Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal wherein substantial questions of law were raised vis-a-vis SectionS 80, CPC; the Single Judge Bench of Vinod Chatterji Koul, J., held that the language of Section 80 is very clear in stating that at the time of filing a suit, if the plaintiff can establish that there is an urgency to seek relief, then the Court on its satisfaction, may dispense off with the requirement of notice before filing a suit under Section 80.

Facts and Legal Trajectory of the case: The Chief Medical Officer, Pulwama, issued advertisement on 06-02-2012 inviting applications from eligible candidates of District Pulwama, for the posts of Female Multipurpose Health Worker (hereinafter FMPHW) for Sub Centre Amlar. The advertisement was issued under the National Rural Health Mission (NRHM). The prescribed qualification was Diploma in FMPHW and that the candidate should be resident of the locality where the Health Institution is located so as to ensure continuous presence for 24 x 7 days’ service.

In pursuance of the afore-stated advertisement, the appellant and the respondent applied for the post. The appellant was appointed on 19-05-2012 as FMPHW at Sub-Centre Amlar, Block Tral, and joined her duties on 21.05.2012. The respondent, however filed a suit seeking to declare the appellant’s appointment null and void as the officials acted in derogation to the rules and guidelines as stated in the advertisement and were under a mistaken assumption in considering Nowpora as a village. The Trial Court held that the appointment of the appellant was illegal.

Aggrieved by the decision, the appellant approached the Principal District Judge, Pulwama, who dismissed the appeal. The appellant then approached the High Court claiming that there are substantial questions of law that require the High Court’s consideration.

The Substantial Questions of Law in this case: The Court while considering the instant appeal, framed the following questions of law-

  1. Whether a suit instituted against the Government and its functionaries, in which emergency is invoked, can be maintained and continued, when no interim relief is granted in the case?
  2. Whether in terms of Section 80 (3), CPC was it mandatory for the Trial Court to return the plaint to the plaintiff, as no interim relief was granted in the case with regard to the appointment of the appellant?
  3. Whether in judging the appointment of the appellant as FMPHW, did the Trial Court introduce a criterion which is foreign to the advertisement notice as also the norms fixed by the Government?

Observations and Decision: While deliberating upon questions framed, the Court observed that Questions I and II are interconnected as they require consideration of S. 80, CPC.

  • It is provided under S. 80 of CPC that if the Court feels that there is no relief to be urgently granted, then it shall refuse to grant such leave and return the plaint. Refusal to grant relief is to be considered at the stage when a suit is sought to be filed without issuance of notice as required under S. 80, CPC. The plaint would be returned if at that stage, the Court finds that there is no urgency in the suit or in passing an urgent relief.
  • From the plain reading of S. 80 (3), CPC along with proviso attached to sub-section (3), it is clear that plaint can be returned if leave is refused. The consideration of application for a grant of temporary injunction would arise after leave is granted and notice in such application is given to the State or Government functionaries.
  • Vis-a-vis Question III, the Court observed that the local criteria for the appointment of FMPHW as per the advertisement, were at the village level. Furthermore, upon perusing the evidence recorded by the Trial Court, the Bench observed that no new criterion was introduced that was foreign to the advertisement. The High Court also pointed out that both the appellant and respondent were from the same village and fulfilled the criteria as contained in advertisement notice.
  • With the above-stated observations, the Court dismissed the appeal but allowed the appellant to make representations before official respondents if it is permissible.

[Raisa Banoo v. Shameema, 2022 SCC OnLine J&K 586, decided on 21-07-2022]

Advocates who appeared in this case :

G. A. Lone, & Mujeeb Andrabi, Advocates, for the Appellant;

Rayees Ahmad Ganaie, GA and Showkat Ali Khan, Advocates, for the Respondents.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Case BriefsHigh Courts

Calcutta High Court: Moushumi Bhattacharya, J. decided on a petition which was filed being aggrieved by a notice cancelling a provisional eligibility list and the revised scores and ranks which were made available on the website of the Board.

Writ petitioners have served as nurses in government hospitals and seek to be placed in the Trainee Reserve category in colleges offering Post-graduate and graduate degree courses. A “Trainee Reserve” seat is a coveted post since the Trainee Reserve gets full pay from the Government and is not required to take leave from service for the duration of the course.

Petitioners applied for Post Basic B.Sc. (Nursing) courses as Trainee Reserve candidates. They were aggrieved by a notice cancelling a provisional eligibility list dated 23-11-2021 and the revised scores and ranks which were made available on the website of the Board on 03-12-2021. They challenged the unilateral cancellation of the list published on 09-11-21 and the consequential change of marks and rank in the revised Rank Card without notice to the petitioners.

The affidavit of the Board indicated that the Answer Keys sent by the West Bengal University of Health Sciences were not separated in two separate parts and that the Board decided to issue the notice dated 23-11-2021 cancelling the provisional list pursuant to considering the requests of candidates who had personally approached the Board on 18-11-2021. The affidavit sought to absolve the Board of any error or latches and put the blame on the West Bengal University of Health Sciences. It also mentioned that the writ petition suffers from misjoinder and non-joinder of necessary parties since the West Bengal University of Health Sciences has not been made a party to the Writ Petition. Further, writ petitioners cannot challenge the first round of counselling after having participated in the same.

The affidavit of the State contains a statement that a technical error took place at the time of evaluation of the OMR sheets. They were compelled to cancel the provisional list on 23-11-2021 since the Board cancelled the merit list.

The Court considered the view that the petitioners were entitled to relief. It should be reiterated that the petitioners’ ranked and scores were sufficient to secure seats in the Trainee Reserve Category in the Government colleges even without the petitioners undergoing the counselling process. The respondents, particularly the West Bengal Joint Entrance Examinations Board were directed to consider the ranks and scores of the petitioners as published on 09-11-2021 before the said list was cancelled by the notice dated 23-11-2021 for placement in the available vacant seats for admission to the Post Basic Bask (Nursing) and M.Sc (Nursing) courses.[Soumi Das v. State of West Bengal, 2022 SCC OnLine Cal 401, decided on 01-03-2022]

Mr Parha Sarathi Das and Mr Hafiz Ali, Advocates for the petitioners

Mr Swapan Kumar Dutta and Mr Dipankar Das Gupta, Advocates for the State

Mr Amitava Chaudhuri, Mr Moniruzzaman, Mrs Mololeena Chaudhuri and Mr N. Roy, Advocates for WEJEEB.

Suchita Shukla, Editorial Assistant has reported this brief.

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ., and S. Kumar, J., denied to entertain an intra-court appeal against the order of a Single Judge.

Briefly stated the facts of the case was that M/s. Sunit Saw Mill in the District of Madhubani became operational in the year 1994 after getting licence under Section 7 of Bihar Saw Mills (Regulation) Act, 1990 in the name of its proprietor Suresh Thakur. The appellant claimed to have entered into an agreement with the said proprietor by which the ownership of the mill was transferred in his name on 24-12-2001 for the amount of rupees two lakhs.

The appellant had earlier challenged seniority of saw mill published by the Divisional Forest Officer, stating that he was holding valid licence for saw mill but his name had not been included before the licensing authority cum Divisional Forest Officer which was dismissed holding that the owner of Sunit Saw Mill was Suresh Thakur who had been granted licence and said saw mill was operational at specified location. The appellant had established a separate saw mill in the name of Sunit Saw Mill and was operating it without any valid licence which was illegal.

Challenging the order of the licensing authority the appellant had approached the Single Judge of the High Court. The counter affidavit filed by the State stated that appellant was not registered as saw mill owner of Sunit Saw mill rather Suresh Thakur was real owner of the Mill. The original Mill was running at Bhatsimer Rajnagar and appellant had illegally established another mill at Kaluahi in the name of Sunit Saw Mill, and was operating it without any valid licence which was illegal and for which direction has been issued to the concerned authority to take appropriate action against appellant.

The Single judge had dismissed the petition observing that whether the firm was a partnership or proprietorship was a disputed question which the petitioner would avail by way of a declaration in a proper constituted suit in consonance with declaration with regard to Sunit Saw Mill and then and only would be entitled to ask for any kind of licence at the end of the respondents.

Addressing the appeal against the order of the Single Judge, the Bench opined that there was no error or infirmity in the order. Accordingly, the Bench denied interfering with the same, hence, the appeal was dismissed. [Sunit Saw Mill v. State of Bihar, 2021 SCC OnLine Pat 2287, decided on 19-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Appellant/s: Kripa Nand Jha, Advocate

For the Respondent/s: Awanish Nandan Sinha, GP 21

Case BriefsSupreme Court

Supreme Court: After the Court was approached seeking direction to the Government to provide notified ex-gratia monitory compensation of Rs.4,00,000/- to the families of deceased who succumbed to COVID-19, the bench of Ashok Bhushan and MR Shah*, JJ has issued directions asking the National Disaster Management Authority to make uniform guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19.

According to the official figure, the pandemic has caused more than 3,85,000 deaths, the same is likely to increase further.

“… these deaths have affected the families from all classes – the rich and poor, professionals and informal workers, and traders and farmers. It has also affected the kins as well as elderly members, old parents. Many have lost the sole bread earner.”

Noticing that it is the mandatory statutory duty cast upon the National Authority under Section 12 of the Disaster Management Act, 2005 to recommend guidelines for the minimum standards of relief which shall include ex gratia assistance on account of loss of life, the Court held that,

“… not recommending any Guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic, while recommending other guidelines for the minimum standards of relief, it can be said that the National Authority has failed to perform its statutory duty cast under Section 12 and therefore a writ of mandamus is to be issued to the National Authority to recommend appropriate guidelines for ex gratia assistance on account of loss of life due to Covid-19 pandemic while recommending guidelines for the minimum standards of relief to be provided to persons affected by disaster/Covid-19 pandemic as mandatory under Section 12 of DMA 2005.”

Here are the direction issued by the Court:

1) National Disaster Management Authority to recommend guidelines for ex gratia assistance on account of loss of life to the family members of the persons who died due to Covid-19, as mandated under Section 12(iii) of DMA 2005 for the minimum standards of relief to be provided to the persons affected by disaster – Covid 19 Pandemic, over and above the guidelines already recommended for the minimum standards of relief to be provided to persons affected by Covid-19.

However, what reasonable amount to be offered towards ex gratia assistance is left to the wisdom of National Authority which may consider determining the amount taking into consideration the observations made hereinabove, such as, requirement/availability of the fund under the NDRF/SDRF for other reliefs and the priorities determined by the National Authority/Union Government and the fund required for other minimum standards of relief and fund required for prevention, preparedness, mitigation and recovery and other reliefs to carry out the obligation under DMA 2005.

This needs to be done within a period of six weeks from today;

2) The Appropriate Authority is directed to issue simplified guidelines for issuance of Death Certificates/official document stating the exact cause of death, i.e., “Death due to Covid-19”, to the family members of the deceased who died due to Covid-19.

“… it is the duty of the every authority to issue accurate/correct death certificates stating the correct and accurate cause of death, so that the family members of the deceased who died due to Covid-19 may not face any difficulty in getting the benefits of the schemes that may be declared by the Government for the death of the deceased, who died due to Covid-19. In the death certificate also, if a person has died due to Covid-19 and/or any other complications/disease due to Covid-19, it should be specifically mentioned in the death certificate.”

Such guidelines may also provide the remedy to the family members of the deceased who died due to Covid-19 for correction of the death certificate/official document issued by the appropriate authority, if they are not satisfied with the cause of death mentioned in the death certificate/official document issued by the appropriate authority; and

3) The Union of India to take appropriate steps on the recommendations made by the Finance Commission in its XVth Finance Commission Report bearing in mind paragraph 8.131 in consultation with other stakeholders and experts.

[Reepak Kansal v. Union of India, 2021 SCC OnLine SC 443, order dated 30.06.2021]

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

For Petitioner(s): Petitioner-in-person, S.B. Upadhyay, Sr. Adv., Reepak Kansal, Adv., Yadunandan Bansal, Adv., Nishant Kumar, Adv., Prince Arora, Adv., Shahnaz Rahman, Adv.,  Harisha S.R., AOR

For Respondent(s): Tushar Mehta, SG, Aishwarya Bhati, ASG, Rajat Nair, Adv., Amit Sharma, Adv., B.V. Balram Das, AOR, Chirag M. Shroff, AOR

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dinesh Singh (Presiding Member), expressed that whether, for a particular purpose, a company is a ‘consumer’, has principally to be determined by examining the facts and specificities of the case.

In the instant matter, the complainant had filed the complaint under Section 58(1) (a) read with Section 59 of the Consumer Protection Act, 2019.

11 units, comprising the entire Mezzanine Floor of Summit Business Bay Andheri, were purchased by the Complainant Co. from the Builder Co. for a total consideration of Rs 17,95,30,000.

Preliminary Issue:

Whether the Complainant Co. is a ‘consumer’ under the Act?

A Company is included in the definition of ‘person’ contained in Section 2(31)of the Consumer Protection Act, 2019, it is not per se precluded from being ‘consumer’, provided, if, for a particular purpose, it meets the requirements of ‘consumer’ as defined in Section 2(7) of the Act 2019.

Further, it was added that:

[a] ‘housing construction’ under the definition of ‘service’ in Section 2(42) cannot be construed  to include construction of a commercial complex for commercial activity; and

[b] commercial space in a commercial complex for an office of a company engaged in a business to generate profit is for ‘commercial purpose’.

Bench stated that a plain reading of Section (7)(ii) and Section 2(42) of the Act 2019 makes it clear that the Complainant Co., which has purchased commercial space for its office in a commercial complex, is not a ‘consumer’ under the Act 2019.

“…if, for a particular purpose, a company does not meet the ingredients of ‘consumer’ under the Act 2019, it will not be left remediless, it can avail of remedies available under other existing laws.”

Commission referred to the Supreme Court decision in Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers, (2020) 2 SCC 265, wherein it was decided that If, for a particular purpose, a company wants to enter the consumer protection fora, whether or not it is a ‘consumer’ has to be (reasonably and logically) adjudged in the given facts and specificities of each case (“a straight-jacket formula cannot be adopted in every case”; “The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case”).

Further while addressing the question relating to the purchase of commercial space in a commercial complex, in its own name, as its, the company’s property, its immovable capital assets, Bench stated that:

“a company creating immovable capital assets in the form of lands and buildings, in its own name, for its office, is differently placed from a company buying a car, in its own name, ‘solely or principally’ for the personal use of its Directors or employees.”

While analysing, another significant aspect that was added by the Bench was that, a company purchasing commercial space for its office in a commercial complex, is materially different from a company indemnifying its raw materials, goods in process, finished goods, plant and machinery, lands and buildings, etc., by taking insurance. In such case, the purpose is indemnification against perils, nothing per se to do ‘closely and directly’ with its profit-generating activity, the ‘dominant purpose’ is not linked with its commercial activity, as such the company straightaway falls within the meaning of ‘consumer’ in accordance with Section 2(7), without necessitating a detailed exposition.

Hence, Complainant’s case that it is a ‘consumer’ failed on its facts and on the law. Commission also observed that allowing anyone into consumer protection for has adverse ramifications:

[a] evasion of court fee in civil courts; and

[b] eroding into the time and resources of consumer protection fora, which could otherwise be better devoted to the ordinary general consumers, who straightaway fall, ex facie, in the definition of ‘consumer’ (without having to write a treatise to enable their anyhow entry into the fora).

In light of the above discussion, it was found that the complaint was not maintainable before the Commission. [Freight System (India) (P) Ltd. v. Omkar Realtors and Developers (P) Ltd., 2021 SCC OnLine NCDRC 19, decided on 25-01-2021]

Advocates for the parties:

For the Complainant: Vivek Kohli, Senior Advocate with Bharti Chawla, Advocate.

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Division bench of Sanjay Karol, CJ and S. Kumar, J., addressed two crucial issues revolving around the COVID-19 Pandemic.

Issues raised for consideration:

  • Whether guidelines of the NITI Aayog to the Chief Secretaries of the State governments are in nature of advisory communication or did it make it mandatory on the State government to engage CSOs/NGOs/voluntary organizations into the realm of relief operations?
  • Whether the civil society organizations have a right to be involved in relief operations during the times of crisis and disaster management, for ensuring the reach of relief to each needy person, especially in light of the Covid-19 response strategies issued by the international organizations, including the WHO and endorsed by the United Nations?

Advocate Parul Prasad by way of Public Interest Litigation brought to the Court’s notice the following issue:

“rights of Civil Society Organizations (CSOs) and Non-Government Organizations (NGOs) to aid and supplement the efforts of the State in providing relief to the needy during the pandemic.”

Petitioner submitted that due to the sheer size and population of the State of Bihar and continued government efforts, they were unable to reach each and every person in need.

Adding to the above, petitioner stated that in the interest of the rights of persons in need that a large number of voluntary organizations, CSOs and NGOs who were genuinely interested in helping out and were in an excellent position to assist the State Government, be engaged in the relief operations.

Petitioner prayed for the following reliefs:

  • Direction to the State of Bihar to follow directions and guidelines of the NITI Aayog for allowing representatives of the CSOs and NGOs to aid and supplement the efforts of the State in extending help for the needy during the pandemic.
  • Directions to permit the representatives of CSOs and NGOs to accompany State officials to ensure transparency in the distribution of relief materials provided by the CSOs.
  • Directions for the appointment of Nodal Officers at State and District levels to coordinate and regulate the work with CSOs & NGOs.
  • Directions to the State to ensure that arrangement of food and essential articles are made for Orphanages, Old Age Homes and Shelter Homes for the disabled, at the earliest.

NITI Aayog’s Directions: Advisory in nature

Chief Secretary of Bihar maintained that any direction by the NITI Aayog on the involvement of and taking help from CSOs were entirely advisory in nature and were only meant as a suggestion to supplement the State effort.

An explainer of Court’s opinion

  • Letter of NITI Aayog for involving CSOs and NGOs and whether it was binding on the State?

NITI Aayog acts as the quintessential platform of the Government of India to bring States to act together in the national interest, and thereby fosters Cooperative Federalism.

Role of NITI Aayog

Role of NITI Aayog is that of think tank limited to giving directions and policy inputs which means that such directions/recommendations can be acceptable to the Central Government or State Government or may not be acceptable to the Central Government or State Government.

Ground Realities of the State

Bench stated that it is inclined to accept the State’s view that has repeatedly asserted that communication or guidelines issued by NITI Aayog are purely advisory in nature and leave in the open to the State to adapt their own policies keeping in view the ground realities of the State.

Nature of NITI Aayog’s letters: Advisory 

Further, the Supreme Court’s decision in Poonam Verma v. Delhi Development Authority, (2007) 13 SCC 154 was cited, wherein the Court held that the guidelines by their very nature did not fall into the category of legislation, direct, subordinate or ancillary and therefore were advisory in nature.

The above position was also followed by the Supreme Court in its recent decision of Praneeth K v. UGC, 2020 SCC OnLine SC 592, where the communication at issue was a letter of UGC directing universities to compulsorily conduct final examinations by a fixed date. The advisory nature of the guidelines issued by the UGC was vehemently argued before the Court. However, stating that guidelines/directions become binding when issued in exercise of statutory powers vested in the authority, it was held that the universities were mandated to adopt the guidelines.

In the instant matter, there was nothing in NITI Aayog’s letter that would show that it comes in the exercise of a statutory authority vested in the NITI Aayog.

“…it is the stand of the NITI Aayog itself that the letter to the state government was advisory in nature and not binding on the state government.”

Hence, Bench agreed with the State that they are free to formulate their own policy with respect to the engagement of CSOs and NGOs.

  • Whether the CSOs and NGOs have an enforceable right against the State to be engaged in relief operations.

Every person has a right to receive effective help, which ensures to them a right to life and livelihood guaranteed under Article 21 of the Constitution.

In times of disaster, civil society has always stepped in to provide relief and assistance and has always worked towards ensuring the socio-economic rights of the most vulnerable.

Therefore, it is a matter of significance that a continued relationship of mutual trust exists between the State and these organizations in providing help to the needy.

The role of the civil Society in helping vulnerable groups and persons in need cannot be undermined.

Supreme Court in its decision of Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381 acknowledged the above stand.

Further, the guidelines of the WHO in its Covid-19 preparedness strategies, direct all countries to establish national strategies and implement National Action Plans, and one of the core pillars of the plans highlights the need for coordination and planning efforts, which included interventions by NGOs and CSOs.

Good Governance and Salus Populi (Est) Suprema Lex

Good governance directly flows from this concept of governance and consists of ensuring the rule of law, effectiveness and accountability in governance processes.

In the Supreme Court’s decision of Manoj Narula v. Union of India, (2014) 9 SCC 1, the maxim, Salus Populi (est) suprema lex was invoked to stress that in a democracy, it was the public interest that is at the heart of good governance.

In a plethora of cases, the Apex Court has recognized the role of civil society in ensuring good governance in the country. Over the years the Court has directed the State to engage the civil society organizations in their efforts to ensure the utmost welfare of numerous vulnerable groups.

Bench reiterated the Supreme Court’s sentiment in Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381, where the Court was pleased to point out that in many situations, the NGOs had a better position to reach out to the needy than the State itself and therefore the sate ought to leverage such services of the Civil Society.

Role of the Civil Society in a democracy cannot be understated to address the miseries brought about by the pandemic, but however, a coordinated effort of all functionaries is paramount.


For the State’s consideration, the High Court laid down the following directions for enforcement to the extent possible:

  • Actively interact and coordinate with NITI Ayog ensuring implementation of principles of good governance.
  • Allow CSOs and NGOs to conduct relief operations. Civil Society forms the fourth institution of democracy.
  •  Integrate the participation of CSOs and NGOs as part of the policy framework formulated by the State.
  • Strive to form policies that allow CSOs and NGOs to work in direct partnership with the State, especially socioeconomic welfare policies, such as those directed towards child education and nutrition, juvenile justice, women’s rights, transgender rights, etc.
  • Accountability of all institutions essential. Formulate SOPs, guidelines and codes of conduct to be adopted by the State as well as CSOs and NGOs in their performance of welfare and relief operations.
  • Leverage the information and knowledge-bases of CSOs and NGOs.
  • Create publicly accessible repositories of recognized CSOs and NGOs, maybe even organized in terms of their area of efforts and involve them in relevant projects.
  • Conduct regular consultations at every stage of relief work, with relevant CSOs and NGOs working at the ground level and are versed with the needs of the people.
  • Create a website/other online platforms for interaction with non-state actors, and as a forum for data and information sharing with the various stakeholders.
  • Have a regular dialogue, collaboration and coordination with CSOs and NGOs at all stages- of policy/ scheme formation, implementation and monitoring results.

While parting with its decision, Court stated that it hopes and expects that the State itself makes optimum use of all the aid and assistance being extended by all the organizations and by engaging them to ensure that relief reaches the maximum number of persons, including the farthest corners of Bihar.

In view of the above, the petition was disposed of. [Parul Prasad v. State of Bihar, Civil Writ Jurisdiction Case No. 5609 of 2020, decided on 09-09-2020]

Hot Off The PressNews

As reported by ANI,

Delhi High Court’s Single-Judge Bench transfers petition challenging detention, seeking relief & release of Jamia students, locals detained during protest, to a High Court division bench headed by Delhi High Court’s Chief Justice DN Patel.

Petition to be heard on 19-12-2019, along with other pleas related to protest.


15-12-2019 turned out to be full of fear and violence on the campus of Jamia Milia Islamia University when police forces entered the campus and used tear gas along with lathi-charge on students.

It has been reported that, the students were detained and taken to two of the police stations where for a few hours no lawers, activists, media persons or anyone was allowed to enter. Students were beaten in the libraries, hostels, everywhere.

Several came out in support of the Jamia Students.

As reported by NDTV, Protests swept campuses across the country against the police crackdown at Jamia Millia Islamia after Sunday evening’s violence over the new citizenship law.

The police, which used batons and teargas to contain the violence, later barged into the university and detained around 100 students. All the detained students were released around 3:30 am.

Case BriefsHigh Courts

Rajasthan High Court: Sandeep Mehta, J. suspended the punishment awarded by the Additional Sessions Judge in the Sessions Case No. 46 of 2017, Udaipur. The co-accused of the same case already got relief from this Court. 

The appellant, in this case, is convicted and sentenced for offences under Sections 307, 323/34 and 324/34 of the Penal Code. The applicant in the appeal has already served nearly four and a half years of punishment out of seven years of rigorous punishment awarded by the trial court. Whereas the Court already suspended the sentence awarded to the co-accused. Before giving any relief to the appellant, the Court looked into the previous convictions of the appellant. It was collected that the appellant did not have any other grievous criminal history, except for the present one. Hence, the Court decided that the applicant will be granted bail during the pendency of the appeal, following the principle of parity.

Section 389 of Code of Criminal Procedure, 1973 provides for the provision of bail in certain cases and this Court suspended the sentence of the trial court till the final disposal of this appeal. 

The Court asked the appellant to produce a personal bond of a sum of Rs 50,000 with two sureties of Rs 25,000 each. In addition, the Court ordered for his appearance in this court on 06-01-2020. The Court also ordered that the appellant will have to appear before the trial court in the month of January, of every year, until the appeal is decided. The appellant is also supposed to inform the trial court if he changes his place of residence or the sureties residence. The Court ordered the trial court to maintain attendance of the accused- applicant in a separate file. Further, this Court ordered the trial court to inform if the applicant does not produce himself. If so, then the High Court will cancel the bail of the applicant. [Mustaffa Sheik v. State of Rajasthan, 2019 SCC OnLine Raj 4477, decided on 04-12-2019]

Case BriefsHigh Courts

Karnataka High Court: H.B. Prabhakara Sastry, J. dismissed the petition under Section 438 of Code of Criminal Procedure for an offence punishable under Sections 307, 504, 506 read with Section 34 of Indian Penal Code, 1860.

The facts of the case were that petitioner and the complainant had a quarrel with respect to the headphone. The petitioner, one night, assaulted the victim with a knife and inflicted several injuries upon him. It was the nearby public that rescued the victim from the fight and he was rushed to the hospital. The complainant received the phone call regarding the incident and rushed to the hospital and found the injured victim in ICU. The complaint was thus registered against the petitioner for offence punishable under Sections 307, 504, 506 read with Section 34 of Indian Penal Code, 1860.

Srinivasa C., Advocate for the petitioner submitted that complaint was an exaggerated version of the simple altercation. It was further submitted that the accused and victim were relatives and were very much interested in living in a coordinated harmony. Therefore, prayed for the grant of the bail.

Divakar Maddur, High Court Government pleader argued that accused and victim were known to each other prior to the incident but the statement of the victim, who had attributed direct overt act against the petitioner as the one who stabbed him and caused several injuries with the help of the knife. It was further submitted that as the investigation was in process, the enlargement of the bail was not warranted and thus prayed for the dismissal of the present application.

The High Court after submission by the parties held that statement of the victim, that too, stated to have given in the hospital in the presence of the doctor to the police officer cannot be discarded at the stage of the investigation. Moreover, the investigation is said to be in progress. As such apprehension expressed by the prosecution that the enlargement of the accused on the relief of the bail may hamper the case cannot be ignored and hence rejected the present petition.[Mohd. Waseem v. State of Karnataka, Criminal Petition No. 3215 of 2019, decided on 23-05-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J. refused to grant relief to petitioner on humanitarian grounds contrary to the law.

Petitioner, a student of Damyanti Devi Mahila College, Patna pursuing B.Sc. course filed a writ petition seeking direction to Magadh University to publish results pertaining to the B.Sc. Part-III (Hons.) Examination, 2018. The petitioner submitted that her college was affiliated to the Magadh University, and after getting admitted to the college, she had been allotted a registration number by the University. After appearing for the B.Sc. Part-III (Hons.) examination, it came to her notice that even though the results of all other colleges affiliated to the Magadh University had been published, the results pertaining to her college had not been declared. Hence, she has approached this Court to direct the university to declare the results.

The respondent, Magadh University, filed a counter-affidavit wherein it affirmed that the petitioner was a student of the College in question. However, the Learned Counsel for the respondent submitted that in pursuant to court orders and directions, the results of those colleges, not having affiliation from the State Government, shall not be published. Upon perusal of the official records, it was discovered that the petitioner’s college was unaffiliated, as far as B.Sc. (Hons.) The course is concerned. Hence, there was no publication of results. Learned counsel on behalf of the respondent, relied on the Supreme Court decision State of T.N. v. St. Joseph Teachers Training Institute, (1991) 3 SCC 87 wherein the Court had observed that any direction which permits the students to appear for the examinations without the institution being affiliated would amount to “clear transgression of the provision of the Act and the regulations.” It stated that the Court cannot be a party to direct the students to disobey the rule of law.

The Petitioner was unable to refute that the college was not affiliated to the University for the said courses and thus the Court held that it cannot issue any direction to the University, contrary to law, especially when the Apex Court had deprecated the practice of granting relief on humanitarian grounds.[Priya Kumari Singh v. State of Bihar, 2019 SCC OnLine Pat 631, decided on 07-05-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A writ petition was entertained by a Division Bench of Sudhanshu Dhulia and Ramesh Chandra Khulbe, JJ. and subsequently dismissed in limine. 

The petitioner filed a writ seeking protection against a rival businessman; the protection was requested from the District Magistrate and Superintendent of Police of the said area. The learned counsel for petitioner Mr Sandeep Kothari, submitted that the accused businessman is a well known and powerful personality in the area and has instigated the local police officers and therefore they are putting a hindrance on the petitioner to carry on his business in a peaceful manner.  

The Court was concerned about the rights and safety of the petitioner but before granting any relief and for balancing of interest, the Court demanded a preliminary inquiry report from the learned Deputy Advocate General of State. The report stated that no FIR or complaint is lodged against the petitioner in the State of Uttarakhand but it was found that a criminal case was filed under Section 420 IPC and Section 5 of Prize Chits and Money Circulation Scheme Act, 1978, in Assam and Madhya Pradesh. 

The petitioner contended that although the said cases are lodged against him, there is no veracity in it and the allegations are denied specifically by him. The learned counsel of petitioner further submitted that at the time of filing of the said petition he was not informed by the petitioner about the pending criminal proceedings against him, so he was unable to answer the questions of the Court with respect to the alleged report. 

The Court observed, petitioner has not approached this Court with clean hands, “He should have disclosed all these facts to this Court before seeking any relief from the Court.” The Court dismissed the aforementioned relief by the petitioner and refused to interfere in this regard due to the questionable character of the petitioner. [A. Tajuthin v. State of Uttrakhand, 2019 SCC OnLine Utt 345, decided on 01-05-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Bench of Aniruddha Bose, C.J. and B.B. Mangalmurti, J. dismissed a petition claiming arrears of pension, post retrial benefits with statutory and penal interest.

In the present case the appellant was appointed as Chairman and later was appointed as Junior Account Clerk in Rural Works Department. After rendering a long length of service, he superannuated as Accounts Clerk. The respondents settled his pensionary benefits by paying his Government Provident Fund, Group Insurance amount, part of gratuity as per 5th Pay Revision Commission (old scale) and part of leave encashment as per 5th Pay Revision Commission (old scale). The appellant alleged that the respondent did not pay arrear and benefits of first, second and third financial upgradation under Assured Carrier Progression and the arrear of pay revision, gratuity and part of leave encashment as recommended by 6th Pay Revision Commission. And that he stands on equal footing with one of his colleague, Saryug Prasad, as when he approached the Court, the same was allowed and the respondent was directed to pay benefits of financial upgradation. The respondents controverted the claim as appellant did not pass a departmental examination which is mandatory and as such the case of this appellant is not similar to the case of Saryug Prasad. Moreover, after attaining the age of 50, the appellant did not approach his controlling officer for issuance of an order of waiver while he was in service.

The Court after considering the material facts and the papers attached therewith held that it was clear that the appellant did not pass the mandatory test which was a prerequisite. The Court relied on the case of U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 where the Court held that “…When a person who is not vigilant of his rights and acquiesces with this situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to persons similarly situated who was vigilant about his rights and challenged his retirement…”.

In such view of the matter, the Court held that no relief could be granted to the appellant.[Birendra Kumar Sinha v. State of Jharkhand, 2019 SCC OnLine Jhar 432, decided on 23-04-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Surya Kant, C.J. and Sandeep Sharma, J. dismissed a letters patent appeal finding no merit in the case as the issue stood settled between the parties in the earlier round of litigation.

In the pertinent matter, the respondent was a workman engaged on daily wage basis as a Beldar, who continuously worked for more than 240 days in each year. On 30-3-1996 he was allegedly retrenched. The respondent-workman, after 14 years, raised a Demand Charter, to give rise to conciliation of proceedings under the Industrial Disputes Act. However, the Labour Commissioner, vide order dated 30-6-2011, eventually declined to refer the matter to Industrial Tribunal-cum-Labour Court, as according to him, there was no justification to raise the dispute after a period of more than 14 years. The Reference was thus declined. The respondent-workman then approached the Court where the matter was ordered to be referred to Labour Court-cum-Industrial Tribunal and the question of limitation of appeal was directed to be kept in view “while moulding the relief”. The appellants did not challenge the order and instead, the matter was referred to the Industrial Tribunal-cum-Labour Court, which further ordered the reinstatement of the respondent with seniority from the date of the demand notice was served and no back wages were granted. The Tribunal found that some juniors to the respondent were allegedly retained in the employment and this Principle of Last Come First Go was violated.

The impugned judgment was then challenged by the appellants-State before the learned Single Judge where the Court held that the State authorities, “cannot be permitted time and again to raise the plea of inordinate delay in raising the dispute”. Industrial Tribunal-cum-Labour Court, in deference to those observations, denied the reinstatement or seniority to the respondent-workman from the date of alleged retrenchment and restricted those benefits from the date when the Demand Notice was served. Therefore, no unjust enrichment has been allowed by denying the back wages to the workman.

The Court opined that “True it is that unexplained and inordinate delay in raising the Industrial Dispute can be effectively fatal to the claim itself but this issue stands already settled between the parties in the earlier round of litigation”. Further, it held that any view contrary to the Judgment already given will nullify the mandate of the same.[Chief Secretary (PW) v. Ram Gopal, 2019 SCC OnLine HP 403, Order dated 03-04-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before the Bench of Rajiv Narain Raina, J., where allegation of submission of false certificates were made.

Facts of the case were such that petitioner and respondent both were selected on the post of Anganwadi Worker. Petitioner had alleged respondent of furnishing a false education certificate showing her to be 8th class pass. Respondent contended that petitioner herself had procured a false resident certificate of Haryana according to which she was not qualified to lay claim to the post of Anganwadi Worker.

High Court was of the view that on these recent developments in the case petitioner had no relief since her claim is based on falsehood. Court is not to exercise its discretionary writ jurisdiction in favour of a party who had relied on false documents, thereby misleading the authorities to obtain resident status. The Court, therefore, dismissed this petition with a view that it is for the State Government to consider if the respondent can be continued on the post of Anganwadi Worker. [Jeenat v. State of Haryana, 2019 SCC OnLine P&H 233, dated 08-03-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The Bench of Dr S.N. Pathak, J., allowed a petition assailing the order and judgment passed by learned Railway Claims Tribunal.

In the pertinent case, the claimant was the father of the deceased, Anand Mandi, who after boarding the train, met with an accident by way of falling down from the train. After completing all the formalities, a compensation of Rs 4 lakhs was sought for. The same was contended by the respondent (Railways) that they were not responsible as neither was there any eye witness to corroborate the said incident nor any passenger ticket was recovered from the possession of the deceased. It was also argued that the applicant is also put to strict proof that the cause of death of late Anand Mandi does not fall in any of the exceptional clauses (a) to (e) of Section 124-A of the Railways (Amendment) Act, 1994.

The learned Tribunal framed the following three issues and the parties were put on trial:-

  1. Whether Anand Mandi was a bonafide passenger as alleged?
  2. Whether any untoward incident as defined under Section 123(c)(2) of the Railways Act, 1989 occurred?
  3. Whether the applicant is entitled for compensation as claimed and other relief, if any?

The Court held that by the preponderance of the probability deceased had died due to accidental fall from a passenger train and as such, the alleged incident falls within the purview of an untoward incident under Section 123(c)(2) of the Railways Act and it was decided in favour of the applicant.

The Court relied on Union of India v. Rina Devi, 2018 SCC OnLine SC 507, where the Court opined that, “…However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bonafide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances…”.  And the Court held that it is a case of untoward incident falling within the purview of Section 123(c)(2) of the Railways Act. The Court is of the opinion that appellant is entitled for compensation to the tune of Rs 4 lakhs with 9% interest from the date of accident till the actual payment is made.[Dhuma Ram Mandi v. Union of India, 2019 SCC OnLine Jhar 188, Order dated 13-02-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Ali Mohammad Magrey, J., dismissed a petition that was filed by the petitioners on the apprehension that they might be transferred.

The petitioner’s claim was within reference to continuation as General Line Teachers at Government High School without any hindrance with reference to the application of Rehbar-e-Taleem Scheme and the condition of their regularization order. The relevant part of the scheme is that-“As a matter of policy and consistent with the imperatives of smooth working of Rural Schools, the Rehbar-e-Taleems so regularized shall not be transferred out.”

The High Court held after a perusal of the pleadings and documents on record that there was no order of transfer made by any of the respondents against the petitioners, which could form the basis for challenging the same. Petitioners had filed the petition merely on apprehension. The Court further stated that it is a well-settled law that no relief can be granted in the petition, which has been filed on apprehension. It relied on n the case of Chanan Singh v. Registrar, Co. OP. Societies, Punjab, (1976) 3 SCC 361 and Kunda S. Kadam v. K.K. Soman, (1980) 2 SCC 355. The petition was thus rejected. [Fayaz Ahmad Dar v. State, 2019 SCC OnLine J&K 123, Order dated 13-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal, Mumbai: The Bench Tarun Agarwala, Presiding Officer and Dr C.K.G. Nair, Member disposed of the appeal with a direction that the appellant made a representation before SEBI in a matter where the interest on an amount was held for 13 years. 

The facts of the case are that SEBI floated Securities and Exchange Board of India (Interest Liability Regularization) Scheme, 2004 wherein stockbrokers having outstanding fee liabilities could pay the entire outstanding amount of principal along with 20% of the outstanding interest in which case they would not be liable for payment of the balance 80% of the outstanding interest. Based on the scheme, SEBI issued a fee liability statement in October 2004. As per the statement, the appellant was required to pay a sum of Rs 3,32,016. The appellant paid a sum of Rs 2,12,921 towards the entire outstanding amount of principal along with 20% interest. Thereafter the appellant filed an appeal before the Tribunal seeking relief for setting aside the impugned fee liability statement issued by SEBI. The Tribunal by an order disposed of the appeal directing SEBI to take a final decision after taking into account the payment made by the appellant and if the adjustment was required then SEBI was required to do so. In the meanwhile, during the pendency of the appeal, the appellant paid an amount of Rs 3,14,497 under protest pursuant to the fee liability statement dated March 16, 2005. The contention of the appellant was that the respondent had unlawfully withheld the amount of Rs 3,14,497 without any authority of law for a period of 13 years and, therefore, was entitled to interest as well as costs of litigation which the appellant had incurred.

The Tribunal held that before approaching the Tribunal for payment of interest and costs, it would be appropriate for the appellant to approach SEBI for the said relief. The appeal was thus disposed of with such direction. [MLB Financial Services Ltd. v. SEBI, Appeal No. 313 of 2018, Order dated 01-02-2019]

Case BriefsHigh Courts

Karnataka High Court: A Single judge bench comprising of N.K. Sudhindrarao, J. while hearing a civil writ petition praying for quashing of criminal proceedings pending against the petitioner, held that relief under writ jurisdiction cannot be used to scuttle the investigation of a case.

The present petition had been filed praying for quashing of criminal proceedings instituted against the petitioner in the trial court. Background of the matter is that the complainant (who had filed the case in trial court) alleged that the petitioner had falsely promised him to double a certain sum of money and on that pretext sent two people to obtain Rs. 15 lakhs from the complainant. It was alleged that those two people had fled away with the said money. On realizing that he had been duped, the complainant registered a criminal case for cheating against the petitioner for offence punishable under Section 420 of the  Penal Code, 1860.

Submission on behalf of the petitioner was that neither a complaint was filed nor an FIR was registered against him, but the petitioner was directly arrested and proceedings were started against him. The respondent submitted that since the matter was still under investigation, the proceedings against petitioner need not be quashed at this stage.

The High Court noted that a criminal proceeding starts with a complaint to set the criminal law in motion. Thereafter, an FIR is registered to register the commission of offence. However, it is not mandatory to mention the identity of accused in the FIR. It was observed that the scope of investigation and steps for investigation cannot be guided, controlled or stalled by filing a writ petition. Thus the Court held that a writ remedy cannot be resorted to in order to scuttle the investigation of a criminal case. [Ravi M.V. v. Amruthur Police, WP No. 49297 of 2018, decided on 16-10-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ., dismissed an appeal filed against the judgment of a Division Bench of Madras High Court whereby it allowed a letters patent appeal filed by the plaintiff in a partition suit.

The plaintiff filed a suit in regard to a property dispute wherein he prayed for partition of the subject property. The trial court decreed the suit, which decision was reversed by the first appellate court on an appeal by the defendant. The plaintiff then filed a letters patent appeal thereagainst which was allowed by the said Division Bench. The facts of the matter were that earlier, the defendant and father of the plaintiff were co-defendants in two original suits relating to the same subject property filed against them. In the said suits, the court had decided in favour of the defendant’s title over the subject property. Now, therefore, in the present suit, the defendant claims applicability of the doctrine of res judicata against the plaintiff as the father of the plaintiff was a co-defendant with him in the suits wherein his title was declared over the said property.

The Supreme Court, referring to a plethora of judgments reiterated the principles for the applicability of the doctrine of res judicata. The Court cited Mahboob Sahab v. Syed Ismail, (1995) 3 SCC 693 wherein the Supreme Court considering the applicability o the said doctrine between co-defendants held that the four conditions must be satisfied, namely-

  1. There must be a conflict of interest between defendants concerned;
  2. It must be necessary to decide the conflict in order to give reliefs which the plaintiff claims;
  3. The question between the defendants must have been finally decided, and
  4. The co-defendants were necessary or proper parties in the former suit.

The Court reiterated that if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound between each other.

On the facts of the instant case, the Court found that all the above conditions were not present. Therefore, no res judicata was applicable between the parties. In light of the above and other holdings, the appeal was dismissed. [Govindammal v. Vaidiyanathan,2018 SCC OnLine SC 2117, decided on 23-10-2018]

Case BriefsHigh Courts

Meghalaya High Court: This petition was filed before a Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ, under Article 227 of the Constitution of India.

Facts of the case were that an application was filed by the petitioner before the Trial Court seeking interim relief. An ex parte interim relief was granted directing status quo regarding subject matter to be maintained. Respondent submitted the existence of two title suits. It was submitted before Trial Court that preliminary decree was still operative not challenged by anyone and suit property was the same. Court observed that interim order cannot be extended beyond the date already mentioned by the court. Petitioner was aggrieved by the above order and thus filed petition before the High Court where petition’s maintainability was challenged as the petitioner had two alternate remedies available i.e. application for modification of interim relief under O. 39 R. 4 CPC and the second to file an appeal under O. 43 CPC. Respondent relied on the case of State Bank of Travancore v. Mathew K.C. (2018) 3 SCC 85 where it was observed that relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person.

High Court was of the view that respondents have not yet filed objections before the court. After the respondent file their objection the trial court ought to hear both parties in few weeks and then decide the matter. The petition was thus dismissed. [Md. Saquib v. Md. Ilyas,2018 SCC OnLine Megh 177, order dated 28-09-2018]