Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay S Oka, CJ and Aravind Kumar, J. gave a slew of directions regarding vaccine allocation.

 The Court took stock of the various aspect related to COVID vaccination in the State.

 Mucormycosis- Black Fungus

A submission was made before the Court regarding an acute shortage of Liposomal Amphotericin B Injection which is required for treating Black Fungus or Mucormycosis to which the State assured that there will be no shortage of the drug.

The Court directed “…place on record statistics of the cases of Mucormycosis in Bengaluru as well as in the other parts of the State and the details about the availability of the said drug-Liposomal Amphotericin B Injection.”

Vaccination

The issue of vaccination is about the special efforts made by the State Government, its agencies and instrumentalities to persuade the citizens residing in thickly populated localities and slums as well as the vulnerable sections of the society to take the benefit of the vaccination drive.

The Court observed that the State Government, as well as BBMP, will consider taking the assistance of NGOs for ensuring that those who are not aware of the availability of the vaccine or those who are reluctant to take the vaccine, are persuaded to take the vaccine.

The Court also observed that the immediate family members of the Frontline Workers, Healthcare Workers and those who fall in Priority groups must undergo vaccination, otherwise, the object of giving priority may be frustrated.

The Court directed the State Government as well as BBMP to place on record the details of the efforts made in this behalf.”

 A document pertaining to Standard Operating Procedure of COVID- 19 Vaccination of Persons without the Prescribed Identity Cards through CoWIN was placed on record by Amicus Curiae.

  • Clause (2) provides registration on CoWIN portal can be made on the basis of any of the seven documents mentioned therein
  • Clause (5) deals with registration of the persons such as nomads, prison inmates, inmates in mental health institutions, roadside beggars, etc who do not have any of the said seven documents.

Issue of Administration Of Vaccine To Persons With Various Categories Of Disabilities

 The Court observed that persons with a disability must get priority when it comes to vaccination in light of Section 25 (1) (c) of the Rights of Persons with Disabilities Act, 2016

The Court directed “the State Government shall place on record a data of the number of persons with disabilities vaccinated in the following districts: (i) Bengaluru, (ii) Kalbugari, (iii) Bidar, (iv) Mangalore and (v) Chamarajanagar.”

COVAXIN AND COVISHIELD

 The State submitted that 2, 95,100 doses of COVAXIN from the free quota provided by the Central Government are available with the State. In addition, the State Government has procured 81,100 doses out of the free quota are available and 3, 13,219 doses of COVISHIELD have been procured directly by the State Government.

Food Security

The Court analyzed the memo filed by the State and observed that mid-day meal scheme will continue as a one-time special measure even during the summer vacation of the schools.

The Court also took stock of another important aspect of food security is of the supply of ration or ration kits to the vulnerable sections of the society who have been deprived of income due to partial lockdown.

The Court directed “the State Government shall take an immediate decision on the issue of the supply of ration or ration kits to the persons belonging to the vulnerable sections of the society who have not even applied for ration cards”[Mohammed Arif Jameel v. Union of India, W.P. No. 6435 of 2020, decided on 03-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy and Anoop Chitkara JJ., took stock of the situation and laid necessary directions.

The present petition has been filed as the Government of India has directed the State Governments to convert PHCs into 30 bedded ICU hospitals with oxygen facilities and therefore State Government is supposed to submit what steps have been taken to convert these PHCs into ICU hospitals with oxygen facilities.

The Court thus directed “the State Government to make submission as to what steps the State Government has taken to convert these PHCs into ICU hospitals with oxygen facilities.”

The Court further taking stock of the situation regarding RTPCR tests in the State observed if the RTPCR tests are not conducted in war footing i.e. more than twenty to thirty thousand per day then the fatalities will proportionately go higher and by the time the RTPCR test is conducted, the incubation period will exceed and that may go out of control of the Government. The Court held “the Government has again to accelerate its work in combating the COVID-19.”

On submission made by Mr. Ajay Vaidya that some makeshift hospitals with oxygen facilities having 1000 beds have been opened and thus the Court directed “decentralized opening of ICU beds by converting PHCs is of paramount importance.”

Ms. Sneh Bhimta submitted about non-availability of ICU beds in Kullu and Lahul & Spiti, the Court directed “State Government to make submission as to whether ICU beds are provided to the COVID patients in both the aforesaid areas.”[Court on its Own Motion v. State of HP, 2021 SCC OnLine HP 4683, decided on 25-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

Counsel for Petitioner: Mr. B.N. Misra and Ms. Vandana Misra

Counsel for Union: Mr. Balram Sharma

Counsel for State: Mr.Ajay Vaidya

Counsel for the intervener: Mr.Bimal Gupta and Ms. Sneh Bhimta and Ms.Yogesh K. Chandel

Case BriefsCOVID 19High Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., while addressing the State’s failure in filing the status report in view of the High Court’s previous orders.

Court expressed,

Even as the common man remains apprehensive and fears for his life while praying that he does not get affected by the virus since the medical facilities remain suspect, the State’s indolence knows no bounds to use the pandemic as an excuse for acting in flagrant breach of orders of this Court.

Bench noted that it is the virus being blamed for the status report not being filed despite previous orders.

Court depicted its exasperation by noting the order passed nearly three weeks back in this petition on 7-04-2021:

“The State seeks a further week’s time to comply with the relevant order.

As a last chance, the State is afforded ten days’ time to complete the work and file a status report when the matter appears next a fortnight hence.

List on 28.04.2021.”

In the above order, State was given “last chance” to file the status report but it failed.

Matter will appear today i.e. 30-04-2021. Court stated that the Advocate-General should represent the State to file the status report and justify the conduct of the State as was noticed in several other matters.[C. Kumar v. State of Tamil Nadu, WP No. 31008 of 2019, decided on 28-04-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sunil B. Shukre and Avinash G. Gharote, JJ., addressed the suo motu public interest litigation raising concern with regard to a deficient supply of Remdesivir Drug and Oxygen Supply.

Bench stated that no solution has been found regarding the deficiency in the supply of Remdesivir drug and also oxygen to COVID hospitals in Nagpur City as well as the hospitals situated in the entire Vidarbha region.

Joint Commissioner, F.D.A Nagpur, Mr Kose informed the Court that there has been shortage in supply of the drugs by the manufacturing Companies and hence resulting in a shortage on making available the said drugs to all the COVID Hospitals.

Court’s earlier direction to the State with regard to releasing ten thousand vials of Remdesivir has also been partially complied and several reasons for non-compliance were laid down.

Bench observed that Joint Commissioner, F.D.A. and the Additional Collector, Nagpur, have started to shirk their responsibilities in giving succour and relief to COVID-19 patients.

Further, the Court requested Nagpur COVID-19 Committee to hold an emergency meeting immediately and to come back to the Court with some positive response on the said issue.

High Court emphasized that Nagpur COVID-19 Committee must take efforts to procure Remdesivir vials today itself in sufficient quantity and augment supply of oxygen to COVID Hospitals.

Noting the reports of malpractices, Bench advised the authorities to consider increasing frequency of checks, surprise raids and inspection.

Lastly while concluding the present order, Court held that the purpose of hearing was to make effective rendering of essential services to COVID patients and therefore, authorities concerned should not take any coercive actions against persons coming to the Court to assist the Court.

“…affidavits filed by the Joint Commissioner and Additional Collector today making contradictory statements and taking inconsistent stands would have to be ignored and opportunity would have to be given to both these Officers to come out with consistent and correct stands and also stating correct facts.”

Leave granted to file fresh affidavits. [Court on its own motion v. Union of India, 2021 SCC OnLine Bom 660, decided on 21-04-2021]


Advocates before the Court:

Mr.S.P.Bhandarkar, amicus curiae for petitioner.

Mr.U.M.Aurangabadkar, ASGI for respondent no.1. Mr.M.G.Bhangde, Sr. Cl. Assisted by Mr.D.P.Thakare, Addl. G.P. along with Mrs.Ketki Joshi, G.P for respondent nos. 2, 5, 6, 8 & 9.

Mr.S.M.Puranik, Advocate for respondent no.4. Mr.B.G.Kulkarni, Advocate for respondent no.10. Mr.C.S.Samundre, Advocate MADC.

Mr.M. Anilkumar, Advocate for Intervenor/applicant (C.A. No.5775 of 2021 & 692 of 2020 in P.I.L. No.4 of 2020). Mr.T.D.Mandlekar, Advocate for Intervenor/applicant (C.A. St.No.5806 of 2021 in P.I.L. No.10 of 2020).

Dr.P.K.Arora, in-person in CAO No.723 of 2021.

Mr.Ram Heda, Advocate for Applicants in Civil Applications C.AO. St. Nos. 4987 of 2021 and 4988 of 2021.

Mr.Nitin Lambat, Advocate for Railways.

(Ms Sushma Advocate for Respondent No.1 & Mr.J.B.Kasat, Advocate for Respondent No.4 in P.I.L. No.25 of 2020).

Case BriefsCOVID 19High Courts

Patna High Court: The Division Bench of Chakradhari Sharan Singh and Mohit Kumar Shah, JJ., expressed that:

[Order dated 15-04-2021]

“Constitutional Courts are duty bound to invoke the powers of judicial review and cannot afford to overlook palpable violation of fundamental rights of life and equality of citizens enshrined under Articles 21 and 14 respectively of the Constitution of India.”

On noting the alarming surge in COVID-19 Cases in the State of Bihar and the lack of facilities and healthcare system to meet the challenges arising out of the surge in cases as reported in print media I.A. No. 1 of 2021 was registered under the Orders of Chief Justice and has been placed before this Court in the Public Interest Litigation.

Newspaper reports, clippings of which are on record, portray a gloomy picture which reflected that on one hand there is a surge in COVID cases on an alarming proportion and on the other end, patients have been reportedly running helter-skelter to find beds in government hospitals.

It has also been reported that, COVID Beds in government hospitals are full in Patna. Newspaper Indian Express reported, based on experience of an individual that patients without contact face umpteen difficulties in getting admission even into private hospitals authorized to treat COVID patients.

Newspaper reports, though depict a very alarming and scary picture of the entire situation, having potential to expose the ground realities of health care system in the State, nonetheless, such reports cannot be made the sole basis for this Court to interfere and issue directions, exercising powers of judicial review under Article 226 of the Constitution of India. 

Bench further remarked that the Court is mindful of the fact that providing healthcare facilities and meeting challenges arising out of spike of COVID cases in the State is an executive function of the State and Constitutional Courts do not step in for the said matters.

Additional Advocate General, Amrit presented certain data and statistics showing availability of infrastructure in various parts of the State of Bihar to take care of COVID patients. To this Court stated that the said data presents a different picture altogether in comparison to the one being reported.

Prima facie, Court opined that it is not satisfied with the said depiction.

Bench added that it has transpired that the COVID Care Centres (CCC), Dedicated COVID Health Centres (DCHS) and Dedicated COVID Hospitals (DCH) are ill-equipped.

Press Briefing by the Government

Adding more to the above, High Court stated that people do not have the requisite information about the availability of the facilities being provided by the State Government, hence Court directed the Principal Secretary, Health Department to bring the said information in public domain through media and ensure that at-least once every day at a fixed time, a press briefing on behalf of the Government is made disclosing facts, illustratively, the number of COVID cases, the infrastructure which are available at various places in the State to admit and treat COVID patients and other cogent information which are required to be disseminated to the general public in public interest.

Black Marketing of Oxygen Cylinders

During the course of hearing, another fact that was noted was that there is scarcity of oxygen in various hospitals in the State of Bihar resulting into a kind of rush among the people of State to procure the same which as a consequence is creating a situation of black marketing.

To the above, Mr Amrit informed that a High Level Committee has been into the said matter and a solution would soon arrive for the same.

In response to Court’s query, Mr Amrit informed that once a person is tested positive after RT-PCR Test, State Government provides the patient with a COVID kit. He also added that earlier, State Government laboratories were not furnishing “Ct” value in the RT-PCR test reports, but now the same is being disclosed.

Elaborating more on his response, Court added that CT Scan Machines/facilities and Pulmonologist are available in Dedicated COVID Hospitals only, which are 11 in number. and steps are being taken to optimise the healthcare facilities to meet the recent challenges.

Bench stated that State Government may consider utilizing the facilities available in the premises of the newly established Medanta Hospital in PPE mode at Kankarbagh.

Assistance of Central Government

Court requested D. K.N. Singh, Additional Solicitor General of India to seek instructions from the Central Government regarding the issues which have emerged, particularly in relation to providing facilities at ESIC Hospital, Bhita, Patna and enhancing facilities at All India Institute of Medical Sciences, Patna as also the mode and manner in which the Central Government is willing to help and assist the State Government to enable it to tide over the prevailing situation on account of the alarming surge in COVID- 19 cases in the State of Bihar.

State Government is directed to ensure that all Dedicated COVID Health Centres are equipped with portable X-ray machines as quickly as possible and initiation of process to acquire CT Scan machines for dedicated COVID Health Centres in each District of State of Bihar should also be considered.

[Order dated 17-04-2021]

Bench noted in its 15th April Order that on one hand, COVID patients were running helter-skelter for admission in COVID Care Centers/Dedicated COVID Care Centers/Dedicated COVID Hospitals, figures presented by the Health Department represented that a large number of the beds available for COVID patients were unoccupied.

To the above, Court stated that no acceptable logic came forth to explain the startling phenomenon, as admittedly patients in the state are being denied admission because of unavailability of beds, though lack of awareness among affected people about the availability of such facilities is being cited as one of the reasons for the mad rush to Patna Hospitals out of a sense of fury.

Another aspect of the data that puzzled the Bench was that admittedly there is a shortage of medical oxygen in the State, but the data of the State Government depicted that huge number of beds with oxygen are available and again the said contradiction remained unexplained.

  • Principal Secretary in the present hearing informed the Court of compliance of certain directions issue don 15th April, 2021.
  • Court directs the State Government to ensure that the portable X-ray machines are positively acquired and installed
  • in compliance of this Court’s observations and direction on 15.14.2021, so as to make the residents of Bihar known about the available infrastructure, the Department has initiated a system of daily media briefing, disclosing all relevant information relating to location wise availability of facilities and infrastructure for treating COVID patients.
  • CT values are being mentioned in the RT-PCR Reports.
  • Steps have been taken for emergency procurement of Remdesivir injection by invoking Section 50 of the Disaster Management Act.
  • Rajendranagar Eye Hospital, which is a government hospital, has been decided to be utilised for admitting patients suffering from COVID-19.
  • Steps have been taken to increase number of beds in All India Institute of Medical Sciences, Patna (for short AIIMS, Patna) to 250 and Indira Gandhi Institute of Medical Sciences to 100
  • Manoj Kumar, the Executive Director, Bihar State Health Society, informed this Court that on an average 40,000 RT-PCR tests are being done in the State of Bihar per day, and steps to establish 9 more laboratories are being taken.
  • Apart from requisitioning liquid gas from the neighboring State of Jharkhand, the State Government and the Central Government are taking sincere measures for installation of Pressure Swing Absorption (PSA) plants in the hospitals connected with various medical colleges in theState of Bihar.

Executive Director, Bihar State Health Society submit a report explaining the progress regarding installation of PSA plants on the next day. He may also explore the possibility of procuring High Flow Nasal Canula (HFNC) and submit a report inasmuch as the same is reported to be effective in improving oxygenation amongst patients with acute hypoxemic respiratory failure.

Respondents to step up the speed/pace of RT-PCR tests in the State.

Court took note of the fact that State- Respondents have failed to regulate testing of such persons who are arriving in the State of Bihar from other States, who have the potential of spreading the disease.

“…minimum what is expected of the State-Respondents is to take all possible measures so as to ensure that persons coming from outside the State are either made to undergo rapid antigen test or they are able to show on the basis of the test reports available with them that they are not COVID positive. In case a person is found to be COVID positive, steps should to taken to ensure that he can reach a designated place for isolation or treatment with adequate and desired care and caution.”

Court while directing the Respondents-State of Bihar to submit a report regarding the available manpower and other infrastructure at listed the matter on 19-04-2021.[Shivani Kaushik v. Union of India, Civil Writ Jurisdiction Case No. 353 of 2021, decided on 17-04-2021]


Advocates before the Court:

For the Petitioner/s: Shivani Kaushik (In Person)

For the UOI: Dr K.N. Singh (ASG)

For the State: Anjani Kumar, AAG-4

For the Respondent 5: Mrs Binita Singh

For Respondent 6: Shivender Kishore, Sr. Advocate

For PMC: Prasoon Sinha

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Z.A. Haq and Amit Borkar, JJ., issued directions till the regulation of Remdesivir and Tocilizumab injections.

It was submitted that the State Government, on principle, accepted the proposal regarding setting up of oxygen plant/factory at Nagpur. Government considered setting up of such plants at other places in Maharashtra as well, for the said reason a meeting with Chief Secy. of Maharashtra Government on 15-04-2021 was convened.

Remdesivir Injections

M.G. Bhangde, Senior Advocate stated that as far as the issue of Remdesivir Injections was concerned and making provision for centralized portal containing the name of the patient with details/number of Aadhar card of the patient, name of the hospital where such patient is hospitalized/treated and the number of dose/doses given to the patients, such centralized portal would be started immediately.

Further, it was added that the hospitals where the patients were administered dose/doses of Remdesivir Injections will have to ensure that required data is being updated on the centralized portal immediately.

Adding to the above, another submission was made that if a patient is not able to get bed in a Dedicated Hospital and is required to be administered dose/doses of Remdesivir Injections, he can be given the dose/doses in the Outdoor Patient Department of that Dedicated Hospital.

If a patient is not able to get the bed in a Dedicated Hospital and is not able to get service even in Outdoor Patient Department in Dedicated Hospital and such patient undergoes treatment in a Non-Dedicated Hospital and the Doctor treating such patient is of the opinion that the dose/doses of Remdesivir Injections is / are required to be administered to such patients, the Collector of the District shall ensure that the dose/doses of Remdesivir Injections is / are made available to such patient also.

Such patient shall not be denied the Remdesivir Injections only on the ground that he has undergone treatment in a Non-Dedicated Covid-19 Hospital

With regard to issue of availability of Tocilizumab injections was concerned, Senior Advocate stated that the injection was being imported and the distribution and supply of the said injection was to be regulated by the State Government and its authorities, whereas its distribution was covered by Central Government. 

Following directions were issued by the Bench:

  • Joint Commissioner, Food and Drugs Administration, Nagpur shall take all the details from the Depot Manager or from the Authorized Person working at the Nagpur Depot of Cipla Pharmaceuticals about receipt of Tocilizumab Injections.
  • Joint Commissioner, Food and Drugs Administration, Nagpur shall also collect the data from the pharmacists to whom Tocilizumab Injections are supplied from the Nagpur Depot of Cipla Pharmaceuticals or from the Agent of Cipla Pharmaceuticals.
  • Depot Manager / Responsible Officer of Nagpur Depot of Cipla Pharmaceuticals and the agent and pharmacists shall furnish all the details to the Joint Commissioner, Food and Drugs Administration, Nagpur within two hours of receipt of the notice from the office of the Joint Commissioner, Food and Drugs Administration, Nagpur regarding that.
  • Agent of Cipla Pharmaceuticals at Nagpur and the pharmacists who are supplied Tocilizumab Injections and who have sold it shall also furnish the details to the Joint Commissioner, Food and Drugs Administration, Nagpur immediately.
  • If any of the above person fails to give the necessary details, the Joint Commissioner, Food and Drugs Administration shall take strict action against the erring person.
  • Details of availability of Tocilizumab Injections with the pharmacists shall be made available on the centralized portal which is being started by the Collector, Nagpur.

Court directed the Collector, Nagpur to examine whether beds can be made available for the needy patients at Mankapur Stadium, Nagpur and at Nagpur Nagrik Sahakari Rugnalaya.

For the above purpose, Collector, Nagpur may take the assistance of any officer of Nagpur Municipal Corporation or State Government.

Collector, Nagpur to submit a report regarding the feasibility of making available beds at Mankapur Stadium, Nagpur and Nagpur Nagrik Sahakari Rugnalaya till the next date.

Bench requested U.M. Aurangabadkar, ASGI to discuss the matter with the railway authorities concerned and ask them to interact with the Collector, Nagpur so that the facility which is not being properly utilized can be utilized to its optimum for the needy patients.

Matter to be listed on 10-04-2021. [Court on its own motion v. Union of India, Suo Motu PIL No. 4 of 2020, decided on 13-04-2021]


Advocates before the Court:

Shri S.P. Bhandarkar, Amicus Curiae

Shri U.M. Aurangabadkar, ASGI for Union of India

Shri M.G. Bhangde, Sr. Adv. a/b Shri D.P. Thakre, Addl. G.P. for State Shri S.M. Puranik, Advocate for NMC

Shri T.D. Mandlekar, Advocate for Intervener

Shri M. Anilkumar, Advocate for Intervener

Shri B.G. Kulkarni, Advocate for IMA

Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri, J. dismissed the petition as being devoid of merit.

The facts are such that the petitioner was accused of treating 1400 children of 6 villages by placing wire on teeth in order to get the advantage of the government scheme. The petitioner used the scheme of fixed orthodontic appliances over 281 children of different villages by providing treatment by wrongly applying fixed orthodontic appliances over 280 children of different villages. Consequent to this respondent no.4 i.e. Chhattisgarh State Dental Council in exercise of power under Section 41(1) of the Dentists Act, 1948 suspended the registration of the petitioner from 18.03.2021 to 18.03.2022. The instant petition was filed challenging the suspension order on grounds of stating that such order is without jurisdiction.

Counsel for the petitioners Mr Prafull Bharat submitted that order suspending the petitioner’s practice is not embodied in Section 41 of The Dentists Act, 1948 which speaks only about removal from register and such removal will not include the suspension. It was further submitted that the facts of the accusation was not ascertained and the treatment was done by following the due procedure as to be implemented by the State Government.

Counsel for the respondents Mr Gagan Tiwari submitted that Section 41 of The Dentist Act, 1948 states regarding the removal from register and the removal of registration in the instant case was made for a specific period. It was further submitted that the nature of allegations leveled against the petitioner was enquired and the petitioner was given an opportunity of hearing and thereafter the orders were passed. It was further submitted that the petitioner has a statutory remedy to file an appeal before the State Government.

The Court observed that a reading of sub-section (4) of Section 41 of Dentists Act, 1948 purports that if a person feels aggrieved by an order passed under sub section (1), he may file an appeal to the State Government.

The Court held “the petitioner if is aggrieved by the order can avail statutory remedy of filing an appeal before the State Government under sub-section (4) of Section 41 of the Act.”

In view of the above, petition was dismissed.[Manish Kumar Pandit v. State of Chhattisgarh, 2021 SCC OnLine Chh 908, decided on 07-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: The  Division Bench of Satish Kumar Sharma and Indrajit Mahanty, JJ., dismissed the petition remitting the matter to State Government for consideration.

The present writ application has come to be filed by the petitioner seeking a direction to the State of Rajasthan to include persons with locomotive disabilities as well as who are hard of hearing (hearing impairment) under the category of reservation for the purpose of induction as employee under the Rights of Persons with Disabilities Act, 2016 i.e. PWD Act, 2016.

Counsel for the petitioners submitted that pursuant to the decision in State of Rajasthan v. Vikas Kumar Agarwal, DB SAW No. 1484/2012, the State of Rajasthan has carried out necessary amendments in the notification and included blind people in the area of reservation for recruitment of Primary School Teachers. It was further submitted that the recent notification issued by the Union of India dated 04.01.2021 notified by the Ministry of Social Justice and Empowerment in terms of which identified posts are to be reserved for persons with disabilities after review of such list. It was also submitted that that in so far as serial No. 1520 is concerned, Primary School Teachers, other persons with hard of hearing (HH) have been included for the purpose of consideration for appointment

Counsel for the respondents submitted that in terms of the notification issued by the State of Rajasthan, the petitioner cannot be given the benefit of reservation or consideration of posting under the Act of 2016 since persons with hearing impairment cannot be inducted as Primary School Teachers.

The Court observed that the State of Rajasthan shall consider amending its earlier notification and to bring it in line with the suggestions made by the Union of India to the extent that the State Government shall issue necessary modified notification under the Act of 2016 and shall reconsider the applicability of the notification issued by the Union of India in all the various departments of the State of Rajasthan within a period of three months from the date of the order.

The Court thus held “the petitioner is not entitled to any relief before the decision of the State Government to be taken in light of the said notification dated 04.01.2021 issued by Union of India.”

In view of the above, petition was dismissed.[Kaushalya v. State of Rajasthan, 2021 SCC OnLine Raj 176, decided on 16-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Tripura High Court: A Division Bench of Akil Kureshi, CJ and S.G. Chattopadhyay J., while allowing the present petition, held, “One department of the Government cannot cite the reason of another department not acting promptly enough to deny the benefit declared by the Government under any scheme.”

The petitioner herein challenged a communication dated 25-06-2020 and further prayed for grant of subsidy in terms of Tripura Industrial Investment Promotion Incentive Scheme, 2012 (hereinafter to be referred to as the Incentive Scheme). Petitioner is a private limited company and is engaged in manufacturing different types of UPVC pipe and fittings, HDE coil pipes, etc. for which the petitioner had established a manufacturing unit at Agartala in the year 2013. The State of Tripura had framed the said scheme which envisaged grant of certain incentives in the form of subsidy to the specified industries set up on or after 01-04-2012. Such rebate would be equal to the net amount of Tripura Value Added Tax and Central Sales Tax and other taxes paid by the industry to the State Government on sale of finished goods subject to certain conditions. The petitioner was one of the eligible units and in the past had also claimed and was granted subsidy as per the terms of the said scheme. The issue for determination in the instant case is, a refund of the VAT etc. under the said scheme for the period between 01-01-2016 to 31-12-2016 and thereafter from 01-01-2017 to 30-06-2017. The petitioner first applied under two separate applications for such refund to the District Industries Centre on 23-06-2020 along with all necessary documents. These applications of the petitioner were rejected by the District Industries Centre by two separate orders both dated 25-06-2020. The sole ground cited for rejection of the petitioner’s applications was that the claim was submitted after expiry of two years from the period to which the claim related.

Court observed,

“It is not in dispute that a petitioner is otherwise an eligible unit entitled to the refund of the value-added tax under the said scheme, of course subject to fulfillment of the conditions contained therein. The scheme also envisages time limit for making application for refund. However, if the VAT department of the Government had delayed issuing necessary certificates of payment of tax to the petitioner, the application of the petitioner for refund cannot be rejected only on the ground of delay in making the same.”

While issuing necessary directions, Court held,

“The District Industrial Centre shall consider the petitioner’s further representations both dated 13-07-2020 and the contents thereof. If it is found that the petitioner is correct in contending that the refund applications were delayed on account of non-issuance of certificate of payment of tax by the VAT authorities, its applications for refund shall be entertained and examined on merits and refund to the extent payable be released. If, on the other hand, the authority comes to the conclusion that delay in making the applications could not be attributed to the delay in issuance of the VAT payment certificates by the concerned authority, a speaking order shall be passed and communicated to the petitioner. Entire exercise shall be completed within four months from today.”  [Agartala Plastic Private Ltd. v. State of Tripura, 2021 SCC OnLine Tri 27, decided on 12-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Dr Ravi Ranjan, CJ and Sujit Narayan Prasad, J., while issuing directions for encircling the infrastructure, laid emphasis on State obligation for maintaining Institutions of eminence.

Court while responding to the State’s counter-affidavit promising Rs 70 Crore to the institution, said, “… the University like the other universities and various other National Law Universities in other States cannot thrive on the revenue collected through fees deposited by the students for its development and meeting the routine expenses. Like other universities, certain grants on regular basis, monthly or yearly should be given by the State of Jharkhand. For example, there is a provision in the Patna University Act regarding meeting the budgetary expenses from the consolidated fund of the State… let our sentiment be conveyed to the State that being a prime institution of the State, NUSRL definitely needs regular support of the State Government and it is high time that the State Government should think over it that for every small or big expenditure the Vice-Chancellor of the University should not be compelled to move door to door. Therefore, in our view, the State Government should come up with a policy for such type of support to the institution if it is of the opinion that this institution is beneficial for the State of Jharkhand especially when we have been informed that 50% of seats in the University has been reserved for the candidates of State of Jharkhand

 With respect to the present assistance required from the State government, Court directed; “immediate issue of encircling the land of the university lying on the other side of the road by erecting boundary wall has to be taken as urgent basis.”[Bar Association, Jharkhand High Court v. State of Jharkhand, 2020 SCC OnLine Jhar 1060, decided on 11-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Cabinet DecisionsLegislation Updates

Cabinet Committee on Economic Affairs has approved major and transformatory changes in the Centrally Sponsored Scheme ‘Post Matric Scholarship to students belonging to Scheduled Castes (PMS-SC)’ to benefit more than 4 Crore SC students in the next 5 years so that they can successfully complete their higher education.

The Cabinet has approved a total investment of Rs 59,048 Crore of which Central Government would spend Rs. 35,534 Cr (60%) and the balance would be spent by the State Govts. This replaces the existing ‘committed liability’ system and brings greater involvement of the Central Govt in this crucial scheme.

The Post Matric Scholarship Scheme for Scheduled Castes allows students to pursue any post-matric course starting from class 11th and onwards, with the Govt meeting the cost of education.

The Central Govt is committed to giving a big push and further impetus to this effort so that the GER (Higher Education) of SCs would reach up to the National standards within the 5 year period.

Following are the details:

The focus of the scheme would be on enrolling the poorest students, timely payments, comprehensive accountability, continuous monitoring and total transparency.

  1. A campaign will be launched to enroll the students, from the poorest households passing the 10th standard, in the higher education courses of their choice. It is estimated that 1.36 Cr such poorest students, who are currently not continuing their education beyond 10th standards would be brought into the higher education system in the next 5 years.
  2. The scheme will be run on an online platform with robust cybersecurity measures that would assure transparency, accountability, efficiency, and timely delivery of the assistance without any delays.
  3. The States will undertake fool-proof verification of the eligibility, caste status, Aadhar identification and bank account details on the online portal.
  4. Transfer of financial assistance to the students under the scheme shall be on DBT mode, and preferably using the Aadhar Enabled Payment System. Starting from 2021-22, the Central share (60%) in the scheme would be released on DBT mode directly into the bank accounts of the students as per fixed time schedule, after ensuring that the concerned State Government has released their share.
  5. Monitoring mechanism will be further strengthened through conduct of social audits, annual third party evaluation, and half-yearly self-audited reports from each institution.

The Central Assistance which was around Rs 1100 crore annually during 2017-18 to 2019-20 would be increased more than 5 times to be around Rs 6000 core annually during 2020-21 to 2025-26.


Cabinet

[Press Release dt. 23-12-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

West Bengal Authority for Advance Ruling, Goods and Services Tax: The Bench of Susmita Bhattacharya (Joint Commissioner, CGST & CX) and Parthasarathi Dey (Senior Joint Commissioner, SGST), held that no GST will be applicable on composite supply of crushing the food grains belonging to the State Government and delivery of the crushed grains will be exempted as provided the proportion of the packing materials in the composite supply in value terms does not exceed 25%.

The applicant intends to supply to the State Government the service of crushing food grains. The processed food grain will be used for distribution through the Public Distribution System. 

Applicant sought a ruling whether the above-stated activity would be exempted under Sl No. 3 or 3A of Notification No 1212017 CT (Rate) dated 28-06-2017 (corresponding State Notification No. 1136 – FT dated 28-O6-2017), as amended (hereinafter collectively called the Exemption Notification).

Applicant was unregistered under the GST Act.

Observations & Findings 

ln Circular No. 5112512018-GST dated 31-07-2018 the Central Government clarified that the service tax exemption under Sl No. 25(a) of Notification No. 2512012 dated 20-06-2012 has been substantially, although not in the same form, continued under GST vide Sl No. 3 and 34 of the Exemption Notification. Sl No. 25(a) of the ST notification under the Service Tax exempts “services provided to the Government, a local authority or a governmental authority by way of water supply, public health, sanitation, conservancy, solid waste management or slum improvement and up-gradation.”

“…under the GST the ambit has been broadened to include any such functions that are performed by a Panchayat or a Municipality under specific provisions of the Constitution. These functions are in the nature of public welfare service that the governments on their own, and sometimes through governmental authorities/entities, do provide to the citizens. When the activity is in relation to any such function, the supply to the governments or governmental authorities/entities or local authorities is exempt from paying GST.”

Hence, in view of the above, applicant’s eligibility under the above-stated SI No. 3 or 3A will have to be examined under three aspects:

  • whether the supply being made is pure service or a composite supply, where supply of goods does not exceed more than 25% of the value of the supply
  • whether the recipient is government, local authority, governmental authority or a government entity, and
  • whether the supply is being made in relation to any function entrusted to a Panchayat or a Municipality, as clarified in the above paragraphs.

Bench observed that the applicant is making the supply of a bundle consisting of the service of crushing the grains and supply of materials required to pack the crushed grains, where the former is the predominant supply. They are supplied in conjunction with each other in the ordinary course of business as food grain cannot be transported without proper packing.

Therefore, the above activity is a composite supply of goods and services where service of crushing food grains is the principal supply and providing packing materials is ancillary to it.

Ruling

In view of the above discussion, it was held that if the applicant’s agreement with the State Government binds both the supplier and the recipient in such a way that neither can divert the food grains to any use other than distribution through PDS, the Applicant’s composite supply of crushing the food grains belonging to the State Government and delivery of the crushed grains will be exempt under Sl No. 3A of Notification No 1212017 CT (Rate) dated 28-06-2017 (corresponding State Notification No. 1136 – FT dated 28-06-2017), as amended, provided the proportion of the packing materials in the composite supply in value terms does not exceed 25%.[Sakshi Jhajharia, In re., 2020 SCC OnLine WB AAR-GST 9, decided on 10-02-2020]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., observed that

“…any action on the part of the State Government and more particularly when it is affecting the education prospects of the students, is required to be reasonable and of a nature which would not adversely affect the candidates by any sudden change in the admission criteria.”

Issue which cropped up in the instant petition was :

Whether it was legal and proper for the State Government to issue Circular dated 16-03-2020 to the effect that from the current academic year 2020-21, for admissions to the MBA and MMS Courses, candidates who have appeared for the GMAT, MAT and ATMA and XAT examinations would not be eligible to participate in the admission process and only those candidates who have appeared for the MAH-MBA/MMS CET, GMAT and CAT examinations (collectively “the MS-CET”) shall only be considered eligible.

The above-stated impugned Government Circular recorded that a proposal to make a consequential amendment to the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admission to the Full-Time Professional Undergraduate Technical Courses) Rules, 2017 is being undertaken.

Analysis and Decision

Quota for Admission

Bench observed that the candidates score at the ATMA, XAT, MAT, GMAT was considered to be valid criteria for admission to the 15% quota for admission to MBA/MMS courses up to the academic year 2019-20 as per the State Rules in vogue.

Students who intended to pursue the MBA and MMS courses were under a valid assumption that the same criteria would be continued for the next academic year namely 2020-21.

Petitioners who intended avail the above-stated benefits had accordingly planned to appear for the ATMA, XAT, MAT, GMAT which was to be held in or about July, 2020.  Since the said option was open, petitioners decided against appearing at the MH-CET which was conducted by the State Admission Authority.

Further, the Court noted that after MH-CET was conducted, the State Government issued the impugned circular changing the criteria for admission to MBA/MMS courses by cancelling the eligibility of students who would undertake the ATMA, XAT, MAT, GMAT which was so far held to be a valid examination for such admissions.

Bench found the above-stated decision to be arbitrary for the State Government. The consequence which emerged from such action is quite far-reaching.

Petitioners and such similarly placed students never in the wildest of their imagination thought that they would be rendered ineligible for the MMS/MBA courses having decided not to appear for MS-CET and that this would prove fatal to their prospect of securing an admission in the 15% seats, for which the eligibility criteria, was of the candidate having appeared at the ATMA, XAT, MAT, GMAT, being a valid criteria as on the date the MS-CET was conducted.

Bench clearly worded its order while stating that the consequence of the impugned Government Circular is harsh and drastic for the students who intended to secure admission to the MBA/MMS course on the basis of ATMA, XAT, MAT, GMAT entrance tests.

Adding to the above reasoning and findings, Court stated that it would have been reasonable for the State Government to notify such change in the admission criteria well in advance so that the students could have a reasonable period to prepare themselves and avail the opportunity of appearing at the MS-CET.

Hence, Court placed its finding in the instant case that the petitioners were deprived of the opportunity to appear for the MS-CET, in which they would have otherwise appeared if they were to be aware of the change in criteria well in advance.

Before parting, Bench observed that it has considered the reasonableness of the impugned Government Circular from the point of view of its applicability for present academic year. 

“…it is certainly within the powers of the educational authorities to provide for appropriate admission criteria as also to take appropriate strict action if admissions are procured on bogus documents.”

Decision

  • The impugned decision as contained in the Government Circular dated 16 March 2020 declaring that the results of ATMA, XAT, MAT, GMAT entrance tests not be valid eligibility criteria for admissions to the MBA/MMS courses and only the Maharashtra State CET, CMAT and CET would be considered as valid entrance examinations, shall not operate for admissions being made for the academic year 2020-21 and may operate from the next academic year 2021-22.
  • Respondents are directed to consider the petitioner’s eligibility for admission on the basis of ATMA, XAT, MAT, GMAT examinations for the admission process being undertaken for the current academic year 2020-21.

[Anmol Jagdish Baviskar v. Minister, Higher and Technical Education Department Mumbai; 2020 SCC OnLine Bom 3853, decided on 11-12-2020]


Advocates who appeared for the matter:

Sachin Dhakephalkar, for the Petitioners.

B.V. Samant, AGP for the State.

Rui A.Rodrigues, for Respondent 3 (CET).

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.

Background

By this petition under Article 226 of the Constitution of India, the petitioners have sought a writ of mandamus for enjoining the second respondent; the State Election Commission (for short ‘SEC’) to conduct elections to 6015  Grama Panchayats in the State of Karnataka before the expiry of five years term, as provided in clause (3) (a) of Article 243E of the Constitution of India. Apart from seeking the Writ of Mandamus, the challenge is also made against the order passed by the SEC on 28-05-2020, postponing the elections to all the Gram Panchayats in the State, owing to an ‘extraordinary situation’ created by the spread of COVID – 19. In its statement of objections filed on 30-06-2020, the SEC relied on the case of Kishansing Tomar v. Municipal Corporation of Ahmedabad, (2006) 8 SCC 352, where it was held by the Supreme Court that certain man-made calamities or natural calamities, which could prevent the authorities from holding elections can be treated as ‘exceptional circumstances’. It was then pleaded that COVID – 19 has created such extraordinary circumstances, that calls for postponement of the elections. Additional objections were filed to reiterate that all steps taken were in compliance with the statutory powers of the SEC and that there is no intention of delaying the elections for an undefined period. The State Government, echoing the same stand in its affidavit said, that there will be approximately 2,95,64,498 voters in the Grama Panchayat elections and the number of candidates may  be around 2,50,000. There is a likelihood of candidates and voters not strictly following the social distancing norms and failing to comply with the other standards released by the Ministry of Health, and therefore, it shall be in the interest of the public health and governance, to postpone the conduct of elections for the time being.

 Contentions

Shri Ravivarma Kumar, Senior Counsel appearing for the petitioners has referred to 73rd Constitutional Amendment. He pointed out that the entire object of the amendment was to ensure that the State  Government should not interfere with the local self-government and Panchayats. He further invited the Court’s attention to Article 243K of the  Constitution of India which lays down that the SEC is vested with the powers of superintendence, direction, control and preparation of electoral rolls as well as the conduct of elections of the Panchayats.

K. N. Phanindra, Senior  Counsel appearing for the SEC submitted that fixing of the schedule of elections and issuance of the calendar of events is within the exclusive domain of the SEC and it is an independent power of the SEC. He submitted that when it comes to elections to Panchayats and Municipal bodies, the SEC enjoins the same status as that of the Election Commission of India. He further pointed  out the steps taken by the SEC in this regard and submitted that tentative schedule of election has already been produced in a sealed cover along with the memo. He pointed out that in the meeting held between the SEC and the executive authorities, the majority of the Deputy Commissioners were of the view that elections should be held during November or  December, 2020.

Shri Prabhuling K. Navadgi, Advocate General for the State relied on the decision of the Supreme Court in K.S. Puttaswamy (Privacy-9J) v. Union of India, (2017) 10 SCC 1, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, arguing the need to achieve a balance between compelling State Interest and public health and the concept of Transformative Constitutionalism.

Observations

Drawing difference between the powers of SEC and the State Government with respect to conduct of elections, the Court observed, The SEC is an independent body created under the Constitution and the SEC must function independently of the State Government in exercise of its powers of superintendence, direction and control of Panchayat elections. The State Government has no control over the SEC in these matters. In fact, as held in the case of Kishansingh Tomar, the State is duty bound to abide by the directions of the SEC in the same manner in which it is under a mandate to follow the directions issued by the Election Commission of India during the election of Parliament and State Legislature.  In  fact, the  SEC while conducting elections of panchayats or Municipalities enjoys the same status which is enjoyed by the Election Commission of India for conducting elections for Parliament and State Legislature.”

With respect to the discretionary power of the SEC to decide of ‘exceptional circumstances’ to postpone the elections, the Court remarked, “(…)it is for the SEC to take a call and take a decision at its discretion on the existence of the exceptional circumstances. But SEC cannot altogether ignore the constitutional mandate. To meet  a  particular  contingency, the SEC can hold elections in a phase-wise manner.”

Dismissing the State’s argument of not being able to provide machinery for the proper conduct of elections, the court said, The stand of the Government cannot be accepted inasmuch as, when it comes to providing necessary staff for the conduct of elections, the State Government does not come into picture. It is for the Hon’ble Governor to provide requisite staff to the SEC.”

 Decision                 

Allowing writ of Mandamus, the Court held, “It is only in very exceptional circumstances that the SEC can conduct elections after expiry of the term of Panchayat. Whether such exceptional circumstances exist or not is a matter within the exclusive domain of the SEC. The State Government plays no role in deciding whether such exceptional circumstances are in existence. For deciding whether such circumstances are in existence, it is always open for the SEC to  consult the Government on factual aspects; We, therefore, direct the State Election Commission to finalize the schedule of elections of  Grama  Panchayats.”[KC Kondaiah v. State of Karnataka, WP No. 7987 of 2020, decided on 13-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Chhatisgarh High Court: P. Sam Koshy, J. quashed the impugned orders/resolutions being contrary to law.

The facts of the case are that the petitioner company is the largest coal-producing company of India having 100% shares vested with the Government of India, having mines spread over different districts of the State. The State Government in the exercise of powers conferred under the relevant Act has framed Rules i.e. “Terminal Tax (Assessment and Collection) on Goods Exported From MP/CG Municipal Limit Rules, 1996 to regulate the assessment and collection of terminal tax on goods, which shall be exported from within the limits of the Municipal Corporation, the Municipal Council and the concerned Nagar Panchayat. The Schedule appended to the rules prescribes the rate at which the terminal taxes is to be levied as also the maximum rate leviable. The respondents-Municipal Corporation, Municipality, Nagar Panchayat have purportedly enhanced the terminal tax exercising the powers under Section 133 of the Municipal Corporation Act of 1956 or Section 355 read with Clause 16 of Sub-section (1) of Sections 127 & 129 of the Municipal Act of 1961. Hence the instant petition was filed challenging the said enhancement.

Counsel for the petitioners, Shailendra Shukla submitted that the authorities are not empowered to issue such orders in the teeth of the Rules framed by the State Government in 1996, under which there is already a schedule prescribed with the maximum rate also prescribed. He further submitted that any change to the rate of tax would have been only by the State Government that too by amending the provisions of Rules of 1996 and the schedule appended therein. He further stated that the Constitution of India by the 74th amendment added Article 243-X providing power to impose tax and raise funds.

Counsel for the respondents, B.D. Guru opposed the contentions highlighting the different provisions of the Municipal Corporation Act as also the Municipal Act.

The Court relied on a Supreme Court judgment titled ACC Ltd. v. State of M.P., (2005) 5 SCC 347, and held that the Municipality is only entitled to recover the export tax at the rate prescribed by the State Government and not as claimed by the municipality. It cannot impose a tax on its own as the imposition is always subject to the approval of the State Government.

In view of the above, petition is allowed and impugned orders set aside. [South Eastern Coalfields Ltd., v. State of Chhattisgarh, 2020 SCC OnLine Chh 148, decided on 17-07-2020]


*Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammad Rafiq, CJ and Dr B. R. Sarangi, J. disposed of two petitions which challenged the closure of religious places by the State Government in light of Covid-19. While not issuing any general direction, the Court stated that reopening places of worship are a matter for the State Government to decide.

Two writ petitions had been filed by way of Public Interest Litigations, which raised the issue of the right of people to access places of worship being hindered by an order of the Odisha Government which directed the closure of places of worship even outside containment zones till 31-07 2020. The petitioners sought the reopening of all temples in Odisha for darshan and puja for the public, subject to necessary measures such as social distancing and wearing masks.

The petitioners relied on an order by the Ministry of Home Affairs which allowed the reopening of temples from 8-06-2020 onwards. Heavy emphasis was laid on the Supreme Court’s order in Nishikant Dubey v. UOI – SLA(C) No. 8716 of 2020 dated 31-07-2020 to buttress the submission that there cannot be a complete closure of religious places. The Advocate General, Ashok Kumar Parija, however, contended that according to a press note released by the Central Government, the State Government may prohibit or restrict such activities as deemed necessary. Moreover, he stated that the decision to close religious places was taken after an assessment of Covid-19 cases, which had revealed a spike in the number of cases in different parts of Odisha in the past few weeks.

The Court held that allowing entry of people into religious places is “matter for the State government to decide, on the basis of assessment of the day to day situation prevalent from place to place.” However, the Court did not deem it appropriate to pass a general order governing the entry of people into various religious places in the state. Instead, it directed the State Government to examine the grievance of the petitioners, keeping in mind the Supreme Court order mentioned above, and make a decision it deemed appropriate about reopening different places of worship in Odisha, depending on the situation prevalent, from time to time and place to place. [Trilochan Rath v. Government of India, WP (C) No. 17898 of 2020, decided on 10-08-2020]

Case BriefsHigh Courts

Orissa High Court: B. P. Routray, J dismissed the criminal revision petitions being devoid of merit.

The case, in a nutshell, is that a mining lease in favour of the accused petitioner’s late father Mr Patnaik over an area for Manganese for 20 years and Iron Ore Mining lease was granted for 30 years in 1959. However, in the year 1967 Mr Patnaik surrendered the mining lease for Manganese but continued for Iron Ore and applied for renewal of the lease in 1988 for the break-up area, but without the de-reservation proposal though there were forest areas within the applied area. However, no renewal of fresh lease was granted in his favour after 1989, but the period was further extended for one year. The petitioner accused is alleged to apply for a lease on behalf of his father in 1991 to the Government in the Department of Steel and Mines for grant of working permission pending renewal of mining lease which was granted without any approval by the Ministry of Environment and Forest. The father of the petitioner died in 1995. The Ministry of Environment and Forest in its letter dated 3.9.1998 communicated the permission for DRP (De-reservation Proposal).

In the meantime accused requested the Government in Steel and Mines Department for 20 years renewal of the mining lease, however, without submitting the application in proper form and submitted another proposal for by enclosing a forged will. He was charged under offences under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1968, Sections 379/120-B of the Indian Penal Code, Sections 21 of the Mines and Minerals (Development and Regulations) Act, 1957 (hereinafter in short called “MMDR Act”), Section 3-A of the Forest Conservation Act, 1980 and Section 58 of the Mineral Conservation and Development Rules, 1988. The instant criminal revision petition is filed to challenge the order dated 19.07.2019 passed by the learned Special Judge (Vigilance), Keonjhar.

Counsel U.C. Patnaik, G. Mukherjee, S. Panda, R. K. Mohanty and Sumitra Mohanty represented the petitioner’s side. The petitioners have submitted that cognizance taken on the report of Vigilance Police is bad in the eye of law as per Section 22 of MMDR Act. It was further submitted that the complaint at the instance of the Vigilance Police and initiation of the proceeding thereof by taking cognizance of the offences by the court is vitiated as per Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007. It was further submitted that the provisions of the MMDR Act or MCD Rules never mean to constitute the offence of theft. It was also submitted that the two co-accused have retired from service in 1994 and 1996 respectively and therefore, initiation of any judicial proceeding against them after four years of their retirement is not permissible in view of the provision contained in Rule 7(2)(c) of the OCS (Pension) Rules, 1992.

Counsel for the respondent Sangram Das submitted that the Vigilance Officials have been duly empowered and authorized to conduct enquiry and investigation in respect of all such offences by the Notification of Government. As per Sections 22 and 23B of the MMDR Act, in its Notification dated 19-12-2009 has named the Director of Mines and two Joint Directors authorizing them to exercise the powers of detection/seizure and confiscation, etc. in connection with illegal mining activities for all type of minerals covering the entire State of Odisha. Hence the argument of the petitioners holds no value. It was further submitted that where a person without any lease or license or authority extract minerals and remove and transport them with an intent to remove dishonestly, is liable to be punished of committing such offence under Sections 378 and 379 of the IPC. The argument regarding retirement stands vitiated as the same is barred under Section 7(2)(c) of the OCS (Pension) Rules, 1992, and is not found acceptable. It is because Rule 7 has a limited field of application and cannot be extended to put an absolute bar against criminal prosecution.

The Court relied on the judgment titled Fani Bhusan Das v. State of Odisha, 2018 SCC Online 310 and held that the provision of the CrPC shall have an overriding effect and shall prevail notwithstanding any provision in the Pension Rules, and therefore, the provisions of OCS (Pension) Rules, 1992 would not give any relief to the petitioners.

In view of the above, the petition is dismissed being devoid of merits. [Jitendra Nath Patnaik v. State of Odisha, 2020 SCC OnLine Ori 559, decided on 06-08-2020]

Case BriefsHigh Courts

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

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

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

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

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

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

Hot Off The PressNews

Karnataka High Court directs the State officials to conduct Karnataka Common Entrance Test (CET) exam as per the schedule. No student should be prevented for appearing the exam.

Bench denied to grant interim relief in terms of postponing or cancelling the exam, scheduled to be held on July 30, 31 and August 1, 2020.

Court in it’s yesterday’s Order had directed the Karnataka State government to reconsider the advisability of conducting the Karnataka Common Entrance Test (KCET) 2020 on July 30th, 31st and 1st August in light of the rising number of Covid-19 cases.

High Court has stated  that no Covid positive student should be denied opportunity of writing the examination just because documents are not provided. Authorities shall make sure that conditions in the SOP issued by the Union Ministry of Health and the SOP of state from time to time are scrupulously followed by all.

Authorities to provide transportation to needy students and all logistical support, especially to students and parents from containment zones.

Yesterday’s Decision

The Court passed the order after considering the pleas in three different petitions, all of which sought to have directions issued by the Court ordering the state government to postpone the CET. It was contended that considering the onslaught of the ongoing pandemic, conducting a physical examination was arbitrary and would jeopardize the health of the students, and conducting the same under these circumstances would amount to a violation of their fundamental rights under Article 14, since students in containment zones would not have equal opportunities of attending the exam resulting in a violation of their right to equality, and Article 21.

The Bench observed that more than 5000 new cases had been reported daily in the state in the past fortnight, with 1500 cases emerging daily in Bangalore alone, which has over 5000 containment zones. Since the government SOP prohibits the inhabitants of containment areas from travelling outside and considering that public transport would not be readily available either, the Bench duly noted that there would be a probability of students missing out on the exams.

*The above report has been prepared based on news reports.


Read the detailed Case brief, here:

KCET 2020 | Kar HC | No candidate shall be prevented from attending examination scheduled to be held from 30th July, 2020 [Detailed Brief]

 

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and N.R. Borkar, JJ., has directed State of Maharashtra to not take any coercive action against the schools for providing online teaching to pupils belonging to Class-II and below who are willing to avail such teaching.

Adding to the above, no coercive action shall be taken by the schools against those parents who are not willing to force their children studying in class-II and below for availing online classes.

State of Maharashtra has been provided with 3 weeks time to file a reply to a petition against the 15-06-2020 Government Resolution that does not allow students of Class II and below to attend online classes.

Matter to be listed on 07-08-2020. [Parents Teachers Assn. of United Forum v. State of Maharashtra, 2020 SCC OnLine Bom 793 , decided on 13-07-2020]