Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana*, CJ and AS Bopanna and Hima Kohli, JJ has urged the Courts to be cautious when examining locus standi in Public Interest Litigations in order to ensure that frivolous or private interests are not masqueraded as genuine claims.

The Court observed,

“Although the jurisprudence of Public Interest Litigation has matured, many claims filed in the Courts are sometimes immature. Thousands of frivolous petitions are filed, burdening the docket of both this Court and the High Courts. Noble intentions behind expanding the Court’s jurisdiction to accommodate socially relevant issues, in recent decades, have been critically analyzed. In our view, PIL litigation has had a beneficial effect on the Indian jurisprudence and has alleviated the conditions of the citizens in general. For those at the receiving end of the Court’s directions, we can only advise “C’est la vie”.”

Noticing the nature of PILs, the Court said that generally, PIL, being a summary jurisdiction, has limited powers to examine the bonafides of parties. It is usually on the pleadings that the Court should take a prima facie view on the bonafides of the party. If the Court concludes that the litigation was initiated under the shadow of reasonable suspicion, then the Court may decline to entertain the claims on merits. In these cases, Courts have multiple options – such as dismissing the PIL or appointing an amicus curiae, if the cause espoused in the case requires the immediate attention of the Court.

The Court was hearing a matter relating to the rights and ownership over a land, wherein the dispute regarding title was originally between one Gonsalves family and the State of Maharashtra. The land was vested into the State by an ex parte order. This order was recalled by the Revenue Minister after a Revision Application was moved by the Esteem Properties, the successors of the disputed property.

The Respondent nos. 1 and 2, however, moved the writ petition as public property belonging to the State Government was being transferred to private individuals and would lead to loss of public revenue.

The Court, however, observed that the PIL petitioners had no reason to file a public interest litigation when the subject matter was evidently a title claim between a private party and the State. It was noticed that the bonafides of the respondent nos. 1 and 2 were not considered in a proper perspective by the Bombay High Court while allowing the PIL.

The Court, also held that the PIL petitioners had no reason to file a public interest litigation when the subject matter was evidently a title claim between a private party and the State. Interestingly, the State Government itself concedes the title to the appellants herein and has filed affidavits to such effect, both before the Supreme Court and the High Court. Further, the State has clearly indicated that they do not have any interest in pursuing the ownership of the land in question and have admitted to the title of the appellants. Hence, the Court was not dealing with an ignorant or illiterate respondent; the State Government has accepted the title vesting in the Gonsalves family and subsequently in Esteem Properties.

In this light, it was held that institution of the public interest litigation was nothing more than an abuse of the process which cannot be allowed in the facts and circumstance so narrated.

[Esteem Properties Pvt. Ltd. v. Chetan Kamble, 2022 SCC OnLine SC 246, 28.02.2022]


*Judgment by: CJI NV Ramana


Counsels

For appellants: Senior Advocate Mukul Rohatgi

For State: Advocate Rahul Chitnis

For respondents (PIL Petitioners): Advocate Tapesh Kumar Singh

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT)- The Coram of Justice Jarat Kumar Jain (Judicial Member), Ashok Kumar Mishra (Technical Member), and Alok Srivastava (Technical Member) while dismissing an appeal summarily without notice to the Respondent was of the opinion, that there was no need to interfere with the impugned order since the adjudicating authority had rightly held that the petition was not maintainable.

In the pertinent matter, it was alleged that the adjudication authority had erroneously dismissed the Petition as not maintainable. Appeal was filed by the Shareholder of the Financial Creditor Company, and it was submitted that the petitioner can initiate action on behalf of the Company if the same is in the interest of the Company and the Board is not pursuing the same, as per the doctrine of derivative action. The adjudicating authority was of the opinion that such person does not come within the definition of aggrieved person under Section 61 of the IBC. Therefore, the Appeal was not maintainable. The adjudicating authority held that no Board Resolution was filed in regard to advance loan to Corporate Debtor Company as required under Section 186 of the Companies Act, 2013.

The Tribunal held that

“we have considered the submissions, undisputedly there is no board resolution authorising the appellant to file the petition under Section 7 of the IBC and filed this Appeal as there is deadlock in the Financial Creditors Company”.

The Court further held that,

“The facts of the cited cases are quite different and in theses citations it is held that a shareholder has no locus standi to maintain the suit, affirmed one of the exceptions to the aforesaid rule that where a shareholder can show that the wrong doers are in control of the defendant company and hence the company would be unable to maintain the action. So far as the Petition under Section 7 of the IBC is concerned, there is a specific notification by the Central Government under sub-section (1) of Section 7 of the IBC that on behalf of the Financial Creditor a guardian, an executor or administrator of an estate of a financial creditor, a trustee and a person duly authorized by the board of directors of a company may file Application for initiation of CIRP against the Corporate Debtor. In such situation, doctrine of derivative action cannot be applied in Petition under Section 7 of the IBC.”

[M Sai Eswara Swamy v. Siti Vision Digital Media Pvt. Ltd., Company Appeal (AT) (Ins) No. 706 of 2021, decided on 09-09-2021]


Counsel for the Parties:

For Appellant:

Mr. P Nagesh, Sr. Adv. with Mr. Harshal Kumar, Mr. Shivam Wadhwa

For Respondent:

Mr. Arvind Nayar, Sr. Adv. with Mr. Shivam Singh, Mr. Abhinav Singh, Advocates


Agatha Shukla, Editorial Assistant has reported this brief.

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J. dismissed the petition being devoid of merits.

The factual matrix of the case is such that the victim aged 20 years alleged that when she was walking on the road, then the accused approached her and offered her lift in his car. After some time, he offered her water and then in the car made drinks. When she was taking drinks, then the accused told her that he has made her video taking drinks and he is going to post it on facebook. After that, he took her somewhere in the darkness, threatened her and committed rape upon her. The FIR was registered by the accused. The instant petition under Section 482 Criminal Procedure Code i.e. CrPC was filed on the ground that she has entered into compromise with the accused and now they have decided to marry.

The Court finding the petition strange appointed a Legal Aid Counsel Ms Narvada for the petitioner-victim. The Legal Aid Counsel apprised the court about the interaction with the victim after which the court observed that the victim of a sexual offence cannot have any locus standi to approach a Court for quashing of FIR registered for the sexual assault which she had faced. The Court refrains and restrains from observing any further. There is a lot to read between the lines.

The Court held “there is no merit in the present petition and the same is dismissed accordingly with no liberty whatsoever.”

[S v. State of Himachal Pradesh, 2021 SCC OnLine HP 7053, decided on 24-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioners: Mr N K Thakur and Mr Divyaraj Singh

For respondents: Mr Nand Lal Thakur, Mr Manoj Bagga, Mr Ram Lal Thakur and Mr Sunny Dhatwalia

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Navin Chawla, JJ. directed that proceedings against Subway Systems (India) Private Ltd. be dropped in a case against its franchisee Dough Makers (India) Private Limited.

Instant appeal was filed challenging the final order passed by the National Anti-profiteering Authority where it had been held that M/s Dough Makers India (P). Ltd. had profiteered to the extent of Rs 78,41,754/-

Petitioner also sought direction to NAPA to drop the proceedings against the petitioner as a respondent in the case of DGAP v. Dough Makers (P) Ltd., [Case No. 1 of 2021]

Analysis, Law and Decision

 Bench opined that it is settled law that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, the applicant should ordinarily be one who has a personal or individual right in the subject matter of the application.

Infringement of some legal rights or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter. [Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, (1976) 1 SCC 671]

Further, the Court stated that in the present matter, petitioner had not been held guilty of the violation of the Central Goods and Services Tax Act, 2017 and NAPA had no objection if the petitioner was deleted from the array of parties, this Court opined that the petitioner had no locus standi to maintain the present petition.

Hence, the notice referred by the petitioner’s counsel is deemed to have been withdrawn.

 Present writ petition along with pending applications were disposed of by dropping the proceedings against the Petitioner as a Respondent in the case of DGAP v. Dough Makers India (P) Ltd., Case No. 1 of 2021. [Subway Systems India (P) Ltd. v. Union of India, 2021 SCC OnLine Del 4094, decided on 16-08-2021]


Advocates before the Court:

For the Petitioner: Abhishek A. Rastogi with Pratyushprava Saha, Advocates.

For the Respondents: Zoheb Hossain with Tulika Gupta and Vivek Gurnani, Advocates for Respondents-NAA and DGAP

Central Information Commission
Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Vanaja N. Sarna (Information Commissioner), observed that,

For a CPIO to be able to ascertain the impediment to life and liberty of a person, there ought to be some consideration between the information seeker and the person whose life and liberty is at stake.

Appellant in the present matter stated that a 9-member committee was set up in April 2020 to ensure the adequate availability of medical oxygen in the wake of the COVID-19 Pandemic.

With respect to the above, applicant sought certain information.

Due to non-provision of the information sought under Section 8(1)(a) and (d) of the RTI Act, second appeal was filed.

Analysis, Law and Decision

Commission observed that,

“…life and personal liberty are the most valuable possessions of an individual. The value for life, liberty and property are not merely a norm or a policy of the State but an essential prerequisite of any civilized society.”

Coram relied on the decision of this Commission in Venkatesh Nayak v. Department of Defence, 24-07-2019,

“Commission remarked at this instance that the instant RTI Application has been filed on the grounds that it concerns life and liberty of a person, however, it is not clear from the facts on record as to how life and liberty of a third party Lt. Col. Dharamvir Singh concerns the Appellant.

 

 Commission clarified that it is not the locus standi vis-a-vis the RTI Act that is being questioned but locus standi of the Appellant vis-à-vis the life and liberty of Lt. Col. Dharamvir Singh. In other words, Commission inquired if the affected person or his wife who allegedly filed the FIR reached out to the Appellant to pursue their case or if the Appellant is aware of what prevented the affected party or his wife from seeking this information.

 

 It may be noted that since every case involving the life and liberty of an individual will not invariably concern human rights violation, the considerations advanced by the Appellant to contest locus standi on the claim of human rights violation of the said officer is deemed as extraneous in the instant case.

 

 For a CPIO to be able to ascertain the impediment to life and liberty of a person, there ought to be some consideration between the information seeker and the person whose life and liberty is at stake.”

Further, in the matter of Sehar Singh v. PMO, while dealing with the query of “when is the question of life and liberty to be considered a matter of concern?” laid down the following parameters:

“-The RTI application be accompanied with substantive evidence that a threat to life exists (eg. Medical report).

-If, the claim of concern for life and liberty is not accepted in a particular case by the public authority, the reasons for not doing so, must be given in writing while disposing of the application.”

Conclusion

In the instant matter, in view of the above discussion, the Commission came to the conclusion that the Parliament has made a very special exception for cases involving “life or liberty of a person” so that it would be used only when an imminent threat to life or liberty is involved.

Coram added that appellant referring to the matter as being related to the public at large, and not ‘a person’ as specified in Section 7(1) proviso and in the interest of preventing the damage caused by pandemic is not sufficient to invoke this particular clause of 48 hours reply timelines, when apparently, the Appellant failed to substantiate as to how information sought in the instant RTI Application has a bearing on his life and liberty or of any other person.

Further, the Commission stated that the appellant also failed to quote any particular instance in which any individual related to him was affected due to non-disclosure of the information. Therefore, the life and liberty of whom the appellant was pleading for was non-existent.

Though, the Commission found the matter to be of greater public interest. 

In the opinion of Commission, the matter was unprecedented and hence the appellant’s plea that disclosure of information would have helped in holding discussions with the Government is far stretched.

Whether there were enough steps taken by the authority or not in ensuring supply of medical oxygen?

Commission answered that the above-stated question was outside its jurisdiction.

Now, since the matter of life and liberty was rejected, Coram found the CPIO’s response on time. Though the delay was due to the ill health of CPIO.

Concluding the matter, Commission could not find any relation nor as a matter of fact, any justification of concerns of life and liberty of any person and therefore, there was no question of applicability of the proviso of Section 7(1).

CPIO vide letter dated 11.06.2021 had provided a cursory reply claiming exemption u/s 8(1)(a) and (d) and had failed to amplify the same with reasons. The fact of the reply being timely is justified but the denial was not justified in his reply. Further, he also failed to record his reasons for rejecting the applicant’s request to consider the same under the clause of “life and liberty”. The CPIO is, therefore, cautioned to be careful in future and ensure that he follows the provisions of the RTI Act implicitly.

CPIO contended that “…the proposals considered by the empowered group contain commercial business, technological and strategical information pertaining to several government and private entities which qualifies as commercial confidence and/or intellectual property and the disclosure of the same would impair and irreparably harm the competitive position of such government and private entities constituting third parties. Thus, such information has been exempted from being disclosed u/s 8(1)(d) of the RTI Act.”

Further it was submitted that,  High level discussions of the empowered group frequently form part of the discussions within the highest decision-making body to avert and mitigate the impact of COVID-19 pandemic in the country and thus must be protected from disclosure given the larger intent to protect such information from being misused or being adversely used against the interest of the state.

Lastly, the Commission directed the CPIO to provide a suitable point-wise reply to appellant within 10 days. Coram added that any information if denied completely should be suitably justified with the application of the relevant clause.

In view of the above discussion, appeal was disposed of. [Saurav Das v. CPIO, DPIIT; CIC/DOIPP/A/2021/625997; decided on 29-07-2021]


Advocates before the Commission:

Appellant: Present over phone

Respondent: Karan Thapar, Deputy Secretary and CPIO, present over the phone

Case BriefsSupreme Court

Supreme Court:  Considering the various criminal cases filed against Bahujan Samaj Party MLA from MAU Constituency Mohd. Mukhtar Ansari in the State of Uttar Pradesh, the bench of Ashok Bhushan and R. Subhash Reddy*, JJ has directed that the custody of Ansari be transferred to District Jail, Banda, Uttar Pradesh from District Jail, Roopnagar, Punjab, where he is currently lodged in. This transfer has to take place within 2 weeks.

Background

A large number of criminal cases have been registered against Mukhtar Ansari in various Districts of the State of Uttar Pradesh in the past. Further, in addition to the same, there are presently ten criminal cases pending trial against him. Hence, in order to fast track the cases, after creation of Special Court for trial of cases of MPs/MLAs in the year 2018, all the cases were consolidated by the High Court of Allahabad and he was lodged in District Jail, Banda, Uttar Pradesh, pursuant to order of the learned Special Judge.

When the aforesaid cases were in trial, a case was registered against Ansari in District Mohali, State of Punjab, under Sections 386 & 506 of the IPC. The concerned Judicial Magistrate issued a production warrant under Section 267 of the Cr.P.C., and pursuant to the same, he was released from the custody by the Superintendent of District Jail, Banda, Uttar Pradesh without any counter signature/permission from the Court of Special Judge (MPs/MLAs), Allahabad. Thereafter, he was produced before the Judicial Magistrate-I, Mohali, State of Punjab and was remanded to District Jail, Roopnagar, Punjab on 24.01.2019, since then, he is continuing in the said jail.

During the period from 14.02.2019 to 14.02.2020, large number of warrants have been issued for production of Ansari before the various Courts in the State of Uttar Pradesh, but, efforts made by Uttar Pradesh Police to secure the custody were futile as every time Jail Authorities of Roopnagar Jail, Punjab refused to give custody on the pretext that the accused was unwell.

Analysis

Is “State” a “Party-interested”?

The Court refused to accept the submission that the petitioner-State is not a party interested as a crime against an individual is to be considered as a crime against a State and public, at large. In the criminal administration system, State is the prosecuting agency, working for and on behalf of the people of the State.

It is to be noticed that “party interested” has not been defined under the Code of Criminal Procedure, 1973. The words “party interested” are of a wide import and, therefore, have to be interpreted by giving a wider meaning. The words such as “aggrieved party”, “party to the proceedings” and “party interested” are used in various Statutes. If the words used are to the effect “party to the proceedings” or “party to a case”, it can be given a restricted meaning. In such cases, the intention of the legislature is clear to give restricted meaning. But, at the same time, the words used as “party interested”, which are not defined under the Code of Criminal Procedure, have to be given a wider meaning.

“As a prosecuting agency in the Criminal Administration, the State can be said to be a party interested within the meaning of Section 406(2) of the Code of Criminal Procedure, 1973. It is a well settled principle of law that the Statute must be interpreted to advance the cause of the Statute and not to defeat the same. The petitioner-State, being a prosecuting agency in the Criminal Administration, is vitally interested in such administration, as such, we are of the view that the State is considered as a “party interested” within the meaning of Sub-Section (2) of Section 406 of the Code.”

Transfer of criminal proceeding in case registered in Punjab to Uttar Pradesh

In Ram Chander Singh Sagar (DR.) v. State of Tamil Nadu, 1978 (2) SCC 35, it was held,

“The Code of Criminal Procedure clothes this Court with power under Section 406 to transfer a case or appeal from one High Court or a Court subordinate to one High Court to another High Court or to a Court subordinate thereto. But it does not clothe this Court with the power to transfer investigations from one police station to another in the country simply because the first information or a remand report is forwarded to a Court. The application before us stems from a misconception about the scope of Section. (…) There is as yet no case pending before any Court as has been made clear in the counter affidavit of the State of Tamil Nadu. In the light of this counter affidavit, nothing can be done except to dismiss this petition.”

In the case registered in Punjab, no Final Report is filed by the Police and the case is at the stage of investigation, hence, no case is made out by the petitioner, seeking transfer under Section 406 of the Code of Criminal Procedure, which relief is sought for in Para-26(A) of the writ petition.

Transfer from Punjab prison to Uttar Pradesh Prison

The transfer of a prisoner from one prison to another prison in different States is covered by the provisions of The Transfer of Prisoners Act, 1950. Section 3 of the Act reads as “the Government of that State with the consent of the Government of any other State, by order, provide for removal of the prisoner from that prison to any prison in the other State.”

“There does not appear to be any provision for transfer of an undertrial prisoner. There being no statutory provision, covering the transfer of prisoner from one State to another, having regard to the facts of the case on hand, this Court, certainly in exercise of jurisdiction under Article 142 of the Constitution of India, may issue necessary directions in the given circumstances.”

In the present case, Ansari is involved in various cases of attempt to murder, murder, cheating, conspiracy, etc., apart from offences under Gangsters Act. The said cases, number in Ten, are various stages of trial.

Further, the petitioner has furnished the cases, where warrants were issued by the Courts in various crimes, registered in the Districts of Mau, etc., and when the police went to seek custody, the handover of the custody was refused on medical grounds on twenty six occasions.

“A perusal of the reasons for not giving custody shows that it is mainly on the medical grounds referring to diabetes mellitus, skin allergy, hypertension, backache, throat infection, etc. Though, it is the case of the petitioner, that the very registration of crime in Crime no.05 of 2019 on the file of Police Station Mathaur, District Mohali, Punjab is a part of conspiracy at the instance of the 3rd Respondent so as to continue in the jail at Punjab, by protracting the trials, which are pending in the Special Court and to deny his presence in various other crimes, registered against him for completing the investigation.”

While the Court refused to record any finding on such allegation of conspiracy, it was satisfied that the custody is denied to the Police of Uttar Pradesh at every time on trivial grounds under guise of medical grounds by mentioning ordinary diseases like diabetes mellitus, skin allergy, hypertension, backache, throat infection, etc.

In addition to the same, it gives any amount of suspicion on the conduct of Ansari in not even applying for grant of default bail, for not filing Final Report (Charge-sheet) by the Police, Police Station Mathaur, District Mohali, Punjab within the statutory period.

“Though, it is the case of the 3rd Respondent, opposing the relief sought for, on the ground that he is permitted in majority of the cases to appear by video conferencing, but the same, by itself, is no ground to oppose the relief sought for.”

Though, the earlier cases were pending in various Sessions Courts and only to fast track the cases, Special Court is constituted for trial of cases of MPs/MLAs in the year 2018 by the State of Uttar Pradesh. On such constitution, all the cases where the 3rd Respondent is involved for serious offences under IPC and Gangsters Act, were transferred to the Special Court and all are pending trial at various stages. Pursuant to the orders of the Special Court, only the 3rd Respondent was kept in jail at Banda in the State of Uttar Pradesh, so as to order his presence, as and when required.

“A convict or an undertrial prisoner, who disobeys the law of the land, cannot oppose his transfer from one prison to another, be a convict or an undertrial prisoner, Courts are not to be a helpless bystander, when the rule of law is being challenged with impunity. In such situations, this Court can exercise power under Article 142 of the Constitution of India to order transfer of prisoner from one prison to another.”

Though, there is a separate enactment called The Transfer of Prisoners Act, 1950, which permits transfer of a prisoner from one State to another by the Government, but, the same is circumscribed under Section 3 of the Act, as such, the claim of the petitioner will not fit into the same. Even then this Court, in exercise of power under Article 142 of the Constitution of India, can consider for transfer of the prisoner in the circumstances, as pleaded by the petitioner.

“The arms of law are long enough to remedy the situation. If there are any medical ailments to the petitioner, every care shall be taken by the Jail Authorities but, at the same time, on the spacious plea of ill health by referring to minor ailments, Ansari cannot oppose the relief, as sought for in the writ petition.”

[State of Uttar Pradesh v. Jail Superintendent (Ropar), 2021 SCC OnLine SC 265, decided on 26.03.2021]


*Judgment by Justice R. Subhash Reddy

Know Thy Judge| Justice R. Subhash Reddy

Appearances before the Court by

For Uttar Pradesh: Solicitor General Tushar Mehta

For Respondents 1 &2: Senior Advocate Dushyant Dave

For Mukhtar Ansari: Senior Advocate Mukul Rohatgi

 

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Prakash Kesarwani and Dr Yogendra Kumar Srivastava, JJ., reiterated the settled position that in normal course it is not open for a person to seek to prevent a rival from exercising the right to carry on business.

Petitioner had a retail outlet dealership of MS/HSD, awarded by the Bharat Petroleum Corporation Limited. The instant petition was filed to seeking to raise a grievance with regard to issuance of a ‘Letter of Intent’ and Addendum to LOI whereunder it was proposed to offer the respondent 6 a retail outlet dealership of Bharat Petroleum Corporation Limited pursuant to an advertisement issued for the purpose.

Question as to whether a competitor in business could seek to prevent a rival party from exercising its right to carry on business came up for consideration in Nagar Rice and Flour Mills v. N.T. Gowda, (1970) 1 SCC 575.

In the above-cited case, it was held that a competitor in business cannot seek to prevent a rival from exercising its right to carry on business.

Analysis, Law and Decision

Bench reiterated the position that in normal course it would not be open to a competitor in business to seek to prevent a rival from exercising a right to carry on business.

Competition in a trade or business may be subject to restrictions as are permissible and as may be imposed by a law enacted in the interests of the general public. However, independent of any such restriction, a person cannot claim that no other person shall carry on business or trade so as to adversely affect his trade or business.

Adding to the above, bench while parting with its’ decision expressed that where the claim of the petitioner was solely to prevent a rival from exercising a right to carry on business, he would not have the locus standi to maintain a writ petition as the same would essentially be aimed at eliminating healthy competition in business.

In light of the above discussion, petition was dismissed. [Prince Filling Station v. Union Government of India, 2020 SCC OnLine All 1562, decided on 17-12-2020]


Advocates for the parties:

Counsel for the petitioner: Awadhesh Kumar Singh, Abhai Kumar Singh

Counsel for the respondent: A.S.G.I., Anand Tiwari, Anand Tiwari, C.S.C., Vikas Budhwar

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Sandeep Sharma, JJ., while dismissing the present petition said, “The petitioner has not placed on record any material which may suggest that he is a public-spirited person, so as to conclude that the instant petition has been filed in public interest.”

Background

The present Public Interest Litigation was moved to seek a writ of Mandamus, directing respondent to postpone the upcoming election to be held under Himachal Pradesh Panchayati Raj Act, 1994 in the wake of COVID-19 pandemic in the State. The public interest, apparently, seem to be the possibility of an increase in cases in the State due to the said election, which the petitioners aim to avoid through the instant petition.

 Observation

In pursuance of its decision, Court referred the following precedents;

  1. Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295;

“Today public spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion. It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basis human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. It is necessary to have some self-imposed restraint on Public Interest Litigants.”

  1. P. Anand v. H.D. Deve Gowda, (1996) 6 SCC 734;

“…It is of utmost importance that those who invoke this Court’s jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the Court that he does not rush to Court without undertaking a research, even if he is qualified or competent to raise the

issue.”

  1. ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296;

“… ‘Right’ is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined ‘Right’. In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition, the elements of a “legal right” are that the ‘right’ is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right.”

  1. BALCO Employees Union v. Union of India, (2002) 2 SCC 333;

“Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress, were required to be espoused. PIL was not meant to be adversarial in nature and was to be a co-operative and collaborative effort of the parties and the Court, so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz, ‘litigation in the interest of the public’.”

  1. Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349;

“When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out… Public Interest Litigation which has now come to occupy an important field in the administration of law should not be ‘publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ or the latest trend ‘paise income litigation’. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of a knight errant or poke ones nose into for a probe.”

 Reliance was further placed on, Dr B. Singh v. Union of India, (2004) 3 SCC 363, R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91, Gurpal Singh v. State of Punjab, (2005) 5 SCC 136, Kusum Lata v. Union of India, (2006) 6 SCC 180, Common Cause v. Union of India, (2008) 5 SCC 511.

Decision

Court while rejecting the present petition on lack of merits, enumerated the ten pointers that must be considered before allowing any Public Interest Litigation;

(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;

(ii) That the action complained of is palpably illegal or malafide and affects the group of persons who are not in a position to protect their own interest or on account of poverty, incapacity or ignorance;

(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

(iv) That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with malafide intention of vindicating their personal vengeance or grievance;

(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judicial and the democratic set up of the country;

(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which requiredexamination;

(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;

(x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons of groups with mala fide objective or either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest. [Sailesh Sharma v. State of HP,  2020 SCC OnLine HP 3056, decided on 17-12-2020]


Sakshi Shukla, Editorial Assistant hs put this story together

Case BriefsSupreme Court

Supreme Court: In a plea seeking inquiry into the alleged anti-competitive practices of Ola and Uber of entering into price-fixing agreement, the 3-judge bench of RF Nariman*, KM Joseph, Krishna Murari, JJ has refused to interfere with the concurrent finding of CCI and NCLAT that Ola and Uber do not facilitate cartelization or anti-competitive practices between drivers, who are independent individuals, who act independently of each other, so as to attract the application of section 3 of the Competition Act, 2002.

Why was an inquiry sought?

An informant sought that the Competition Commission of India initiate an inquiry, under section 26(2) of the Competition Act, 2002, into the alleged anti-competitive conduct of ANI Technologies Pvt. Ltd. [Ola], and Uber India Systems Pvt. Ltd., Uber B.V. and Uber Technologies Inc. [Uber], alleging that they entered into price-fixing agreements in contravention of section 3(1) read with section 3(3)(a) of the Act, and engaged in resale price maintenance in contravention of section 3(1) 1 read with section 3(4)(e) of the Act. According to the Informant, Uber and Ola provide radio taxi services and essentially operate as platforms through mobile applications which allow riders and drivers, that is, two sides of the platform, to interact. Due to algorithmic pricing, neither are riders able to negotiate fares with individual drivers for rides that are booked through the apps, nor are the drivers able to offer any discounts. Thus, the pricing algorithm takes away the freedom of riders and drivers to choose the best price on the basis of competition, as both have to accept the price set by the pricing algorithm.

Further, despite the fact that the drivers are independent entities who are not employees or agents of Ola or Uber, the driver is bound to accept the trip fare reflected in the app at the end of the trip, without having any discretion insofar as the same is concerned. The drivers receive their share of the fare only after the deduction of a commission by Ola and Uber for the services offered to the rider.

What did the counsels say?

Senior Advocate Abhishek Manu Singhvi, appearing on behalf of Uber, walked the Court through the concurrent findings of fact of the CCI and the NCLAT and said that every driver of a taxi cab, who uses the Ola or Uber app, can have several such apps including both Ola, Uber and the apps of some of their competitors, and can take private rides de hors these apps as well.

Advocate Rajshekhar Rao, appearing for Ola, agreed with Dr. Singhvi’s submissions on merit but questioned the locus standi of the informant, an “independent practitioner of law”. He, thus, prayed before the Supreme Court that “in such cases heavy costs should be imposed to deter such persons from approaching the CCI with frivolous and/or mala fide information, filed at the behest of competitors.”

Additional Solicitor General Balbir Singh, appearing on behalf of the CCI, however, stated that though he would support the CCI’s Order closing the case, he would also support the right of the Appellant to approach the CCI with information.

What did the Supreme Court say?

Informant’s locus standi

A reading of the provisions of Competition Act, 2002 and the Competition Commission of India (General) Regulations, 2009 shows that “any person” may provide information to the CCI, which may then act upon it in accordance with the provisions of the Act. The definition of “person” in section 2(l) of the Act is an inclusive one and is extremely wide, including individuals of all kinds and every artificial juridical person.

Section 19(1) of the Act originally provided for the “receipt of a complaint” from any person, consumer or their association, or trade association. This expression was then substituted with the expression “receipt of any information in such manner and” by the 2007 Amendment. This substitution is not without significance.

A complaint could be filed only from a person who was aggrieved by a particular action, information may be received from any person, obviously whether such person is or is not personally affected. This is for the reason that the proceedings under the Act are proceedings in rem which affect the public interest. That the CCI may inquire into any alleged contravention of the provisions of the Act on its own motion, is also laid down in section 19(1) of the Act.

“Even while exercising suo motu powers, the CCI may receive information from any person and not merely from a person who is aggrieved by the conduct that is alleged to have occurred. This also follows from a reading of section 35 of the Act, in which the earlier expression “complainant or defendant” has been substituted by the expression, “person or an enterprise,” setting out that the informant may appear either in person, or through one or more agents, before the CCI to present the information that he has gathered.”

However, Section 45 of the Act is a deterrent against persons who provide information to the CCI, mala fide or recklessly, inasmuch as false statements and omissions of material facts are punishable with a penalty which may extend to the hefty amount of rupees one crore, with the CCI being empowered to pass other such orders as it deems fit.

“This, and the judicious use of heavy costs being imposed when the information supplied is either frivolous or mala fide, can keep in check what is described as the growing tendency of persons being “set up” by rivals in the trade.”

The 2009 Regulations also do not require the informant to state how he is personally aggrieved by the contravention of the Act, but only requires a statement of facts and details of the alleged contravention to be set out in the information filed. Also, regulation 25 shows that public interest must be foremost in the consideration of the CCI when an application is made to it in writing that a person or enterprise has substantial interest in the outcome of the proceedings, and such person may therefore be allowed to take part in the proceedings. Further,

“CCI must maintain confidentiality of the identity of an informant on a request made to it in writing, so that such informant be free from harassment by persons involved in contravening the Act.”

“Person aggrieved”

Since the CCI and the NCLAT deal with practices which have an adverse effect on competition in derogation of the interest of consumers, the Act vests powers in the CCI and enables it to act in rem, in public interest. Hence, a “person aggrieved” must, in the context of the Act, be understood widely and not be constructed narrowly.

Further, it is not without significance that the expressions used in sections 53B and 53T of the Act are “any person”, thereby signifying that all persons who bring to the CCI information of practices that are contrary to the provisions of the Act, could be said to be aggrieved by an adverse order of the CCI in case it refuses to act upon the information supplied. By way of contrast, section 53N(3) speaks of making payment to an applicant as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II of the Act, having been committed by an enterprise. By this sub-section, clearly, therefore, “any person” who makes an application for compensation, under sub-section (1) of section 53N of the Act, would refer only to persons who have suffered loss or damage, thereby, qualifying the expression “any person” as being a person who has suffered loss or damage.

It was, hence, noticed,

“when the CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching the CCI and the appellate authority, i.e., the NCLAT, must be kept wide open in public interest, so as to subserve the high public purpose of the Act.”

[Samir Agrawal v. Competition Commission on India, 2020 SCC OnLine SC 1024, decided on 15.12.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has reiterated that an application by a person who is in no way connected with the criminal proceeding or criminal trial under Section 482 Cr.P.C. cannot ordinarily be entertained by the High Court.

Background

The Court was dealing with a case wherein a person (respondent no. 2) who is “a social activist and an advocate” and “a person having an urge to positively contribute to the society in all possible ways” had filed application under Section 482 Cr.P.C in an ongoing case against one Sanjai Tiwari under Prevention of Corruption Act, 1988, seeking direction to Special Judge to expedite and conclude Special Trial. He, further, stated in his application that although FIR was lodged in 2006 but it got delayed by tactics opted by the accused persons. “The Vigilance Department completed the investigation after about 14 years and still the accused persons are trying to get away from the charges.”

On 09.09.2020, the High Court disposed of the said application directing the Court concerned “to expedite the proceedings of the aforesaid case and conclude the same, at the earliest possible, on day to day basis without granting any unnecessary adjournment to either of the parties, in accordance with law, provided there is no impediment.”

Analysis

In order to answer the issue relating to locus of a third party to challenge the criminal proceedings or to seek relief in respect of criminal proceedings of accused, the Court referred to the judgment in Janata Dal vs. H.S. Chowdhary and others, (1993) 1 SCC 756, wherein it was held,

“Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants.”

The Court further noticed that criminal trial where offences involved are under the Prevention of Corruption Act have to be conducted and concluded at the earliest since the offences under Prevention of Corruption Act are offences which affect not only the accused but the entire society and administration. It is also well settled that the High Court in appropriate cases can very well under Section 482 Cr.P.C. or in any other proceeding can always direct trial court to expedite the criminal trial and issue such order as may be necessary.

“A criminal trial of an accused is conducted in accordance with procedure as prescribed by the Criminal Procedure Code. It is the obligation of the State and the prosecution to ensure that all criminal trials are conducted expeditiously so that justice can be delivered to the accused if found guilty.”

However, in the present, the proceeding initiated by respondent No.2 did not appear to be a bona fide proceeding. He is in no way connected with initiation of criminal proceeding against the appellant.

“The present is not a case where prosecution or even the employer of the accused have filed an application either before the trial court or in any other court seeking direction as prayed by respondent No.2 in his application under Section 482 Cr.P.C.”

Hence, noticing that the respondent No.2 has no locus to file the application which was not clearly maintainable, the Court held that the impugned judgment of the Allahabad High Court dated 09.09.2020 cannot be sustained.

The Court, however, observed that it will be open for the trial court to expedite the criminal trial, the offences being the offences under the Prevention of Corruption Act, 1988, subject to any order passed by the High Court in pending proceedings.

[Sanjai Tiwari v. State of Uttar Pradesh, 2020 SCC OnLine SC 1027, decided on 16.12.2020]


*Justice Ashok Bhushan has penned this judgment.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench comprising of B.V. Nagarathna and Jyoti Mulimani, JJ. reversed a 1993 order, holding that all titles, rights and interests of the Koladamatt over the land in question had been extinguished by a government notification which vested the land in the State Government following the Mutt’s failure to make an application to get registered as an applicant.

The land had been leased to the appellant in 1967 to run an automobile industry, with permission to put up structures on the land. The land in question is a part of a larger extant of land which was granted as a minor inam to the Mutt in 1897. However, a government notification dated 04.04.1970 notified 01.07.1970 as the date for vesting all inam lands in the State Government, following which the appellant made an application for registration of occupancy rights that was granted in an order dated 1.9.1984. The Mutt challenged this before a single judge of the High Court who allowed its writ petition and set aside the Land Tribunal’s 1984 order, and that decision had been challenged in the instant writ appeal.

The appellant contended that the Mutt lost all rights, interests and title in the land since it did not make an application for getting itself registered as an occupant as required by the Act. Therefore, they claimed that since the Mutt is not aggrieved by the Land Tribunal’s order, it does not have the locus standi to file the writ petition.

The Court observed that upon the vesting of all inam lands in the State Government, certain rights were reserved in the inamdars and tenants, but since the Inamdar did not make an application under the Act, it did not seek to claim any right or privilege under the Act since the former is sine qua non for the latter. Since the Mutt failed to file an application, all its rights under the Act stand extinguished. The Mutt had the right to raise contentions against the appellant’s application before the Tribunal and to that narrow extent, it could file a writ petition, but it otherwise had no locus standi to file the writ petition since it was not an aggrieved party and would derive no benefit from itself. The Bench also stated that the single judge erred in holding that the Act is applicable only to agricultural lands, since it could apply to non-agricultural lands such as uncultivated lands as well.

Since there was a subsisting lease of the land in question on the date of vesting and its possession was with the tenant i.e., the appellant, the holder would be the appellant and not the Mutt. Possession of inam land in the hands of the tenants despite the vesting of the land in the State Government is to confer certain rights and benefits upon them under the Act, and “the Government shall not dispossess any person of any land in respect of which he is considered prima facie entitled to be registered as an occupant.” It found that the Mutt cannot be the occupant of the private building/structures constructed on the land, and it would vest in the person who owned it immediately before the date of vesting i.e., in the appellant.

Court, therefore, stated that the lessee/appellant is entitled to registration of occupancy rights and the Mutt couldn’t claim any benefit under the Act. It set aside the order by the single judge and allowed the writ appeals.[S. M. Kannappa Automobiles v. Koladamatt Mahasamsthana, 2020 SCC OnLine Kar 964, decided on 29-07-2020]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Panda, ACJ and S.K. Sahoo, J.  did not entertain the writ petition because the petitioners had suppressed material facts and approached the court with unclean hands.

In the present case, the petitioners are the representatives of the villagers of Matha Sahi who have applied for grant of license to open a new IMFL ‘ON’ liquor shop at Hotel Florence under Bhadrak Municipality. On enquiry by Inspector of Excise, Bhadrak Range revealed that the proposed building for the liquor shop violates Rule 26 of the Odisha Excise Rules, 2017 and is at a distance of 103 mtrs. away from Dream India School, 330 mtrs. from Presidency College, 380 mtrs. from State Highway, 550 mtrs. from National Highway and 514 mtrs. of NH service lane. The violation was subject to relaxation by the State Government under Special Circumstances. The Collector, Bhadrak invited objection from the public and after inquiring the objections, the Inspector reported that Saraswati Sishu Mandir is at the back side of the proposed shop and such shop had been constructed as per planning with approval of Town Planning Authorities as some local people demanded opening of the proposed shop.

Hence a writ petition was filed under Article 226 of the Constitution to direct the opposite parties to cancel the license granted in favor of OP-5.

In the face of protests by the people at large, the Inquiring Inspector submitted the opinion of two persons demanding opening of proposed shop reveals the malafide intention and the Government still chose to grant license to open the liquor shop at the objectionable site. 

The opposite party averred through counter affidavit that the petitioners have no cause of action to file the writ application and they have no locus standi to file the writ application and they are not residents of the ward where the ‘ON’ shop is functioning. It was further stated that the petitioners have not approached the Court with clean hands and as such, the writ application is liable to be dismissed. 

It was further stated that the Collector, Bhadrak after receiving all objections pursuant to Form-VIII notice, submitted the entire papers to the Commissioner of Excise for onward recommendation to the Government for grant of license and the Collector, Bhadrak has suggested relaxation of the restrictions in exercise of power conferred under Rule-26 of the Odisha Excise Rules, 2017. The Superintendent of Excise, Bhadrak filed a counter-affidavit on behalf of OPs- 1, 2 and 3 wherein it stated that the Government after considering the objection petitions have relaxed the restrictions mentioned in Rule 26(1) of Odisha Excise Rules, 2017.

It was further stated that the school building of Saraswati Sishu Vidya Mandir is under construction and is non-functional presently and has no direct connection to the proposed ‘ON’ shop. 

The Court held that IMFL ‘ON’ shop of the is functioning after obtaining necessary permission from the Government and the petitioners-institution has not yet been made functional and the petitioner has suppressed material facts and hence it is not inclined to entertain the writ petition.

In view of the above, the writ petition stand dismissed.[M.M. Saraswati Sishu Vidya Mandir v. State of Odisha, 2020 SCC OnLine Ori 56, decided on 24-02-2020]

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J. dismissed a petition filed by Prisoners Right Forum against the order of the Chief Judicial Magistrate whereby he had dismissed a complaint filed in the matter of the death of a prisoner in judicial custody. It was held that the forum, being a third party who was neither a victim not an aggrieved person, had no locus standi to file the present petition.

The deceased, a prisoner, died in judicial custody in April, 2014. An FIR was registered, enquiry conducted, and criminal proceedings initiated against the respondent officials. However, ultimately, the Chief Metropolitan Magistrate came to the conclusion that no offence was established against the accused persons, and therefore he dismissed the complaint. The said order was challenged by the Forum in the present petition under Section 482 CrPC.

The High Court was of the opinion that the preliminary issue to be decided was as to the locus standi of the petitioner Forum to file the petition. M. Radhakrishnan, Advocate led arguments on behalf of the Forum. Per contra, the respondents were represented by C. Emilias, Additional General, assisted by M. Mohamed Tiyaz, APP; and Senior Advocate N.R. Elango; and A. Gokulakrishnan, Advocate; all of whom opposed the petition.

The Court noted that the term locus standi is commonly understood as the right or the capacity to bring an action or to appear in a Court. The march of law, more particularly by way of public interest litigations, has now allowed anyone from the society, not related to the cause of action to approach the Court seeking justice for those who cannot or who could not approach themselves or in cases which involves the public interest at large. However, it was held that such right cannot be extended in a criminal case to a third party who is not in any way related to the case. It was observed: “If this practice is permitted in a casual manner, a meddlesome bystander can easily decide to attack a person who has been held to be not guilty by a Subordinate Court, by initiating a frivolous proceeding and thereby cause irretrievable injury to the life and liberty of the accused person.” The only exception that has been created in this regard is by the Supreme Court which has held that third parties will have right, in very exceptional cases, to approach the Supreme Court under Article 136 of the Constitution of India. Reference was made to Amanullah v. State of Bihar, (2016) 6 SCC 699; National Commission for Women v. State (NCT of Delhi), (2010) 12 SCC 599; Harsh Mandar v. Amit Anilchandra Shah, (2017) 13 SCC 420.

Holding that the petitioner had no locus standi to maintain the present petition, the Court dismissed the same.[Prisoners Right Forum v. State of T.N., 2019 SCC OnLine Mad 2476, decided on 22-07-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J. entertained a writ petition which sought relief against Bihar Public Service Commission to re-advertise by the way of corrigendum for the post of Dental Doctor and to be allowed to participate in the selection process.

The petitioner prayed for declaring the advertisement of 2015 issued by the Commission contrary to the Reservation Rules, 1991. The petitioner contended that she completed BDS course in 2016. It was stated that 617 posts in dental services were created by a notification of 2013, thus total sanctioned strength in the dental services became 700, out of which a few were earmarked for promotions and a few were already occupied, leaving 558 posts vacant. The Government of Bihar, enacted the Bihar Dentist Service Rule, 2014 for regulating appointments and service conditions in the dentist service. The commission issued an advertisement of 2015, for respective vacant posts and applications were invited from the eligible candidates. Further, it was stated that only 16 posts were earmarked for the backward class female.

The learned counsel for the petitioner, Kripa Nand Jha, submitted that the eligibility criteria in the advertisement of 2015 was BDS degree from a recognized University and should had been registered under the Bihar and Orissa Medical Act, 1916. The counsel brought to the notice of Court that since all the vacant posts were advertised and the last date of submission of the form was in 2015, the petitioner who received his degree in 2016, and similar aggrieved students would be precluded from obtaining employment for years to come.

The learned counsel for the respondent Commission, Zaki Haider, submitted that upon a requisition sent by the Department of Health, the Commission has published the advertisement for appointment as the post of basic grade Dental Surgeon under the Department of Health, Government of Bihar. He referred to the requisition sent by the Government in 2015, it had been submitted that the roster clearance was obtained from the General Administration Department and only thereafter, the vacancies were advertised, category wise. He further submitted that earlier also the Bihar Dentist Rules, 2014, issued vide notification in 2014, which was challenged before the High Court and the learned Division Bench of Court had dismissed the said writ petition.

It was contended by the other respondents, that proviso to Article 309 of the Constitution of India, conferred the powers to said State and specifically stated that as far as the prayer of the petitioner regarding issuance of a direction upon the respondents to re-advertise the post of Dental Surgeon and 35% horizontal reservation to the female candidates was permitted. They further contend that the petition was misconceived and bereft of any merit as to the aforesaid notification of the Department of 2016, and was not effective retrospectively. The requisitions were made by the Health Department and, accordingly, the Commission had issued the advertisement taking into consideration the rules of reservation i.e. the Bihar Reservation for Vacancies in posts and Services for Scheduled Caste, Scheduled Tribes and other Backward Classes Act, 1991.

The Court observed that, all adverting to the issue of applicability of the notification issued by the Department, admittedly the same is not applicable retrospectively and moreover, the roster clearance has been taken by the Health Department from the General Administration Department after which requisition was sent and thereafter, the advertisement has been published immediately in 2015, in pursuance to the Bihar Dental Service Rules, 2014.  Hence, the Court held that the said notification of the General Administration Department in 2016 cannot be applied for the recruitment process under consideration in the present writ petition. The contention of the petitioner regarding the Rules, 1991 being contrary to the advertisement of 2015 was also declared void. The Court noted submission made by the learned counsel for the petitioner to the effect that since the petitioner passed in the year 2016 and the advertisement had been issued in 2015, the petitioner was pre-empted from applying for the post of Dental Doctor in the Health Services of the Government of Bihar, and rejected the same as the petitioner was not eligible to apply in pursuance to the advertisement of 2015, hence she had no locus standi to challenge the eligibility conditions. Hence, the petition was dismissed.[Pragya v. State of Bihar, 2019 SCC OnLine Pat 689, decided on 17-05-2019]

Case BriefsForeign Courts

Court of Appeal for the Democratic Socialist Republic of Sri Lanka: The petition of a liquidator was entertained by Samayawardhena, J. and was eventually dismissed due to lack of locus standi. 

The petitioner was the liquidator of Dart West Asia Holdings Ltd., he filed an application for issue of certiorari against the order of Commissioner General of Labour directing the Director of the said company to pay EPF and Gratuity to a former employee of the aforementioned company. 

At the argument, learned senior counsel for the respondent inter alia took up a preliminary objection regarding the standing of the petitioner to file an application. He further contended that the petitioner wanted to give an impact that the said company is still under liquidation. 

The Court observed that, winding up procedure is now concluded and the final account of the liquidator has also been sent to the Registrar General of Companies. Hence, declared that such winding up was voluntary and after the affairs of the company were fully wound up, Final General Meeting was held. Court highlighted the provisions of Companies Act, 2007 which provided that the Registrar General of Companies upon receiving the final accounts shall forthwith register them and on the expiration of three months, the company is dissolved automatically.

Court further held that from the application of petitioner it was clear that the application was filed several months after the company was dissolved. The contention of the petitioner that he was still a liquidator was not maintainable and the writ was disposed because the petitioner didn’t have any locus standi once the company was dissolved. [Chandanie Rupasinghe Weragala v. Deputy Commissioner, CA. Writ No. 429 of 2015, decided on 02-05-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Ramesh Ranganathan, C.J. and N.S. Dhanik, J. dismissed a writ petition seeking changes in road alignment and to issue mandamus commanding and directing the respondent to construct the road as per the old survey, the petition further wanted an injunction against the respondent against peaceful possession of irrigated land of the villagers.

The aggrieved petitioner claimed to be a farmer and a duly elected Gram Pradhan of the village. He contended that the roads earlier sanctioned, passed through the Village Panchayat Chamaswada, which would have benefited around 500 families and now the respondent State had shifted the route which now passes through a different village, thereby affected the interests of individuals (villagers). He further contended that Right under Article 300-A of the Constitution, has been violated as per the new layout plan. It drastically affected the interest of several private landholders and they will not get adequate compensation according to Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The Court opinioned that, petitioner being a Gram Pradhan had a duty towards the people and in any case of grievance may put forward the case to State Government. In this particular case where the main issue was ‘where road should be laid’? or ‘whether the alignment of road should be continued’? is to be decided by Executive and it is out of the purview of Courts to adjudicate upon.

The Court further observed that, all such matters are of Executive realm and even under Article 226 of the Constitution; Courts don’t have the power to take over the functions allocated to Executives and the State agencies. Answering to the issue aforementioned related to violation of private rights of individuals, the Court held, “Needless to state that it is always open to the land-owners, who are aggrieved by the action of the Government in laying a road over their lands, to invoke the jurisdiction of this Court. Leaving it open to those land-owners, who may be aggrieved by the exercise undertaken by the respondents of laying a road without acquisition of their lands, to avail their judicial remedies.” Hence, the writ was dismissed as the petitioner had no locus standi in the relevant issue raised.[Bharat Singh v. State of Uttrakhand, 2019 SCC OnLine Utt 348, Order dated 2-05-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Ramesh Ranganathan, CJ and N.S. Dhanik, J. dismissed an appeal while placing reliance on the Ministry of Petroleum and Natural Gas for its policy decision and found no reason to entertain the petition since the locus standi of the petitioner was itself in doubt.

In the present matter the policy decision of the Government of India, to establish several petroleum retail outlets throughout the country, was challenged. The ground being that the increase in the number of petroleum retail outlets would result in a concomitant increase in petroleum consumption and would thus result in increased air pollution which will further put the viability of the existing units in jeopardy. Also as the government is coming out with an alternative fuel policy and a manifold increase in the number of petroleum retail outlets would, therefore, result in needless wastage of public money.

The court held that the petitioners were unable to show any statutory violation on the part of the respondents, apart from Section 11 of the Petroleum and Natural Gas Regulatory Board Act, 2006, where it only deals with the functions of the Regulatory Board, and does not stipulate a condition for obtaining prior consent of the Regulatory Board required for the Petroleum Corporations to establish petroleum retail outlets. Court was of the opinion that such matters are required to be examined by the Government of India and the Ministry of Petroleum and Natural Gas will give such a representation its due consideration, and if the need be, take necessary action thereafter in accordance with the law.[Samajik Evam Gramin Shiksha Vikas Samiti v. Union of India, 2019 SCC OnLine Utt 143, Order dated 01-03-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Divison Bench of Mushir Alam and Qazi Faez Isa, JJ. allowed a petition seeking to set aside lower Court’s direction for deoxyribonucleic acid (DNA) test of a lady.

Respondent herein had filed a suit against the petitioner alleging that she was adopted by his father, late Abdul Qayum and brought up as his own daughter. However, the fact of adoption was concealed from her. In his suit, respondent sought declarations that Laila was not the real daughter of Abdul Qayum and, had no right to his legacy. Further, he filed an application seeking a DNA test to be conducted to determine whether Laila is the daughter of Abdul Qayum. The application did not, as per procedural requirement, cite any provision of law whereunder it was submitted; but the same was allowed. Aggrieved thereby, the instant petition was filed.

Petitioner’s counsel challenged respondent’s locus standi to question the petitioner’s paternity and contended that the suit filed by him was not maintainable under Sections 39 and 42 of the Specific Relief Act, 1877. He also referred to Article 128 of the Qanun-e Shahadat Order, 1984 according to which only a putative father may challenge the paternity of a child.

The Court opined that a declaration in suit can only be made in favour of a person who is entitled to any legal character or right, as to any property, which another is denying. In the instant case, petitioner had neither denied respondent’s legal character nor his right to any property. Reliance in this regard was placed on Abdur Rahman Mobashir v. Amir Ali Shah, PLD 1978 Lahore 113.

Further, Article 128 does not permit a putative brother, viz., respondent herein, to challenge his sister’s paternity. Judgment in Salman Akram Raja v. Government of Punjab, 2013 SCMR 203 was also relied on to hold that a free lady cannot be compelled to give a sample for DNA testing as it would violate her liberty, dignity and privacy guaranteed under Article 14 of the Constitution of Islamic Republic of Pakistan.

In view of the above, the impugned order was set aside. [Laila Qayyum v. Fawad Qayum, 2019 SCC OnLine Pak SC 2, Order dated 18-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): The Bench of Justice A.I.S Cheema, Member (Judicial) and Balvinder Singh, Member (Technical) observed that a shareholder of a company is entitled to file a petition for the revival of the company.

The name of one “Venku Hospitals (P)Ltd.” was struck off from the Register of Companies in 2005 for non-filing of annual accounts and returns w.e.f. the Financial Year ending 2000-2001. A petition was filed before the National Company Law Tribunal, Chennai for the restoration of the company’s name in the Register under Section 252 of the Companies Act, 2013. However, the petition was dismissed by NCLT on the ground, inter alia, that Appellant 2 (Director of Venku Hospitals) had no locus standi to file the same. Aggrieved thereby, the present appeal was filed.

Anandh K., Advocate for the appellants made extensive arguments assailing the order of the Registrar of Companies, Chennai and the subsequent order of NCLT. Per Contra, Registrar of Companies supported its order in the reply filed by it. Sanjiv Kumar Mohanty, Advocate appeared as Amicus Curiae.

At the outset, the Appellate Tribunal observed that Appellant 2 was also a shareholder of Venku Hospitals and as per Section 252(3), he was entitled to file the petition for the revival of the company. However, on perusing facts of the case, it was held that no relief could be granted to the appellants. It was noted that all the documents filed by Venku Hospitals to support their case were old and irrelevant. Thus, the Appellate Tribunal did not find any occasion to interfere with the impugned order and hence, the appeal was dismissed. [Venku Hospitals (P) Ltd. v. Registrar of Companies, 2019 SCC OnLine NCLAT 7, dated 18-02-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of P.R. Ramachandra Menon and Devan Ramachandran, J. while hearing an appeal against the order of a Single judge held that denial of pension benefits to a person residing in a particular State, vests him with the locus standi to file the writ petition challenging such denial in that State.

The appellant, who worked in the Assam Rifles in Shillong, was discharged from service on medical grounds which entitled him to disability pension. However, when he was not sanctioned full pension, he made a representation to competent officials but the same was rejected. The appellant submitted that after he was discharged from service, he had no financial resources to continue to live in Meghalaya and therefore he was constrained to come to Kerala.

The only issue involved in the matter was as to whether this Court had territorial jurisdiction to entertain the appellant’s writ petition.

Relying on the dictum of  Apex Court in Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329, the  High Court observed that when a party residing within the jurisdiction of a court was denied the benefit of pension by an authority, a part of cause action could be said to have arisen within the jurisdiction of that Court. It is settled law that under Article 226 of the Constitution of India, writ jurisdiction can be exercised by any High Court, if any part of the cause of action, wholly or in part, arises within its territorial limits.

The Court noted that the request for disability pension was made from Kerala and its rejection was communicated to the petitioner in Kerala. Thus, the appeal was allowed holding that this Court was vested with territorial jurisdiction to entertain the present matter. [K.T. Sudharshanan v. Union of India,2018 SCC OnLine Ker 4003, decided on 28-09-2018]