Legal RoundUpSupreme Court Roundups


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Producing false/fake certificate is a grave misconduct; Dismissal of service justified in such cases

“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.”

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Top Stories


Supreme Court upholds the amendments to the provisions of the Foreign Contribution (Regulation) Act, 2010

“Aspirations of any country cannot be fulfilled on the hope of foreign donation”

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Anganwadi Workers/Helpers entitled to payment of gratuity; ‘Time to take serious note of their plight’

The Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre¬school education. And for all this, they are being paid very meagre remuneration and paltry benefits.

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‘Can’t allow mass absorption of over 11,000 workers based on a flawed Report’. SC forms new Committee to put an end to the long drawn LIC versus temporary employees battle

“The dispute is now of an antiquity tracing back to nearly four decades. Finality has to be wrung down on the dispute to avoid uncertainty and more litigation. Nearly thirty-one years have elapsed since 1991. We have come to the conclusion that the claims of those workers who are duly found upon verification to meet the threshold conditions of eligibility should be resolved by the award of monetary compensation in lieu of absorption, and in full and final settlement of all claims and demands.”

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Supreme Court stays Delhi’s Jahangirpuri demolition drive

The demolition drive has been launched by Delhi municipal authorities in Jahangirpuri area, which witnessed communal violence recently.

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Lakhimpuri Kheri Violence| ‘Allahabad High Court granted bail in a tearing hurry’; Supreme Court cancels Ashish Mishra’s bail

“Victims cannot be expected to be sitting on the fence and watching the proceedings from afar.”

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Also Read: From investigation till culmination of appeal/revision, victim has right to be heard at every step post the occurrence of an offence


Explainers



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Solitary Confinement of Death Row Convicts: Judicial officer to probe to apprise Supreme Court of ground reality

A appeal was filed before the Court alleging that the appellant had been placed in solitary confinement since 29-10-2006 contrary to the law laid down by the Supreme Court in Sunil Batra v. Delhi Administration(1978) 4 SCC 494. The appellant had relied on the letter addressed by the Medical officer to the Superintendent of Prisons dated 06-11-2011 claiming that ‘the aforesaid prisoner is kept in solitary confinement since his admission to this prison on 29-10-2006’ and further that the petitioner was suffering from ‘psychosis with depression’.

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Mere differential treatment cannot on its own be termed as an “anathema to Article 14 of the Constitution”

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that when there is a reasonable basis for a classification adopted by taking note of the exigencies and diverse situations, the Court is not expected to insist on absolute equality by taking a rigid and pedantic view as against a pragmatic one.

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Interference with Government Tenders makes the State and its citizens suffer twice. Courts should refrain from staying Government tenders even in case of total arbitrariness

“The Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view.”

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“State cannot hide behind delay & laches to evade it’s responsibility after acquiring land. There cannot be a ‘limitation’ to doing justice”, holds SC; Land Owners get compensated after decades

“While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.”

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Amalgamation does not necessarily nullify tax assessment as only the outer shell of the amalgamating company gets destroyed but the business and the adventure lives on

It is essential to look beyond the mere concept of destruction of corporate entity which brings to an end or terminates any assessment proceedings.

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SC sets aside Bombay HC’s direction to acquire a land almost 20 years after finalisation of development plan

“Land owner cannot be deprived of the use of the land for years together”

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Is there a policy rewarding public prosecutors for securing death sentence? Supreme Court asks M.P. government in a Suo Motu case

Noticeably, a petition was filed before the Court alleging that the State is granting incentives to public prosecutors on the basis of death sentence awarded in matters prosecuted by them. Assessing the gravity of allegation the Court on 29-03-2022 had issued direction to the Registry to register a Suo Motu case and change the cause title immediately.

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Insertion of meritorious OBC candidates into general category list without disturbing the appointment of general category candidates? Supreme Court strikes balance

The Court was deciding a case where a service matter where upon reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed and working since long would have been expelled or removed, thereby unsettling the entire selection process.

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Lapse of a long period in deciding appeal cannot be a ground to award disproportionate and inadequate punishment

“Merely on the technical ground of delay and merely on the ground that after the impugned judgment and order, which is unsustainable, the accused have resettled in their lives and their conduct has since been satisfactory and they have not indulged in any criminal activity, is no ground not to condone the delay and not to consider the appeal on merits.”

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Caste can be the starting point for providing internal reservation but not the sole basis

In a case relating to reservation of seats in Educational Institutions, the bench of L. Nageswara Rao* and BR Gavai, JJ has observed that while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis.

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Can an establishment employing about 8000 workers be shut down for not obtaining Environmental Clearance, even when it acts in compliance with required pollution norms?

“An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution.”

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Acquitted in the criminal case but employer still going ahead with the disciplinary proceeding? Read the law laid down by Supreme Court

“The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment.”

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Reduction in stamp duty cannot lead to revenue splitting an instrument into two once it has already been charged under a correct charging provision

After having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a).

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SC allows Tamil Nadu to grant 50% reservation for in-service doctors in Super Specialty Medical Courses

The Court, hence, held that no case was made out for continuing the interim protection which was granted for the academic year 2020-2021 vide interim order dated  27th November, 2020.

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Medical College| Does permission to start post graduate courses for subsequent academic year result in effacing deficiencies found in previous academic year? Supreme Court answers

If an institution is seeking grant of permission for undertaking admissions for the academic session 2022-23, it must fulfill the requirements of minimum standard as on 31st December 2021.

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2006 Meerut Fire Tragedy| Organizers held guilty! 60:40 liability to compensate victims fixed on Organizers & State

The court was dealing with the writ petition preferred by the victims of the fire tragedy which occurred on 10.4.2006, the last day of the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar Pradesh by Mrinal Events and Expositions. The incident claimed the lives of 65 persons and left 161 or more with burn injuries.

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Husband suspects paternity of child; Supreme Court allows DNA test while granting conditional compensation of 30 lakhs to wife if suspicion proves to be wrong

In a case where the husband had disputed paternity of child on suspicion, though the Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., directed to conduct DNA test, the Bench granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and respondent-husband turns out to be the father of the child.

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Medical Admissions| SC directs allotment of in-service PG seat to Lady Doctor with experience in Madhya Pradesh’s Naxal/Tribal regions

The appellant, a mother of a 5-year-old, has been working as a Medical Officer with the State of Madhya Pradesh on a regular basis for over 11 years. Out of the 11 years of service, she has served for 6 years in District Betul which is a notified tribal district and has served in a Community Health Centre at Katangi in the District of Balaghat for the remaining period.

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Even a single crime committed by a ‘Gang’ is sufficient to prosecute an accused under the Gangsters Act

“The definition clause does not engulf plurality of offence before the Gangsters Act is invoked.”

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Delinquent postal officer voluntarily deposits defrauded amount with interest after detection of fraud. Was he able to escape punishment of removal from service?

“Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee.”

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Appointment of Teachers| Can obtaining a degree in one branch of a subject be considered equivalent to obtaining degree in the subject as a whole?

“As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter.”

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It’s time for the University to put an end to ‘Yuddh Kand’ and allow appellant to move from ‘Karm Kand’ to ‘Karm Phal Kand’

“The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor, making the appellant a victim in the line of fire. Unfortunately, the High Court omitted to take note of all this.”

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No right to keep goods and wares at hawking place overnight; Supreme Court dismisses plea of hawker of Sarojini Nagar market

The petitioner was a hawker in the Sarojini Nagar Market, who had approached the Delhi High Court seeking permission to leave his goods and wares at the place of hawking overnight.

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Forum Shopping and Power of High Court u/s 482 CrPC; Supreme Court tells when to convert a civil complaint into criminal case

“Forum shopping has been termed as disreputable practice by the courts and has no sanction and paramountcy in law.”

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Person being the highest bidder deposits sale amount for auction property and obtains injunction against Municipality; SC declares the sale non-est for lacking government sanction

The Court opined that no concluded contract ever came into force and in the absence of any approval granted, no right would accrue.

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2G Spectrum Scam| Supreme Court rejects ex-licensee’s refund demand of Rs 1454.94 crores Entry Fee, holding him faulty as a confederate of fraud

“…as a beneficiary and confederate of fraud, the appellant could not be lent the assistance of this Court for obtaining the refund of the Entry Fee.”

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Candidates can’t claim appointment to unfilled posts in absence of provision for waiting list

“In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining unfilled on any ground shall have to be carried forward for the next recruitment.”

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Income Tax| If such orders continued to be passed, we will impose substantial costs on Assessing Officer which will be recovered from his/her salary: Read why SC stayed Bombay HC’s order

The Division Bench comprising of M.R. Shah and B.V. Nagarathna, JJ., stayed the impugned order of Bombay High Court wherein the High Court had quashed the assessment order under Income Tax Act, 1961 and had further cautioned that if such orders continued to be passed, the Court will be constrained to impose substantial costs on the concerned Assessing Officer to be recovered from his/her salary.

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Cases Reported in SCC


2022 SCC Vol. 2 Part 4

In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment.

2022 SCC Vol. 3 Part 1

In a pertinent decision, Supreme Court while rejecting claim for interest the compared it to the Shakespearean character Shylock and remarked,

“…the holder of the Bond has received their ‘pound of flesh’, but they seem to want more. Additional sum in our estimation is not merited as SIBCO has already received their just entitlement and burdening the defendant with any further amount towards interest would be akin to Shylockian extraction of blood from the defendant.”

2022 SCC Vol. 3 Part 2

In 2022 SCC Volume 3 Part 2, read a very interesting case wherein a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, Supreme Court held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.


 

Experts CornerMurali Neelakantan

In November of the year 1999, an English Solicitor named Sally Clark was convicted on two charges of murder, and sentenced to life imprisonment. This tragic case is notable for many reasons — one of those reasons was the fact that her alleged victims were her own sons. Another was the fact that both were toddlers when they died.

 

The cause of death in both cases was initially attributed to sudden infant death syndrome (SIDS), also known as cot death in the United Kingdom. We did not know then, and do not know until this day, about the specific causes of SIDS. But suspicion grew on account of the fact that two children from the same family had died due to unspecified causes, and shortly after the death of her second child, Sally Clark was arrested, tried and convicted.

 

One of the clinching pieces of evidence was expert testimony provided by the paediatrician Professor Sir Roy Meadow. He put the odds of two children from the same family dying of SIDS at 1 in 73 million — in other words, an all but impossible eventuality. On the back of this testimony, and others, Sally Clark was convicted of the crime of murdering her own sons, and sent to prison for life.

 

One cannot help but ask the question: how did Sir Roy Meadow arrive at this number of 1 in 73 million? Succinctly put, here is the theory: for the level of affluence that Sally Clark’s family possessed, the chance of one infant dying of SIDS was 1 in 8543. This was simply an empirical observation. What then, were the chances that two children from the same family would die of SIDS?

 

The answer to this question, statisticians tell us, depends on whether the two deaths are independent of each other. If one assumes that they are, then the probability of two deaths in the same family is simply the multiplicative product of the two probabilities. That is, 1 in 8543 multiplied by itself, which is 1 in 73 million and that would be enough to convince any “reasonable man” that the deaths were deliberate and could not have been just coincidence.

 

But on the other hand, if the two events are not independent of each other — say, for example, that there are underlying genetic or environmental reasons that we simply are not aware of just yet — then it is entirely possible that multiple children from the same family may die of SIDS. In fact, given a SIDS death in a family, research shows that the likelihood of a second SIDS death goes up.[1]

 

Sally Clark’s convictions were overturned on her second appeal, and she was released from prison. She died four years later due to alcohol poisoning.

 

We live in a world that generates, captures and analyses an impossibly large amount of data. Everybody, right from the shop that sells you a cup of tea to the Government collects data about you, shares it with other entities, and each of them builds up a “profile” about you that is then used to arrive at decisions about you[2].

 

These decisions can range from the seemingly mundane (what percentage discount is likely to make you want to buy a particular good) to the tragically devastating, as Sally Clark’s example makes all too clear. And as Sally Clark’s example shows us, if there is a flaw in the decision-making process, the implications can change your life forever.

 

For this reason, becoming more familiar with data and all of its processes is no longer an arcane hobby. It is very much a life-skill, and one that none of us can afford to be without.

 

But this point applies with even more force in the case of members of the legal fraternity. Establishing a “fact” beyond reasonable doubt is a phrase that is used liberally in the context of legal proceedings, but what it means in practice is something that is not always clear to the practitioners of the law. And that, as we have seen, can have truly tragic consequences.

 

A fact is “any thing, state of things, or relation of things, capable of being perceived by the senses”. What about a “fact being proved”? “A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”[3]

 

Are our perceptions infallible? There exists a good amount of literature that shows that this is not always the case.[4] Second, perception is only one part of the process. Having perceived something, our brains then go on to interpret it, and then register a thing as a fact. As the example of Sir Roy Meadow’s testimony shows, our interpretations are not infallible either.[5]

 

Which therefore leads us to ask an uncomfortable, but critically important question: when is a fact a fact and when is it proved? If something is a fact, what can we deduce from it? Is there probability involved, and if yes, how confident are we that members of the legal fraternity understand probability, and by extension, statistics well enough?

 

Our contention is that while law students are taught facts as words and paragraphs, they are not au fait with the world of numbers, and that this needs to change now. Lawyers need to learn to interrogate numbers given to them by “experts” rather than think of them in absolute terms, just as they have learned to interrogate words and paragraphs of evidence.

 

What we refer to as data is a collection of facts. Performing statistical analysis on these facts allows us to reach certain conclusions. These conclusions, in turn, allow us to arrive at a decision. But because facts themselves are based at least in part on probability, each of the subsequent steps in the process we have just outlined are also based on probability. We live, in short, in an uncertain world filled with data.

 

That uncertainty is also impacted by context. Consider, for example, the well-known but still misunderstood phenomenon of the prosecutor’s fallacy.[6] The importance of a piece of statistical evidence is contingent upon the context and the priors of a case, and misleading and potentially dangerous misinterpretations become all too likely.[7] Andrew Gelman famously said, “If you do not know the context, statistics are meaningless” but we believe that statistics and data analysis reports can be very misleading if the context is not fully understood.

 

For all of these reasons, and more besides, we hold that teaching students of law about data and statistics is nothing short of imperative. Specifically, we recommend that law students must be made aware of how data is generated in today’s world, how it is captured and labelled, how it is stored, how it is retrieved and finally, how it is combined with other data sources. The processes involved in each of these needs to be understood, and especially their legal implications.

 

In addition, every law student must be made aware of the statistical processes that are used to arrive at conclusions. These conclusions are based on some measure of probability, and it is the balance of probability that often becomes the pivotal, deciding factor in the resolution of a case. For this reason, a clear understanding of these processes, their pitfalls and their limitations is also necessary.

 

Without possessing these skill sets, members of the legal fraternity often risk arriving at decisions that have the potential to change lives forever. Even worse, with the proposed advent of tools such as machine-learning and artificial intelligence, decision-making itself may soon be outsourced to a statistical model of some sort, with all of its attendant potential for mis-classification.

 

The world may well have progressed far too much on this path for us to imagine a retracement of our steps. But a deeper familiarity with our current environs along this path, and an understanding of what lies beyond would go a long way towards helping make sure that there the Sally Clarks of the future do not suffer the same, entirely avoidable fate that befell the original.

 

That is our intention behind proposing that a study of the field of statistics and data analysis be made mandatory in all law schools in this country. We hope to have convinced you beyond any shadow of doubt.

 


Murali Neelakantan is the principal lawyer at amicus. He was formerly global general counsel at Cipla and global general counsel and executive director at Glenmark.

†† Ashish Kulkarni teaches courses in economics and statistics at the Gokhale Institute of Politics and Economics, Pune, and blogs at econforeverybody.com 

[1]Ray Hill, Reflections on the Cot Death Cases, Medicine, Science and the Law 47.1 (2007):2-6. See also the various cases in the United States where convictions based on DNA evidence were overturned. For a review of some issues surrounding the use of DNA evidence see, Murali Neelakantan, DNA Testing as Evidence – A Judge’s Nightmare, Journal of Law and Medicine (1996).

[2]John Cheney-Lippold, We Are Data — Algorithms and the Making of Our Digital Selves (2020) is an excellent book on this topic and which should be essential reading for everyone.

[3] Evidence Act of 1872, S. 3.

[4]Shepard, Roger N., Mind Sights: Original Visual Illusions, Ambiguities, and Other Anomalies, with a Commentary on the Play of Mind in Perception and Art, W.H. Freeman/Times Books/Henry Holt & Co., 1990.

[5]See also, Taleb, Fooled by Randomness: The Hidden Role of Chance in Life and in the Markets (2001); Kahneman, Thinking, Fast and Slow (2011); and Kahneman, Noise: A Flaw in Human Judgment (2021).

[6]De Macedo, Carmen, Guilt by Statistical Association: Revisiting the Prosecutor’s Fallacy and the Interrogator’s Fallacy, The Journal of Philosophy 105.6 (2008):320-332.

[7]Koehler, J. (2000), The Psychology of Numbers in the Courtroom: How to Make DNA-Match Statistics Seem Impressive or Insufficient, S. Cal. L. Rev., 74, 1275.(not clear please check)

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of the former CJI SA Bobde and L. Nageswara Rao and S. Ravindra Bhatt, JJ had issued detailed directions to all Courts dealing with suits and execution proceedings after the troubles of the decree holder in not being able to enjoy the fruits of litigation on account of inordinate delay caused during the process of execution of decree were brought to the Court’s notice.

The Court noticed,

“Remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of orders and execution of decrees.”

As on 31.12.2018, there were 11,80,275 execution petitions pending in the subordinate courts.

Hence, considering the urgent need to reduce delays in the execution proceedings, the Court issued the following directions:

  1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.
  2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.
  3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.
  4. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.
  5. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.
  6. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.
  7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.
  8. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.
  9. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.
  10. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.
  11. Under section 60 of CPC the term “…in name of the judgment- debtor or by another person in trust for him or on his behalf” should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.
  12. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
  13. The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.
  14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to 32 the Court personnel/staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts.

[Rahul S. Shah v. Jinendra Kumar Gandhi, 2021 SCC OnLine SC 341, decided on 22.04.2021]


For Appellant: Advocate Shailesh Madiyal

For Respondent: Advocate Paras Jain

Case BriefsForeign Courts

Supreme Court of Canada: In the instant matter, the bench of Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., while deliberating upon a constitutional question that whether Aboriginal people located outside Canada can assert Aboriginal rights under Canadian Constitution; held that groups whose members are neither citizens nor residents of Canada can be considered part of the “Aboriginal peoples of Canada” and claim an Aboriginal right under S. 35 of the Constitution Act.

Facts:

In October 2010, Richard Lee Desautel, a citizen and resident of the United States of America, shot a cow-elk in British Columbia. He was charged with hunting without a licence contrary to S. 11(1) of British Columbia’s Wildlife Act and hunting big game while not being a resident of the province contrary to s. 47(a) of the Act. Desautel contended that he had an Aboriginal right to hunt protected by S. 35(1) of the Constitution Act, 1982 as he is a member of the Lakes Tribe of the Colville Confederated Tribes based in the State of Washington, a successor group of the Sinixt people; and, he shot the elk within the ancestral territory of the Sinixt in British Columbia.

It was around the year 1811 that Europeans and Sinixt people first came in contact. At that time, the Sinixt were engaged in hunting, fishing, and gathering in their ancestral territory, which extended into what is now Washington State to the south, and into what is now British Columbia to the north. Until around 1870, the Sinixt continued their activities in the northern portion of their territory, located in Canada. In the course of time several factors made the Sinixt people move to the United States. Until 1930, members of the Lakes Tribe continued to hunt in British Columbia, despite living in Washington State. After 1930, despite periods in which no hunting took place, the Lakes Tribe continued to have a connection to the land where their ancestors hunted in British Columbia.

Legal Trajectory of the Case:

The aforementioned facts were presented before the Trial Judge. The Trial Judge held that Desautel was a member of the Lakes Tribe, and that the rights of the Sinixt continued with the Lakes Tribe. The Judge applied the test for Aboriginal rights set out in R. v. Van der Peet, [1996] 2 S.C.R. 507, and held that Desautel was exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by S. 35(1) of the Constitution Act, 1982. Desautel’s Aboriginal right remained in existence and was protected by S. 35(1), despite the Lakes Tribe’s departure from the Canadian part of their traditional territory and notwithstanding a period of dormancy in the exercise of the right. The trial judge held that the right was infringed by the Wildlife Act and the infringement was not justified hence he was acquitted.

Constitutional Issue:

The Crown raised a major constitutional question- whether the relevant provisions of the Wildlife Act are of no force or effect with respect to Desautel, by reason of an Aboriginal right within the meaning of S. 35(1) of the Constitution Act, 1982.

Observations:

In order to resolve the dispute the Court had to interpret the expression “Aboriginal peoples of Canada” as stated in S. 35 (1) of the Constitution Act, 1982. With a ratio of 7:2, the Court gave the expression a purposive interpretation and noted that the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact may include Aboriginal groups that are now outside Canada. “In order to assert rights protected under S. 35(1) of the Constitution Act, 1982, an Aboriginal group must be part of the “aboriginal peoples of Canada”. This is a threshold question, in the sense that if a group is not an Aboriginal people of Canada, there is no need to proceed to the test for Aboriginal rights set out in Van der Peet. S. 35(1) must be interpreted in a purposive way”. The majority further observed that interpretation of the expression “aboriginal peoples of Canada” in S. 35(1) that includes Aboriginal peoples who were here when the Europeans arrived and later moved or were forced to move elsewhere, or on whom international boundaries were imposed, reflects the purpose of reconciliation. Whereas, an interpretation that excludes Aboriginal peoples who were forced to move out of Canada, would risk perpetuating the historical injustice suffered by Aboriginal peoples at the hands of Europeans. “An interpretation of S. 35(1) that limits its scope to those Aboriginal peoples who were located in Canada in 1982 would fail to give effect to this point by treating s. 35(1) as the source of Aboriginal rights”.

As per the Van der Peet Test, the Courts must characterize the right claimed in light of the pleadings and evidence; determine whether the claimant has proven that a relevant pre-contact practice, tradition or custom existed and was integral to the distinctive culture of the pre-contact society; and determine whether the claimed modern right is demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice. Continuity is the key in this Test.

The majority also noted that S. 35(1) serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty. These purposes are expressed in the doctrinal structure of Aboriginal law, which gives effect to rights and relationships that arise from the prior occupation of Canada by Aboriginal societies. “The doctrine of Aboriginal rights arises from the simple fact of prior occupation; the Aboriginal peoples of Canada under S. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are now outside Canada”.

The majority agreed with the decision of the Trial Judge and observed that the Sinixt occupied territory in what is now British Columbia at the time of European contact, and that the Lakes Tribe are a modern successor of the Sinixt. The migration of the Lakes Tribe from British Columbia to a different part of their traditional territory in Washington State did not cause the group to lose its identity or its status as a successor to the Sinixt. Accordingly, the Lakes Tribe is an Aboriginal people of Canada.

Dissenting Opinion:

As per Justice Côté, the constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982, does not extend to an Aboriginal group located outside of Canada. And even if it did, Desautel cannot establish that he was exercising an Aboriginal right to hunt in the Sinixt traditional territory in British Columbia, as the modern group’s claim lacks continuity with the pre-contact group’s practices. “To be entitled to the protection of S. 35(1) of the Constitution Act, 1982, the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact cannot be located anywhere other than Canada. The framers’ intent was to protect the rights of Aboriginal groups that are members of, and participants in, Canadian society”.  Justice Moldaver agreed with the observations made by Justice Côté.

Conclusion:

It was concluded that groups who are non-citizens and non-residents both can claim an Aboriginal right under the Canadian Constitution. As Desautel is a member of the Lakes Tribe, which is a modern successor of the Sinixt, and as his claim satisfies the Van der Peet test for an Aboriginal right under S. 35(1) of the Constitution Act, the Wildlife Act provisions namely Ss. 11(1) and 47(a) are of no force or effect with respect to him.

[R v. Desautel, 2021 SCC 17, decided on 23.04.2021]


Sucheta Sarkar, Editorial Assistant has put this report together 

IDIA

Bask into the Glory of this IDIA Scholar — Sheetal Kumari

Early Years

My name is Sheetal Kumari. I come from a tribal community and belong to a lower-middle-class family. I live in a small village in Kanke, Ranchi. I live with my mother and father and have 2 sisters. I passed my tenth exam from Cambrian Public School and my twelfth from Ursuline Intermediate College, Ranchi.

Background

I come from a community that is socially and economically backward. There is lack of awareness amongst the community members about the basic rights and duties of the citizens. This is the reason I wanted to pursue legal education so that I can work towards ensuring that all members can exercise their legal rights better by spreading awareness. There are very few girl children in my community who are getting a higher education and they are usually married at a very early age. I witnessed this kind of situation in my own village where girls are married at a very young age.

Legal Education

Thus, I want to get a legal education to fight for their rights. I know that our government provides many facilities for the betterment of our community but very few people get these benefits as they are not aware and also not very educated. So I want to spread awareness and make the people aware of their rights.

Preparation for CLAT

My father, Rajan Ram is a security guard in NUSRL, Ranchi and through the students of this college my father got to know about IDIA and he told me about this. Later I used to come to NUSRL as a trainee and many of the students helped me in preparing for CLAT. They used to give me the study material of CLAT free of cost through which I have gained a lot of knowledge about this exam. When exams were coming soon they also sent me to CLAT coaching without any fees which help me a lot in cracking CLAT.

Initially, I was very nervous on giving law entrance exam but because of the hard work of my teachers and IDIA trainees, they gave me the confidence to crack this. They taught me how to manage time and accuracy in the exam and by following their guidance, I cracked the exam and when I received the results of the exam I was very happy and satisfied. My parents were also happy with my results. All my relatives came to congratulate me and gave their blessings for my bright and better future. But I was worried about studying in a national law university where students come from high-class backgrounds. Through IDIA I got admission to NUSRL.

College Life

When I got admitted to the University I felt very lucky to get this opportunity to study in this college. The college campus is very good and the food is also very tasty. I have made 4-5 friends and they are very helpful in nature. My classmates are also very helpful. Faculty members are also very helpful and cooperative in nature. They help us in developing our overall personality. I am very enthusiastic about the coming five years and I want to get the best education and lots of good experience and opportunities in the coming years. This college has given me excellent facilities and an environment to study – exactly what I need to succeed in life.


About IDIA:

IDIA is a pan-India movement to train underprivileged students and help transform them into leading lawyers and community advocates. IDIA is premised on the notion that access to premier legal education empowers marginalized communities and helps them help themselves. IDIA selects and trains students from underprivileged backgrounds (IDIA Trainees) to crack top law entrance examinations in India. Once they are admitted to top law colleges, it provides a scholarship to these students (IDIA Scholars) that comprises financial support, training and mentorship among other things.

Read more about IDIA here: https://www.idialaw.org/

Get in touch with them here: info@idialaw.org


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Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ has held that it’s order dated 23.03.2020, wherein the Court had extended limitation period of appeals from high courts or tribunals on account of COVID-19 pandemic, cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure.

Setting aside the Madras High Court judgment, where it was had held that the Supreme Court order dated 23.03.2020 eclipsed all provisions prescribing period of limitation until further orders, including the time prescribed under Section 167(2) of the code of Criminal Procedure, the bench said,

“neither this Court in its order dated 23.03.2020 can be held to have eclipsed the time under Section 167(2) CrPC nor the restrictions which have been imposed during the lockdown announced by the Government shall operate as any restriction on the rights of an accused as protected by Section 167(2) regarding his indefeasible right to get a default bail on non-submission of charge sheet within the time prescribed.”

On 23.03.2020, the Court had extended the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The Court, in the present order explained that the said order was passed to protect the litigants/lawyers whose petitions/ applications/ suits/ appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right.

“When this Court passed the above order for extending the limitation for filing petitions/ applications/ suits/ appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings.”

Stating that the scheme of Code of Criminal Procedure clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person, the Court explained that without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.

Noticing that the law of limitation bars the remedy but not the right, the Court said that the Investigating Officer in the present case could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge).

On High Court’s opinion that the lockdown announced by the Government is akin to proclamation of Emergency, the Court said,

“The view of the learned Single Judge that the restrictions, which have been imposed during period of lockdown by the Government of India should not give right to an accused to pray for grant of default bail even though charge sheet has not been filed within the time prescribed under Section 167(2) of the Code of Criminal Procedure, is clearly erroneous and not in accordance with law.”

It is pertinent to note that another bench of Madras High Court had, in Settu v. State, Crl.OP(MD)No. 5291 of 2020, already considered the judgment of this Court dated 23.03.2020 and noticing that personal liberty is too precious a fundamental right, it had held,

“The noble object of the Hon’ble Supreme Court’s direction is to ensure that no litigant is deprived of his valuable rights. But, if I accept the plea of the respondent police, the direction of the Hon’ble Supreme Court which is intended to save and preserve rights would result in taking away the valuable right that had accrued to the accused herein.”

The single judge in the impugned judgment before the Court had called the above mentioned Madras High Court order uncharitable. On this the Court said that the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person. It, further, said that all Courts including the High Courts and the Supreme Court have to follow a principle of Comity of Courts. A Bench whether coordinate or Larger, has to refrain from making any uncharitable observation on a decision even though delivered by a Bench of a lesser coram.

“A Bench sitting in a Larger coram may be right in overturning a judgment on a question of law, which jurisdiction a Judge sitting in a coordinate Bench does not have. In any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment.”

[S. Kasi v. State, 2020 SCC OnLine SC 529 , decided on 19.06.2020]


Also read:

COVID-19| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

Case BriefsSupreme Court

“While the mountains of Himalayas spell tranquillity, yet blood is shed every day.”

Supreme Court: In a major verdict, the 3-judge bench of NV Ramana, R Subhash Reddy and BR Gavai, JJ has asked J&K administration to review all orders imposing curbs on telecom and internet services in the state in a week and put them in public domain.

“The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).”

Stating that it’s limited scope, in the matter wherein the two sides have shown two different pictures which are diametrically opposite and factually irreconcilable, was to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner, the Court said,

“It is not our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time.”

Fundamental rights under part III and restrictions thereof

  • Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.
  • Internet is also a very important tool for trade and commerce. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).

Right to access internet as a fundamental right

The Court refused to offer views on the said issue as none of the counsels had argued for declaring the right to access the internet as a fundamental right.

Publication of orders on Internet shut down

The Court noticed that although the Suspension Rules under Section 7 of the Telegraph Act does not provide for publication or notification of the orders, a settled principle of law, and of natural   justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available.

“Any law which demands compliance of the people requires to be notified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or not.

It further added that complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.

Restrictions under Section 144 CrPC

“As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always.”

Explaining the concepts of ‘law and order’, ‘public order’ and ‘security of State’, the Court said that these are distinct legal standards and that the Magistrate must tailor the restrictions depending on the nature of the situation. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned.

“If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight over the same, the situation might transcend into a public order situation. However, it has to be noted that a similar approach cannot be taken to remedy the aforesaid two   distinct situations.”

Freedom of press

When Anuradha Bhasin argued before the Court that she was not able to publish her newspaper Kashmir Times from 06­08­2019 to 11­10­2019, the Court noticed that no evidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area.

“Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a self­serving purpose.”

The Court, however, said that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.

Operative order

  1. The J&K State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.
  2. Freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.
  3. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
  4. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.
  5. The existing Suspension Rules neither provide for a periodic review nor a time limitation for an order issued under the Suspension Rules. Till this gap is filled, the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). Hence, J&K State/competent authorities must review all orders suspending internet services forthwith.
  6. Orders not in accordance with the law laid down above, must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed.
  7. In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited e­banking facilities, hospitals services and other essential services, in those regions, wherein the internet services are not likely to be restored immediately.
  8. The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Hence, the power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
  9. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.
  10. While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.
  11. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.
  12. The J&K State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above.

The 3-judge bench had reserved the judgment on November 27, 2019 on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.

The bench heard the petitions filed by various petitioners including Congress leader Ghulam Nabi Azad, Kashmir Times editor Anuradha Bhasin and others. The petitions were filed after the central government scrapped Article 370 in August and bifurcated Jammu and Kashmir into two UTs — Jammu and Kashmir and Ladakh earlier. Following this, phone lines and the internet were blocked in the region.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

[Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25, decided on 10.01.2020]

Hot Off The PressNews

Supreme Court: The 3-judge bench of N V Ramana, R Subhash Reddy, and B R Gavai, JJ has reserved the judgment on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.

The bench heard the petitions filed by various petitioners including Congress leader Ghulam Nabi Azad, Kashmir Times editor Anuradha Bhasin and others. The petitions were filed after the central government scrapped Article 370 in August and bifurcated Jammu and Kashmir into two UTs — Jammu and Kashmir and Ladakh earlier. Following this, phone lines and the internet were blocked in the region.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir) with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the move.

(Source: ANI)

Case BriefsHigh Courts

Kerala High Court: The Division Bench of Hrishikesh Roy, CJ and A.K. Jayasankaran Nambiar, J. allowed withdrawal of a writ appeal opining that since the same pertained to rights of forest dwellers, the proper course would be a review against the writ petition which was disposed of hastily.

The present case pertained to rights of traditional forest dwellers. Mr K.S. Madhusoodanan, learned counsel appearing for the appellant submitted that while many reliefs were sought in the petition filed for rights of forest dwellers, and the counsel therein was making submission before the learned Judge only for interim relief, the entire case was disposed of without enabling the appellant (petitioner in the said writ petition) to make submission on other prayers. Thus, the Court had no opportunity to deal with other ten substantial prayers in the writ petition.

In such circumstances, Mr Madhusoodanan submitted that he may be permitted to withdraw the present appeal so that a review petition could be filed before the writ court for fresh consideration of the matter particularly when, neither the State nor the Central Government had occasion to file any counter affidavit in the writ petition. His submission was that when important rights for traditional forest dwellers is being espoused in the writ proceedings, it would be appropriate if prayers are considered after the counter affidavit(s) are placed on record, indicating the stand of the State and the Central Government.

In view of the aforesaid submissions, the Court dismissed the instant appeal as not pressed, and granted the appellant the liberty to file a review petition. [Adivasi Kanikkar Samyuktha Sangham v. Union of India, 2019 SCC OnLine Ker 817, Order dated 08-03-2019]