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Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In a petition filed by the petitioner Uttamrao Rambhaji Shelke seeking quashing and setting aside of the impugned order dated 16-09-2021 passed by the Principal Secretary, Law and Judiciary Department, Mantralaya, Mumbai appointing the respondent 3 to 14 as Members of Managing Committee of Shree Sai Baba Sansthan Trust, Shirdi Taluka Rahata, District Ahmednagar, a Division Bench of R D Dhanuka and S G Mehare, JJ. held that the State Government has committed vast illegalities in appointing these trustees by disregarding the principles laid down by this Court in a series of judgments. It further stated that various resolutions passed by the State Government appointing the persons as trustees on the said Sansthan Trust are in violation of the principles laid down by this Court and in breach of the provisions of Shree Sai Baba Sansthan Trust (Shirdi) Act, 2004.

The Court remarked that “if the State Government would have appointed independent trustees and not the politicians who are having close connection with the ruling party, the said Sansthan Trust which is a public Trust and is a custodian of public money and properties would have saved huge amount of public money spent on unnecessary litigations.”

The Court noted that the record indicates the idol of Shri Sai Baba was set up at Shirdi in 1954 and a scheme was framed in 1984 by Bombay High Court. The State Government enacted Shree Sai Baba Sansthan Trust (Shirdi) Act, 2004. The Principal Secretary and Senior Legal Advisor to the Government appointed 16 members comprising of various professionals, various devotees of Shree Sai Baba and various other uncontroversial persons.

However, since last 3 terms, the State Government started appointing politicians to most of these posts without considering the scheme of the Trust and contrary to the provisions of the said Act which also formed the subject matter of the Public Interest Litigations.

The Court noted that none of these appointments were made in compliance with the directions issued and the principles laid down in various judgments which were supposed to be complied with.

The Court observed that the said Sansthan Trust is set up with the purpose of public cause having the properties worth crores of rupees owned by the said Trust. When power is vested with the authority, it must exercise the same for the public good and it is expected that the State Government to at least keep the God away while distributing public largesses. Thus, there is no propriety in appointing the persons as trustees, against whom criminal cases are pending in a non-transparent manner

The Court further noted that the appointment of the trustees to such public trust has to satisfy the test of public interest by keeping the purpose and intent of creating such trust under the said Act for the betterment of and in the interest of large members of public devotees of Shri Sai Baba and not the private interest of the ruling Government to accommodate their party workers or politicians. The entire purpose and intent of creating such trust by the State Government under the scheme sanctioned by the Court is thus ex-facie defeated for the political gains of the party in Power.

Thus, the Court quashed and set aside the impugned order dated 16-09-2021 passed by the Principal Secretary, Law and Judiciary Department, Mantralaya, Mumbai appointing the respondent 3 to 14 as Members of Managing Committee of Shree Sai Baba Sansthan Trust, Shirdi Taluka Rahata, District Ahmednagar.

The Court further directed State Government to constitute a new “the Shree Sai Baba Sansthan Management Committee” within a period of eight weeks in accordance with the provisions of section 5 of 2004 Act, and in line with the principles laid down by the Courts in the judgments and until the State Government such new Committee is constituted, the affairs of the “Shree Sai Baba Sansthan Trust, Shirdi” shall be supervised, monitored and looked after by a committee consisting of (A) The Principal District Judge, Ahmednagar, (B) The Collector, Ahmednagar (C) The Chief Executive Officer of Shree Sai Baba Sansthan Trust Shirdi, subject to no major financial decision to be taken without permission of the Court.

[Uttamrao Rambhaji Shelke v. State of Maharashtra, 2022 SCC OnLine Bom 2280, decided on 13-09-2022]

Advocates who appeared in this case :

Mr. R.S. Deshmukh, Senior Counsel i/by D.R. Deshmukh for the petitioner;

Mr. R.N. Dhorde, Special Counsel a/w Mr.D.R. Kale, Government Pleader for the respondent no.1;

Mr. A.S. Bajaj for respondent 3;

Mr. P.R. Katneshwarkar h/f Mr.S.N. Gaikwad for respondent 4;

Mr. N.L. Jadhav for respondent 5;

Mr. A.C. Darandale for respondent 6;

Mr. Mazhar A. Jahagirdar for respondent 8;

Mr. R.A. Tambe for respondent 9.

*Arunima Bose, Editorial Assistant has put this report together.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: In a case filed by a student (‘petitioner’) seeking directions to State (‘respondent’) to conduct the Maharashtra Public Service Commission examination in English as well as Marathi language, a Division bench of S.V. Gangapurwala and R.N. Laddha, JJ. directed the respondents to ensure that the next examination to be held for Public Prosecutors must be conducted in English as well as Marathi language in line with the implementation of the policy of State Government of promoting the language of State i.e. Marathi .

Counsel for the petitioner submitted that the petitioner has studied only in Marathi language. The proceedings before the Courts of Judicial Magistrate First Class (‘JMFC’) and Civil Judge Junior Division (‘CJJD’) are normally conducted in Marathi language. Further, as Marathi language is a local language, it is incumbent upon the respondent 1 to conduct the examination in English as well as Marathi language. Even the question papers are to be in both Marathi and English language. The MPSC holds the exam for the selection of the JMFC and for the said exam also the question papers are in Marathi as well as English language.

Placing reliance on Prashant P. Giri v. State of Maharashtra, (2010) 5 Mah LJ 206, the Court noted that in this case, it was observed that at least from the next examination for selection of the subordinate Judicial Officers in the State of Maharashtra, the facility be made available for answering the question paper in Marathi language. Twelve years have passed by and it cannot be comprehended that even after 12 years, the Government is still searching for the examiners to assess the answer papers in Marathi language.

The Court remarked “the Government ought to have been serious in implementing the said judgments in its letter and spirit. The Government cannot say that for the examination of the JMFC facility can be provided for answering in Marathi language and for the examination of Public Prosecutor the same facility would not be provided.”

The Court opined that as the examinations now are scheduled on 11-09-2022 and there are about 7700 candidates, and no other candidate has raised objection for answering the question paper in Marathi language, thus the prayer cannot be granted for the present examination.

However, the Court held that the respondents shall ensure that the next examination to be held for Public Prosecutors shall be conducted in English as well as Marathi language.

[Pratap Prakash Jadhav v. State of Maharashtra, 2022 SCC OnLine Bom 2232, decided on 07-09-2022]

Advocates who appeared in this case :

Mr. Alankar Kirpekar a/w Sushmit Phatale, Mr. Nikhil Adkine, Dynaesh Patil and Mr. Aditya Raktade i/by Metanshu R. Purandare. Mrs. M.P. Thakur, AGP for the State.

*Arunima Bose, Editorial Assistant has put this report together.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: While taking suo- motu cognizance of the news item published in Times of India, (Nagpur edition), dated 05-09-2022, which mentioned the proposed move of the Forest Department to shift wild elephants to some zoo; the Division Bench of Sunil B. Shukre and Valmiki SA Menezes, JJ., observed that the issue highlighted in the news is of seminal importance the view-point of the public interest. The Court was also of the view that the issue raises an even more fundamental question regarding the rights of wild animals within a society dominated by human beings in general and within the framework of the Constitution in particular.

Background: The above-mentioned news article was brought to the Court’s attention by J.T. Gilda, Senior Advocate, who stated that the proposed move is contrary to the directions laid down by the Supreme Court.

He further submitted that migration of wild elephants to Gadchiroli forest from some other areas is a sign of good health of the forest and should be seen as a welcome development. However, instead of treating this development in a positive way, the Forest Department is taking regressive steps, which are against the interest of wild animals of the forests of Maharashtra, the tribal population of Gadchiroli and the environment in general.

It was also submitted that wild elephants have chosen forest areas lying within Gadchiroli district as their natural habitat, and that these elephants cannot be taken out of this area without proper resolution having been passed by the Kamalpur village panchayat and in this case, the village panchayat has passed a resolution against shifting of wild elephants elsewhere.

Observations and Directions: Noting the importance of the issue, the Bench poignantly observed that animals (both wild and domesticated) have not been bestowed with mental faculties including faculty of speech as a human being, it is difficult for human society to seek consent of the affected animals before they are forcibly removed from one area to another area; but that should not deter a human being from devising some method where rights of the wild animals against their forcible removal and in respect of other matters are equally respected as that of man and a balance is struck between the rights of man and rights of animals including wild animals.

The Court also pointed out that ancient Hindu texts have already recognized the rights of animals, birds and every living creature and regarded every living being as having emerged from same divine power as man, thus deserving due respect, love and affection. The Bench also referred to an Abhang composed by Sant Tukaram to put emphasis on its observation.

The Bench also noted the concerns vis-a-vis biodiversity conservation and preservation. It was observed that the presence of wild elephants adds to biodiversity of Gadchiroli forest and, therefore, it is the duty of the State to do everything to preserve the population of wild elephants in Gadchiroli. Any move to shift them to a zoo would result in harming the biodiversity and would be against the spirit of the Biological Diversity Act, 2002.

Directions: With the afore-stated observations, the Court directed that the Union of India, State of Maharashtra and concerned departments be added as respondents. J.T. Gilda, Senior Advocate was appointed as an Amicus Curiae.

The next date of hearing was fixed on 08-09-2022, where the Court directed that additional parties be impleaded as respondents and appropriate petition to be drafted. The next date of the hearing has been fixed for 15-09-2022.

[Court on its Own Motion, 2022 SCC OnLine Bom 2047, decided on 07-09-2022]

Advocates who appeared in this case :

J.T. Gilda, Senior Advocate assisted by P.S. Tembhare, Advocate

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Devendra Kumar Upadhyaya and Rajnish Kumar, JJ. dismissed a PIL which was filed by the petitioner society with the prayer that the respondents may be directed to enhance the age of retirement from 60 to 62 years in respect of the employees of the State Government who are differently abled.

Counsel for the petitioner submitted that in the State of Punjab as also in the State of Haryana, the age of retirement of differently abled government employees is 62 years and hence, State of Uttar Pradesh may also be directed to enhance the age of retirement from 60 to 62 years of differently abled government employees working in the State of U.P. . It was their contention that by not extending the age of superannuation from 60 to 62 years the Government of U.P. is subjecting its differently abled government employees to hostile discrimination and in terms of the provisions contained in Rights of Persons with Disabilities Act, 2016 the differently abled persons in the State of U.P. are entitled to be given the same treatment.

Assistant Solicitor General of India appearing for the Union of India and State Counsel opposing this PIL have unanimously submitted that the prayer made in this PIL essentially pertains to service matter and as per the settled position of law, no PIL can be entertained in relation to service-related matters and accordingly the writ petition is liable to be dismissed .

The Court relied on Girjesh Shrivastava v. State of Madhya Pradesh, (2010) 10 SCC 707, Duryodhan Sahoo (Dr.) v. Jitendra Kumar Mishra, (1998) 7 SCC 273, B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees’ Assn., (2006) 11 SCC 731 and Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590 where the Supreme Court had reiterated the legal principle that in service matters, no Public Interest Litigation can be entertained.

The Court opined that this Public Interest Litigation was not maintainable observing, “It is equally well settled that except where a writ of Quo Warranto is prayed for, Public Interest Litigation in service-related matters ought not to be entertained.”

The Court further clarified that no doubt that Rights of Persons with Disabilities Act, 2016 has been framed by the Parliament for empowerment of the persons with disabilities and the said Act clearly mandates that differently abled persons cannot be discriminated against. However, such non-discrimination which runs across the Act, 2016 has to be read in the context. The Act 2016 was framed to make a law prohibiting all kinds of discrimination of differently abled persons in the society and also for ensuring their effective participation and inclusion in the society as also for creating an environment where there will be respect for the difference such differently abled persons bear and also to create equality of opportunity etc.

The PIL was dismissed.

[Ramkali Samajik Utthan Evan Jan Kalyan Samiti v. Union of India, Public Interest Litigation (PIL) No. – 487 of 2022, decided on 10-08-2022]

Advocates who appeared in this case :

Birendra Kumar Yadav, Amit Kumar, Satendra Jaiswal, Advocates, for the Petitioner;

S.B. Pandey, Advocates, for the Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Rajan Roy and Jaspreet Singh, JJ. took suo motu cognizance of a PIL which was in relation with the Rights to Decent And Dignified Last Rites/Cremation.

The Court in Suo-Moto v. State of U.P., 2020 SCC OnLine All 1088 while dealing with the extremely sensitive matter of Hathras gangrape where dead body of the victim was taken to her native village but surprisingly and painfully enough it was not handed over to the family members so that the last rites of the deceased victim could be performed as per prevalent customs and religious inclinations in a decent and dignified manner but it was cremated with the help of some other persons at about 2- 2.30 a.m. The Court had directed the Senior Registrar of this Court at Lucknow to register a suo motu 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.

The right of dignified life under Article 21 of the Constitution of India is not only available to a living person but also to the ‘dead’. These rights are not only for the deceased but, his family members also have a right to perform last rites as per religious traditions.

The State Government placed a Scheme/Standard Operating Procedure (‘SOP’) for cremation of dead bodies. The Court perused the SOP and suggested that:

1. The relevant communication made through E-mail or Whatsapp should be preserved for a reasonable period, of say, one year and, if during this period any legal proceeding before the Court of law or any other Forum are initiated in respect of the events mentioned therein, then, the same shall not be weeded out till disposal of such proceedings so as to avoid unnecessary complications and further litigation.

2. The disposal of bodies consequent to a pandemic is a separate issue which should be kept aloof from the Scheme under consideration which primarily relates to cremation of bodies generally and as a consequence of accidents or any crime, except to the extent if the cremation of such body consequent to an accident or crime is of a person who was affected by any such disease in connection with pandemic/ epidemic, then, the guidelines for cremation of such bodies as applicable during pandemic/epidemic would prevail over the scheme/SOP in question.

3. The Officers and employees under the State who are to be involved in cremation of such bodies should be sensitized and counselled to follow the scheme/SOP strictly and in a manner so as to achieve the object rather than to defeat it. The observance and adherence to the scheme/SOP should not be an eye-wash nor an empty formality. The letter and spirit of the scheme/SOP is paramount as it touches upon valuable constitutional and fundamental rights.

The State was directed to publicize the Scheme/SOP and ensure that it is adhered throughout the State of Uttar Pradesh. State has to make sure that the Scheme/SOP is spread wide across the Police Stations, Hospitals, Primary Health Centers, District Headquarters, Tehsil, Collectorate, etc. so that the Stakeholders are aware of these Scheme/SOP after being notified.

The State applauded the efforts of amicus curiae and officials of the State for coming up with such Scheme/SOP so that in future such disputes and complications do not arise.

[Suo-Moto Inre Right To Decent And Dignified Last Rites/Cremat v. State of U.P.,  2022 SCC OnLine All 527, decided on 05-08-2022]

Advocates who appeared in this case :

Abhinav Bhattacharya, Ajit Singh, Anjani Kumar Mishra, Ashish Kumar Agarwal, Atul K. Singh, Atul Kumar Singh, Digvijay Singh Yadav, Jaideep Narain Mathur (Ac, Nadeem Murtaza, Onkar Singh,Pradeep Kumar Singh, Seema Kushwaha, Sharad Bhatnagar, Advocates, Counsel for the Petitioner;

C.S.C.,A. S, G., Anurag Kumar Singh, Ashok Shukla, Dr. Ravi Kumar Mishra, Manjusha, Pranjal Krishna, Satyaveer Singh, Advocates, Counsel for the Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Rajesh Bindal, CJ. and J.J. Munir, J. had taken note of a news item published in a newspaper on 24-05-2022 regarding cleaning of drains in the city where the workers were carrying out their job without any protective gears, this petition was registered in public interest.

In various submitted affidavits certain photographs were placed on record along with the application dated 07-06-2022 showing the manner in which the drains were still being cleaned. The Court took cognizance of the submissions and found that it is evident that no protective gears have been provided to the workers and they were still waist deep under the water for cleaning of drains. The Court further observed that some of the drains were in open areas but still no machines were being used for cleaning of the drains, though it is claimed that Nagar Nigam has number of machines available, which are being used for cleaning of drains.

The Court summoned the District Magistrate and Nagar Ayukt, Prayagraj on 25-07-2022 taking note that the affidavit which was filed by Upper Nagar Ayukt on 13-06-2022 had no response to the aforesaid factual position placed on record by the Amicus Curiae appointed by this Court.

[In Re Ensuring The Security of Life and Safety of Health of the Workmen and Employees Engaged v. Government of U.P., 2022 SCC OnLine All 475, decided on 12-07-2022]

Advocates who appeared in this case :

Mr Kunal Shah, Amicus Curiae, Advocate, for the Petitioner;

Mr Manish Goel Additional Advocate General for the State and Mr Vibhu Rai, Advocate for Nagar Nigam, for the Respondent.

*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Devendra Kumar Upadhyaya and Rajnish Kumar, JJ. took cognizance of the PIL which was admitted by the previous order of the Court dated 07-04-2022 which was necessitated on account of the incident reported in the newspapers where some stray dogs not only attacked but killed a boy of very tender age and seriously injured his sister.

The Court had also directed the Chief Medical Officer to provide all medical assistance to the girl by keeping her admitted for treatment in King George Medical University. This Court had further directed that all possible medical treatment shall be given to the injured girl child without any charges. The Court appreciated the efforts of Chief Medical Officer, Lucknow and the Registrar and the Vice Chancellor of KGMU for the same.

The Court in the current hearing called upon Lucknow Nagar Nigam to file separate affidavits as to the legal position and compliance thereof by Nagar Nigam for ensuring the safety of street dogs after an application seeking intervention has been moved by Sri Kamal Sharma through Sri Amal Rastogi regarding the welfare of the animals.

In pursuance to the previous order wherein the Court had asked Additional Advocate General to apprise the District Magistrate, Lucknow about the incident and also to seek instructions as to how the family of the deceased boy child can be monetarily compensated on account of his tragic death in the incident, a letter was produced stating that sanction has been accorded to provide a sum of Rs.1,50,000/- to the family members of the deceased child from Lucknow Rifle Club. However, advocate appearing on behalf of the family members of the deceased child, Mohd. Kumail Haider argued that it is not in dispute that a human life has been lost in a horrifying incident which prima facie occurred on account of negligence in discharge of its duties by Nagar Nigam. If State or any of its instrumentalities fails to discharge its statutory or otherwise obligations and duties which becomes the cause of loss of human life, though such life cannot be compensated in any terms including in terms of money, however, surviving family members of the deceased are necessarily to be provided some solace by way of monetary compensation or otherwise.

The Court considering the argument directed the Lucknow Nagar Nigam to file an affidavit stating as to why adequate compensation of Rs. 10,00,000/- may not be awarded to the family of the deceased child. The Court also requested the amicus curiae Vijay Dixit, Abhishek Pratap and Mohit Pandey to give a written brief as to why and under what provision of law the family members of the deceased child can be compensated monetarily.

The matter is again listed for further hearing on 30-08-2022.

[Suo-Moto In Re- Menace Created By Stray Dogs v. State of U.P., 2022 SCC OnLine All 473, decided on 08-07-2022]

*Suchita Shukla, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: A Division Bench of R Mahadevan and J Sathya Narayan Prasad, JJ. upheld the constitutional validity of Government Order ‘GO (Ms) No. 83′ issued by the Social Welfare and Nutritious Meal Programme Department under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘Act’) and Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 (‘Rules’) safeguarding the interests of elderly and senior citizens.

An instant batch of petitions was filed seeking validity of the Government Order ‘GO (Ms) No. 83 dated 23-11-2016 and seeking implementation of the same.

Validity of Government Order

The Court observed that the impugned Government Order would not fall within the provisions of the Act as the provisions of the Act are clearly and unambiguously silent about the establishment, administration or management of old-age homes by the private individuals or entities or even of their supervision by the State Government in any manner.

Placing reliance on Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501 and observed that once the State Government has the legislative power on a subject, the executive power of the State is also co-extensive with that. Thus, the State has the executive power under Article 162 to issue any executive instruction/order with respect to privately managed old age homes.

The Court thus held that the power of the State to issue an executive order in respect of privately managed old age homes, to which the impugned G.O. does not make any contrary provision rather supports the existing legislative provisions, thus, the impugned G.O. is constitutionally valid and there are no grounds to interfere with the same. The desirability or otherwise to pass legislation to incorporate the management of privately managed and owned old-age homes by the State Government is a matter to be left to the legislature.

Violation of Article 19 (1) (g) Constitution of India

A four-limb test was propounded in judgment Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, wherein doctrine of proportionality in the context of Article 19 (1) (g) was tested. It is as follows:

  1. The restriction must be in pursuance of legitimate state aim
  2. Rational nexus between the restricting measures, facts and objects sought to be achieved.
  3. The necessity of the measure to achieve the said aim, i.e., it should be a least restrictive measure

  4. Balancing of competing interests i.e., balancing the right under Article 19(1)(g) and the social control/restriction imposed on the same.

Thus, in view of the test laid above, the Court observed that the Societies and Trusts managing these private retirement homes must work in tandem with the State Government in order that the quality of life of the senior citizens is elevated to the desired level. Therefore, the restrictions imposed by the impugned order cannot be said to be violative of Article 19(1)(g) Constitution of India.

Violation of provisions of Real Estate (Regulation and Development) Act, 2016 (‘RERA’)

Reliance was further placed on Forum for People’s Collective Efforts v. State of West Bengal, (2021) 8 SCC 599 and observed that the effect of sections 88 and 89 of the RERA is that all laws that are not inconsistent with the RERA will continue to operate in their own sphere, while the ones that are inconsistent will not prevail over the RERA. The same principle would be applicable to the impugned G.O. as well. As long as it is not repugnant to any of the statutory provisions, there can be no inconsistency between the impugned G.O. and the provisions of the RERA Act. Also, as already stated, the RERA does not preclude the application of other laws unless they are inconsistent with the RERA.

Thus, the Court held that “the provisions of the RERA Act and the impugned G.O. must be batch mutually exclusive to be valid. They must be read harmoniously as the object of the laws are obviously different and have been made pursuant to different fields of legislation, with no apparent conflict or repugnancy between the two”.

Doctrine of Parens Patriae and Welfare of Senior Citizens

Placing reliance on Ashwani Kumar v. Union of India, (2019) 2 SCC 636 the Court noted that the State Government may also do well in plugging the loopholes that have been pointed out by the writ petitioners and come up with further clarifications and details and also examine the desirability of incorporating certain provisions by way of legislation that will have greater force in law.

The Court thus concluded by issuing the following guidelines:

  1. The State Government shall take steps to inspect all old age homes within the State and ensure implementation of the spirit of the impugned GO, which has now been upheld.
  2. After inspection, the State Government may issue directives to be complied with, and deficiencies, if any, to be rectified by the old age homes/retirement homes in order to comply with the spirit of the Government Order as well as the orders passed herein. The State Government shall take steps to monitor the day-to-day functioning of the batch homes, with more focus on nutrition, hygiene and medical needs of inmates, such as food, round the clock security, clean drinking water, ambulance services, medical care, amusement and entertainment, religious activities, etc., to suit their needs.
  3. The non-compliance of the directives/non-rectification of the deficiencies as pointed out, must entail civil consequences for the retirement homes/old age homes, including cancellation of registration.
  4. The State Government must ensure that every old age home/retirement home within the State is registered with it and the Government must maintain records of its inmates as well as the persons involved in the Management.
  5. The State Government must ensure that non-registered homes do not continue to function within the State and must act on any complaint by any person in this regard, after necessary inspection.
  6. The State Government must maintain a grievance cell for senior citizens, while ensuring compliance of the Government Order, now being upheld. (The term “State Government” employed in the above guidelines shall include any authorized representative or officer of the Government).

  7. It is only appropriate that the substance of the impugned executive order may be well made part of a legislation either independently or as an addition to the existing legislation on the subject with more clarity in order that no further time is wasted on debating the validity and applicability of the welfare measures to senior citizens and old age homes/retirement homes, etc. on a universal scale.

[S Krishnamurthy v. Manivasan, 2022 SCC OnLine Mad 3525, decided on 30-06-2022]

Advocates who appeared in this case :

Mr. J. Narayanasamy, Advocate, for the Petitioner Cont. P. No. 515 of 2018;

Mr. S. Arokia Maniraj, Advocate, for the Petitioner in WP No. 16984 of 2017;

Mr. N.L. Rajah, Senior Counsel for Mr. K.R. Arun Shabari, Advocates, for the Petitioner in WP Nos. 30458, 30469, 30874, 30884 of 2019;

Mr. V. Arun assisted by Mr. P. Balathandayutham, Advocate, for the Respondents;

Mrs. Aparna Nandakumar, Advocate, for R4 in WP No. 16984 of 2017;

Mr. N.L. Rajah, Senior Counsel for Mr. K.R. Arun Shabari, Advocates, for R5 in Suo motu WP No. 28237 of 2017;

Mr. C.G. Kumar, Advocate, for R5 in WP.No.16984 of 2017.

*Arunima Bose, Editorial Assistant has reported this brief.

Canada SC
Case BriefsForeign Courts

Canada Supreme Court: A full bench comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer, and Jamal JJ unanimously upheld the framework laid down in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 and stated that in cases wherein constitutionality of the law is challenged by Public Interest Organization on behalf of community members or marginalized groups who lack money, status, and privileged access to justice, the Court should adopt a flexible and discretionary approach to public interest standing. Therefore, it was held that the Council of Canadians with Disabilities (hereinafter The Council) meets the test for public interest standing and can continue the lawsuit.

Facts and Contentions of the case

In 2016, The Council and two individuals challenged the constitutionality of British Columbia’s mental health legislation. The law allows doctors to administer psychiatric treatment to patients with mental disabilities without their consent or the consent of someone else on their behalf. It was submitted before the Court that such treatment without their consent violates sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms. Section 7 guarantees everyone the right to life, liberty, and security of the person and Section 15(1) guarantees everyone has the right to be treated equally without discrimination, including based on mental or physical disability.

In 2017, the two individuals withdrew their case, leaving the Council as the only plaintiff. Therefore, the Council pleaded that it should be granted the status of public interest standing and allowed to continue the lawsuit. The trial court held that the Council cannot be granted the status of public interest standing.

Observations made by the Court

The bench made the following observation while writing the unanimous judgment:

  • The decision to grant or deny public interest standing is discretionary. The Downtown Eastside framework mandates that in exercising its discretion, a court must assess and weigh three factors: (i) whether the case raises a serious justiciable issue; (ii) whether the party bringing the action has a genuine interest in the matter; and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court.
  • Courts must consider the purpose that justifies grantingstanding in their analyses and is giving effect to the principle of legality, therefore, ensuring access to justice. The goal in every case is to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it.
  • There cannot be a rule of law without access, otherwise, the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice. Access to justice is symbiotically linked to public interest standing: it provides an avenue to litigate the legality of government action despite of social, economic, or psychological barriers which may preclude individuals from pursuing their legal rights.
  • Courts may consider the plaintiff’s capacity to bring the claim forward, whether the case is of public interest, whether there are alternative means to bring the claim forward, and the potential impact of the proceedings on others. To evaluate capacity, courts should examine the plaintiff’s resources, expertise, and whether the issue will be presented in a sufficiently concrete and well‑developed factual setting. Though courts cannot decide constitutional issues in a factual vacuum, public interest litigation may proceed without a directly affected plaintiff.
  • A strict requirement for a directly affected plaintiff would pose obstacles to access to justice and would undermine the principle of legality. It would also raise procedural hurdles that would deplete judicial resources. The participation of directly affected litigants is accordingly not a separate legal and evidentiary hurdle in the discretionary balancing.

Based upon the aforementioned observations, the Bench unanimously held that the Council meets the three-part test for public interest standing. Firstly, it raises an important issue: the Charter rights of people with mental disabilities. Secondly, the Council has a genuine interest in the challenges faced by people with mental disabilities. Thirdly, its claim is a reasonable and effective way to bring the matter before the courts. In the light of this conclusion, Chief Justice Richard Wagner said that

“The granting of public interest standing in this case “will promote access to justice for a disadvantaged group who has historically faced serious barriers to bringing such litigation before the courts”

[British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC OnLine Can SC 2, decided on-23-06-2022]

Meghalaya High Court
Case BriefsHigh Courts

Meghalaya High Court : The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. took cognizance of a petition in relation to the current health-care system. 

The State mentions the project funded by the World Bank in association with the Ministry of External Affairs that could see a sum of Rs. 371 crore invested in the State over a period of five years to augment the health-care system  acknowledging  that a lot more needs to be done to improve the health-care system. A report was brought on record revealing that smoking and drinking is the highest in the country in the North-East. Yet, there is no dedicated cancer hospital in the State. Though a cancer unit has been set up at the Civil Hospital in Shillong but it still does not have adequate equipment. It was pointed out that there are no facilities for conducting biopsy in the State however the State controverts saying that two units have been set up recently in Tura and in Shillong which are capable of cancer diagnosis. 

The Court agreed that a lot more needs to be done to improve the health-care facilities in the State and it is just not acceptable that after 75 years of independence the facilities would be as primitive as they are now. There is no doubt that funds are essential, but the lack of funds cannot be an excuse to perpetuate the lack of rudimentary medical facilities.

There has to be an almost revolutionary improvement in the facilities to bring it at par with what is generally available in the rest of the country. Funds have to be found and extraordinary attempts have to be made for such purpose.

The Court also believed that apart from better facilities being created, awareness drives need to be undertaken, particularly in the rural areas so that certain common bad practices are eradicated in due course. 

The matter is to be taken up on 13-07-2022. 

[In Re suo motu cognizance of deficiencies in health services in the State of Meghalaya v. Union of India, PIL No. 3 of 2016, order dated: 09-06-2022] 

Appearance:  

For the Petitioners : Mr C.C.T. Sangma, Adv.  

For the Respondents : Mr A. Kumar, Advocate-General with Mr S. Sengupta, Addl. Sr. GA Ms R. Colney, GA Mr K. Paul, Sr. Adv. with Ms R. Dutta  

Appearance in MC (PIL) No. 3 of 2017:  

For the Applicant : In person  

For the Respondent : Mr K. Paul, Sr. Adv. with Ms R. Dutta 

*Suchita Shukla, Editorial Assistant has reported this brief. 

Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ. and W. Diengdoh, J. took up a petition on a matter pertaining to the piling-up of garbage in the town of Jowai. The petition was filed on 12-04-2022 complaining of household waste and general garbage not being collected in the Jowai urban township area from 04-02-2022. The Court had served the respondents served immediately and informed that the matter will appear a week hence for a preliminary hearing and appropriate directions on 20-04-2022.

The Board had filed an application wherein it was indicated that in March, 2021, an NGO by the name of Khasi Students’ Union (KSU) of Moopyut village along with six other villages – Pynthor Langtein, Umsalang, Shhen Pyrsit, Moopyut Madan Tyrpait, Moosakhia and Sohmynting – attempted to close the dumping site at Mynkjai. Though an agreement was entered into for temporary dumping at the site for three months, since no alternative dumping site had been identified by the task force constituted by the Urban Affairs Department of the State along with the Jowai Municipal Board, the collection of garbage has altogether come to a standstill.

The Court was disturbed to notice that in such a serious menace of garbage piling up in one of the major towns in the State, something that may lead to disease and disaster, and the State administration seeks only to play the fiddle. The State of Meghalaya, as in most other cases, washes its hands off and says that it had no role to play in civic affairs.

On 20-04-2022 with the hope that the matter receives the urgent attention at the highest quarters the Khasi Students’ Union of Moopyut village along with the headmen of Moopyut village and the six other villages above named were added as parties. The Court directed the State administration and the District Council to meet at the highest level in course of the day to try and suggest an immediate remedy so that the garbage can be collected and Jowai town cleaned, if only to ensure that major diseases do not break out, particularly water-borne diseases since it had been raining continuously for the past several days. Matter was listed on 22-04-2022

On 22-04-2022, the State and the local bodies informed the Court  that a temporary site for dumping has been identified and the lifting of the garbage in Jowai town has commenced. According to the local municipal board, the main streets have been cleared and it is expected that the garbage from the market places will be cleared in the course of the weekend.

The Court was convinced that no immediate order was required after all the concerned, including the State, appeared to have looked into the matter and meetings have been held to identify an alternative dumping site.

The matter was further listed to 15-05-2022 directing the State Government to ensure that the Solid Waste Management Rules, 2016 notified by the Central Government in exercise of its authority under the Environment (Protection) Act, 1986 was implemented as expeditiously as possible by creating bodies and infrastructure in terms therewith.[Synjuk Ki Waheh Shnong Jowai v. State of Meghalaya, PIL No. 6 of 2022, order dated 22-04-2022]

For the Petitioners : Mr L. Khyriem

For the Respondents: Mr B. Bhattacharjee, AAG with Ms R. Colney, GA, Mr P. Nongbri, Mr Philemon Nongbri, Mr P. Yobin, Mr R. Majaw

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Biswanath Somadder and Meenakshi Madan Rai, JJ. took up the PIL in order the peruse the status report concerned with the damaged roads and highways in the State.

The Court was informed that repairing of the damaged road (NH–10) had been entrusted to several private agencies from point to point, between Sevoke, West Bengal and Rangpo, Sikkim. However, while repair work in some sections were progressing satisfactorily, progress of work was abysmally slow at certain points. The Court showed concern about the fact that with this year’s monsoons around the corner – the entire condition of the existing road (NH–10) between Sevoke, West Bengal and Rangpo, Sikkim, will be back to square one if pace of the work would continued be slow.

The Court therefore directed the concerned authority of the State of West Bengal to ensure immediate escalation of progress of work of repairing of National Highway-10, especially in those areas where progress has been abysmally slow along with filing a fresh status report on the next date.

The Court further noticed from the report that for emergency repair and maintenance of National Highway-10 (between Sevoke, West Bengal and Rangpo, Sikkim), the State had received a sum of Rs.8.22 crores during the financial year ending 31st March, 2022. However, due to the nature of extensive damage caused by several landslides and floods – especially during the post monsoon period last year –some additional funds (to the tune of approximately Rs.11.00 crores) has been estimated by the concerned PWD authority for the purpose of executing emergency repair and maintenance work of the relevant stretch of National Highway-10. The Court consequently requested the Secretary, Ministry of Surface Transport, Department of Road Transport and Highways, Government of India, to consider release of additional funds, as indicated in the Chief Engineer’s affidavit, in order to ensure that emergency repair and maintenance work of National Highway-10 does not get stalled due to paucity of funds along with a specific report of the same.

The Court considering the fact that this year’s monsoons were around the corner directed all the concerned authorities/stakeholders – who were parties in the instant Public Interest Litigation – to be present (or be represented) in a meeting which shall be held at 12.00 noon on 06th May, 2022, at the Conference Hall of this Court in order to chalk out the immediate course of action to ensure completion of emergency repair and maintenance of National Highway-10, before this year’s monsoons take a toll on National Highway-10, the main arterial road connecting Sikkim with rest of the country.

Next hearing is due on 10-05-2022.[Court on Suo Motu v. Secretary, Ministry of Surface Transport, 2022 SCC OnLine Sikk 39, decided on 26-04-2022]

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ. and H.S. Thangkhiew, J. continued hearing a PIL pursuant to the order dated March 31, 2022, wherein an executive summary of the more detailed report filed earlier had been submitted and the particulars of the persons who have died in custody from 2012 have apparently been indicated in tabular form.

The Bench noted that there appeared to be no death in year 2012 and the State should again confirm the same. Amicus Curiae pointed out that several of the names indicated in the table just furnished by the State do not figure in the earlier reports. The Court found it necessary that the heirs of such persons whose names have been disclosed as persons who died in custody for the first time today, should be impleaded as parties. The Court directed that the State should furnish the particulars of such heirs so that they may be impleaded in the present proceedings and, upon due compensation being decided, the rightful persons may obtain the same.

The Amicus Curiae brought the attention of the Court to the fact that an affidavit affirmed on February 26, 2018, by the then Under Secretary to the State, the office of the Director of Health Services (MI) indicated the names of five persons who had suffered custodial death in the years 2013 and 2014, though the year of death of the fifth person was not indicated in the table appended to the relevant affidavit; but these names do not figure in the voluminous particulars filed on behalf of the State now. Such five names have also not been included in the table appended to the executive summary, though the affidavit in support thereof claims the table to be the exhaustive list of persons who have died in custody in the State since 2012.

The Court directed that a further affidavit should be filed by the Inspector-General of Prisons indicating the complete list of persons who have died in custody since 2012 also confirming that there has been no custodial death other than those indicated in such affidavit so that if any anomaly is found or any further name discovered, appropriate action may be taken against the Inspector-General. The matter is due for hearing on 02-05-2022.[Suo motu custodial  violence & other matters relating to prison conditions v. State of Meghalaya, PIL No. 9 of 2017, order dated: 13-04-2022]

For the Petitioner: Dr. N. Mozika, Amicus Curiae

For the Respondents: Mr K. Khan, Sr. GA with Mr A. Kharwanlang, GA, Mr S.A. Sheikh, Ms P. Agarwal,  Mr S. Deb

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Farjand Ali J and Sandeep Mehta JJ.  directed that as and when the gypsum mining operations are opened in Sriganganagar and Hanumangarh districts, the petitioners shall not be entitled to apply for mining licenses for this purpose in either of these two districts.

The instant writ petition in the nature of public interest litigation seeking to initiate the process of filing application form and allotment of permit for the mining of gypsum in the districts Shriganganagar and Haumangarh along with the other districts of Rajasthan.

Counsel for petitioner submitted that on account of exclusion of Sriganganagar and Hanumangarh districts from grant of mining permits, a financial setback has been caused to the districts. Residents of the districts will be deprived from earning livelihood and as such, the impugned order deserves to be quashed

The Court observed that the Department of Mines and Petroleum, Government of Rajasthan received grave complaints regarding illegal mining of gypsum on the strength of the old permits from government lands, forest lands and private lands and as a consequence, vide an order it was decided to withhold grant of mining permits in these two districts subject to an inquiry.

The Court further remarked that the right to carry on mining operations is not a vested right of any citizen. The State Government has absolute dominion to decide as to the areas and manner in which the mining permits will be granted.

The Court finally observed that due to complaints received, the respondents were under a lawful obligation to defer any such activity which amounted to illegal mining. For curbing the illegal mining activities, the respondents decided to hold an inquiry and till the conclusion thereof, it was resolved not to grant mining permits in the two districts. The decision so taken was not in the nature of permanent exclusion and is contingent to the conclusion of the inquiry.

The Court thus held “we are of the firm view that the writ petition does not involve any public interest whatsoever.

….The respondents acted well within their rights and jurisdiction while provisionally withholding gypsum mining license in these two districts. It can be expected that as and when the situation improves and the illegal mining operations are detected and dealt with, the respondents would review the decision to not to issue mining licenses in these two districts.” [Kamalkant v. State of Rajasthan, D.B. Civil Writ Petition No. 4928/2022, decided on 08-04-2022]

Appearances:

For Petitioner(s): Mr. Rajak Khan and Mr. N.L. Joshi

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Biswanath Somadder, CJ. and Meenakshi Madan Rai, J. issued certain directions in the matter of a PIL concerning missing children in the State.

In the earlier hearing, the Bench had ordered the concerned State authorities, through the Additional Advocate General, to complete the process of installation of CCTV cameras in the remaining seven (7) Police Stations and report compliance on the next date. The Court found that the State authorities have complied with the directions of this Court insofar as installation of Closed Circuit Television (CCTV) cameras in the Police Stations and also in the Check-Posts within the State of Sikkim.

Coming to the main issue the Additional Advocate General informed the Court that there were at present thirteen (13) missing children and the concerned State authorities were taking steps to trace them out. Amicus – on the other hand – submitted that the concerned authority of the State was required to furnish quarterly reports to the State Legal Services Authority of Sikkim in compliance with the directions of the Supreme Court.

The Court issued the following directions keeping in mind the facts and circumstances of the instant case:

(i) The concerned authority/authorities of the State shall trace out the thirteen (13) missing children as expeditiously as possible and positively within a reasonable timeframe;

(ii) The concerned authority/authorities of the State shall file quarterly reports with the office of the State Legal Services Authority of Sikkim with regard to the status of investigation regarding the thirteen (13) missing children and the steps being taken in order to trace them out. Apart from this, the quarterly reports shall also give full details of any incident of any child going missing in the days to come for which immediate action shall be initiated by the concerned State authority/authorities in accordance with law. We make it clear that even if the missing children are traced, that should not be the culmination of investigation. The process of finding out as to why they actually went missing shall continue till the concerned authority of the State is clearly able to establish the actual reason thereof.

(iii) At any time, in future, if the learned Amicus Curiae is of the opinion that this Court’s jurisdiction in respect of missing children is required to be invoked again, he is at liberty to do so.

[Missing Children, In Re., 2022 SCC OnLine Sikk 27, decided on 07-04-2022]

For Petitioner : Mr Tashi Rapten Barfungpa, Amicus Curiae, Mr Hem Lall Manger

For Respondents 1-7 : Mr Sudesh Joshi, Addl. Advocate General, Mr Thinlay Dorjee Bhutia, Govt. Advocate, Mr Yadev Sharma, Govt. Advocate, Mr Sujan Sunwar, Asst. Govt. Advocate

For Respondent 8 : Mr N. Rai, Sr. Advocate, Ms Tara Devi Chettri

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs

Rajasthan High Court: A Division Bench of Manindra Mohan Srivastava, CJ and Madan Gopal Vyas, J., dismissed the petition and directed the authorities that buses will only stand at the places earmarked.

The instant PIL was filed praying that instead of making operational bus-stand at the place donated by the petitioner, as per decision already taken, buses are operating from the main road seriously affecting the movement of the vehicles and also giving rise to apprehension of the accidents.

A compliance report was submitted stating that the bus-stand has now been made operational from the land given by way of donation by the petitioner, situated at village Shiv, District Barmer

The Court observed and held that as the bus-stand at the located place has become operational, “we are inclined to dispose off this PIL at this stage. The respondent authorities are, however, directed to ensure that no place other than the place earmarked for the bus-stand is allowed for standing buses and picking up or dropping the passengers.”

[Loonkaran v. State of Rajasthan, D.B. Civil Writ Petition No. 13700/2020, decided on 07-03-2022]

For Petitioner(s): Mr. Amit Vyas

For Respondent(s): Mr. Sunil Beniwal with Mr. Saransh Vij, Mr. G.R. Kalla, Mr. Harshit Bhurani

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Akil Kureshi, CJ and Rekha Borana, J. dismissed the petition and kept it open for the petitioners to file a fresh public interest petition.

A PIL was filed by the petitioners sustaining serious allegations with respect to mismanagement of respondent 2 Arth Credit Cooperative Society.

The Court observed that in this public interest petition as it stands today, there are no supporting documents or informative evidence, even prima facie sustaining serious allegations made by the petitioners with respect to mismanagement of the respondent 2 Arth Credit Cooperative Society.

The Court further observed that a citizen approaching the Court in a public interest jurisdiction holds a greater duty to make full research and present necessary facts before the Court to cause further investigation.

The Court thus held “we are not inclined to entertain this petition.”[Gajendra Purbia v. Union of India, D.B. Civil Writ Petition (PIL) No. 3069/2022, decided on 02-03-2022]

Appearances:

For Petitioner(s): Mr. Sumit Singhal

Arunima Bose, Editorial Assistant has reported this brief.

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

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: The Division Bench of S.G. Chattopadhyay and Indrajit Mahanty, JJ., took up a PIL which was filed on the basis of press reports that in the Sukhsagar water body of Udaipur, Khilpara, large number of migratory birds of more than 1000 in numbers were found dead. Notices were issued and following the directions of this Court a report had come to be filed by the State wherein the State had taken note of the fact that many migratory birds come and find sanctuary in water bodies in the State of Tripura and they come all the way from Spain, Portugal, South East France, Italy and North Western Africa and have all been listed as “Rare” birds by the European Union, but it seems that the same has been detailed as localized by the State.

The Court from the report also found that by the time the inquiry committee went to visit the local area, they could find no carcasses of the migratory birds which itself was a matter of concern. Important to note that no postmortem either of migratory birds or of local birds found dead has been in fact conducted. Report further indicated that some of the migratory birds were subject matter of target killing ‘Man Animal Conflict’.

The Court was of the view that State should constitute a committee of responsible officers who shall supervise all such wetlands in the State of Tripura and in particular, the farming that is being done in the nearby areas and to try and encourage the local farmers to convert to organic farming as being promoted by the Government of India instead of using pesticides and/or chemicals. This committee should also include scientists and representatives of the Agriculture Department.

The Court directed the committee to inspect all large areas of wetlands in the State of Tripura, ascertain the challenges that need to be addressed and submit a report before the Government for necessary action.[Kawsik Nath v. State of Tripura, 2022 SCC OnLine Tri 106, decided on 22-02-2022]

For Petitioner(s): Mr P. Roy Barman, Sr. Advocate, Mr Samarjit Bhattacharjee, Ms A. Debbarma

For Respondent(s): Mr Debalay Bhattacharjee, G.A., Mr S. Saha

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court of India: While deliberating on the instant appeals expressing grievance over the judgment of Andhra Pradesh HC (Amravati) wherein it had directed the authorities concerned to conduct a re-auction of the entire properties by fixing the upset price higher than what has been fixed earlier, the Division Bench of M.R. Shah* and B.V. Nagrathna, JJ., held that unless there is concrete material and it is established that there was any fraud and/or collusion or the land in question was sold at a throw away price, the sale pursuant to the public auction cannot be set aside at the instance of strangers to the auction proceeding.

Facts and Litigation Trajectory

As per the facts of the case, a proposal was published by the office of Commissioner, Endowments Department to auction the land in question belonging to Sri Markendaya and Omkareswara Swamy Devasthanam, Eluru, which was published in the newspaper on 10.03.1997. Notification to sell the subject land was published in the Andhra Pradesh Gazette on 22.05.1997. Nobody raised any objection against the said proposal. The probable expected price of the land was fixed at Rs. 4,00,000/- per acre and the total extent of land was about 1.81 acre. The Commissioner of Endowments Department granted permission to sell the land. The Executive Officer of the Temple Trust issued tender/public notice to sell the land in question by way of an open auction in the presence of the Deputy Commissioner, Endowments on 22.05.1998. Thereafter the auction took place on 24.06.1998 in which 45 people participated. The appellant herein was declared as the highest bidder.

One L. Kantha Rao, who did not participate in the auction held on 24.06.1998, filed a Writ Petition in 1999 before the High Court to direct the Executive Officer/ the Temple Committee not to execute the sale deed in respect of the auctioned land. The High Court granted interim stay of all further proceedings subject to the condition that he furnishes a bank guarantee of a sum of Rs.30 lakhs within two weeks from the date of the said interim order. During the pendency of the aforesaid writ petition the office of the Commissioner, Endowments Department unilaterally passed an order dated 10.02.1999 cancelling the auction held on 24.06.1998. The Executive Officer of the Temple was instructed to conduct a re-auction for the land in question keeping the upset price of Rs.30 lakhs. The matter reached the High Court and it observed that while Commissioner had revoked the order dated 10.02.1999, the revision filed against the same had become infructuous, however, liberty was granted to the said L. Kantha Rao to file a revision against the original order passed by the Commissioner.

Then on the basis of the liberty granted by the High Court, the said Shri L. Kantha Rao filed a revision before the Government challenging the order dated 22.12.1998 although he was not a participant in the auction in which appellant herein was declared the highest bidder. The said revision was allowed thereby quashing and setting aside the order dated 22.12.1998 and directing the Commissioner to refund the amount paid by the appellant and to conduct a re-auction of the land.

The appellant filed a writ in before the Single Judge bench of the HC who decided that Kantha Rao had not locus standi. He did not participate in the tender-cum-auction and when 45 persons participated in tender-cum-auction, nothing prevented him to participate in tender-cum- auction proceedings.

“Mere depositing the money saying that the amount would fetch more is of no argument that can be looked into without establishing malafides or fraud played by the vendor or vendee”.

The Division Bench of the HC set aside the judgment and order passed by the learned Single Judge and directed the authorities concerned to conduct the re-auction of the entire land by fixing the upset price higher than what had been fixed earlier by observing that since more than twenty years had elapsed from the date of issuance of GO Rt. No. 1808 dated 26.11.1999 and price of the land in question had risen. The Division Bench also observed that the writ petitioner as well as the appellant shall also be allowed to participate in the re-auction, if they are otherwise eligible.

Contentions

Harin P. Raval, appearing on behalf of the appellant, contended that the Division Bench of the HC has committed a grave error in setting aside the 1998 auction and ordering a re-auction, as the decision was reached by an improper appreciation of the facts. he also contended that the auction sale was conducted after wide publicity in the well-known newspapers, so there was no illegality in conducting the auction, therefore, the Division Bench of the High Court ought not to have set aside such a sale after a period of approximately twenty years from the date of conducting the public auction and the sale that too at the instance of a person, who never participated in the auction. Since the respondent did not even participate in the 1998 auction, therefore he does not have any locus.

The Division Bench of the High Court did not properly appreciated the fact that the proceedings initiated by L. Kantha Rao were by way of  PIL and therefore after his death, his wife could not have continued the PIL proceedings by way of writ petition before the High Court as a private litigation.

The counsels for the respondents argued that the duty of the State is parens partriae in respect of the charitable endowments and to ensure its due protection, therefore the Government cannot act against the interest of the temple. Thus the re-auction was justified if in case of a trust, the consideration is inadequate. They argued that the court should always keep the larger interest of the public in mind while interfering with the decision of the authority. Further, the concept of locus standi has been widened by this Court while dealing with matters of public interest. It is the duty of the Court to see that the price fetched is adequate.

Observations

Upon perusing the facts and the rival contentions, the Court observed that the Division Bench of the HC failed to appreciate and consider the lack of bonafides of L. Kantha Rao. Noting that since Rao did not participate in the 1998 auction proceedings or made any offer, the Court stated that he should not have been permitted to to raise any objection subsequently on the valuation.

“Once the appellant was found to be the highest bidder in a public auction in which 45 persons had participated and thereafter when the sale was confirmed in his favour and even the sale deed was executed, unless and until it was found that there was any material irregularity or illegality in holding the public auction and/or auction/sale was vitiated by any fraud or collusion, it is not open to set aside the auction or sale in favour of a highest bidder on the basis of some representations made by third parties, who did not even participate in the auction proceedings and did not make any offer”.

The Court further noted that Kantha Rao did not raise any objection at an appropriate stage or time, therefore is unlikely that he had any grievance vis-a-vis the auction. The Court also pointed out the failure of the Division Bench to not analyze the covert method applied by a fence sitter to nullify the auction proceedings via filing a PIL. The Court noted that the “subsequent lucrative offer” for the land was made simply to frustrate the auction proceedings with malafide intent-

“if there was any error in the decision-making process adopted by the authority, the remedy available was to question the sale deed in an appropriate proceeding available under the law and not by filing a petition under Article 226 of the Constitution of India”.

Finally the Court observed that more than 23 years have passed since the auction and the sale, hence it is obvious that the value of the land won’t be the same as it was in 1998. Therefore the point of consideration is the “value of the property at the time when the sale was conducted”. The Court pointed out that the respondents could not point out with any material that price offered by the appellant in the year 1998 was not a fair value.

Conclusion

Based on the facts, the Court concluded that the auction was conducted and held in the year 1998 and was sold in favour of the appellant then on payment of the full sale consideration as per the highest bid offered by him. Therefore, the valuation as on the date of auction is the relevant consideration and not the value after so many years and over two decades after conducting the auction and confirming the sale.

The Court also set aside the impugned decision of the Division Bench and restored the decision rendered by the Single Judge Bench of the HC.

K. Kumara Gupta v. Sri Markandeya and Sri Omkareswara Swamy Temple and ors., 2022 SCC OnLine SC 196, decided on 18.02.2022

*Judgment by: Justice MR Shah

Sucheta Sarkar, Editorial Assistant has put this report together