Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Ramesh Sinha, J., while observing that, though the process of “Unlock” had been started yet movement of ordinary people in several areas is restricted.

Thus Keeping in mind the overall objective conditions, Court issued the following directions:

  • All interim orders passed by the Allahabad High Court well as at Lucknow, all the District Courts, Civil Courts, Family Courts, Labour Courts, Industrial Tribunals and all other Tribunals in the State over which this Court has power of superintendence, which have been expired subsequent to 19th March, 2020 or are due to expire within a period of one month from today, will continue to operate upto 29th June, 2020.  Those interim orders which are not of a limited duration and are to operate till further orders will remain unaffected;
  • If a bail has been granted in anticipation as an interim measure for a specific period and that period is going to expire on or before 10th June, 2020, the same shall stand extended upto 29th June, 2020.
  • If any under trial or juvenile in conflict has been enlarged on bail through a judicial order and the period for such enlargement is going to expire on or before 14th June, 2020, the same shall stand extended upto 29th June, 2020.
  • If any orders of eviction, dispossession or demolition are already passed by the High Court, District or Civil Courts, the same shall remain in abeyance till 29th June, 2020 or having any order order by the court competent, whichever is earlier.

Petition for writ to be listed on 26th June, 2020. [State of U.P.,In Re;  2020 SCC OnLine All 742 ; decided on 08-06-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Siddhartha Varma, J. issued directions modifying the the Court’s Order dated 26-03-2020.

By the order dated 26th March, 2020 following directions were issued by this Court in view of lockdown:

“(i) All interim orders passed by the High Court of Judicature at Allahabad well as at Lucknow, all the District Courts, Civil Courts, Family Courts, Labour Courts, Industrial Tribunals and all other Tribunals in the State over which this Court has power of superintendence, which have been expired subsequent to 19th March, 2020 or are due to expire within a period of one month from today, will continue to operate upto 26th April, 2020. We, however, make it clear that those interim orders which are not of a limited duration and are to operate till further orders will remain unaffected;

(ii) If the Criminal Courts in the State have granted bail orders or anticipatory bail for a limited period which are likely to expire in one month from today, the said orders will stand extended for a period of one month from today.

(iii) If any orders of eviction, dispossession or demolition are already passed by the High Court, District or Civil Courts, the same shall remain in abeyance for a period of one month from today;

(iv) Considering the fact that it will practically impossible for the citizens to approach the Courts for redressal of their grievances for a period of twenty-one days specified in the order of the Ministry of Home Affairs dated 24th March, 2020, we sincerely hope that the State Government, Municipal Authorities and the agencies and instrumentalities of the State Government will be slow in taking action of demolition and eviction of person.

To modify the order dated 26-03-2020 accordingly as under:-

(i) All interim orders passed by the High Court of Judicature at Allahabad well as at Lucknow, all the District Courts, Civil Courts, Family Courts, Labour Courts, Industrial Tribunals and all other Tribunals in the State over which this Court has power of superintendence, which have been expired subsequent to 19th March, 2020 or are due to expire within a period of one month from today, will continue to operate upto 10th May, 2020. We, however, make it clear that those interim orders which are not of a limited duration and are to operate till further orders will remain unaffected;

(ii) If a bail has been granted in anticipation as an interim measure for a specific period and that period is going to expire on or before 3rd May, 2020, the same shall stand extended upto 15th May, 2020.

(iii) If any orders of eviction, dispossession or demolition are already passed by the High Court, District or Civil Courts, the same shall remain in abeyance till 15th May, 2020 or having any order order by the court competent, whichever is earlier.

This order be published in the official website of this Court. A soft-copy of this order shall be sent to all concerned Courts and Tribunals; the learned Advocate General; the learned Additional Solicitor General of India; the learned Assistant Solicitor General of India; State Public Prosecutor and the Chairman of Bar Council of Uttar Pradesh. [In Re v. State of U.P., PIL No. 564 of 2020, decided on 22-04-2020]

COVID 19Hot Off The PressNews

Upon requests for urgent listing of cases having been made telephonically to Registrar of this Appellate Tribunal from various persons, who were unable to physically file the same on account of complete lockdown declared by Government with effect from 25th March, 2020.

In view of the above, Bench comprising of Justice Bansi Lal Bhat (Actg. Chairperson) and Justice Anant Bijay Singh] Member (Judicial) and Dr Ashok Kumar Mishra] Member (Technical) takes suo moto cognizance of the unprecedented situation arising out of spread of COVID19 virus declared a pandemic.

Having regard to the hardships being faced by various stakeholders as also the legal fraternity, which go beyond filing of Appeals/ cases, which has already been taken care of by the Hon’ble Apex Court by extending the period of limitation with effect from 15th March, 2020 till further order/s in terms of order dated 23rd March, 2020 in Suo Motu Writ Petition (Civil) No(s).03/2020, inasmuch as certain steps required to be taken by various Authorities under Insolvency and Bankruptcy Code, 2016 or to comply with various provisions and to adhere to the prescribed timelines for taking the ‘Resolution Process’ to its logical conclusion in order to obviate and mitigate such hardships, this Appellate Tribunal in exercise of powers conferred by Rule 11 of National Company Law Appellate Tribunal Rules, 2016 r/w the decision of this Appellate Tribunal rendered in “Quinn Logistics India Pvt. Ltd. v. Mack Soft Tech Pvt. Ltd. in Company Appeal (AT) (Insolvency) No.185 of 2018” decided on 8th May, 2018 do hereby order as follows: –

(1) That the period of lockdown ordered by the Central Government and the State Governments including the period as may be extended either in whole or part of the country, where the registered office of the Corporate Debtor may be located, shall be excluded for the purpose of counting of the period for ‘Resolution Process under Section 12 of the Insolvency and Bankruptcy Code, 2016, in all cases where ‘Corporate Insolvency Resolution Process’ has been initiated and pending before any Bench of the National Company Law Tribunal or in Appeal before this Appellate Tribunal.

(2) It is further ordered that any interim order/ stay order passed by this Appellate Tribunal in anyone or the other Appeal under Insolvency and Bankruptcy Code, 2016 shall continue till next date of hearing, which may be notified later.

The above order is to be circulated to all all benches of NCLT, New Delhi.

In Re Competition Act, 2002, this Appellate Tribunal do hereby order as follows: –

(1) That interim direction / stay order passed in all competition Appeals shall continue until further order.

(2) In the event of expiry of period of Fixed Deposits, the concerned bank shall renew the same for further period of six months.

In Re National Company Law Appellate Tribunal Rules, 2016 do hereby order as follows: –

(1) It is ordered that any interim order/ stay order passed by this Appellate Tribunal in anyone or the other Appeal under the Companies Act, 2013 shall continue till next date of hearing, which may be notified later.

[Suo Moto – Company Appeal (AT) (Insolvency) No. 01 of 2020, Order dt. 30-03-2020]

Case BriefsCOVID 19High Courts

Telangana High Court at Hyderabad: Full Bench of Chief Justice and M.S. Ramachandra Rao and A. Rajasheker Reddy, JJ. in view of the lockdown and limited functioning of Courts have extended the period of Interim Orders till 07-06-2020 and Orders of Executing Courts shall be kept in abeyance.

Government enforced strong measures to prevent the spread of COVID-19. Nationwide lockdown was also declared on 25-03-2020 for a period of 21 days.

In view of the lockdown due to which the functioning of courts had been restricted, routine matters have been adjourned en bloc to particular dates in month of April. Considering the same, advocates and litigants have not been in a position to appear in the said matters.

As a result, interim orders operating in favour of parties have expired or will expire on or after 20-03-2020.

Court on perusal of the above circumstances, orders that in all matters pending before this Court, and Courts Subordinate to this Court, wherein interim orders were subsisting as on 20-03-2020 and expired, or will expire thereafter, the same shall stand automatically extended till 07-06-2020.

After 15-02-2020, Executing Courts passed directions to bailiffs for executing decrees and dispossessing judgment debtors. Bailiffs in these cases are continuing ti implement said orders, however, judgment debtors do not have means of challenging the said order, hence, Bench directs that any such order shall be kept in abeyance and shall not be executed till further orders.

[In Re: Extension of Interim Orders and Abeyance of Execution Orders, WP No. Urgent 1/2020, decided on 27-03-2020]

Case BriefsSupreme Court

“The Courts are guardians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens.”

Supreme Court: When the bench of Ashok Bhushan and Navin Sinha, JJ was called upon to decide whether the High Court in exercise of its Constitutional jurisdiction conferred under Article 226 of Constitution of India can pass an order interdicting a legal fiction engrafted in a State enactment, it held,

“The power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute.”

It, further, noticed that the power of judicial review vested in the High Courts under Article 226 and this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. The jurisdiction under Article 226 is original, extraordinary and discretionary. The look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a tribunal, a statutory authority or an authority within meaning of Article 12 of the Constitution.

The precise question before the Court was whether Section 5B of the Mumbai Municipal Corporation Act, 1888 oust the jurisdiction of the High Court.

  • Section 5B of Mumbai Municipal Corporation Act requires the candidate to submit caste validity certificate on the date of filing Nomination paper.
  • A candidate who has applied to Scrutiny Committee for the verification of his caste certificate before date of filing Nomination but who had not received the validity certificate on the date of filing Nomination has to submit an undertaking that he shall submit within a period of six months from the date of election, the validity certificate issued by the Scrutiny Committee.
  • If a person fails to produce the validity certificate within a period of six months from the date of election, that election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a Counsellor. The period of six months was amended to be twelve months by Amendment Act, 2018.

Holding that Section 5B of the Mumbai Municipal Corporation Act, 1888 does not oust the jurisdiction of High Court under Article 226 of the Constitution, the Court said that the High Court in exercise of jurisdiction under Article 226 of the Constitution can pass an order interdicting the legal fiction as contemplated under second proviso to Section 5B, provided the legal fiction had not come into operation.

“When a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as to by lapse of time, the petition may not be infructuous. The interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief claimed so that at the time of final decision of the writ petition, the relief may not become infructuous.”

It is true that requirement of submission of Caste Validity Certificate within a period of one year under Section 5B of Mumbai Municipal Corporation Act is mandatory requirement but in the facts of the case before the Court, before the expiry of the period of six month, the Caste Scrutiny Committee had illegally rejected the claim necessitating filing of writ petition by aggrieved persons in which writ petition the interim relief was granted by the High Court. It, hence, noticed that in the facts of the present case, the deeming fiction under Section 5B of retrospective termination of the election could not come in operation due to the interim order passed by the High Court.

“The power of the High Court to grant an interim relief in appropriate case cannot be held to be limited only for a period of one year, which was period envisaged in Section 5B for submission of the Caste Validity Certificate. No such fetter on the power of the High Court can be read by virtue of provision of Section 5B.”

[Benedict Denis Kinni v. Tulip Brian Miranda, CIVIL APPEAL NOS.1429-1430/2020, decided on 19.03.2020]

Case BriefsSupreme Court

Supreme Court: A bench comprising of S.A. Bobde and L. Nageswara Rao, JJ. while allowing an appeal filed by T.N. Dr MGR Medical University, set aside the order of Madras High Court whereby it had directed the respondent to proceed with the counselling and admit students in the first year of BHMS course for the academic year 2017-18.

In 2013, Central Council for Homeopathy had recommended for grant of permission to the respondent for starting a Homeopathic college. Ministry of AYUSH, however, refused to grant the permission due to deficiency in requisite facilities. However, the Central Council decided to grant the said permission subject to approval by the Central Government. Subsequently, three students died in the respondent college and it was closed down. The respondent filed an application for grant of provisional affiliation which was rejected by the appellant University. The respondent filed a writ petition thereagainst and the High Court, vide the order impugned, directed the appellant as aforementioned. Aggrieved thereby, the appellant preferred the instant appeal.

The Supreme Court, for adjudication of the matter, perused the entire scheme of grant of affiliation and admission pertaining to the instant case. The Court found that the respondent did not have the requisite approval from the Central Government as provided in Section 12-A of the Homeopathy Central Council Act, 1973. According to the Court, the respondent was not entitled to the relief granted by the High Court. It was observed that exercise of jurisdiction in favour of provisional admissions during the pendency of a writ petition exposes the students to the risk of losing precious years in case of dismissal of the writ petition. The Courts should desist from passing interim orders directing provisional admissions of students. In view of the aforesaid, the appeal was allowed and the order impugned was set aside. [T.N. Dr MGR Medical University v. SVS Educational and Social Trust, Civil Appeal No. 10920 of 2018, decided on 12-11-2018]

Case BriefsSupreme Court

Supreme Court: Dealing with a matter under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), the bench of RF Nariman and Navin Sinha, JJ said:

“In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order.”

The Court said that it is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law.

Explaining the concept of loans by financial institutions, the Court said that these loans are granted from public money generated at the tax payers expense. It was observed:

“Such loan does not become the property of the person taking the loan but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same.”

It was said that the writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.

The Court was hearing appeal arising out of interim orders in the the writ petition under Article 226 of the Constitution, staying further proceedings at the stage of Section 13(4) of SARFAESI Act on deposit of Rs.3,50,000/-within two weeks. An appeal against the same was also dismissed by the Division Bench observing that counter affidavit having been filed, it would be open for the Appellant Bank to seek clarification/modification/variation of the interim order. [Authorized Officer, State Bank of Travancore v. Mathew KC, 2018 SCC OnLine SC 55, decided on 30.01.2018]

Case BriefsSupreme Court

Supreme Court: In the case where the a Dental College, upon failing to receive permission to start post-graduate course of Orthodontics and Dentofacial Orthopaedics along with four other specialties, had knocked the door of the High Court of Bombay and the High Court had passed an interim order stating that the admission process undertaken by the Institution is at the risk of the Institution and that the Institution shall intimate the order passed by this Court to the students who are intending to take admission for the Post-Graduate course, the Court said that High Court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval, as it brings in anarchy and chaos in the process of admission.

Considering it necessary to interfere with the order of the High Court, the bench of Dipak Misra and M.M. Shantanagoudar, JJ said that the High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It is a situation where the order has the potentiality to play with the career and life of young.

Taking note of the fact that by virtue of the said interim order, 3 students had been admitted and they are prosecuting their studies, the Court directed that those students shall be allowed to continue their courses, but their seats shall be adjusted from the academic session 2017-2018. Stating that the respondent-college cannot be allowed to get a premium, the Court, apart from the adjustment of seats for the next academic session, directed the respondent-college to deposit a sum of Rs. 30 Lakhs before the Registry of this Court within 8 weeks. The Court clarified that the said cost shall in no manner be recovered from the students who had been admitted nor shall it be collected from the students who will be admitted to the course in the next year.

The Court will take up the matter in the third week of July to ensure the compliance of the directions of the Court and to determine how to deal with the sum deposited by the respondent-college. [Dental Council of India v. Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli, 2017 SCC OnLine SC 376, decided on 11.04.2017]