Case BriefsHigh Courts

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

In case February was a tied up month and you missed out on some really interesting cases from the High Courts, well we have covered that for you, just scroll down and have a look at all the updates.

Go ahead and check out the February updates of 2021!


Allahabad High Court

Directions to Police Officers

All HC | “Police officers NOT to automatically arrest when cases under S. 498-A IPC is registered”: Court lays directions considering provisions of S. 41-A CrPC

Jail Appeals

 All HC | 20 yrs in jail for no reason? HC reverses conviction of rape accused; Directs matter to be placed before CJ for considering periodical listing of appeals of those in jail for more than 10 or 14 yrs

Custody of minor children

All HC | Man, principal accused in incident relating to wife’s death, seeking custody of minor children. Can the custody with maternal grandparents said to be illegal? Read on

Compassionate Appointment

All HC | A Posthumous child who was still in his mother’s womb while his father passed away, would he be entitled to compassionate appointment on attaining majority under Rules of 1974? Court explains

Dishonour of Cheque

All HC | Summons sent to Director for dishonour of cheque under S. 138 NI Act, without prosecution against the Company. Is it permissible? Court answers

Writ of Habeas Corpus

All HC | Whether issuance of writ of habeas corpus at the behest of a husband to regain his wife is available as a matter of course? Read on

Criminal Liability

[Tandav] “Cheap and objectionable”, All HC rejects bail application of Aparna Purohit. Holds, submission of apology or withdrawal of scene after streaming would not absolve criminal liability


Bombay High Court

Unfair Labour Practice

Bom HC | Classic case of unfair labour practice: Workmen not given permanency on being engaged in a rotational pattern || Pool of Temporaries, Termination, Perennial Work & more

Matrimonial Disputes

Bom HC | Is it necessary for the wife to file an application for permanent alimony in ‘writing’ under S. 25 of Hindu Marriage Act? Court unfolds dilemma of ‘oral’ & ‘written’ application

Bom HC | Wife, a chattel? On refusing to make tea, husband assaults wife with a hammer. HC observes ‘imbalance of gender – skewed patriarchy’

Cruelty

Bom HC | Husband making wild allegations that wife, her relatives, secured false certificates to get employment. Does husband’s conduct amount to ‘Mental Cruelty’ to wife? HC explains while upholding Family Court’s decision

Abetment to Suicide

Bom HC | Child commits suicide, mentions drinking habit of father in suicide note. Can the father be held liable for abetment to suicide? Law explained

Well-Known Mark || IPR

Bom HC | ISKCON, Infringement of well-known mark: Read why Justice G.S. Patel deferred grant of discretionary relief in view of past history which may materially affect the action

Homicidal Death

Bom HC | Can a person be held liable under S. 302 IPC on the basis of ‘last seen’ theory and not being able to offer sufficient explanation? Significance of ‘last seen’ theory in establishing homicidal nature of death discussed

Sushant Singh Rajput Case

Bom HC | Power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases: FIR against late actor Sushant Singh’s Sister not to be quashed


Calcutta High Court

Judicial Inquiry

Cal HC | Adjudicate or Legislate? What is the role of Courts in our country? HC frames a precedential examination while discussing scope of ‘Judicial Inquiry

Resolution Professional’s Power

Cal HC | Power of Resolution Professional to take control of any asset, is it subject to determination of ownership by a Court or Authority? Discussion in light of Embassy Property Developments (P) Ltd. v. State of Karnataka, 2019 SCC OnLine SC 1542

Widow Pension

Cal HC | When can S. 29(2) of Hindu Marriage Act come to rescue of parties seeking to prove divorce on basis of custom? Read the case of a second ‘wife’ denied widow pension


Chhattisgarh High Court

Anticipatory Bail

Chh HC | Under what circumstances can ‘Anticipatory Bail’ be granted in light of the bar created under S. 18 of SC/ST Act; Appeal Allowed

Secondary Evidence

Chh HC | Secondary evidence not permissible if the original documents are not produced at any time nor has any factual foundation been laid for giving secondary evidence

Forest Land

Chh HC | Whether a forest land can be allotted/leased without prior approval of Central Government under S. 2 (iii) of Forest (Conservation) Act, 1980?

Power under Section 156(3) CrPC

Chh HC | Power under S. 156(3) of the CrPC warrants application of judicial mind and it has to be supported by an affidavit


Delhi High Court

Delhi High Court

Quashing of FIR

 Del HC | Offences under S. 377 IPC & S. 4 POCSO Act committed on a child aged 7 years, father of victim sought quashing of FIR: Will HC quash the FIR? Read to know

Judicial Review

Del HC | Grant of study leave to a Doctor: Can a Court in exercise of its ‘Judicial Review’ sit as an Appellate Authority over the administrative decision? Read on

Power of Revision of HC under CrPC

Del HC | What is the scope of power of revision of HC under CrPC? Court discusses while denying interference in matrimonial matter

Non-existence of Debt

Del HC | Onus to prove that there is non-existence of debt is on whom under NI Act? Read the purpose of S. 118 NI Act

Limitation Period

Del HC | How the limitation period for filing S. 138 NI Act complaints is to be calculated? What is the effect of not filing S. 142(1)(b) proviso application? Explained

Maintenance

Del HC | Can an application under S. 24 HMA survive beyond dismissal of the main divorce proceeding? Read why HC dismissed the application for maintenance pendente lite

Del HC | While calculating husband’s income for granting maintenance to wife, can husband’s mother who receives her independent pension and rental income be counted as a dependant to be maintained by husband? HC explains

Framing of Charge

Del HC | If on the basis of materials on record a court could come to the conclusion that commission of the offence is a probable consequence, a case of framing of charge exists

Arbitration Clause

Del HC | On invocation of arbitration clause, if a party appoints arbitrator on its own and does not receive confirmation from another party, should former approach Court under S. 11 of Arbitration Act? HC discusses

Property Dispute

Del HC | “Court has to cut through the web of pleas spun in the written statement”. When should a decree on admissions be passed in a property dispute? Read how the Court refused to allow abuse of its process

Matrimonial Dispute

Del HC | Permanent residents of Singapore, residing there since 2012, wife seeks an injunction for suit filed in Singapore by husband regarding matrimonial dispute. HC rejects appeal. Why? Read on

Media | Content Regulation

Del HC | Content Regulation has been a contested issue across the world. Read HC’s stance & directions in Disha Ravi’s plea alleging leaking of her messages, etc. by Police

NCDRC Orders

Del HC | Where NCDRC doesn’t pronounce orders within 6 months of being reserved, and application is filed, same is to be listed before President (NCDRC) within 2 days without fail


Himachal Pradesh High Court

Decree of Divorce

HP HC | Whether minimum period of six months stipulated under S. 13(B)(2) of the Hindu Marriage Act for a motion of passing decree of divorce on the basis of mutual consent can be relaxed? Court explains

Elections

HP HC | Whether a dispute relating to an election of a local body maintainable before High Court under Art. 226 of Constitution of India? HC explains in light of settled position of law

Bail | POCSO Act

[POCSO Act] HP HC | Bail granted in a case where a major developed consensual sexual relations with a minor, in light of mitigating factors; Petition allowed


Jammu and Kashmir High Court

Sedition

J&K HC | “Objectionable conversation, demeaning armed forces in the backdrop of Galwan Valley clashes”, HC acquits the person behind viral audio clip

Public Auction

J&K HC | “Even after completion of public auction the highest bidder has no indefeasible right till the confirmation letter is issued”; HC states


Jharkhand High Court

Departmental Enquiry

Jhar HC | Threatened by militants, J&K resident CRPF constable overstays from leave.  HC quashes dismissal order, held “punishment disproportionate”

Bigamy

Jhar HC | When can the second wife be convicted for abetting the offence of bigamy under S. 494 IPC? What are the essential ingredients of such offence? Court examines while acquitting the second wife

Defamation

Jhar HC | A Newspaper reports about sexual assault incident along with sum and substance of FIR lodged with no disclosure of victim’s name. Will defamation provision under Ss. 500 or 501 IPC be applied on publisher, editor, etc.?


Karnataka High Court

Karnataka High Court

Motor Vehicle Act

[MV Act] Kar HC | Evidence is examined on the touchstone of ‘preponderance of probabilities’, Standard of proof of accident beyond reasonable doubt to not apply

Kar HC | Will absence of any specific claim under S. 166 MV Act in pleadings deprive a claimant(s) of getting just compensation? HC answers

Cruelty to Animals

Kar HC | Does ‘Animal Life’ fall within the meaning of ‘Right to Life’ under Art. 21 of Constitution of India? HC explains in light of instant facts


Kerala High Court

Kerala High Court

Conversion of Religion

Ker HC | Does a person lose his status as a scheduled caste after converting to a different faith? Does conversion put an end to the disadvantages faced by him? HC answers

Right to be Heard

Ker HC | Right to be heard cannot be claimed in cases of re-incarceration where initial order of release was without application of mind

Drug Abuse

Ker HC | HC hears suo moto case of  upsurging drug abuse; directs State to establish Campus Police Units to ensure regular checking in educational institutions

Declaration

Ker HC | Does absence of date and place in affirmation part invalidate the contents of declaration? HC answers

Compostable Plastic Bags

Ker HC | Perception that non-compostable plastic are being passed off as compostable ones is not backed by research; HC uplifts the ban on compostable plastic bags

Gold Smuggling

Ker HC | Gold Smuggling is not a terrorist activity, it does not qualify as ‘any other material’ under S. 15(1)(a)(iiia) of Unlawful Activities Prevention Act; HC grants bail


Madras High Court

Human Rights

‘Amend! Make Human Rights Act a Complete Code’, HC suggests to collective wisdom of Parliament: Read point-wise analysis of 517-pages long judgment holding recommendations of Human Rights Commission are binding on Govt., legally enforceable

Unlawful Conduct

Zero tolerance for Advocates’ unlawful conduct: HC to ensure that activities of some advocates do not spoil image of entire profession

Dishonour of Cheque

If wife issues a cheque to discharge husband’s liability and it gets dishonoured, can the wife be prosecuted under S. 138 NI Act? HC answers

Cruelty

Husband and Wife lived separately for 7 long years, marriage dissolved by family court on ‘cruelty’ ground. Read HC’s decision on challenge to Family Court’s decision

Communal Separation

Temple shall not be a place for perpetuating communal separation leading to discrimination

Cooling-Off Period

Husband and Wife living separately for past 13 years. Can cooling-off period under S. 13-B of Hindu Marriage Act, 1955 be waived off, if sought mutually ? Read on

Hunger Strike

Can Court take cognizance of an offence registered under S. 309 IPC after 3 years? Court discusses while expressing “Hunger strike during a protest is not an offence under S. 309 IPC”

Maintenance

Payment of Maintenance under S. 125 CrPC: From the ‘date of application’ or ‘date of order’? HC answers in view of SC decision


Madhya Pradesh High Court

Will

MP HC | Do the revenue authorities have jurisdiction to decide the correctness and genuineness of a “Will”? Court explains

Right of Succession

MP HC | Claim of share in the properties or right of succession are not pure questions of law instead they are mixed question of law and fact; Court dismisses revision warranting interference under S. 115 of CPC

Others

MP HC | Court not inclined to entertain writ petition in case remedy available before concerning Magistrate under S. 156 (3) of CrPC


Meghalaya High Court

Scope of taking Cognizance

Megh HC | What is the scope of taking effective cognizance of the subsequent facts in a petition? HC explains

Compassionate Appointment

Megh HC | Will a minor at the time of death of a deceased employee be entitled to claim compassionate appointment upon attaining majority? HC answers

Attempt to Rape

Megh HC | No disrobing, no penetration; will nudging and putting the victim to ground amount to attempt to rape? Read what constitutes an offence under Ss. 376/511 IPC


Orissa High Court

Healthcare Facilities to Scheduled Tribe Communities

Ori HC | State Government directed to take appropriate action to provide healthcare facilities to ST communities residing in Sukinda Chromites Valley, Jajpur

 

 

 


Patna High Court

Termination of Contract

Pat HC | “State is not free to act according to its own standard.” HC held termination of contract by State without mandatory notice is illegal

Voluntary Retirement

Pat HC | Application for voluntary retirement cannot be treated as resignation application; HC quashes impugned order

Indefinitely debar a person from doing business

Pat HC | Authorities cannot be allowed to indefinitely debar a person from doing business contingent to happening of a certain future event


Punjab and Haryana High Court

Pension to Widow

P&H HC | “She requires to maintain herself and cannot be denied financial assistance”, HC grants pension to widow convicted for murder

Surety

P&H HC | “Sureties are petty farmers, having meager land holdings”; HC reduces penalty of Rs 2 lakh to Rs 5000

Recruitment Policy

P&H HC | “It’s a matter of recruitment policy”; HC denies adjudicating question of equivalence of qualifications, directs State to determine

Protection to Couple

P&H HC | “Muslim girl of 17 years of age is competent to enter into a contract of marriage with a person of her choice” HC grants protection to couple

Bail

P&H HC | A juvenile has to be released on bail mandatorily unless and until exceptions carved out in proviso to S. 12 (1) of J.J. Act, 2015 itself are made out

Alimony

P&H HC | Wife entitled to increase alimony after an increase in husband’s salary, HC upholds


Rajasthan High Court

Reservation in Employment

Raj HC | State Govt. to consider whether persons with locomotive disabilities and hearing impairment can avail reservation for the purpose of employment under Rights of Persons with Disabilities Act, 2016

 

 

 


Telangana High Court

 

Preventive Detention

Telangana HC | Can a sexual offender be taken into preventive detention? Read the case of ‘detenu’ who committed intercourse with minor in secluded place and let her off next day

 

 


Tripura High Court

Department Inquiry | Corrupt Practice

Tri HC | Once material has come to Government notice prima facie indicating that there was some corrupt practice, Government is duty-bound to act on the same; Court maintains departmental inquiry

 

 

 


Uttaranchal High Court

Natural Justice

Utt HC | Audi alteram partem is the soul of principle of natural justice; Court issues directions

Transfer Orders

Utt HC | Courts should not interfere with transfer orders made in public interest; Petition dismissed

Case BriefsHigh Courts

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

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

Analysis, Law and Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

iii. in the teeth of any Constitutional provision;

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

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

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

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

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

Case BriefsHigh Courts

Here’s a short recap of what we covered under the High Court’s section on the SCC Online Blog for the month of January 2021. In case, you missed out on catching up with some interesting cases that brought in a wave of discussions and some very serious steps to be taken up by the Supreme Court, then, you have clicked on the right post to be read.

Go ahead and check out the January updates of 2021!

Allahabad High Court

Competition

All HC | ‘Eliminating competition in business using writ jurisdiction not permissible’: HC decides whether a competitor can prevent a rival from exercising right to carry on business

Home-Buyers

All HC | ‘Home-buyers’ grievances to be disposed of positively within 3 months by reasoned and speaking order’: Court issued general mandamus to Authorities concerned

Interim Maintenance

All HC | Does S. 125 CrPC provide a timeline for disposing of proceedings pertaining to interim maintenance? Read What HC says

Maintenance

All HC | If a husband denies being married in a proceeding under S. 125 CrPC, what should the Magistrate determine? Explainer

Bail

 All HC | [Bail under SC/SCT (POA) Act] Failure to serve notice of bail upon victim, is failure of State to perform its statutory function; Accused cannot be visited with penal consequences for default of the State

Special Marriage Act

All HC | “Cruel, unethical to force present generation to follow 150 yrs old customs, traditions which violate fundamental rights”: HC rules Publication of Notice of Intended Marriage under Special Marriage Act shall not be mandatory

Judges

All HC | “If a Judge makes a mistake, then from where will the general public get fair justice”; HC warns Judicial Magistrate to remain careful while passing Judicial Orders

Abetment of Suicide

All HC | Woman commits suicide after various cases against her, being subjected to harassment at matrimonial home. Can a case of abetment of suicide be established? HC discusses

Rape Victim

All HC | “A woman or a girl who is raped is not an accomplice”: HC re-establishes while explaining the significance of testimony of rape victim


Bombay High Court

Transgender

Bom HC | Can a transgender contest election from a seat reserved for women candidate? HC espouses transgender people’s “Right to Self-Perceived Gender Identity”

Sexual Assault

Bom HC | “Opening zip of pants”, Does it NOT “fit in the definition of sexual assault” under POCSO Act? Bom HC says so

Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?

Media Trial

Bombay HC on Media Reporting, Obligation of Investigators, Media Trial, Freedom of Press and the proverbial ‘Lakshman Rekha’ for Media Houses || Read this detailed report unravelling several significant aspects cropped in light of Sushant Singh Case

Judicial Over-Reach

Bom HC | If Judges interfere in academic matters or step into other Organs of State, would that amount to Judicial Over-Reach? Court addresses


Calcutta High Court

Arbitration and Conciliation

Cal HC | [S.11(6) Arbitration & Conciliation Act, 1996] Reiterating independence and impartiality of the Arbitrator, Court appoints former justice of the present court to preside over as the sole arbitrator

Sexual Harassment at Workplace

Cal HC | Can a complaint under POSH Act be filed against person of same gender? Read HC’s full analysis

Fundamental Right

Cal HC | Does a father entail a ‘fundamental right’ on the preserved sperm of his son after his demise? HC answers


Chhattisgarh High Court

Employees Compensation Act

Chh HC | Appeal under S. 30 of Employees’ Compensation Act, 1923 is to be entertained only on a question of law

Limitation Act

Chh HC | The word “sufficient cause” under S. 5 of Limitation Act should adopt a liberal and justice-oriented construction to advance justice

Judicial Officer

Chh HC | Is it essential for the appointing authority to re-consult PSC before terminating services of a judicial officer in light of Art. 235 of the Constitution of India? HC explains


Delhi High Court

Novation | Contract Act

Del HC | When does ‘Novation’ under the Contract Act takes place? Read while HC examines the scope of S. 8 of Arbitration Act

Maintenance

Del HC | Wife denied enhancement of maintenance due to being wealthier than husband || Reasoned Order of HC 

CGST Act

Del HC | “Ss. 69 and 132 of CGST Act prima facie valid; Power to arrest and prosecute is prima facie ancillary to power to levy and collect GST”: Read HC’s detailed analysis

Termination of Arbitration

Del HC | “Order of Termination of Arbitration under S. 32(2)(c), A&C Act is not an award; challenge under S. 14(a) maintainable”: Read full Report

Compensation under MV Act

Del HC | Whether it would be fair to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age? HC explains

Right to Access to Clean Water

Del HC | ‘Right to access to drinking water cannot be denied merely because the colony is unauthorised’: HC directs Jal Board for supply of potable drinking water

COVID-19

Del HC | Continuing embargo on spas, violative of their rights’: Court allows reopening of spas, wellness clinics, etc. albeit subject to conditions

RTI Act

Del HC | Penalty imposed on CPIOs for “changing stands” leading to apprehension of mala fides and unreasonable conduct; Elaborate principles laid down for exercise of power by CPIOs

Settlement Deed

Del HC | ‘Dragging his feet only to harass’: Court quashes FIR in light of settlement deed arrived at before Delhi High Court Mediation and Conciliation Centre

Non-Renewal of License

Del HC | “Non-renewal cannot result in permanent disbarment”; Recognised Adoption Agency in Canada gets opportunity to apply afresh


Gujarat High Court

Workman

Guj HC | Dismissing the argument of arrangement being a Contractual set up with no Industrial dispute as such, Court upholds reinstatement of the workman granting compensation against back wages

Natural Justice

Guj HC | Whether a matter is required to be remanded in order to comply with the principles of natural justice where there has been intermingling of documents; Court explains


Himachal Pradesh High Court

Arbitrator

HP HC | [Appointment of Arbitrator] An arbitral issue which can be adjudicated by a retired judge of the High Court, must not be awaited for the want of technical expertise

Inherent Powers

 HP HC | Inherent powers under S. 482 CrPC is not inhibited by S. 320 CrPC and FIR as well as criminal proceedings can be quashed by exercising the same; HC reiterates

Interpretation of Statutes

HP HC | Court while drawing distinction between the terms ‘Block’ and ‘Constituency’, denies to reserve the post of Pradhan in Gram Panchayat elections for ST category

Appointment

HP HC | Person belonging to SC category, if on merit, performs better than General category candidate, he has to be offered appointment against a post meant for General category


Jammu and Kashmir High Court

Physical Consensual Relationship

J&K HC | Investigating agency to determine whether consent of prosecutrix to have sexual intercourse with petitioner was willing or it was obtained on account of false promise of marriage

Interference under Article 226

J&K HC | What is the extent of interference that the Court can exercise under Art. 226 while adjudicating a contractual matter? HC answers

No-Confidence Motion

J&K HC | Members of Panchayat have the right to issue no-confidence motion against the chairman on the ground of misconduct or neglect of duty; petition dismissed

Age of Majority

J&K HC | Any person having attained the age of majority is entitled to marry as per their wishes and the police department is duty bound to protect their life and liberty if approached; Petition allowed

Evidence Act

J&K HC | A person whose whereabouts are unknown and who has not been heard of for more than 10 years, cannot be stated to have illegally run away from his service; Petition allowed

Detention Order

J&K HC | Even in cases where a person has been prosecuted in a Court of law and has been discharged by the Magistrate, a valid order of detention can be passed against him in connection with that very incident; HC reiterates


Jharkhand High Court

Right to establish linguistic and religious institutions

Jhar HC | Right to establish linguistic and religious institutions under Art. 29 & 30 includes the Right of appointing teachers; order directing absorption set aside

Compassionate Appointment

Jhar HC | Compassionate Appointment cannot be granted after a lapse of reasonable period which must be specified in the rules; petition dismissed allowing monetary compensation

Supervisory Jurisdiction

Jhar HC | [Interference under Art. 226] A writ of certiorari can be issued only in exercise of supervisory jurisdiction which is different from appellate jurisdiction; HC reiterates

Reservation

Jhar HC | [Article 16] Retrospective application to 103rd Amendment providing reservation to EWS cannot be permitted; Petition allowed


Karnataka High Court

Breach of Policy

[MV Act] Kar HC | When there is breach of policy condition and the policy is in force at the time of accident, “Pay and Recover” principle to be applied

Summons

Kar HC | Whether it is mandatory for issuance of a summons under S. 91 CrPC before issuance of a warrant under S. 93 CrPC? HC Answers

Proceedings

Kar HC | If the petitioner unconditionally withdraws a particular matter can the said subject matter be re agitated in any other proceedings? HC analyses


Kerala High Court

Victim Compensation

Ker HC | [S. 357A CrPC] Strengthening jurisprudence behind victim compensation, Court allows petition stating ‘statutory provision is not given retrospective effect and instead a prospective benefit is given based on an antecedent fact’

Medical Termination of Pregnancy

Ker HC | Minor rape survivor allowed to undergo medical termination of pregnancy even after 25 weeks and 3 days gestational age considering the risk of severe psychiatric trauma

Extradition

Ker HC | International Arrest Warrant by itself will not suffice to extradite an accused to UAE. For extradition, request should be communicated in writing via diplomatic channels, HC states

Powers of Court under A&C Act

Ker HC | Powers of Court under S. 34 of the Arbitration Act, 1996 are merely supervisory in nature; Court cannot correct errors from the order of Arbitrator, but can only quash it: HC explains

Compensation under MACT

Ker HC | [Motor Accidents Compensation Act] Court grants enhancement in compensation with an additional interest of 9% considering permanent disability; Revision Petition allowed

Corporate Insolvency Resolution Process

Ker HC | No bar to parallel proceedings under SARFAESI Act during ongoing Corporate Insolvency Resolution Process; HC reiterates

Execution Court

Ker HC | [Or. 41 R. 5] Power of execution court to stay the execution is only upto to the stage of filing appeal; Petition allowed

Quota for Disabled Persons

Ker HC | From promotions to vacancies, even where there is no direct recruitment, the 3% quota for disabled persons has to be complied with; HC reiterates

Eviction and Rent Control

Ker HC | Rent Control Court has power under S. 5 of Limitation Act to condone delay, if sufficient cause is shown; Petition allowed

Sale Deed

Ker HC | Question of sale deed being null and void, emerging out of matrimonial relationship can be decided only by Family Court; HC states

Custody

Ker HC | Observing the signs of mental disturbance; HC refuses to remove a 21-year-old from the custody of parents

Alcohol Detection Test

Ker HC | There can be no prosecution under S. 185 of MV Act in the absence of alcohol detection test through breath analyser

Audi Alteram Partem

Ker HC | Court sets aside impugned order directing Drug Disposal Committee to consider the representation made by petitioner and pass fresh orders in accordance with law

Arbitral Award

Ker HC | “An Arbitral award cannot be set aside merely on the ground that compensation awarded is insufficient”; HC concurs with findings of lower Court  


Madras High Court

POCSO Act

Madras HC | ‘High time to amend POCSO Act considering cases where adolescents in grip of their hormones involve in romantic relationship’: Court quashes proceedings paving way for accused and victim to settle in life

Right to Property

Madras HC | “Authorities need to be told that right to property has close nexus with right to life under Art. 21”: HC while issuing notice in acquisition matter pending from 16 yrs

Custody of an Elephant

Madras HC | While protecting an elephant from psychological wound, HC disallows removal of ‘Lalitha’ from caretaker’s custody || Exhaustive analysis of an elephant’s bonding with caretaker


Madhya Pradesh High Court

Bail Application of Munwar Faruqui

MP HC | “The goals enshrined under Art. 51A(e) and (f) are part of our vibrant Constitution and not dead letters”; HC rejects bail application of Comedian Munawar Faruqui

Forwarding Note

MP HC | Absence of forwarding note and delay in production of contrabands are fatal to the prosecution case; HC acquits accused

Recruitment Process

MP HC | Once the process of recruitment commences on issuance of advertisement, no changes in essential qualification or disqualification can be made during subsistence of the said recruitment

Inaction of State

MP HC | “State has shown, by its non-compliance to the orders passed by this Court that it is an institution that prefers to have powers without responsibility”; HC holds State responsible for it being flooded with petitions


Orissa High Court

Contempt of Court

Ori HC | Whether filing of forged and fabricated document amounts to Contempt of Court? HC explains

Arbitration Clause

Ori HC | Can an arbitration clause be invoked when there is an arbitration clause in the agreement but not registered or executed? HC decides

Dying Declaration and Remission of Sentence

Ori HC | Comprehensive Principles governing “Dying Declaration” and “Remission of Sentence” reiterated; Appeal dismissed

Industrialization and Eco-System

Ori HC | No doubt, industrialization is required for enhancement of revenue, but that does not mean at the cost of the lives of human being by destroying eco-system


Patna High Court

Examination

Pat HC | Usage of whitener in OMR sheet led to annulment of result by Controller of Examination: HC answer’s in affirmative

Pat HC | Entire examination process of Bihar Public Service Commission does not deserve to be derailed only because some candidates perceive injustice have been caused to them by an erroneous question or an erroneous answer

Tablighi Activities

Pat HC | State directed to deport foreign nationals charged for Tablighi activities to their respective countries; Allegation of preaching religious ideologies not being supported by any material, held to be an unfounded allegation


Punjab and Haryana High Court

Dependents

P&H HC | “It is unfortunate that dependents/heirs of an ex-employee, who died in harness, are being made to run from pillar to post.” HC warns state to get into action least the Court may be compelled to take a serious view of the matter

Provident Fund

P&H HC | “Provident Fund is based on adequate contributions from members of the fund”; HC allowed forfeiture of pension on resignation   

WhatsApp Messages | Evidence

P&H HC | Whatsapp messages do not have any evidentiary value in the absence of certificate under S. 65B of Evidence Act; HC states

Service Rules

P&H HC | Whether in absence of enabling power in the Service Rules, the period of tenure posting could be extended by the State or its instrumentalities? Court explains

Ownership

P&H HC | There is no requirement in law that a person applying for sanction of the building plan, has to prove his ownership before the building plan can be sanctioned

Recovery of Money

P&H HC | No separate orders required in the matter of OTS having become defunct for non-compliance of conditions by borrowers, Bank becomes free to recover money in accordance with law irrespective of OTS; HC reiterates

Jurisdiction

P&H HC | After complaint is dismissed in default, Court becomes “functus officio” and Judicial Magistrate has no jurisdiction to recall his order and restore complaint; HC decides

Farmers

P&H HC | “Middlemen cannot be allowed to usurp hard-earned money of the Farmers”; Courts required to do substantial justice and not to let offenders go scot-free


Sikkim High Court

Amendment

Sikk HC | [O. VI R. 17 CPC] Amendment can be allowed provided it does not prejudice the rights of the respondents to take up the grounds on waiver and acquiescence at the time of final hearing; HC reiterates


Telangana High Court

Power to take Cognizance

Telangana HC | Is the power to take cognizance of an offence under SC & ST (Prevention of Atrocities) Act, 1989 vested with Magistrate or is there a Special Court for the purpose? Court answers in light of SC decisions

Religious Practices

Telangana HC | [Art. 25] No interference can be made in the absence of any complaint against an individual using his premises for conducting religious practices; HC issues necessary directions

Writ Jurisdiction

Telangana HC | [Interference under Art. 226] Writ Jurisdiction of the High Court cannot be invoked for registration of FIR in cases where an effective remedy lies under the Code of Criminal Procedure


Tripura High Court

Departmental Enquiry

Tri HC | A pending departmental inquiry is by itself a stigma and is attached with several adverse consequences; Court directs quashing of chargesheet and release of due payments

Government Department

Tri HC | Default on the part of a Government department cannot be a reason to prevent an entity from seeking its entitlement; Petition allowed


Uttaranchal High Court

Salary

Utt HC | Salary is a property under Art. 300-A of the Constitution of India which cannot be taken away except by authority of law; Court explains

Elections

Utt HC | Holding elections at regular intervals is mandated by law to ensure that democratically elected Management Committee looks after the affairs of the college; Petition allowed

Surety Bond

Utt HC | Cash can be deposited in lieu of surety bond as per S. 445 of CrPC for attainment of bail: Order of rejection duly quashed

Judgment

Utt HC | Reasons to record in a judgment are life of law and in absence, judgment cannot be said to be legal; Court allows appeal

Government Servants

Utt HC | Rule 8 of Government Servants Dying in Harness Rules, 1974 does not include age as a factor of appointment; Court explains while allowing petition

Examination

Utt HC | Irresponsibility in computation of marks can often lead to an irretrievable situation; Court explains in the matter of re-evaluation of answer sheets

Case BriefsHigh CourtsTribunals/Commissions/Regulatory Bodies

It’s the last day of 2020, and here we are with the 20 most-read Case Briefs of the SCC Online Blog in the Year 2020.

The following lists consist of the most-loved Case Briefs by SCC Blog Readers.

[Bombay High Court]

Bom HC | State Govt. declares ATMA, XAT, MAT, GMAT entrance tests not to be valid eligibility for MBA/MMS courses, instead only MS-CET, CMAT and CET to be valid: Read HC’s decision on Government Circular

[Anmol Jagdish Baviskar v. Minister, Higher and Technical Education Department Mumbai; 2020 SCC OnLine Bom 3853, decided on 11-12-2020]


[National Consumer Disputes Redressal Commission]

If a person carries out trading in shares on an occasional basis by opening a Demat Account, will that person come under the ambit of Consumer? Read NCDRC’s opinion

[Vaman Nagesh Upaskar v. India Infoline Ltd., 2020 SCC OnLine NCDRC 469, decided on 28-10-2020]


[Bombay High Court]

Bom HC | If the wife is earning something for livelihood, can the same be a ground to refuse alimony under S. 24 of Hindu Marriage Act? Read Court’s ruling reiterating SC’s decision

[Arpana Vijay Manore v. Dr Vijay Tukaram Manore, 2020 SCC OnLine Bom 3925, decided on 09-12-2020]


[Delhi High Court]

Del HC | Schools free to decline Online Education Facility to students whose parents fail to pay tuition fees

[Queen Mary School Northend v. Director of Education, 2020 SCC OnLine Del 736 , decided on 08-07-2020]


[Allahabad High Court]

All HC | Offences under Ss. 498-A IPC and 3/4 of Dowry Prohibition Act compounded in light of settlement between parties

[Deena Nath v. State of U.P., 2020 SCC OnLine All 1057, decided on 23-09-2020]


[Supreme Court]

Maintenance of wife|Husband doesn’t have to pay maintenance in each of the proceedings under different Maintenance laws [Explainer on Supreme Court guidelines]

[Rajnesh v. Neha,  2020 SCC OnLine SC 903, decided on 04.11.2020]


[Kerala High Court]

Ker HC | If a particular income is not taxable under Income Tax Act, it cannot be taxed on basis of estoppel or any other equitable doctrine; Court reiterates principles for recovery under Income Tax Act

[Uniroyal Marine Exports v. CCE,  2020 SCC OnLine Ker 5175, decided on 17-11-2020]


[Allahabad High Court]

[Maintenance to Muslim wife] All HC | “S. 125 CrPC perhaps one of the most secular enactment ever made in this country”: HC while upholding maintenance awarded to a divorced Muslim wife

[Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]


[Kerala High Court]

Ker HC | No blanket order should be passed under S. 438 CrPC to prevent accused from being arrested when there is no crime registered against him; Court quashes order granting anticipatory bail

[State of Kerala v. Ansar M.C.,  2020 SCC OnLine Ker 4569, decided on 21-10-2020]


[Supreme Court]

SC clarifies law on admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571, decided on 14.07.2020]


[Allahabad High Court]

All HC | Can a complaint filed in light of S. 138 NI Act be dismissed on ground of one day delay? Read Court’s reasoned order

[Pankaj Sharma v. State of U.P., 2020 SCC OnLine All 1339, decided on 22-09-2020]


[Chhattisgarh High Court]

Chh HC | Can an application for anticipatory bail under S. 438 CrPC be filed directly before the High Court? || Thorough Analysis

[Hare Ram Sharma v. State of Chhattisgarh, 2020 SCC OnLine Chh 639, decided on 18-11-2020]


[Bombay High Court]

[S. 125 CrPC] Bom HC | Wife cannot be denied maintenance on ground of having a source of income

[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]


[Calcutta High Court]

Cal HC | Rejection of complaint under S. 156(3) CrPC by Magistrate without taking cognizance under S. 190(1)(a) is an error in law; correct approach explained

[Pranati v. State of W.B., 2020 SCC OnLine Cal 132, decided on 21-01-2020]


[Delhi High Court]

Del HC | If interim maintenance by wife has already been secured under Domestic Violence Act, will application under S. 125 CrPC be maintainable? Court answers

[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]


[Himachal Pradesh High Court]

HP HC | Remedy under S. 125 CrPC and S. 12 of DV Act, 2005 are distinct and different; Law does not prohibit wife to proceed under both of the said statutory provisions simultaneously or otherwise; Petition dismissed

[Sachin Sharma v. Palvi Sharma,  2020 SCC OnLine HP 2109, decided on 26-10-2020]


[Chhattisgarh High Court]

Chh HC | S. 320 CrPC is no bar to the exercise of power of quashing of FIR in matrimonial matters; Petition allowed

[Gurumukh Das Chandani v. State of Chhattisgarh, 2020 SCC OnLine Chh 568, decided on 27-10-2020]


[Allahabad High Court]

All HC | Principle contained in S. 141 of NI Act is not applicable to a sole-proprietary concern, firm need not be arraigned as an accused while making a claim for recovery under S. 138 of the NI Act

[Dhirendra Singh v. State of U.P., 2020 SCC OnLine All 1130, decided on 13-10-2020]


[Karnataka High Court]

[MV Act] Kar HC | Will the insurance company be liable for compensation if the vehicle was insured as ‘private vehicle’ but plyed on ‘hire’ at the time of accident? HC decides

[United India Insurance Co. Ltd. v. Basavaraj, 2020 SCC OnLine Kar 1652, decided on 02-11-2020]


[National Consumer Disputes Redressal Commission]

NCDRC | Can a consumer claim refund of principal amount if flat not delivered on time? Commission untangles two fundamentals for Buyer — Consumer

[Ankur Goyal v. Rise Project (P) Ltd., 2020 SCC OnLine NCDRC 465, decided on 14-10-2020]

Case BriefsSupreme Court

Supreme Court: In the case relating to examinations conducted in 2017 by the Rajasthan Public Service Commission for filling up the posts of Senior Teachers where the Rajasthan High Court had re-evaluated the answers and had come to conclusion different from that of the Expert Committee, the 3-judge bench of L. Nageswara Rao*, Hemant Gupta and Ajay Rastogi, JJ held that the division bench of the High Court committed an error in recording findings on the correctness of 5 questions by holding the opinion of the experts to be wrong. The Court, however, did not set aside the judgment as it did not want to upset the appointments of 5 out of 21 appellants-therein who have already been appointed.

Background

  • Rajasthan Public Service Commission (RPSC) conducted written examinations on 01.05.2017 and 02.07.2017 in General Knowledge and Social Science respectively for selection of 9,551 Senior Teachers in Social Science, Sanskrit, Hindi, English and Mathematics.
  • RPSC issued the 1st Answer Key on 06.02.2018 and declared the results.
  • On 25.04.2018, a Single Judge of the High Court of Judicature for Rajasthan, Jaipur Bench referred 3 questions in the 1st Answer Key to be reconsidered by an Expert Committee. Shortly thereafter, a Single Judge of the High Court of Judicature for Rajasthan, Jodhpur Bench referred another 8 questions for reconsideration by an Expert Committee on 05.05.2018.
  • An Expert Committee constituted by the RPSC revised the Key Answers for 2 questions in Social Science and 1 question in General Knowledge. The 2nd Answer Key was issued pursuant thereto, and the Merit List was also revised on 17.09.2018.
  • The 2nd Answer Key was released by the RPSC on the basis of the recommendations made by the Expert Committee constituted pursuant to the directions issued by the High Court. Not being satisfied with the revised Select List which included only a few candidates, certain unsuccessful candidates filed Appeals before the Division Bench which were disposed of on 12.03.2019.
  • The High Court examined the correctness of the disputed questions by itself and came to a conclusion that the answers to 5 questions were wrong. After being informed that the results have been announced and the selection process was completed, the Division Bench of the High Court by its judgment dated 12.03.2019 directed revision of the Select List and give benefit of the revision only to the Appellants before the Court.
  • Supreme Court was called upon to decide whether the revised Select List ought to have been prepared on the basis of the 2nd Answer Key. The Appellants contended that the Wait List also should be prepared on the basis of the 3rd Answer Key and not on the basis of the 2nd Answer Key.

Analysis

The Court noticed that though re-evaluation can be directed if rules permit, the Supreme Court has, through various judgments, deprecated the practice of reevaluation and scrutiny of the questions by the courts which lack expertise in academic matters.

“It is not permissible for the High Court to examine the question papers and answer sheets itself, particularly when the Commission has assessed the inter se merit of the candidates.”

Hence, it was not open to the Division Bench to have examined the correctness of the questions and the answer key to come to a conclusion different from that of the Expert Committee in its judgment dated 12.03.2019.

Stating that courts should be very slow in interfering with expert opinion in academic matters, the Court said,

“In any event, assessment of the questions by the courts itself to arrive at correct answers is not permissible. The delay in finalization of appointments to public posts is mainly caused due to pendency of cases challenging selections pending in courts for a long period of time. The cascading effect of delay in appointments is the continuance of those appointed on temporary basis and their claims for regularization. The other consequence resulting from delayed appointments to public posts is the serious damage caused to administration due to lack of sufficient personnel.”

The Court, despite finding the approach of the High Court erroneous, did not set aside the judgment as it did not want to upset the appointments of 5 out of 21 appellants-therein who have already been appointed. It hence, upheld the Select List dated 21.05.2019 and the Wait List dated 22.05.2019 prepared on the basis of the 2nd Answer Key.

Taking note of the statement filed by the RPSC that there are vacancies existing which can be utilized for appointing the Appellants, the Court left it open to the RPSC and the State Government to fill up the existing vacancies from the Wait List in accordance with the merits of the candidates and directed the completion of the selection process within a period of 8 weeks from the date of decision.

[Vikesh Kumar Gupta v. State of Rajasthan, 2020 SCC OnLine SC 993, decided on 07.12.2020]


*Justice L. Nageswara Rao has penned this judgment 

For appellants: Advocates Akhilesh Kumar Pandey, Rakesh Karela and Ranbir Yadav

For State: Senior Advocate Dr. Manish Singhvi

Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court failed to  to evaluate even prima facie of the most basic issue thereby refusing bail to the accused, the bench of Dr. DY Chandrachud* and Indira Banerjee, JJ has reminded the High Courts and District Courts of their duty to ensure human liberty.

In the judgment running into 55-pages, here is what the Court said:

Fair Investigation

The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.

The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive.

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Procedural hierarchy of Courts

The procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. The High Court has the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, the Supreme Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met.

“The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

Emphasizing on the role of the district judiciary, which provides the first point of interface to the citizen, the Court said,

“Our district judiciary is wrongly referred to as the “subordinate judiciary‘. It may be subordinate in hierarchy, but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them.”

High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.

“Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.”

Data reflecting pending Bail applications in High Courts and District Courts across India

Noticing that 15,54,562 bail applications are currently pending in High Courts and District Courts across India, the Court said that

“The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the District judiciary and monitor pendency.”

[Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964, decided on 27.11.2020]


*Justice Dr. DY Chandrachud has penned this judgment. Read more about him here

Also read: Anvay Naik Suicide|High Court abdicated it’s duty by failing to make prima facie evaluation of FIR. Here’s why SC granted interim bail to the accused

SC grants interim bail to 3 accused in Anvay Naik suicide case. Calls Bombay HC order erroneous

Op EdsOP. ED.

The Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) is a significant piece of legislation, allowing the parties to resolve their disputes with minimal interference from the judiciary. However, there have been multiple instances where the parties have attempted to bypass interlocutory orders of the arbitral tribunals by approaching established courts. One common method of such nature is to invoke the power of superintendence of the appropriate High Court under Article 227 of the Constitution of India. However, there is conflicting jurisprudence as to whether the High Courts can exercise this power over the arbitral tribunals.

Firstly, it is important to define what a tribunal is. A tribunal is quasi-judicial body to adjudicate disputes related to a specific type of matter. It has power and jurisdiction according to the law or statute which has created it. The purpose in creating such tribunals is to offer a cheaper, less technical and faster alternative to ordinary courts, while also offering specialised knowledge in its jurisdiction. Tribunals are usually created by statutes or by the Constitution, to handle a specific category of litigation.

Next, it is important to consider whether an arbitral tribunal can come under the definition of a tribunal. Where a tribunal is a statutory tribunal, it differs from an arbitral tribunal because it is created by a statute and it is strictly confined to it. The statute or rules made under it would determine the appointment of members and procedure for proceedings. Moreover, the statutory tribunals usually deal with specific categories of litigation. On the other hand, an arbitral tribunal is a dispute resolution mechanism chosen by the participating parties. They can decide, as per their arbitration agreement, how the members of the arbitral tribunal are to be appointed and what procedure is to be adopted for the proceedings, to the extent the Act allows it.

However, in Srei Infrastructure Finance Ltd. v. Tuff Drilling Pvt.Ltd.[1], the Supreme Court has commented that the arbitral tribunals are no different to statutory tribunals or the tribunals constituted under the provisions of the Constitution, as they decide the lis between parties, follow rules and procedures conforming to the principles of natural justice. Moreover, the power and functions of the arbitral tribunals are statutorily regulated as per the Act. It was further held that there is no distinction between the statutory tribunals constituted under the statutory provisions or the Constitution and an arbitral tribunal, insofar as the power of procedural review. Thus, the Court has drawn multiple similarities between the statutorily constituted tribunals and arbitral tribunals.

Keeping this in mind, Article 227 clearly states that every High Court shall have superintendence over all courts and tribunals throughout the territories in which it exercises jurisdiction. Thus, from the previous comparison of statutory tribunals and arbitrary tribunals, it becomes clear that the High Courts may exercise superintendence over them. Yet, the Supreme Court in SBP & Co. v. Patel Engineering Ltd.[2] observed that the practice of the  High Courts, allowing challenges to any orders made by the arbitral tribunals is unwarranted as the Act provides that certain orders can be appealed against under Section 37, and under Section 34, the aggrieved party can challenge the award, including any in-between awards.  As the object of the Act is to minimise judicial interference, the High Courts exercising their jurisdiction under Article 227 and interfering with the orders of the arbitral tribunal while proceedings are ongoing, would defeat the purpose.

Such an observation seems to have been made in good faith, though it has led to unfair consequences. It would be inappropriate for the Courts to interfere with every order or action of an arbitral tribunal as this would frustrate the object of the Act. However, the Supreme Court had failed to consider that circumstances may arise wherein an arbitrator or an arbitral tribunal may issue orders which are prima facie wrong in law. Where an appeal or revision has not been provided for under the Act, it is unfair for an aggrieved party to have to wait for the proceedings to be completed, even when the arbitral tribunal was not acting as per its mandate under the Act. Considering this point, several High Courts have attempted to distinguish the Supreme Court’s observation.

In this regard, a Gauhati High Court judgment stated that in ordinary circumstances, Courts should not interfere in arbitral proceedings, but in exceptional cases, such as when an arbitrator does not exercise the powers vested in him, a petition under Article 227 should not be thrown away[3]. The judgment further differentiated from SBP & Co.[4] decision by stating that in cases of an exceptional nature and where no provisions of revision or appeal lie, the Courts can exercise their power under Articles 226 and 227 against the order of an arbitral tribunal. Thus, it concluded that it would not be proper for parties to wait for the completion of the whole proceeding and passing of an award as prima facie, the arbitrator had not acted in accordance with the Act.

A Bombay High Court judgment has also differentiated SBP & Co. case[5], stating that the Supreme Court has not said that no writ can go to an arbitral tribunal or that such a tribunal is not a person to whom a writ cannot be issued[6]. As the powers under Article 227 are part of the basic structure, they cannot be curtailed by Section 5 of the Act. Based on this observation, the High Court proceeded to interfere with an order made by the arbitral tribunal in question and set aside an interim order.

These judgments have considered that while the Supreme Court was right in holding that it would be inappropriate for the High Courts to exercise their power of superintendence in all cases, it is possible for exceptional cases wherein an aggrieved party is suffering from gross injustice without any recourse. Therefore, it would be wrong to say that these judgments are per incuriam, as they considered a point that the Supreme Court had not regarding exceptional circumstances where the arbitrator or arbitral tribunal is clearly not acting within the mandate given by the Act.

Another judgment, in favour of intervention through Article 227 was given by the Calcutta High Court in Unik Accurates Pvt. Ltd. v. Sumedha Fiscal Services[7]. The conclusion reached by the Calcutta High Court is that a civil court, which exercises appellate power over the arbitral tribunal, is subject to superintendence from the principal civil court, which would be the relevant High Court. If a civil court decides an appeal that has come from an arbitral tribunal, it becomes a case decided as per procedure, becoming amenable to the revisional jurisdiction of a High Court. With these considerations, the Calcutta High Court premised that it would not be logical to hold that an arbitral tribunal is not subject to Article 227. While such an argument seems logical in nature, the only downfall in this reasoning is that there is no other judgment or authority cited to give credence to the point regarding an appellate court also having superintendence over its lower courts.

Yet, multiple High Courts have opposed such views and followed the ruling as per SBP & Co.[8] The Karnataka High Court, in Radiant Infosystems Ltd. v. Karnataka State Transport Corporation Ltd.[9],  has disagreed with the ruling given in Raj International[10]. It has stated that the finding of the Gauhati High Court that SBP & Co.[11] only applied to appointment of arbitrators, was wrong. It stated that non-interference of a writ court at interlocutory stages is not limited to appointment of arbitrators, but all cases. Moreover, a Division Bench of the High Court of Himachal Pradesh reiterated that SBP & Co.[12] must be followed strictly, holding that interference of the High Court under Article 227 could not be allowed[13]. By this judgment, the High Court overruled a Single Judge Bench decision in M.L. Gupta and Associates v. H.P. Housing & Urban DevelopmentAuthority[14], wherein the view of the Calcutta High Court in Unik Accurates[15], had been approved.

The High Court of Delhi has also taken a strict interpretation to the Supreme Court ruling. Writ petitions seeking intervention in the arbitral proceedings under Article 227 have been consistently declined in view of SBP & Co.[16] In Steel Authority of India Ltd. v. Indian Council of Arbitration[17], it was held that a writ petition does not lie against non-appealable orders passed by the arbitrator during the course of arbitral proceedings. 

Recently, the High Court of Andhra Pradesh had noted that the High Courts could not have jurisdiction over the arbitral tribunals under Articles 226 or 227[18]. The reasoning given was that L. Chandra Kumar v. Union of India[19], clearly elucidated the writ jurisdiction of High Courts, by saying that superintendence would be over the tribunals constituted pursuant to Articles 323-A or 323-B. Hence, the reasoning given by the Gauhati High Court, in Raj International[20], was considered wrong. Thus, they concluded that writ jurisdiction could not extend towards the arbitral tribunals.

It is important to note that while the Supreme Court has stated that superintendence would be over the tribunals constituted under Articles 323-A or 323-B, L. Chandra Kumar[21] itself did not discuss the concept of superintendence vis-à-vis arbitral tribunals. In fact, the aforementioned case is in favour of the opposite view, as it has stated that superintendence under Article 227 is part of the basic structure of the Constitution. Additionally, the recent Supreme Court judgment in Srei Infrastructure Finance Ltd.[22] must be read along with L. Chandra Kumar. The Supreme Court has clearly stated that it considers an arbitral tribunal to be no different from a tribunal constituted statutorily. This equates an arbitral tribunal to a statutory tribunal, meaning that   L. Chandra Kumar’s ratio on superintendence over tribunals would be applicable to arbitral tribunals as well. Thus, a clear conclusion is that the broad reach of Article 227 should extend to the arbitral tribunals also.

Such a conclusion had already been reached by the High Court of Gujarat, as they held that SBP & Co.[23] must be read along with L. Chandra Kumar[24], which states that to the effect that jurisdiction conferred on the High Court under Article 226 and 227 of the Constitution is a part of basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation [25]. Though the situation for exercise of such powers must be extraordinary, it can be exercised when a grave injustice or gross failure of justice has occasioned. The conclusion here was reached logically, as it has considered the Supreme Court’s observation, but also realised that a strict interpretation of the same would lead to gross injustice towards the parties in certain cases.

The main issue with the High Courts that are following the Supreme Court’s observation strictly is that they have failed to consider that extraordinary circumstances may arise which require judicial intervention. Arbitration does not prohibit judicial intervention; it merely seeks for minimal judicial intervention, as is seen in Section 5 of the Act. Even if judicial intervention was prohibited, an Act cannot curtail the power of the High Court under Article 227, as it is a part of the basic structure of the Constitution. The Courts, in such decisions, reflect a view that the arbitration proceedings should be barred merely due to the Supreme Court’s observation and no further attempt has been made to distinguish the said observation or to consider the case of extraordinary circumstances, inferring a lazy attitude from them.

Another point to be considered in this regard is that no judgment or law can curtail the powers of the High Court under Article 227. This power has been clearly laid down to be part of the basic structure of the Constitution. Moreover, as per Srei Infrastructure [26], arbitral tribunals, while considered a special mechanism of dispute resolution, are no different to the statutory tribunals. Hence, if we are to treat the arbitral tribunals as being similar to statutory tribunals, it becomes clear that superintendence can be exercised over the arbitral tribunals.

Due to such a conflict in interpretation between multiple High Courts, it is pertinent for this issue to be raised and finally be decided by the Supreme Court. It is important to remember that even the High Courts which have held that intervention in arbitral proceedings through Article 227 should be allowed, they have specifically stated that intervention can only be allowed in extraordinary and special circumstances wherein the aggrieved party has no other remedy under the Act and prima facie the arbitral tribunal is not acting as per its mandate under the Act.  Thus, the Supreme Court needs to clarify to allow for the High Courts to intervene through Article 227 and exercise their superintendence over the arbitral tribunals to prevent gross miscarriage of justice.


* Abhinav Shrivastava, Partner, GSL Chambers

**Nirmal Prasad, Associate, GSL Chambers

[1] (2018) 11 SCC 470

[2] (2005) 8 SCC 618

[3] Raj International v. Tripura Jute Mills Ltd., 2008 SCC OnLine Gau 333

[4] SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618

[5] Ibid

[6] M/s Sanwal Coal Carriers v. Western Coalfields Ltd., 2010 SCC Online Bom 1256

[7] 2000 SCC OnLine Cal 328

[8] SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618

[9] 2018 SCC OnLine Kar 1210

[10] Raj International v. Tripura Jute Mills Ltd., 2008 SCC OnLine Gau 333

[11] SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618

[12] Ibid

[13] CNG Trading Company Pvt. Ltd. v. H.P. State Electricity Board Ltd., 2017 SCC OnLine HP 49

[14] 2011 SCC OnLine HP 3746

[15] Unik Accurates Pvt. Ltd. v. Sumedha Fiscal Services, 2000 SCC OnLine Cal 328

[16] SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618

[17] 2013 SCC OnLine Del 4490

[18] 4G Identity Solutions Pvt. Ltd. v. Bloom Solutions Pvt. Ltd., 2018 SCC OnLine Hyd 22

[19] (1997) 3 SCC 261

[20] Raj International v. Tripura Jute Mills Ltd., 2008 SCC OnLine Gau 333

[21] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261

[22] Srei Infrastructure Finance Ltd. v. Tuff Drilling Pvt.  Ltd.,(2018) 11 SCC 470

[23] SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618

[24] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261

[25] Vinod Jayrambhai Patel v. Gujarat Industrial Coop. Bank Ltd., R/Special Civil Application No. 17008 of 2017

[26] Infrastructure Finance Ltd. v. Tuff Drilling Pvt.  Ltd.,(2018) 11 SCC 470

COVID 19Hot Off The PressNews

Allahabad High Court issued a notice on 25-03-2020, stating that Court work shall remain suspended with immediate effect until further orders. However, imminently emergent and urgent cases would be heard by designated Division Bench/Single Judge with prior approval of Chief Justice. Whereas for Lucknow Bench, necessary approval shall be taken from the Senior Judge of Lucknow Bench.

All the subordinate courts and commercial courts shall remain closed in the State of U.P.

*To read the Circular, click the link: Circular

Madhya Pradesh High Court issued a notice stating that there shall be no Court work with immediate effect for a period of three weeks till 14-04-2020. Entry to all Subordinate Courts shall remain prohibited subject to specific permissions till 14-04-2020.

*To read the Circular, please click the link: Circular

Orissa High Court: Functioning of High Courts and its offices will remain suspended till 15-04-2020 in view of complete lockdown. Same to be followed by the Subordinate Judiciary.

*To read the Circulars, please click on the links given:

Circular-1 & Circular-2

Karnataka High Court issued a notice on 25-03-2020 stating that,

“The Court sittings of High Court of Karnataka, at the Principal Bench, Bengaluru and Benches at Dharwad and Kalaburagi, and all District and Trial Courts, Family Courts, Labour Courts, Industrial Tribunals in the State already notified shall stand cancelled. The order of closure issued by the High Court of Karnataka vide Notification dated March 23 and March 24, 2020, applicable to the High Court of Karnataka, Principal Bench, Bengaluru and Benches at Dharwad and Kalaburagi, and all District and Trial Courts, Family Courts, Labour Courts, Industrial Tribunals in the State shall stand extended till April 14, 2020.

All the Judicial Officers and Court staff members shall not leave their respective Headquarters.”

Jharkhand High Court issued notice on 25-03-2020 stating that Court work shall remain suspended until further orders in the wake of Novel Corona Virus. No matters unless urgent and imminently emergent shall be entertained.

In the above case, lawyers/litigants shall be accordingly instructed of venue and mode of addressing the Court through Video Conferencing.

Entry to all the Subordinate the Courts shall remain suspended subject to permission.

*Read the Circular issued, here — CIRCULAR

Delhi High Court:

Chief Justice has been pleased to order that the functioning of the High Court of Delhi shall now remain suspended till 15.04.2020.

All the pending matters listed before this Court (including the courts of Registrars and Joint Registrars) on 13.04.2020 to 15.04.2020 would be adjourned.

*Read the detailed circular in the above regard, here: CIRCULAR

Gauhati High Court had issued a circular dated 24-03-2020 stating that the functioning of the court shall remain suspended till 04-04-2020.

*To read the detailed circular, please click here: CIRCULAR

Gujarat High Court issued a Circular on 25-03-2020 stating the suspension and closure of functioning of the High Court and Subordinate Courts till further orders.

*Please read the Circulars in above regard below:

CIRCULAR-1

CIRCULAR-2

Detailed Guidelines with regard to functioning of the Tripura High Court can be read by clicking in the link below:

CIRCULAR


[Will be updated as per the latest developments]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Ravindra V. Ghughe, J. heard a miscellaneous civil application wherein the applicant had expressed his apprehension that orders available on the official website of the Bombay High Court and printed from there would not be considered a certified copy and that the trial court may insist upon producing a certified copy.

The Court held that the apprehension was misplaced since the print-outs from the official website of High Courts hold sanctity. And since the orders are also available before the trial court on the website, they can further be used for counter verification “to find out whether such an order is actually uploaded to the official website or not.” The Court also stated that “once the order is uploaded on the official website, it is a reliable document to be considered by the Court before whom it is cited.”

The Court further directed the Registrar of the Court to circulate this order to all the Principal District Judges of the District Courts in Maharashtra. [Shital Krushna Dhake v. Krushna Dhagdu Dhake, 2018 SCC OnLine Bom 206, order dated 02-02-2018]

Case BriefsSupreme Court

Supreme Court: In the case where a 35-year-old woman was not allowed to abort her foetus by the Patna High Court as her foetus was 24-weeks-old at the time when the High Court was deciding the matter, the 3-judge bench of Dipak Misra, Amitava Roy and AM Khanwilkar, JJ directed the State of Bihar to pay a compensation of Rs. 10, 00, 000 to the appellant as it was due to the laxity of the authorities in terminating her pregnancy as she was 18 weeks pregnant when she expressed her desire to terminate her pregnancy. The Court said that the appellant has to be compensated so that she lives her life with dignity and the authorities of the State who were negligent would understand that truancy has no space in a situation of the present kind.

As per the facts of the case, the woman, a rape survivor who was living on the streets of Patna after being rejected by her husband and family, was brought to a shelter home from footpath. The functionaries of the home found her to be 13 weeks pregnant and took her to Patna Medical College Hospital to terminate her pregnancy with her consent. Her father and brother were called and made to sign a consent form. The appellant was also found to be HIV+. However, the hospital did not terminate her pregnancy and by that time she had entered into 20th week of pregnancy. When the woman approached the High Court, the single judge impleaded the husband and father of the woman. However, the notice was not served to the husband as his name was wrongly mentioned that caused further delay. Director of Indira Gandhi Institute of Medical Sciences was also directed to constitute a Multi-Disciplinary Medical Board to examine the victim with regard to physical and mental state and the condition of the foetus. The Court, after, going through the Medical report, thought is fit to reject the woman’s plea to abort her foetus as the foetus was 23-24 weeks old and the termination of the same would be hazardous to the life of the woman.

Considering the facts of the case, the Court said that it was luminescent that the appellant has suffered grave injury to her mental health and the said injury is in continuance. The bench said that one may have courage or cultivate courage to face a situation, but the shock of rape is bound to chain and enslave her with the trauma she has faced and cataclysm that she has to go through. Her condition cannot be reversed.

The bench also stated that the singe Judge should have been more alive to the provisions of the Medical termination of Pregnancy Act, 1971 and the necessity of consent only of the appellant in the facts of the case. There was no reason whatsoever to implead the husband and father of the appellant. The appellant was a destitute, a victim of rape and further she was staying in a shelter home. Calling for a medical report was justified but to delay it further was not at all warranted. The Court said that the High Courts are required to be more sensitive while dealing with matters of the present nature.

The Court directed that the compensation from the State be kept in a fixed deposit in the appellant’s name so that she may enjoy the interest. It was also directed that the child to be born, shall be given proper treatment and nutrition by the State and if any medical aid is necessary, it shall also be provided. If there will be any future grievance, liberty is granted to the appellant to approach the High Court under Article 226 of the Constitution of India after the birth of the child. [Ms. Z v. State of Bihar, 2017 SCC OnLine SC 943, decided on 17.08.2017]

Case BriefsSupreme Court

Supreme Court: Discouraging the practice of the appellate courts of reproducing the passages of the lower court’s order without proper analysis, the bench of Dipak Misra and A.M. Khanwilkar, JJ said that quoting passages from the trial court judgment and thereafter penning few lines and expressing the view that there is no reason to differ with the trial court judgment, can by no stretch be termed as a reasoned order. The Court said that the absence of analysis not only evinces non-application of mind but mummifies the core spirit of the judgment. A Judge has to constantly remind himself that absence of reason in the process of adjudication makes the ultimate decision pregnable.

Stating that the first appellate court has a defined role and its judgment should show application of mind and reflect the reasons on the basis of which it agrees with the trial court, the Court said that there has to be an “expression of opinion” in the proper sense of the said phrase. It cannot be said that mere concurrence meets the requirement of law. It was said that it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit.

The Court was hearing an appeal challenging the Karnataka High Court order where the learned Judge had posed the question about the defensibility of the ultimate direction by the trial Court and thereafter proceeded to quote paragraphs from the trial court judgment. Remitting the matter for fresh disposal within 6 months, the Court said that posing a question which is relevant for adjudication of the appeal is not enough. There has to have been proper analysis of the same. Stating the facts and thereafter reproducing few passages from the trial Court and ultimately referring to certain exhibited documents in a cryptic manner will not convert an unreasoned judgment to a reasoned one. [U. Manjunath Rao v. U. Chandrashekar,  2017 SCC OnLine SC 865, decided on 04.08.2017]