleader in the High Court of Kerala in 2001.

Ziyad Rahman A.A, BA, LL.B., has 22 years of experience, practicing in the High Court of Kerala and also appeared before in Subordinate Courts, Tribunals in Constitutional, Civil, Land Laws, Electricity Criminal, Banking, Motor Vehicles, Insurance, Labour, Company, Consumer, Administration, Municipality, Taxation, Rent Control law matters and has specialisation in Electricity Laws, Motor Vehicle Laws, Insurance Act, Employees Compensation Act, Constitutional matters.

Shri K. Babu, M.A (Economics), LL.B, LL.M., joined Judicial Service on 21.05.2009 as Additional District Judge-I and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District Judge, Thiruvanthapuram in addition appointed as Chairman of the Administrative Committee of Sree Padmanabha Swamy Temple by the Hon ‘ble Supreme Court of India w.e.f. 19.11.2018.

Dr. Kauser Edappagath, BA (Law), LL.B, LL.M, Ph.D., joined Judicial Service on 21.05.2009 as Additional District and Sessions Judge and he served in various capacities at different places as a Judicial Officer. Presently, he is serving as Principal District and Sessions Judge/ State Transport Appellate Tribunal, Ernakulum since 08.01.2018.

Link to the notification: Order of Appointment


Ministry of Law and Justice

[Notification dt. 22-02-2021]

Appointments & TransfersNews

Four Additional Judges elevated as Judges in Karnataka High Court

President appoints S/Shri Justices (1) Singapuram Raghavachar Krishna Kumar (2) Ashok Subhashchandra Kinagi (3) Suraj Govindaraj and (4) Sachin Shankar Magadum, Additional Judges of the Karnataka High Court, to be Judges of the Karnataka High Court.

Read more about the Judges:

Shri Justice Singapuram Raghavachar Krishna Kumar, B.A.L., LL.B, was enrolled as an Advocate on 29.08.1992. Since then he has practiced in Karnataka High Court and Subordinate Courts at Bangalore in civil, constitutional, matrimonial, company, consumer disputes and arbitration matters. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09,2021.

Shri Justice Ashok Subhash Chandra Kinagi, B.Sc., LL.B., was enrolled as Advocate on 02.06.1995. He practiced in Karnataka High Court in civil, labour, service and constitutional matters. He was appointed as Central Government Standing Counsel during 2008 2012. He also worked as part time Lecturer in a Law College from July 1997 to March 2006. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Shri Justice Govindaraj Suraj, B.A., LL.B., was enrolled as Advocate on 23.06.1995. He practiced in civil, constitutional, company and arbitration matters in Karnataka High Court, various High Courts, Tribunals and Supreme Court and before various Tribunals. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Shri Justice Sachin Shankar Magadum, B.Sc., LL.B., has practiced in Karnataka High Court at Bangalore and at Dharwad Bench in civil, criminal, constitutional, service and matrimonial matters. He was appointed as an Additional Judge of the Karnataka High Court for a period of two years with effect from 23 rd September, 2019. His term as an Additional Judge will expire on 22.09.2021.

Link to the Notification: Order of Appointment


Ministry of Law and Justice

[Notification dt. 22-02-2021]

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., dismissed the petition being non-maintainable.

The petitioner by way of this instant petition has challenged the election of Respondent 5 as Member, Block Development Committee, Misserwala, District Sirmour in the elections to Panchayati Raj Institutions of the State concluded in January 2021. The writ petition has been filed seeking that the respondent election commission may be directed to start the fresh election and declare the election under challenge as null and void.

The issue before the High Court is the maintainability of writ petitions under Article 226 of the Constitution of India vis-à-vis Article 243-O of the Constitution of India in respect of limitation in exercise of judicial review by the Court in election matters.

Section 162 of the H.P. Panchayati Raj Act provides that no election under the Act shall be called in question except by an election petition presented in accordance with the provisions of the chapter and Section 175 of the Act enumerates the grounds for declaring election to be void.

The Court stated

 “We are also conscious of the limitations set forth on such exercise of judicial review in view of bar of jurisdiction imposed by Article 243-O of the Constitution of India, which is quoted hereinbelow:-

“243-O. Bar to interference by Courts in electoral matters- Notwithstanding anything in this Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State.”

 The Court further relied on judgment Laxmibai v. Collector, Nanded, (2020) 12 SCC 186 wherein it was observed the maintainability of writ petitions under Article 226 of the Constitution of India vis-a-vis Article 243-O of the Constitution of India in respect of limitation in exercise of judicial review by the Court in election matters, it was held that all election disputes must be determined only by way of an election petition. This by itself may not per-se bar judicial review, which is the basic structure of the Constitution but ordinarily, such jurisdiction would not be exercised. The relevant paragraphs of the judgment are extracted hereinafter:

 “15. It is true that the High Court exercises a plenary jurisdiction under Article 226 of the Constitution of India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alternative remedy is available therefor. (See Mrs.

  1. Article 243-O of the Constitution of India mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not concerned with the said question.
  2. ….a writ petition should not be entertained when the main question which fell for decision before the High Court was non-compliance of the provisions of the Act which was one of the grounds for an election petition in terms Rule 12 framed under the Act.”
  3. Section 10A of the 1959 Act and Section 9A of the 1961 Act read with Articles 243-K and 243-O, are pari material with Article 324 of the Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference.”

 The Court thus held that “the instant writ petition is not maintainable at all and the same is accordingly dismissed with liberty reserved to the petitioner to avail appropriate alternate remedy in accordance with law.” [Kauser v. State Election Commission,  2021 SCC OnLine HP 227, decided on 08-02-2021]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Meghalaya High Court: H. S. Thangkhiew J., dismissed the writ petition being devoid of merits.

The facts of the case are such that the petitioner herein is the eldest son of the deceased employee who expired when the petitioner was still a minor aged 11(eleven) years old. The petitioner on attaining majority applied for appointment on compassionate ground in the year 2009, and it was only in 2013 that the petitioner was informed vide letter dated 21.03.2013 by the respondent 2 that he was placed at Sl. No. 19 in the list for consideration for appointment on compassionate ground. It was further informed by letter dated 10.11.2014 that after review by the Compassionate Appointment Committee, the petitioner was placed at Sl. No. 37, and thereafter down the year so much so that the petitioner is now placed at 10.1 and it is the norm that a person whose indigent index is less than 10 (points) is no longer considered eligible for appointment. Hence the petitioner herein has preferred this application before this Court on the grievance that his application for appointment on compassionate ground has not been duly considered and that he has been deprived of the same due to the arbitrary acts of the respondents.

Counsel for the petitioner submitted that the respondents have acted arbitrarily and delayed his case which has resulted in his low indigent index ranking and the respondents have not complied with the prescribed Scheme contained in the Office Memorandum dated 09-10-1998 issued by the Ministry of Personnel, Public Grievances & Pension (Department Personnel & Training), for consideration of appointment which has resulted in the deprivation of the petitioner of gainful employment.

Counsel for the respondents submitted that the writ petition is hopelessly barred by delay and laches, inasmuch as, the deceased employee had expired in 2003, the application for compassionate appointment was only made in 2009, i.e. 6(six) years after the death of the employee, and that the petitioner has come to Court only on July, 2017. It was further submitted that this delay defeats the very purpose of compassionate appointment which had been formulated to provide immediate succor to the family of the bereaved to tide over the crisis caused due to the death of an employee.

The Court relied on judgment Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, wherein it was held:

“2…. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency”

 “6.For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.”

The Court thus observed that the object of compassionate appointment which is an exception to Article 16 (1) of Constitution of India and as has been reiterated by a catena of judgments of the Hon’ble Supreme Court, is to address the immediacy of the need and it is not meant to entertain stale claims. A scheme for the grant of compassionate appointment does not constitute a reservation of a post in favour of a member of the family of the deceased employee, and there is no general right which can accrue to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority.

The Court thus held “no case has been made out by the petitioner for issuance of any direction or for any interference by this Court. Further, no discernable grounds have been made out to show that there was any failure on the part of the respondent No. 1 & 2 in complying with the Scheme for compassionate appointment, nor any materials placed on record to substantiate the allegations that there was any illegality or arbitrariness on the part of the respondents.”

In view of the above, writ petition was dismissed.[Dhaneswar Medhi v. Union of India, 2021 SCC OnLine Megh 15, decided on 03-02-2021]


Arunima bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: Instant writ petition was registered suo motu, taking note of the menace of drug consumption and trade in State. The Bench of S. Manikumar, CJ., and A.M. Shaffique, J., observed the difficulties faced by Police officials while using “Abon Kits” to spot cases drug consumption. The Bench suggested,

“Efforts have to be taken to identify whether any ‘user-friendly’ device, at the same time ‘less expensive’, is available, and if so, to cause it to be procured and make the same available to the Police, Excise, and such other departments for extensive use.”

 Ramachandran, former District Police Chief, addressed a letter to Judges of High Court highlighting various aspects of drug abuse in Kerala. The letter had thrown light on increasing rate of crimes committed by youths under the influence of drugs and its alarming growth in children/students of both genders. Pursuant to the letter and observing that issues concerning rampant drug abuse were recently reported in the editorials of major newspapers, the Court had registered suo moto petition in the matter.

The Bench observed reports of various organizations on this matter. International journal of community medicine and public health had reported that 31.8% of Kerala youth abuse any one of the substances-alcohol, smoking, pan chewing, narcotics— irrespective of time and frequency in lifetime. Report of the State Special Branch,  suggested that around 400 institutions in the State were affected by drug abuse and out of the education institutions, 74.12% are schools,  20.89% are colleges and professional institutions, and 4.97% are other institutions viz., ITI, Polytechnics etc. The report of NCRB had noted that in 2017 Kerala’s incidence rate for NDPS cases (cases per lakh people) was 16.6 percent, second only to Punjab’s 20.2 per cent.

The report also revealed that a range of drugs from Ganja, Hashish to Synthetic Drugs were used by the student community. The report further revealed that in most of the cases detected in the college campuses, the seizure was below 1 kg of ganja, which was bailable, and this encourages a person to engage in drug abuse.

“Apart from the narcotic and synthetic drugs usage being rampant among the student community, inhaling of Noxious chemicals like whitener, ink, fevicol, varnish solution used for repairing tyre puncture, were being used by the students for getting intoxication.

Noticing that the above substances did not come under the purview of NDPS Act, no legal action could be initiated; the Bench suggested three main strategies for drug prevention:

  • Mass media campaigns to inform and warn the public of the dangers of drug use.
  • Educating children at school about drugs.
  • Efforts to raise awareness and change the attitude in targeted groups, such as vulnerable and disadvantaged young people.

In Binu v. Union of India, 2011 SCC OnLine Ker 4151, this Court had expressed, nobody ha a right to expose the gullible population to the perils of drug abuse and push them into a condemned world of no return. The deleterious effects of these toxins on the human system have been scientifically proved.

Narcotic drugs and psychotropic substances have a sure tendency to depersonalize those who consume them and reduce them to worthless freaks of nature. Some of these drugs are so potent that even the first dose produces addiction with a craving for excess. Adolescents constitute the first causality among the vulnerable sections.”

Considering the entire material on record, the Bench issued following directions be complied with strictly, in letter and spirit, in accordance with law, within a period of three months:

  1. State should to adopt a method of establishing Campus Police Units, to conduct regular checking inside educational institutions. Measures should also be taken to make it easier for the police personnel to enforce NDPS Act, 1985, in the educational institutions.
  2. State was also directed to convene a meeting of all the key officials from the Department of Home Affairs, Excise, Health, Law, Education and representative of State Mental Health authority, Department of Social Justice, and chalk out programmes, to ensure reduction in the incidence of Substance abuse among teenagers and youth and for the implementation of the suggestions made above.
  3. The Universities/Colleges/School authorities should be provided with guidelines as a charter of duties and responsibilities, to make the campuses of the educational institutions, drug free.
  4. Police officials should seek the services of Student Police Cadets, NCC, NSS etc., to tide over the situation that the students are unaware of the legal repercussions of the usage and trafficking of drugs, and the health and career hazards caused due to the usage of drugs.
  5. Police was also directed to introduce a special scheme to ensure that the premises of the educational institutions and Universities are drug free and should initiate steps to conduct anti-drug programmes in the institutions, propagate health awareness campaigns, and use the assistance of social media.
  6. Police Chief was further directed to establish counselling and rehabilitation mechanisms, to save the students who were already using drugs and addicts, and for that purpose, the co-operation of University authorities, affected students, and their parents be elicited.[Suo Motu v. State of Kerala,  2021 SCC OnLine Ker 665, decided on 10-02-2021]

Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Kameswar Rao, J., decided a petition wherein on the invocation of the arbitration clause, one of the parties appointed the sole arbitrator on its own.

The instant petition was filed under Section 11(6) of the Arbitration and Conciliation Act, 1996. Petitioner and the respondents entered into a lease deed in respect of the premises.

It has been stated that pursuant to the execution of the lease deed, petitioner started fulfilling the obligations on the assumption that the respondents will also do the same and disbursed an amount of Rs 3,32,000 to the respondents in order to expedite the refurbishment and up-gradation of the premises to make it at par with the petitioner’s benchmark.

Due to the pandemic, petitioner sought to invoke the force majeure clause in the Lease Deed.

Even after repeated communications and grant of time as sought by the respondents, the respondents failed to furnish the complete set of documents as mandated under Clause 11.2.1 of the Lease Deed.

While the above-stated breach was being cured, respondents suddenly and to complete shock and dismay of the petitioner issued a letter demanding a sum of money by misrepresenting the clauses of the Lease Deed.

Respondents invoked arbitration clause citing the existence of disputes under the lease deed and nominated a Retired Judge of this Court as the Sole Arbitrator.

 Issue for consideration:

Whether the appointment of the arbitrator was at variance with the stipulation in the contract and as such non-est for this Court to grant the relief to the petitioner by appointing a new arbitrator?

Decision

  1. DISPUTE RESOLUTION- Any dispute or controversy arising out of or in connection with the Deed or its performance, including the validity, interpretation or application hereof, shall to the extent possible be settled amicably by negotiation and discussion among the Parties within 30 (thirty) days as of the date requested by either Party. Failing which, either Party shall be at liberty to refer the matter to arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996. The arbitral panel shall consist of a sole arbitrator appointed mutually by the Parties. Any arbitral award issued by such sole arbitrator shall be final and binding on the Parties. The language of the arbitration shall be English and seat of arbitration shall be Delhi.”

(Emphasis supplied )

As per the arbitration clause contained in the deed, the arbitrator has to be appointed mutually by both the parties. In the present case, sole arbitrator was appointed by the respondent but was not confirmed by the petitioner.

Respondents should have approached the Court under Section 11 of the Act seeking an appointment of an Arbitrator when the same has not been confirmed.

Hence, the appointment is declared to be non-est.

Bench relied upon the Supreme Court decision in Walter Bau Ag. v. MCGM (2015) 3 SCC 800 and Naveen Kandhai v. Jai Mahal Hotels (P) Ltd., Arb. P. 53 of 2017.

With regard to the significance of adherence to the procedure agreed upon by the parties to an arbitration agreement with regard mutual/common consent in appointing an arbitrator, Court relied upon the decision of Manish Chibber

 While allowing the petition, Justice S.P. Garg, a retired Judge of this Court was appointed as the sole arbitrator to adjudicate the disputes and differences between the parties arising out of the lease deed. [Oyo Hotels and Homes (P) Ltd. v. Rajan Tewari,  2021 SCC OnLine Del 446, decided on 09-02-2021]


Advocates for the parties:

Petitioner: Jeevan Ballav Panda, Adv. with Satakshi Sood & Satish Padhi, Advs.

Respondents: Bobby Anand, Advocate

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., reversed the order of the lower court issuing summons against the accused in a case under Section 138 of the Negotiable Instruments Act, holding that the lower courts fell in error while computing the period of limitation.

Factual Matrix

Petitioner had borrowed a sum of Rs 10 Lacs from respondent 2 who had lent the same vide two cheques amounting to Rs 5 lacs each. Further, it was stated that after approximately 3 years, respondent 2 approached petitioner for repayment of the loan amount, petitioner assured that he will return the entire amount and in order to discharge his part liability he issued a cheque amounting to Rs 10 lacs, which was dishonored with remarks “funds insufficient”.

Complainant stated that when the above-said was informed to the petitioner, he paid no heed to his complaint and thereafter, a legal demand notice was served upon him, yet petitioner failed to make payment, therefore a complaint was filed under Section 138 NI Act.

In view of the above complaint, summons were directed to be issued against the petitioner.

The above Order was challenged and the revisional court dismissed the said petition which has been challenged.

Contentions

Petitioners Counsel submitted that the Metropolitan Magistrate had no jurisdiction to take cognizance under Section 138 NI Act without that being accompanied by application under Section 142 (1) (b) NI Act for condoning the delay in filing the complaint.

Further, while taking cognizance of the complaint, Metropolitan Magistrate did not take note of the fact that the complaint was filed beyond the limitation period and did not rightly calculate the days and therefore, directed to issue summons to the petitioner was illegal and without jurisdiction.

Analysis and Decision

Bench referred to the decision of Supreme Court in Econ Antri Ltd. v. Rom Industries Ltd., (2014) 11 SCC 769, while deciding the issue of calculation of limitation period with regard to proviso (c) to Sections 138 and 142(b) of the NI Act.

Further, the Court added that the ratio of the decision in Saketh India Ltd. v. India Securities Limited, (1999) 3 SCC 1 has to be applied to the case in hand.

Crux in the instant case was that the 15 days period with regard to legal demand notice lapsed. In terms of Supreme Court decision in Saketh India Ltd. v. India Securities Limited,  (1999) 3 SCC 1 one day has to be excluded for counting the one month limitation period and therefore, excluding the day of 19-06-2019, the limitation period started from 20-06-2019 and the limitation period expired with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period started.

Consequently, the limitation period in this case, which commenced on 20-06-2019, expired in the succeeding month on a day preceding the date of commencement i.e. 19-07-2019. Admittedly, the complaint, in this case, was instituted on 20-07-2019 i.e. 01 day after the limitation period had expired.

Hence, Bench held that both the courts below have fallen in error while computing the period of limitation. Moreover, at the time of filing, the complaint was not even accompanied by an application under Section 142(1) (b) NI Act for condoning the delay.

Adding to the above, Court stated that the Revisional Court erroneously took into consideration two different dates for service of demand notice while computing the limitation period.

Therefore, the lower courts orders were set aside. [Simranpal Singh Suri v. State,  2021 SCC OnLine Del 236, decided on 01-02-2021]


Advocates for the parties:

Petitioner: M.S. Oberoi, Siddharth Khattar and Gaurav Rohilla, Advocates

Respondents: Izhar Ahmed, Additional Public Prosecutor for respondent 1

Anil Kumar Dhupar, Advocate for respondent 2