Case BriefsHigh Courts

Delhi High Court: A Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., in regard to Triple Talaq observed that,

Prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat.

Issues in the instant petition have been pending for consideration before the Supreme Court in WP (C) No. 994 of 2019.

In view of the above, Bench stated that since the matter is pending before the Supreme Court, hence it would wait for the judgment of the Supreme Court.

Petitioners Counsel, Tarun Chandiok and Naseem Ahmed had moved the present application with the prayer that pending the consideration of the petition, all FIRs registered under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 be stayed.

Substantial Question of Law

Further, it added to its submissions that the minimum number of Judges who should sit for the purpose of deciding any case involving substantial question of law as to the interpretation of the constitution, or for the purpose of hearing any reference under Article 143 should be five.

Bench rejected the above-stated submission stating that there is no provision either in the Constitution or in any other law which required this Court to place the matter before a Larger Bench at this stage.

Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Bench noted that the present petition is not in the nature of a Public Interest Litigation. Hence Court denied invoking Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Petitioner also submitted that Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the practice of triple talaq as popularly known, to be void and illegal.

What does the said provision state:

“any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. Section 2(c) defines talaq to mean “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”.

Triple Talaq

Petitioner’s Counsel also added to its submissions that once triple talaq has been rendered void and illegal, there is no justification for criminalizing pronouncement of triple talaq, since such triple talaq would have no legal effect on the status of the Muslim Marriage.

Since it is of no consequence and does not end the marital status of the wife – who may be subjected to triple talaq, there is no purpose of penalising the said Act. Section 4 of the said Act provides “any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine.”

Counsel relied on the decisions of the Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 and Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.

Bench held that,

“Legislation is presumed to be valid, unless it is declared to be invalid, or unconstitutional by a Competent Court, and is struck down.”

Court observed that the prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.

Purpose of Section 4 appears to provide a deterrent against such practice.

Merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice an offence.

High Court in view of the above discussion, did not grant any interim relief. [Nadeem Khan v. Union of India, WP (Crl) No. 1541 of 2020, decided on 13-10-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Rajan Roy and Jaspreet Singh, JJ., while taking suo motu cognizance of an extremely sensitive and important matter reminded itself of Mahatma Gandhi’s words and stated that,

This is a time to strengthen our resolve to live up to the ideas which “Bapu” stood for, but, unfortunately, ground realities are very different from the high values propagated and practiced by the Father of our Nation.

Bench stated that the matter touches upon the basic human/fundamental rights of the citizens of the country and residents based on certain newspaper items and programs shown in the media, according to which a young 19-year-old girl in Hathras was subjected to gang rape.

The perpetrators had broken her bones and mutilated her tongue.

The victim fought for her life for almost 2 weeks but ultimately she succumbed to death on 29-09-2020.

Court stated that the incidents which happened after the victim’s death leading up to her cremation have shocked their conscience.

In view of the above, the bench has taken suo mou cognizance of the matter.

Cremation performed forcibly and without consent of family members

As per the media reports, the dead body of the victim was taken to her native village but the Court was pained and shocked to note that the same was not handed over to the family members and the body of the victim was cremated with the help of some other persons.

The family members kept demanding for the body and informed that as per their traditions, the cremation cannot be taken place after sunset, yet the District Authorities got the cremation performed contrary to the traditions.

Allegation of High Handedness by State Authorities

Court added that the matter is of grave importance as it involves an allegation of high handedness by the State Authorities resulting in violation of the basic human and fundamental rights of both the deceased and her family.

Court in view of the present matter, referred to the decision of Supreme Court in Parmanand Katara v. Union of India, (1995) 3 SCC 248, wherein the court considered various facets of Right to Life enshrined under Article 21 of the Constitution of India.

“…right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death

Bench also quoted Oscar Wilde who said,

“Death must be so beautiful. To lie in the soft brown earth, with the grasses wearing above one’s head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace.”

Bombay High Court’s decision in Pradeep Gandhy v. State of Maharashtra; 2020 SCC Online Bombay 662 was also referred to wherein,

“Right to a decent burial commensurate with the dignity of the individual was reiterated as a recognized facet of the Right to life guaranteed under Article 21 of the Constitution.”

Issues to be examined:

  • Whether there has been a gross violation of the fundamental rights of the deceased victim and the family members of the victim?
  • Whether the State Authorities have acted oppressively high handedly and illegally to violate such rights as if it is found to be so, then, this would be a case where accountability will not only have to be fixed but for future guidance also stern action would be required.
  • Whether the economic and social status of the deceased’s family has been taken advantage of by the State Authorities to oppress and deprive them of their Constitutional rights?

Rights available under the Constitution are to be protected

Rights of the individual citizens in the Country and State especially that of the poor and the downtrodden such as the family members of the deceased victim and the deceased herself are paramount.

Court also takes cognizance of the matter that the seat of governance being at Lucknow and the High Police Officials posted in the office of Director General of Police, U.P. at Lucknow justified the cremation at night.

In view of the above, Court directed the Senior Registrar of this Court at Lucknow to register a suo moto Public Interest Litigation with the title In Re: Right to decent and dignified last rites/cremation” and place it before the appropriate Bench having jurisdiction to hear Public Interest Litigations.

Court-appointed Senior Advocate, Jaideep Narain Mathur and Abhinav Bhattacharya Advocate as Amicus Curiae.

State Authorities are directed to ensure that no coercion, influence or pressure is exerted upon the family members of the deceased in any manner, by anyone.

Family members of the deceased victim i.e. the father, the mother, brothers and sisters shall be present before this Court so that this Court ascertains the facts and their version of the incidents which took place at the time of the cremation.

Matter has been listed on 12-10-2020. [Decided on 01-10-2020]

Allahabad High Court_Hathras-Rape-Case

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Mithal and Rajeev Singh, JJ., found itself dealing with an unusual set of facts whereby a petition has been dismissed on the ground that the petitioner has not approached the Court with clean hands.

The set of circumstances in the present matter which led to the above-stated dismissal is that while adjudicating the present petition, an objection was raised by the counsel on behalf of the respondent, J.N. Mathur that the petition is not in the nature of public interest litigation as it is already in the public domain, even before it was presented or officially filed in the Court. The petition is available on a legal news website www.livelaw.in.

The petitioner, Krishan Kanhaiya Pal, who happens to be a practising lawyer, submits that he has filed the petition by abiding by the due procedure and he’s oblivious as to how the petition entered the public domain.

Counsel for the respondent retorted by stating that a breach in the chain of service of notice can be ruled out as the notice if this petition was sent to the Assistant Solicitor General, S.B. Pandey via e-mail. There is no possibility of the petition escaping from his office or system as he is currently recuperating from Covid-19 in the hospital and did not access his e-mail account at all.

Upon careful perusal of the facts, circumstance and arguments advanced, the Court observed that it is evident that the petitioner has invoked writ jurisdiction in order to gain unwarranted publicity in the garb of public interest. The petition was publicised on social media in the pre-litigation stage with a concealed motive of hogging undue limelight.

The legal position in similar cases has been well settled through a catena of judicial pronouncements the crux of which is that the basic purpose behind public interest litigation is to advance human rights and equality or raise issues of broad public concern. It helps the cause of the minority and disadvantaged class of society. The petitioner does not belong to the deprived class and is not seeking any basic human rights through this petition.

The Court has also passed some enlightening remarks which are reproduced below-

“It is pertinent to note that it is becoming a practice to gain publicity by filing petitions on sensitive issues so that it becomes a topic of discussion in public knowing fully well the ultimate result. Thus, publishing of any material proposed to be brought before the courts before it is actually filed is not a healthy practice rather an abuse of the process. It unnecessarily at times may prejudice the minds of the Judges. The media is supposed to play a responsible role in undertaking any such pre litigation publication and ought to avoid it.”

The petitioner has not approached the Court with clean intentions in public interest rather for the oblique purpose of seeking cheap popularity and publicity.

Thus, basis the reasons stated above, the Court dismissed the petition finding no reason to entertain the petition for the purposes of publicity alone.[Krishan Kanhaiya Pal v. Union of India, PIL Civil No. 15130 of 2020, decided on 18-09-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Cyril Amarchand MangaldasExperts Corner

Introduction

Hollywood films such as A Civil Action and Erin Brockovich brought the concept of ‘class action’ into our everyday conversation. The true story of a struggling single mum-turned-hero, Erin Brockovich filed a lawsuit on behalf of residents of a small California town against a large company. The class action that ensued claimed that the company’s systematic disposal of waste chromium contaminated the groundwater that supplied municipal wells, resulting in hundreds of the town’s residents falling seriously ill. The lawsuit was ultimately settled at about USD 333 million (in 1996), and the film (released in 2000) made the protagonist a hero.

For years, the United States of America has been seen as being the foremost bastion of class action as it has strong tort laws, followed by Canada and some European countries (including the United Kingdom), which have also been putting in place collective redressal mechanisms. Indeed, a class action was filed in late 2019, before a German Court on behalf of the entire German population of male piglets as plaintiffs.[1] Whether the case will be admitted as maintainable with animals as named plaintiffs, remains to be seen.

Shareholder activism has been on the rise globally. The shareholder of today is more involved (or evolved!), than before, and is no mute spectator to the business of the company and acts of its management. It is no longer restricted to raising a voice against oppression by majority shareholder(s), or mismanagement of a company, but includes concerns in relation to business decisions, social and environmental issues, strategic management, brand value, reputation, etc. It is now par for the course, for shareholders to demand answers or specific action, including change or compliance with more stringent corporate governance policies. Activism can take several forms, including proxy shareholder battles, publicity campaigns, shareholder resolutions, etc. This has led to a more dynamic interaction between ordinary shareholders and management/promoter groups.

In India, the development of shareholder activism has been slow but constant, from the more passive past to the more active present. The recent spate of financial frauds and scams have also played their part. Investors, shareholders, and even consumers demand transparency and accountability; and are not afraid to demand it.

Enter the long-awaited Companies Act, 2013 (which replaced the Companies Act, 1956), under which the newly-introduced provisions (notified on June 1, 2016, but yet to be used effectively) enable class action to be initiated against a company and its management in certain circumstances. Aimed at investor protection and enhanced accountability,[2] the 2013 Act was touted by the Government as being a historic measure, that would give impetus to growth and bring about transparency.

The key advantage of class action is that individual complainants who may not have the resources to initiate individual proceedings may join together as a class, benefitting from economies of scale and costs.  Efficiency of the judicial system may also be increased as there is no repetition of witnesses and arguments.

The concept of class action is not new to India, however, as some statutory provisions enable an action to be brought by a few in the name of and for the benefit of many. We briefly consider some of these below.

Representative Actions

The Code of Civil Procedure, 1908, enables the plaintiffs to collectively bring a claim to court in a representative capacity for the benefit of a group or class of persons. It thus carves out an exception to the general rule that all persons interested in a suit should be made parties, and enables a group or class of persons with common interest or grievance in a matter to bring an action through only a few named representative plaintiffs.[3] Similar provisions enable a group of representative defendants to enter a defence on behalf of the entire group.

A representative action needs the permission of the court to proceed. Notice must be given to all persons interested, so that any person on whose behalf, or for whose benefit, the suit is instituted (or defended), may apply to be made a party, particularly since any decree passed, will be binding on all members of the class.

Public Interest Litigation

Public interest litigations, or ‘PILs’ filed by a few petitioners have become ubiquitous in India.  PILs are often filed for the enforcement of fundamental rights under the Constitution of India, of a group of persons or the general public, in public interest.[4]  Multiple and far-reaching orders have been passed by High Courts and the Supreme Court against State entities (remedies are not available against private entities), for far-reaching reliefs in public interest.

As this action is filed on behalf of the public at large, the standard rule of locus standi (the right to bring an action in court), does not apply. The petitioners are not themselves required to have suffered the legal injury complained of, or to be part of the affected class. Even an unconnected third party may initiate such proceedings on humanitarian grounds for the benefit of all members of the group or class.[5]

Consumer Protection

The Consumer Protection Act, 2019, which recently came into force,[6] considerably overhauled consumer protection law in India. Consumer class action has received statutory blessing, enabling registered consumer associations, and one or more consumers (where they have a common interest or grievance) to file a class actionon behalf of the group. Complaints may be filed in relation to any goods sold or delivered with the permission of the District Forum, provided they have the same interest or grievance and seek the same relief on behalf of or for the benefit of the group.

The Central and State Governments are also empowered to file a complaint either in their individual or representative capacity for the interests of consumers in general. A first of its kind case was filed in 2015, suo motu by the Union of India against Nestlé India. Initiated as a class action suit on behalf of consumers of Nestlé’s ‘MAGGI Noodles’, the Union contended that Nestlé’s labels were misleading and that there were high levels of lead detected in the Noodles that are much loved by children.[7]

Initial action against Nestlé India was taken by the Food Safety and Standard Authority of India, directing it to recall the products from the market and cease production, an action which was challenged and set aside by the Bombay High Court. The class action lawsuit was filed by the Union of India immediately thereafter on behalf of Indian consumers. Damages of approximately INR 640 crores (USD 85.5 million) were sought for alleged unfair trade practices and sale of defective goods. The matter is currently pending before the National Consumer Disputes Redressal Commission (‘NCDRC’).

Provisions for Minority Protection against Oppression and Mismanagement

Minority shareholder interests have been protected under the erstwhile Companies Act, 1956 (‘the 1956 Act’), and the Companies Act, 2013 (‘the 2013 Act’). Redressal to minority shareholders is available in relation to acts of oppression by the majority shareholders and/ or mismanagement of the company by the controlling group.[8]

There is a threshold qualification of a minimum of 10 members or 10% the members of a company that must be met before a group can initiate this action. The National Company Law Tribunal (‘the Tribunal’), before whom such an action may be filed, has extensive powers to grant redressal against the complaints of oppression/mismanagement. For instance, the Tribunal may grant orders requiring the majority group to buy out the minority shareholders, appointing/removing a director to/from the board of the company, directing the audit of the company’s accounts, appointing an administrator to take over the management of the company, and in egregious cases, even winding up of the company.

While this minority protection is not in itself a ‘class action,’ it empowers a group of shareholders to jointly seek redress.

Class Action under the 2013 Act

The lack of a specific provision for class action in Indian corporate law was particularly felt in the aftermath of the ‘Satyam scandal’ in 2009,  whenthe Chairman of Satyam Computer Services Ltd. confessed to cooking up the company’s books of account to the extent of about USD 1.47 billion (about INR109  billion).  Not surprisingly, the shares tanked, and investors lost about INR 186  billion in value.

After the scandal broke, several investors went after the Chairman, Directors and auditors of the company. As many as 12 class action suits were filed in the United States, ultimately leading to a settlement of almost USD 125 million for the US investors.

The fate of Satyam’s Indian investors was less happy A consumer protection association, Midas Touch Investors Association (“MITA”), approached the NCDRC seeking compensation of INR 49.87 billion (approximately USD 668.52 million), for around 300,000 retail shareholders. The NCDRC refused to hear the complaint citing, among others, a reason that it was not equipped to deal with such cases.[9] MTIA moved the Supreme Court against the rejection but ultimately withdrew the petition[10] (possibly on account of a realisation that they were unlikely to get relief), and Satyam’s Indian investors watched their money go down the metaphorical drain.

The need to codify class actions in respect of company law had been recommended as early as May 2005, in the J.J. Irani Committee’s Report submitted to the Ministry of Corporate Affairs.[11] Two Companies Bills in 2009 and 2011 introduced provisions for class action, but these Bills lapsed. Notably, the 2011 Bill restricted eligible plaintiffs only to members and depositors, excluding creditors from its purview.  The rationale was that the creditors could enforce their claims through contracts with their borrowers, and as such, there was no necessity for a statutory right to class action; members and depositors not having any security, it was necessary to empower them accordingly.[12]

Section 245 of the 2013 Act

It is in this background that Section 245 was introduced in the 2013 Act, enabling members and depositors of a company, either individually or as a class, to join together for redress and appropriate reliefs from the Tribunal. (Banking companies are excluded from its ambit.)

A numerical threshold must be met as a condition to availing of the benefit of Section 245 viz. a minimum of 100 members or 10% of the total number of members of a company is needed to file a class action suit. Where the company does not have share capital, the minimum threshold is 1/5thof the total number of members. Depositors are also entitled to institute class action on similar thresholds.

All similar applications are consolidated into a single proceeding and the lead applicant is chosen amongst them, either by joint consensus of the group, or by the Tribunal. The lead applicant is in charge of prosecuting the action.

Reliefs may be sought against the company, its directors,  auditors,  expert, adviser or consultant for any fraudulent, unlawful or wrongful act, including monetary compensation or damages for the commission of fraudulent acts or those that that are prejudicial to the interests of the company, or its members or depositors, or against the public interest. Orders passed are binding on them all.

There is no maximum cap on the compensation or damages that may be awarded, or the manner in which they may be distributed amongst the applicants, the same clearly being left to the discretion of the Tribunal.

The costs of the application must be defrayed by the company or any other person responsible for any oppressive act.  On the other hand, unsuccessful applicants may be directed to pay the defendant’s attorney’s fees if such an application is rejected as being frivolous or vexatious.

Funding of Class Actions

The Investor Education and Protection Fund: Recognising the need to support minority shareholders and investors, the Ministry of Corporate Affairs announced that plans to implement a scheme to provide them with financial assistance for class actions through the IEPF (Investor Education and Protection Fund), established by the Central Government under Section 125 of the 2013 Act.[13]

Litigation Financing: Third-party funding and the modality of contingency fees, permitting the plaintiff’s lawyer to bear the risk of litigation with the advantage of windfall profits in the event of a successful claim, have leveraged class action movement in the United States and elsewhere. In India, the absence of regulation and a prohibition on lawyers working on contingency or success fees means that this trend is yet to pick up, although it is simply a matter of time.

The Coronavirus Landscape

It is impossible to write an article today without considering the coronavirus pandemic. As distribution networks stretched thin, ‘force majeure’ and ‘material adverse event’ claims were raised in several different avatars. Amid the exponential rise in disputes, as some businesses are being alleged to have taken undue or unfair advantage, some COVID-19 class action cases have already been instituted.

A class-action lawsuit was filed against online retailer Amazon in Florida for allegedly charging excessive prices for personal hygiene products during a public health crisis”. The overpriced sale of goods (such as USD 199 for a bottle of hand sanitizer, USD 40 for face masks, and USD 99 for toilet paper) was held to be in violation of State laws combating price gouging.[14] Costco and eBay are the other retailers that are facing class action claims for alleged price gouging of high demand products during the COVID-19 pandemic.

Gojo Industries Inc., faced a class action before the New York Federal Court on the grounds of misleading, deceptive and unfair claims that it’s Healthcare Advanced Hand Sanitiserkills 99.99% of illness-causing germs” and has the “ability to prevent colds, flu.”[15]

An action has been filed against IPI and its CEO, J. Joseph Kim, on behalf of shareholders who purchased or otherwise acquired IPI securities between February 14 and March 9, 2020,  seeking to recover damages caused due to a massive drop in stock price. The complaint alleges that IPI and its CEO, falsely described their product as a fully completed vaccine when it was nothing of the sort,” which eventually led to a USD 643 million loss of market capitalisation when a statement from Citron Research disputed IPI’s claim.[16]

Crystal ball gazing

Once the dust on COVID-19 settles down, there may be a floodgate of class action claims against global businesses around the world, ranging from cases of negligence against hospitals, restaurants, the travel industry, etc. alleging that they did not take adequate steps to protect the consumers or negligently exposed them to the virus resulting in personal injury or death, to damage claims on account of stock drop securities class action, for instance, owing to misfeasance, malfeasance.

In the Indian scenario, Infosys, the beleaguered tech giant, became the target of a class-action lawsuit in the United States in 2019, in respect of alleged unethical practices; something which the company vehemently denied.  After Infosys was cleared of wrongdoing by the Securities and Exchange Commission in May 2020, the suit was “voluntarily dismissed without prejudice” by the plaintiffs,[17]  and another Satyam-like crash was avoided.

In conclusion, the waters are being tested and it is certain that more and more consumers,  shareholders, and groups of affected/aggrieved parties will approach Indian courts and tribunals for redressal on the basis of similar class actions.


* Partner, Cyril Amarchand Mangaldas

** Principal Associate, Cyril Amarchand Mangaldas

[1] “Germany’s male piglet population might be about to rewrite legal history”, Rick Noak (November 19, 2019), The Washington Post available at https://www.washingtonpost.com/world/2019/11/19/germanys-male-piglets-just-became-latest-animals-file-cases-court-without-their-knowledge/

[2]Statement of Objects and Reasons to the Companies Act, 2013

[3] See Order I, Rule 8 CPC

[4] Articles 226 and 32 of the Constitution of India 

[5]V. Purushotham Rao v. Union of India, (2001) 10 SCC 305

[6] Notification dated 23-7-2020  issued by Ministry of Consumer Affairs, Food and Public Distribution available at https://consumeraffairs.nic.in/sites/default/files/Provisions%20of%20Act%20comes%20into%20force.pdf

[7] Union of India v. Nestle India Ltd., Consumer Complaint No. 870/2015 filed on 11-8-2015 before NCDRC

[8]Sections 397 and 398 under the 1956 Act, which correspond with Section 241 under the 2013 Act.

[9]https://economictimes.indiatimes.com/tech/software/consumer-forum-rejects-plea-on-compensation-in-satyam-case/articleshow/4510331.cms

[10]https://www.business-standard.com/article/companies/sc-dismisses-midas-touch-investor-association-plea-against-satyam-109081003014_1.html

[11] Report of the Expert Committee on Company Law (2005) dated May 31, 2005 issued by Ministry of Corporate Affairs available at http://reports.mca.gov.in/Reports/23-Irani%20committee%20report%20of%20the%20expert%20committee%20on%20Company%20law,2005.pdf

[12] 57th Report of the Standing Committee on Finance (2011-12) (15th Lok Sabha) (Ministry of Corporate Affairs) on the Companies Bill, 2011, p. 16, available at http://164.100.47.193/lsscommittee/Finance/15_Finance_57.pdf

[13]“Govt to give financial aid to minority investors filing class action suits” Business Standard dated  May 6, 2019 available at https://www.business-standard.com/article/pti-stories/govt-set-to-provide-financial-assistance-to-minority-investors-for-class-action-lawsuits-119050500240_1.html

[14]Armas v. Amazon .com Inc., Case No. 104631782, Eleventh Circuit Court in Miami – Dade County, Florida; [A Copy of the class action complaint is available at https://www.docketalarm.com/cases/Florida_State_Miami-Dade_County_Eleventh_Circuit_Court/2020-005653-CA-01/STEPHANIE_ARMAS_VS_AMAZON.COM_INC./Doc-02-Complaint/]

[15] Magdiela Gonzalez v. Gojo Industries, Inc., Case No. 1:20-cv-00888. United States District Court Southern District of New York; [Copy of the class action complaint is available athttps://webcache.googleusercontent.com/search?q=cache:P4pYvmgjNxAJ:https://www.classaction.org/media/gonzalez-v-gojo-industries-inc.pdf+&cd=1&hl=en&ct=clnk&gl=in]

[16] Copy of the class action complaint is available at https://www.dandodiary.com/wp-content/uploads/sites/893/2020/03/inovia-complaint.pdf

[17] https://www.thehindu.com/business/Industry/class-action-suit-against-infosys-dismissed-in-us/article31647106.ece

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Ravindra V. Ghuge and Shrikant D. Kulkarni, JJ., while addressing the instant PIL, observed that, the service of the COVID Warriors in such extra­ordinary testing times is a service to the Nation and mankind.

The Constitutional Court should neither be shy of nor find itself powerless in upholding the fundamental rights of the citizens as guaranteed under Article 21.

COVID-19 Duties

High Court vide the decision of this Court dated 03-07-2020 observed, with regard to the alleged reluctance of the government employees in discharging their COVID-19 duties, wherein following was stated:

“Such persons need to be suspended immediately and if they are appointed on contract basis, contract need to be terminated and criminal action needs to be taken against them. Invariably against every such person such action needs to be taken and things can be corrected only by taking such action.”

Excessive Billing by Hospitals

On 21-07-2020, Court recorded ceratin grievances regarding alleged excessive billing and the alleged obstinate attitude shown by certain private hospitals in admitting COVID-19 patients.

Court has been informed that the local administrations in all the districts of Maharashtra ae putting in strenuous efforts and are working relentlessly even upto late hours in the Night. They begin their activities in the early hours of the day and are leaving no stone unturned in their efforts to contain the spread of coronavirus.

PIL — Whether Criminal or Civil?

Public Prosecutor and the Advocates representing the local bodies strenuously submitted that though the intention of the Court in suo-moto registering the present PIL is laudable, the present matter should not have been registered as a Criminal Public Interest Litigation.

It has been contended that the present PIL should have been registered as a Civil PIL.

For the above-stated issue, bench stated that in the light of Article 311 of the Constitution of India and the principles of natural justice, this Court would not advise short-circuiting of the legal procedure for initiating disciplinary action against the employees of the local authorities or for dispensing with their services.

Legal Procedure

If the legal procedure is followed and if it legally permits the administration to register a criminal offence against any of the erring employees under the provisions of the Epidemic Diseases Act, 1897 and/or the Disaster Management Act, 2005, Court found it judicious to leave the matter to the administration to deal with such cases with an iron hand.

“…it would be unfair on our part to keep the Damocles Sword of initiating criminal action and registering of criminal offences, hanging on the administration and Covid­-19 employees.”

Further, the Court stated that black sheep are found in all walks of life and in all spheres. It is mostly such work shirkers and indisciplined employees, who give a set back to the spirit and momentum of hardworking employees and give a bad name to the system.

Electronic and Print Media

Some stray acts of dereliction in duties or unintended negligence are highlighted and the general public at large, on getting to know such instances through the print and electronic media, develop an apprehension or an impression that the State and the local administration have failed.

Further, the Court observed that the good efforts put in by the administration should not be criticised merely for the sake of public consumption.

Bench has the power in the interest of the public at large, to issue appropriate directions to the Executive with the object of upholding the rights of the citizens.

In view of the above-stated position, Court being aware of its limitations issued guidelines under the heads infrastructure, task force, personnel/staff, the supply of food grains and few under the general category for ensuring that the residents of the State do not feel neglected or deprived of medical assistance.

Before parting with the present decision, Court complimented the officials who have wholeheartedly and dedicatedly devoted themselves in the battle of coronavirus. [High Court of Bombay v. Union of India, 2020 SCC OnLine Bom 865, decided on 18-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ, and A.S. Gadkari, JJ., deferred the hearing for PIL’s filed in view of the unnatural death of Sushant Singh Rajput, a film actor.

In the present two Public Interest Litigations, it has been sought that CBI should be entrusted with the investigation into the unnatural death of a film actor, Sushant Singh Rajput.

Advocate General for the State, A.A. Kumbhakoni informed the Court that a petition with similar relief was moved before the Supreme Court, but the same was dismissed.

The petitioner on being asked for the copy of the petition stated answered in negative and added that the Supreme Court while dismissing the petition granted liberty to approach this Court.

Another significant point that the Court noted was the Supreme Court’s order dated 5-08-2020 wherein a status report has been called for from the State of Maharashtra in regard to the stage of investigation by Mumbai Police.

Hence, the Advocate General for the State states that the Court may not pass any order on the present petition and may await the Supreme Court’s decision.

Additional Solicitor General, Anil Singh submitted that on acceptance of the request of the deceased father, the CBI has already registered an FIR, inter alia, under Section 306 of the Penal Code, 1860. He has also questioned the approach of the Mumbai Police in quarantining an IPS officer of the Bihar cadre, who had come to Mumbai for the purpose of ascertaining facts, although four other officers of Bihar Police who had earlier visited Mumbai were not meted out such treatment.

Hence in view of the above stated, Court while deferring the hearing till 21-08-2020, stated that CBI has registered an FIR and it would not be appropriate, at this stage, to express any opinion either way.

It would be just and proper to await the orders of the Supreme Court in the pending Transfer Petition, referred to above. [Priyanka Tibrewal v. UOI, 2020 SCC OnLine Bom 848, decided on 07-08-2020]


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Sushant Singh Rajput death case| SC asks Mumbai Police to submit status of investigation so far; says truth must come out

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., held that as and when any advocate approaches the Court with regard to the inclusion of “Advocates” in the definition of “Professionals” under the Micro, Small and Medium Enterprises Development Act, 2006, the same could be entertained on merits.

A Public Interest Litigation was filed wherein the grievance was the non-inclusion of the advocates in the definition of the word “professionals” under the Micro, Small and Medium Enterprises Development Act, 2006.

Purpose of the petition was the welfare of the advocates as a class so that the benefits which flow from the inclusion under the Act, 2006 are made available to them as well.

Bench declined to entertain the petition.

Adding to its decision, Court stated that such PIL for the benefit of a class of persons can be preferred if the affected persons are unable to access the courts, e.g. the poorest of the poor, illiterates, children, and other classes of people who may be handicapped by ignorance, indigence, illiteracy or lack of understanding of the law.

Advocates are capable enough to approach the Court, if aggrieved.

Hence, as and when any advocate approaches the Court, decision on merits could be taken.[Abhijit Mishra v. UOI, 2020 SCC OnLine Del 927, decided on 29-07-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Vikram Nath, CJ and P.B. Pardiwala, J., while addressing an issue with regard to the live streaming of the Court proceedings held that a committee to work out the modalities for the said purpose has been constituted comprising of two Judges of this Court.

A law student raised the issue with regard to the Live Streaming/Open Access of the Court proceedings and in the public interest Gujarat High court should work out the necessary modalities for the said purpose.

Bench on perusal of the material on record, stated that to observe the  requirement of an open Court proceedings, members of the public should be allowed to view the Court hearings through video conferencing except the proceedings ordered for the reasons recorded in writing to be conducted in-camera.

Right to Know and receive information is one of the facts of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness the Court proceedings.

As, the above-stated Court proceedings involve the issue impacting the public at large or a section of the public.

Bench appreciated the efforts of the 3rd year law student appeared in person in the public interest.

Further, in line of the above-stated observations, Bench stated that to work out the modalities to facilitate the people at large including the media to watch the virtual hearing, Committee of two Judges of this High Court has been constituted pursuant to Standing Committee’s decision on 25-06-2020.

In the near future, a report of the committee is expected after which to allow access to the public at large including the media persons of print digital and electronic media shall be finalized.

Petition was disposed of in view of the above. [Pruthvirajsinh Zala v. Gujarat High Court, 2020 SCC OnLine Guj 1055 , decided on 20-07-2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and P. Rajamanickam, JJ., while stating that it has already on the Judicial side taken up the matter with regard to the tragic demise of “Jayaraj and Bennicks” closed the matter seeking direction in adherence to the Supreme Court’s decision in Lalitha Kumari v. Government of U.P., (2014) 2 SCC 1.

Petitioner sought direction for issuance of writ of mandamus to ensure strict adherence to the law laid down by Supreme Court of India in Lalitha Kumari v. Government of U.P., (2014) 2 SCC 1 in cases of Police excesses and thereby ensure immediate registration of FIR in cases where police persons are the alleged offenders and issue any guidelines, directions or standard operating procedures to be followed by the respondents herein and his subordinates in cases of police excesses.

Offence of Murder

Public Interest Litigation alleged lapses as to the non-registration of the FIR, despite the complaint lodged by the close family members, prima facie disclosing the commission of cognizable offence of murder.

Petitioner’s counsel, A. Rajarajan submitted that the police officials concerned deliberately failed to perform their duties and did not adhere to the decision of Supreme Court’s Constitutional Bench in Lalithakumari v. Government of U.P., (2014) 2 SCC 1.

Decision

Bench stated that it has already taken up the matter suo motu and is dealing with the aspects of the tragic demise of “Jayaraj and Bennicks”, hence the present petition is to be closed. [L. Vasuki v. Director General of Police, State of T.N., 2020 SCC OnLine Mad 1457 , decided on 09-07-2020]


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TN Custodial Deaths | Madras HC directs preservation of clue materials; Issues directions on premise that case be transferred to CBI

Case BriefsCOVID 19High Courts

Delhi High Court: A Division bench of Manmohan and Sanjeev Narula, JJ. while addressing the present petition stated that,

wouldn’t a ‘stone hearted person’ only challenge the decision to deduct one day’s salary for a pandemic?

In the present appeal, Order dated 12th May, 2020 by Single Judge of the Court has been challenged wherein the appellant’s petition challenging the deduction of one day salary by the respondent-University for contributing to the PM CARES Fund to combat COVID-19 pandemic was dismissed.

Appellant’s Counsel, stated that respondent-University did not give all its employees adequate notice of the the deduction and further it proceeded to deduct one day’s salary even in respect of those employees who had expressed their desire not to make a contribution.

In view of his submission he emphasised on the aspect that voluntary contribution cannot be deducted without anyone’s consent.

High Court while placing its opinion stated that the present petition had not been filed in the prescribed format of PIL, further adding to the said, bench also stated that the teachers and staff of Delhi University are neither financially weak nor suppressed to such an extent that they cannot approach the Court directly.

While noting the fact that appeals were issued Chairman UGC as well as Registrar of respondent-University in the month of March, 2020 to voluntarily contribute to support the cause of COVID-19 pandemic.

Court takes judicial notice of the fact that we live in the ‘internet age’ wherein all people are active on social media.

Bench with regard to the deduction stated that in view of the severity and the spread of the pandemic, the deduction of one day’s salary of the appellant (i.e. Rs.7,500/-) cannot be said to be contrary to public interest or harsh or inequitable.

Present PIL is not in the interest of the public and thus in view of the above it is to be dismissed. [Shreekant Gupta v. University of Delhi, 2020 SCC OnLine Del 651 , decided on 16-06-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, Hemant Gupta and Ajay Rastogi, JJ has imposed a fine of Rs 5,00,000 on the petitioner seeking ban on the sale and use of Coca Cola, Thums up, Soft Beverages. The PIL had also sought issuing Notification uprising people at large not to drink and use it, as the same is detrimental to the cause of health.

Calling the invocation of Supreme Court’s jurisdiction under Article 32 of the Constitution an abuse of process, the Court said,

“The petition has been filed without the petitioner having any technical knowledge on the subject. The source of his assertions has not been substantiated. No justification or explanation is forthcoming during the submissions of Mr S P Singh, learned Senior Counsel on why two specific brands in particular are chosen to be the target of the proceedings.”

It, hence, said that besides dismissing the petition an order directing the imposition of exemplary costs was necessary.

The costs imposed is to be deposited in the Registry within one month and shall be disbursed to the Supreme Court Advocates-on-Record Association.

[Umedsinh P Chavda v. Union of India, 2020 SCC OnLine SC 500  , order dated 11.06.2020]

COVID 19Hot Off The PressNews

Direction sought for PM-CARES Fund to reveal money received and other details on its website.

As reported by ANI, A Public Interest Litigation was filed wherein transparency in the context of PM Cares Fund was sought.

In the said fund, petitioner had also sought direction to reveal information under the Right to Information Act, 2005.

It was added in the petition that, anybody that is “owned”, “controlled” or “substantially financed” by the government qualifies as a public authority under the RTI Act.

PM-Cares Fund was government controlled as well as substantially financed.

“The corpus of Rs 10,000 crore has been created by donations largely from the Public Sector Undertakings, Central Ministries and Departments and even the salaries of armed forces personnel, civil servants and members of the judicial entities have been compulsorily donated into the fund. If PM-Cares fund is held to be a public authority it needs to be examined as to whether the public authorities at the highest level could prompt the government agencies, public servants, to contribute to this funds whose details are now sought to be kept opaque.

Further the petitioner also stated that, reluctance in divulging information raises a “profoundly serious apprehension” since the fund had been established for a public cause for combating deadly pandemic.


[Source: ANI]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Anil Kumar and Manish Mathur, JJ.,took cognizance of the Public Interest Litigation petition filed seeking enforcing of guidelines on social distancing and sanitisation in UP jails.

Petitioner sought direction to respondents to take proper steps and arrangements to ensure the meeting of inmates with their deponents, family members, friends and lawyers while insuring the guidelines of social distancing and proper sanitization in order to protect the fundamental Rights of the inmates.

Another direction that petitioner wanted to be directed to the respondents was to devise a mechanism to ensure social distancing and sanitization norms alongwith other safety measures so as to prevent the spread of COVID-19 in Jails of Uttar Pradesh.

S.K. Singh and Anand Shikhar, Counsels for the respondents submitted that the present PIL is not maintainable and need a period of 10 days for filing the counter affidavit.

Matter to be listed on 15th June, 2020.[Shivam Pandey v. State of U.P., 2020 SCC OnLine All 695 , decided on 29-05-2020]

Case BriefsCOVID 19High Courts

Madhya Pradesh High Court: While deciding the instant matter wherein the petitioner sought the quashment of order dated 19-5-2020 issued by the Health Commissioner, Government of Madhya Pradesh prohibiting the disclosure of identity of Covid-19 positive patients, the Division Bench of Sanjay Yadav and Vishal Dhagat, JJ., upheld the Government Order, terming it to be in sync with the larger public interest. The Court further observed that the Order not only seeks to prevent any rampant chaos in the society, it also seeks to protect the Covid-19 patients from suffering social stigma and public wrath.

The State Government issued the aforementioned Order in line with the Advisory issued by the Central Government that urged the people from spreading misleading news related to the pandemic and highlighted the ‘Dos and Don’ts’ for the citizens at large. The Advisory strictly cautioned the citizens against sharing unverified news on social media; refraining from labelling any community or area for spread of COVID-19 and refraining from targeting frontline ‘COVID Warriors’ like doctors, police and sanitary workers etc.

Perusing the contents of the Advisory and the State Government Order in question, the Court dismissed the petition observing that there is no merit in the instant PIL and the relief sought by the petitioner in the form of quashment the Government Order, runs contrary to the public interest. [Nagrik Upbhokta Margdarshak Manch v. State of M.P., 2020 SCC OnLine MP 1078, decided on 28-05-2020] 

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., while addressing a petition stated that responsible journalism includes the need to exclude irresponsible reporting by anyone involved in the print or audio visual media.

Advocate General pointed out that the present petition is essentially a Publicity Oriented Litigation because the petitioner has, by his conduct demonstrated vividly that he is using this litigation to publicize his political identity and also to encash it for enhancing his popularity in public domain.

Senior counsel for the petitioner, submitted that the fundamental right of freedom of expression cannot be curtailed in public domain.

It has been noted that, While the petitioner makes repeated complaints about the deficit in the number of sample testing, it is to be noted that there is lack of certainty as whether the rapid testing method as well as other modalities are appropriately utilized.

ICMR guidelines are, according to the petitioner, the touch stone on which the regulatory measures as well as other aspects ought to be in place. The testing of samples, test kits, mode of reference for ascertaining reason for death thereby keeping track of mortality rate attributable to Covid-19, are matters relating to scientific management of the pandemic. Union of India and the States are to respond.

Advocate General has been asked to ascertain the availability of Personal Protection Equipment (PPE) sufficient enough to be provided to all who could be called front line worriers which includes doctors, para medics, ground staff, support staff and those dealing with medical institutions and also other areas where PPE usage ought to be the norm.

State to file affidavit disclosing the availability and utilization of PPE and also testing facilities in terms of ICMR guidelines. On the same issue, the Union of India shall also place its response.

A true version of any order can be generated from the website of the Calcutta High Court.

For the above, Bench also stated that responsible journalism includes the need to exclude irresponsible reporting by anyone involved in the print or audio visual media.

Therefore, Court stated that,

those in need of information about the contents of this Court’s orders, to access the High Court website and dissuade themselves from propagating or publicizing the orders to champion the cause of anybody concerned.

[Fuad Halim v. State of W.B., 2020 SCC OnLine Cal 898, decided on 28-04-2020]

Case BriefsCOVID 19High Courts

Gauhati High Court: A Division Bench of Songkhupchung Serto and S. Hukato Swu, JJ. gave certain limited directions to the State Government and other authorities regarding handling the COVID-19 situation in the State.

The Court was considering a PIL through which certain concerns regarding actions already and which are yet to be taken by the State Government regarding COVID-19 were sought to be brought the Court’s notice for issuing necessary directions.

Having heard the petitioner and the respondents, the Court was of the view that at this stage, it would be sufficient if notice is issued to the respondents and limited directions as mentioned below are issued:

1. Make at least 2 (two) testing labs of COVID-19 functional within 10 (ten) days from today and make every effort to establish other labs at strategic places in the State to facilitate free testing in the near future.

2. Provide sufficient number of PPEs which are of the standard quality prescribed by the appropriate authority to all persons who are involved in the treatment of COVID-19 patients and in the looking after of persons in quarantine centres.

3. Make all efforts to make ICU facilities at all places identified for treatment of COVID-19 infected persons and also increase the number of ventilators so as to facilitate treatment in times of need.

4. Make ambulance available to the patients of COVID-19, at the earliest, if not already made available and to also make available transportation facilities to all persons who are in the line of duty, in view of the constraints and restraints imposed both by the Government and the public.

5. See to it that under no circumstance or circumstances there should be any shortage of trained personnel for treatment of the COVID-19 patients and those who are quarantined.

6. Gear up and make sure that the 2 (two) main hospitals which have been identified for treatment of COVID-19 patients i.e. one at Kohima and one at Dimapur are fully equipped and ready for functioning to meet the challenge or challenges posed by the COVID-19 within a period of 2 (two) weeks.   

It was also directed that the State and other respondents will file their affidavit showing their level of preparedness and also a statement showing the materials already supplied for the personnel who are on the line of duty. [Kikrukhonuo v. State of Nagaland, 2020 SCC OnLine Gau 1370 , dated 27-4-2020]

Case BriefsHigh Courts

Gujarat High Court: A Bench of Anant S. Dave, Acting CJ and Biren Vaishnav, J. disposed of a public interest litigation that challenged the ban on the viral online game PlayerUnknown’s Battlegrounds (“PUBG”), without passing any further orders as the notification extending the said ban was cancelled by the Police Commissioner, Rajkot City.

Pruthvirajsinh Zala — a first-year Law student of the Institute of Law, Nirma University — had filed a PIL challenging the constitutional validity of the notification which imposed a ban on PUBG in Rajkot City. The Rajkot Police commissioner had laid a 2 months ban on PUBG sinceMarch using powers under Section 144 CrPC and Section 37(3) of Gujarat Police Act. Later, the Police even arrested several people playing PUBG and booked them under Section 188 IPC (disobedience to order duly promulgated by public servant).

The petitioner who appeared in person before the Court, challenged that notification on the grounds that it was arbitrary and unreasonable at the very face of it, and violative of Articles 14, 19(1)(a), 19(1)(g), and 21. The Government Pleader submitted that the ban was merely for the school examination purposes and even the parents were happy about it. Per contra, the petitioner argued that such justification did not fall under the ambit of reasonable restrictions and it was based on mere anecdotal views lacking scientific nexus.

On 29-04-2019, the High Court had directed the State to file an affidavit in reply with regard to the contentions raised by the petitioner. On 08-05-2019, the State sought more time to file the affidavit. the petitioner informed the Court that the band had been extended for another 2 months vide notification dated 01-05-2019, even though the school examinations were over and summer vacations had begun. The Court granted one day’s time to State to file the affidavit. On 09-05-2019, the Court was informed that the Police Commissioner, Rajkot City had denotified the ban extended on PUBG.

In such view of the matter, the Court disposed of the petition observing that no further orders were required to be made.[Pruthvirajsinh Zala v. State of Gujarat, R/WP (PIL) No. 78 of 2019, decided on 09-05-2019]

In the communiqué received from Mr Pruthvirajsinh Zala, he quotes Martin Luther King, Jr. saying — “Our lives begin to end the day we become silent about the things that matter.” He says he strongly believes in constitutional values and human rights; and that he acted to protect the fundamental rights and prevent arrests of the citizens of Rajkot for merely playing a game.

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Mohammad Rafiq and Goverdhan Bardhar, JJ. disposed of a petition with the direction to the petitioner to approach the District Collector for alleviating the grievances of the petitioner.

The facts of the case are that a public interest litigation petition was filed by the petitioner contending that the Khasra in question was recorded in the revenue records as ‘gair mumkin pokhar’ (pond) and ‘gair mumkin rasta’ respectively. The said ‘pokhar’ was used by the villagers to feed water to the cattle and ‘rasta’ was being used by the villagers for going to said ‘pokhar’ and rainy water also came through that ‘rasta’ to the ‘pokhar’. It was contended that the Respondents 6 and 7 had encroached upon the aforesaid land of ‘gair mumkin pokhar’ and ‘gair mumkin rasta’ and closed the ‘rasta’ as also filled up the ‘pokhar’ with the mud. The petitioner several times requested the Tehsildar and the SDO to remove the encroachment over the aforesaid land but no action was taken by the concerned authorities. It was also contended that due to the aforesaid encroachment, the residents were suffering very hardship and they had no alternative ‘pokhar’ to feed their cattle. It was thus prayed that the respondents be directed to remove the encroachment.

The Court instead of directly entertaining this public interest litigation petition directed the petitioner to approach the District Collector for an appropriate action that should be taken within 3 months. [Bhagwan Singh v. State of Rajasthan, 2019 SCC OnLine Raj 78, Order dated 04-02-2019]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench comprising of Dinesh Maheshwari, CJ and S. Sujatha, JJ. dismissed a PIL and condemned the act of petitioner wife who had filed the said petition for her personal interests in the garb of public interest.

The instant petition was filed praying for a writ of mandamus to the Central and State government suggesting certain guidelines to be implemented by law enforcement authorities to ensure protection of women and strict implementation of dowry and domestic violence laws. The averment of petitioner was that out of court settlements made with intrusion of politicians, rowdy elements or police by shelling out money has defeated the justice delivery system.

The Court noted that multiple proceedings involving the petitioner relating to disputes raised under Protection of Women from Domestic Violence Act, 2005 and Sections 498-A, 506, 504, 420 of the Indian Penal Code, 1860 were pending. It further observed that though the petition was styled as public interest litigation, it was essentially filed to foster personal disputes and vendetta. As such, the action of petitioner pretending to act pro bono publico only to get personal gain ought to be discouraged.

The Bench observed that the petitioner-wife was seeking relief in a sinister manner through a frivolous litigation masked to resolve family disputes circumventing the regular judicial process. In case there is an infraction of a law by authorities, the appropriate remedy for the same was available under law.

In view of the aforesaid observations, PIL jurisdiction in the present petition was declined. [Anusha N. v. Union of India, WP No. 44038 of 2018, decided on 20-11-2018]

Case BriefsHigh Courts

Karnataka High Court: A Division bench comprising of Dinesh Maheswari and S.G. Pandit, JJ. while hearing a civil writ petition declined to exercise its jurisdiction under public interest litigation since the petition involved the determination of questions of fact.

The instant writ petition was filed under Articles 226 and 227 of the Constitution of India praying to call for records pertaining to the case on hand and seeking a direction against the respondent State to clear the road by removing encroachments made on public roads.

The court, on the day of preliminary hearing, stated that it was not persuaded to entertain the present petition as a public interest litigation (PIL) because though the petition alleged several encroachments on public pathway and roads but none of the alleged encroachers had been impleaded as a party to the said petition, not even in a representative capacity. Further, it was noted that the matter involved questions of fact which could not be determined in the PIL jurisdiction of the Court.

With the aforesaid observations and noting, the court dismissed the present petition with a liberty to the petitioner to take recourse to appropriate remedies in accordance with law. [Chaitanya Mandal v. State of Karnataka,2018 SCC OnLine Kar 1755, decided on 23-10-2018]