Case BriefsHigh Courts

Bombay High Court: While emphasizing the aspect of encroachment of public land, the Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., observed that,

“It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect.”

Aggrieved by the public notice issued by respondent 1 – the Slum Rehabilitation Authority, petitioners were to be rehabilitated being affected by Pune Metro Rail Project.

Petitioners contended that under the State’s policy, being slum dwellers, they have a status of being protected occupiers, who would be required to be rehabilitated by allotment of a free of cost permanent alternate accommodation in case land below the slum is sought to be utilized for public purpose.

Further, the petitioners contend that the slum dwellers society had opposed the passing of the Pune Metro through the slum land, so did the developers. They also suggested realignment of the metro track, however, sans success.

High Court noted that the petitioners who had initially encroached on the Government land and remained on the same for some time to fall within the beneficial policy of the State Government of being protected slum dwellers, cannot elevate their protection to such an extent that such slum dwellers have to be rehabilitated either on the same land, if any remaining after the project work is completed within the vicinity.

Bench opined that any encroachment on public land at the threshold ought not to be tolerated and prompt action is required to be taken to remove such encroachment, more particularly when those who are custodians of the public land are well aware that encroachments for long periods will clothe the encroachers with rights to seek rehabilitation at public costs under the prevalent Government policies.

Violation of Public Trust Doctrine

Government on account of negligent approach by not protecting public lands from encroachment is later required to acquire the same from private holdings, causing an unwarranted burden on the public exchequer and a sheer waste of taxpayers money.

Despite the might machinery, Government doesn’t protect its valuable land resulting into the grossest violation of public trust doctrine as a result of patent abuse of powers vested in such Government machinery is not protecting public property.

Accountability

Court added that it wonders as to whether at any point of time an audit in regard to encroached government land in State of Maharashtra was undertaken. As to how many such lands have vanished due to encroachment and whether any steps to preserve the same have been taken – these are certain questions to be answered to “we the people” and accountability fixed for negligence.

Bench hoped that the Government awakens on such issues before it is too late and restores all the encroached Government lands for public benefit.

The above would certainly require a genuine political will and consciousness towards larger public benefit.

Coming to the present matter, High Court expressed that,

Mere right of rehabilitation cannot be recognized to be equivalent to a right of ownership or as if it is some compensation being offered to the slum dwellers for their encroachment and occupation of Government land.

 In the present matter, the petitioners were not denied the benefit of rehabilitation, infact they were called upon by several notices for allotment of premises, but they took an unreasonable adamant stand and refused the benefit.

Opining that the present petition was not filed bonafide, Court stated that the petition appeared to be a patent abuse of process of law.

While imposing costs of Rs 5,000 the petition was dismissed. [Abdul Majid Vakil Ahmad Patvekari v. Slum Rehabilitation Authority, WP No. 3983 of 2021, decided on 31-08-2021]


Advocates before the Court:

Mr. Nikhil Wadikar i/b. Mr. Rajesh Katore for the petitioners.
Mr. Deepak R. More for respondent no. 1.
Mr. B.V. Samant, AGP for the State.
Mr. S.K. Mishra, Senior Advocate a/w. Mr. Pralhad D. Paranjape and Mr. Kaustubh Deogade for respondent nos. 4 and 5.

Case BriefsHigh Courts

Bombay High Court: Pained to record that the Court doors being knocked after completion of 75 years of independence seeking direction for the provision of regular water supply, Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., stated that,

State Government by providing water to its citizens only twice a month, and that too for a mere two hours, is not only depriving its people of their fundamental right, but in doing so is inviting criticism and tarnishing its image, especially when such is the scenario after 75 years of independence.

In the instant matter, petitioners who were being provided only two hours of water twice a month sought direction for a regular supply of water.

They alleged that from reliable resources, they came to know that officers of respondent 7 were supplying water illegally to political leaders especially councilors, tanker lobbies, industries, sizing companies/industries, warehousing complexes and construction sites, thereby earning lakhs of rupees against illegal supply of water. Further, it was submitted that the officials of respondent 7 were not interested in removing the illegal water tapping/connection and valves fixed on the main pipeline.

Deputy Engineer of respondent 7 informed the Court that they were making attempts to supply water to the petitioners on a daily basis but they were unable to do so due to various technical reasons.

Decision

High Court stated that it is the fundamental right of the petitioners to get regular water supply as sanctioned by the Authorities and if the water supply is provided to them only twice a month for two hours, the same amounts to a blatant mockery of their fundamental right.

Hence, Managing Director of respondent 7 company as well as Jai Jeet Singh, Commissioner of Police were directed to be present before the Court to inform the steps to be taken to resolve the problem along with the steps proposed to be taken to disconnect the illegal 300-400 water connections.

On 9th September, the Advocate General referred to the affidavit filed by respondent 7 wherein two types of measures to fulfill the increased demand for water due to the rise in population in village Khambe was proposed.

The long term measure proposed, is to change the 36 years old pipeline which currently supplies 11 MLD water to 34 villages ; after the old pipeline is changed, the 34 villages will receive additional 31 MLD water. For this purpose, the Respondent No. 7 is in the process of preparing a Detailed Project Report (‘DPR’) ; and to meet the technical and procedural compliances, the long-term measure proposed will take about three to four years. 

short-term measure proposed, is to lay “a new pipeline of around Rs.4 Crores bypassing or bifurcating from village Khoni directly to village Khambe …”. According to the Respondent No. 7, the short-term measure can be achieved within a period of one year.

High Court informed the Advocate General that the State cannot expect the poor villagers to wait for one year for laying a separate pipeline by-passing village Khoni and supplying water directly to village Khambe, and certainly not for a period of three to four years for providing an additional supply of 31 MLC to the 34 villages.

With respect to illegal water connections, High Court stated that,

State machinery or any Statutory Authority cannot tolerate any illegal activity to commence / continue only because a group of wrongdoers / antisocial elements / hooligans make an unlawful attempt to prevent legal action being taken against such illegal activity. It is the duty of the State to ensure that such unlawful activities are nipped in the bud.

 Court informed Advocate General to constitute a committee for the removal of every illegal water connection.

Deputy Commissioner of Police ensured full cooperation to all concerned in removing all illegal water connection from village Khoni.

Court informed the Advocate General that in the interest of the State, the orders pertaining to the subject matter will be forwarded to the Chief Minister of Maharashtra so that the problems of the citizens of Maharashtra can be looked into seriously. [Shobha Vikas Bhoir v. State of Maharashtra, WP No. 5256 of 2021, decided on 9-09-2021]


Advocates before the Court:

Mr R.D. Suryawanshi for the Petitioners.

M A.A. Kumbhakoni, AG a/w. Mr A.I. Patel, Addl. G.P., Mr. R.S. Pawar, AGP for the State.

Mr A.S.Gaikwad a/w. Mr B.R.Khichi, Mr Anjalai Kolapkar for Respondent 7. Mr Yogesh Chavan, DCP, Zone-II, Bhiwandi, present.

Dr Bahusaheb Bansi Dangade, Managing Director of Respondent 7, present.

Case BriefsHigh Courts

Kerala High Court: P. B. Suresh Kumar, J., held that the State Government has no power to specify any class of persons as socially and educationally backward for the purposes of the Constitution since only the President is entitled to specify the socially and educationally backward classes in relation to a State after due consultation with the Commission set up under Article 338-B of the Constitution.

Petitioner 1, a General Secretary of an organisation engaged in the upliftment of socially and educationally backward classes and petitioner 2, a person belonging to Ganaka community which is one of the communities specified by the State as a socially and educationally backward class had filed the instant petitioner together to assail the order dated 06-02-2021 issued by the State Government in terms of which Nadars in the State of Kerala belonging to Christian religious denominations other than SIUC (South Indian United Church) were included in the list of socially and educationally backward classes for the purpose of providing employment and educational benefits.

The case set out by the petitioners that in the light of the provision contained in Article 342-A introduced to the Constitution in terms of the 102nd Amendment with effect from 15-08-2018, the State Government is denuded of the power to specify any class of persons as socially and educationally backward for the purposes of the Constitution. According to them, in the light of the said constitutional amendment, it is for the President to make such specifications, and the impugned order was, therefore, unconstitutional, being violative of Article 342-A.

Relying on the decision of the Supreme Court in Jaishri Laxmanrao Patil v. Chief Minister, 2021 SCC Online SC 362, the petitioners contended that the Supreme Court had clarified that till the President specifies the socially and educationally backward classes in relation to the States in terms of the provision contained in Article 342-A, the lists of socially and educationally backward classes operating in the States would continue to hold the field.

In Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC Online SC 362, the Supreme Court had held:

670. In view of the categorical mandate of Article 342A – which has to be necessarily read along with Article 366(26C), on and from the date of coming into force of the 102nd Amendment Act, only the President, i.e. the Central Government has the power of ultimately identifying the classes and castes as SEBCs. This court is conscious that though the amendment came into force more than two years ago, as yet no list has been notified under Article 342A. It is also noteworthy that the NCBC Act has been repealed. In these circumstances, the Court holds that the President should after due consultation with the Commission set up under Article 338B expeditiously, publish a comprehensive list under 342A(1). This exercise should preferably be completed with utmost expedition given the public importance of the matter. Till such time, the SEBC lists prepared by the states would continue to hold the field. These directions are given under Article 142, having regard to the drastic consequences which would flow if it is held that all State lists would cease to operate. The consequences of Article 342A would then be so severe as to leave a vacuum with respect to SEBCs’ entitlement to claim benefits under Articles 15 and 16 of the Constitution.”

Further in Clauses 5(vi) and 5(vii) of the concluding paragraph of the majority judgment, the Supreme Court had stated,

(vi)The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.

(vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India.”

Hence, according to the above pronouncement, it is for the President to specify the socially and educationally backward classes in relation to a State after due consultation with the Commission set up under Article 338-B of the Constitution.

Noticing the fact that the impugned order was issued after the 102nd Amendment to the Constitution, the Bench held that the inclusion of Nadars in the State belonging to Christian religious denominations other than SIUC in the list of socially and educationally backward classes was otherwise than in accordance with Article 342-A of the Constitution. In such circumstances the Court was to determine whether the Supreme Court had saved the additions made to the lists of socially and educationally backward classes operating in the States after the 102nd amendment to the Constitution and before the judgment in Jaishri Laxmanrao Patil’s case till the President specifies the socially and educationally backward classes in relation to the States.

The Bench opined that it was evident from paragraph 670 of the judgment that the lists of socially and educationally backward classes operating in the States would continue to hold the field till the President publishes the comprehensive list. In other words, the direction had been issued by the Supreme Court with a view to ensure that Article 342-A does not leave a vacuum with respect to the entitlement of socially and educationally backward classes to claim benefits under Articles 15 and 16 of the Constitution till the President specifies the socially and educationally backward classes.

In the light of the above, the Bench was of the view that the Supreme Court’s decision in Jaishri Laxmanrao Patil’s case did not intended to save the additions made to the lists of socially and educationally backward classes operating in the States after the 102nd amendment of the Constitution till the President specifies the socially and educationally backward classes. Accordingly, the petition was allowed and the impugned order was stayed.[S.Kuttappan Chettiar v. State of Kerala, WP(C) No. 12575 of 2021, decided on 29-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsels for the Petitioners: T.R. Rajesh, P.V. Shaji, Augustus Binu and Abhijith K. Anirudhan

Legislation UpdatesRules & Regulations

On July 14, 2021, the Jharkhand Government has issued the Code on Wages (Jharkhand) Rules, 2021. The Rules provide 9 Chapters further divided into 56 sections.

Key features of the Rules

  1. Manner of calculating minimum rate of wages: Minimum rate of wages shall be fixed on the day basis keeping in few of following criteria:
  • The standard working class family which includes a spouse and two children apart from the earning worker an equivalent of three adult consumption units;
  • a net intake of 2700 calories per day consumption unit; 66 mtrs cloth per year per standard working class family;
  • housing rent expenditure to constitute 10 percent of food and clothing expenditure.
  • fuel, electricity and other miscellaneous items of expenditure to constitute 20 percent of minimum wage;
  • expenditure for children education, medical requirement, recreation, and expenditure on contingencies to constitute 25 percent of minimum wages;
  • When the rate of wages for a day is fixed, then, such amount shall be divided by eight for fixing the rate of wages for an hour and multiplied by twenty-six for fixing the rate of wages for a month and in such division and multiplication the factors of one-half and more than one-half shall be rounded as next figure and the factors less than one-half shall be ignored.

2. Number of hours of work which shall constitute a normal working day shall be 9 hours.

3. An employee shall be allowed a day of rest every week which shall ordinarily be Sunday, but the employer may fix any other day of the week as the rest day for any employee or class of employees.

  • Any such employee shall not be required or allowed to work on the rest day unless he has or will have a substituted rest day for a whole day on one of the five days immediately before or after the rest day.

4. Where an employee in an employment works on a shift which extends beyond midnight then:

  • a holiday for the whole day means a period of twenty four consecutive hours beginning from the time when his shift ends; and
  • the following day in such case shall be deemed to be the period of twenty-four hours beginning from the time when such shift ends, and the hours after midnight during which such employee was engaged in work shall be counted towards the previous day.

5. The longer wage period for the purpose of minimum rate of wage shall be by the month.

6. The State Government shall fix the minimum wage not below the Floor Wages so fixed by the Central Government.

Case BriefsHigh Courts

Kerala High Court: The Division Bench of S.Manikumar, CJ, and Shaji P. Chaly, J., rejected the petition seeking direction to the State government to re-consider minority status of Muslims and Christians in the State. The Bench stated,

 “Merely because there are a few people who are rich in the minority communities, one cannot be expected to understand that their richness is due to them belonging to minority communities and…it cannot be taken for granted that the entire members of the minority communities are economically and socially advanced.”

The instant petition was filed by the Citizen’s Association For Democracy, Equality, Tranquillity and Secularism (CADETS), an organization aiming to fight against discrimination on the basis of religion, caste, sex etc. and for maintaining equality among the citizens and peace and tranquillity in all fields of life and to uphold the principles of secularism. The grievance highlighted by the petitioner was in regard to the minority status continued to the Muslim and Christian communities in the State of Kerala, since according to the petitioner, the members of such communities have grown up to such a level in the fields of socio-economic and education, and therefore, their status was to be re-determined.

Whether Minority Status of Muslims and Christians in Kerala require Re-consideration?

The petitioner contended that the report of the Committee appointed by the State Government, namely Paloli Muhammed kutty Committee, was a falsely created one that suppressed the facts and figures so as to give undue advantage to the Muslim Communities.

The petitioner argued that neither the Constitution nor any other enactments have defined the term ‘minority’; even in the National Commission for Minorities Act, 1992 instead of defining minority, certain religious communities were included in the list of minorities by the Government.

The petitioner further pointed out the names of the Chief Ministers belonging to the minority communities to contend that the members of the Muslims and Christians in Kerala had enough representation in the Ministry and the assembly, hence, the petitioner contended that the minority communities were in an integral part of the decision-making process and were holding powerful, valuable, and substantial portfolios and were in the forefront of developmental activities.

Therefore, arguing that it was crystal clear that at no point of time, they were subjected to any sort of discrimination and there was no chance of any apprehension on their part that the majority communities will dominate them; the petitioner urged the Court to issue a writ of mandamus commanding the government to re-determine the minority status of Muslim and Christian Communities in Kerala and to re-assess the socioeconomic and educational progress of such communities.

Opinion and Analysis by the Court

Opining that the framers of the Constitution had considered in depth the issue with respect to the well being, protection, and welfare of the minority communities and that is the reason freedom of conscience and free profession, practice and propagation of religion was incorporated in Article 25 of the Constitution, the Bench stated,

“We have no hesitation to say that no citizen is expected to think, visualise or figure out a situation outside the aforesaid basic structure of the Constitution.”

Further, Articles 26, 29 and 30 speak in the same line which was also strengthened by Articles 14 and 15.  Therefore, the Bench stated that even if the minority is not defined under the Constitution, that will not in any way belittle, digress or dilute the importance of the obligations instilled in “we the people of India”, by the framers of the Constitution.

Hence, rejecting the contention that the term ‘minority’ is not defined in the Constitution so as to give any constitutional status to such communities, the Bench stated that it had no factual basis and legal foundation for the reason that, the discussion of the constitutional provisions would make it clear that the framers of the Constitution were so careful and doubly cautious in providing various protection under the Constitution with the noble object of protecting and safeguarding the interest of the minorities. The Bench opined,

“Merely because the term ‘minority’ is not defined under the Constitution of India, that would not take away the fundamental rights and guarantees conferred on the minorities under the Constitution of India and the laws which are fundamental in the governance of the nation.”

Similarly, rejecting the argument that the socio-economic conditions of such communities, especially the fact of their sufficient representation in the State Legislative Assembly and in the management and affairs of the private and self-financing educational institutions, would suggest that the communities in question had grown up to such a level that they do not require any beneficial treatment; the Bench clarified that,

“Insofar as the political leadership and choice of Chief Minister and Ministers are concerned, it is done by the political parties or the political coalition succeeded in the fray of general elections conducted and that would not have any bearing in the matter of considering the status of minority in terms of the guarantee under the Constitution.”

And on the aspect of establishment of educational institutions by the members of the minority and any trust formed with members of the minority, the Bench stated that, “it is done on the basis of the right conferred as per Articles 29 and 30 of the Constitution, which is a fundamental right recognised by the framers of the constitution, which cannot be diluted or watered down in any manner.”

Verdict

Hence, holding that merely because there are a few people who are rich in the minority communities, one cannot be expected to understand that their richness is due to them belonging to minority communities and it cannot be taken for granted that the entire members of the minority communities are economically and socially advanced. The Bench stated,

“The National Commissions are well guided by the provisions of Act, 1992 and Act, 2004 and therefore, no manner of fetter can be created in whatever way for the independent functioning of the Commission by issuing any directions and that too, when the contentions put forth by the petitioner are substantially and materially surrounded by factual circumstances, which is not expected to be delved deep into by the writ court exercising powers under Article 226.”

Thus, cogitating the legal and factual aspects, the Bench held that the petitioner had not made out any case of arbitrariness, illegality, unfairness or other legal infirmities justifying the Court to exercise the power of discretion conferred under Article 226.[Citizen’s Association for Democracy, Equality, Tranquillity and Secularism v. Union of India, 2021 SCC OnLine Ker 2931, decided on 29-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

 Counsels for the Petitioner: C.Rajendran and K.Vijayan

Counsels for the Respondents: Krishnadas P.Nair, CGC and Tek Chand, Sr. Government Pleader

Case BriefsCOVID 19High Courts

Gauhati High Court: In a case related to the availability of oxygen and vaccination in the State of Nagaland the Division Bench comprising of Songkhupchung Serto and S. Hukato Swu, JJ., directed the state government to ramp up vaccination status for the health workers, Shopkeepers and vegetable vendors, journalists and judicial fraternity. The Bench remarked,

“They (health workers) are the people who are delivering the health service to the people; in case they are infected they will be the ones who will be spreading the virus to others.”

Considering the submissions made by Union and State counsels the Court was of the view that though vaccination is going on, availability of the vaccine is far short of the number of people that needs to be vaccinated in the State. The Bench stated that if the State has to fight the Covid war effectively and prevent the 3rd wave coming and causing so much suffering as the 2nd wave had done, the only way is ramping up vaccination and complete the same at the earliest. The Bench reminded the government that,

“The 3rd wave might be just standing at the door if vaccination is not done with speed and proper Covid behaviours are not followed.”

Therefore, directions were issued to the State and the Central Government to do all possible at their command to make the required number of doses of vaccination available in time so that vaccination could be carried out with speed and be completed at least within 3 months. Hence, the Health Department and State government were directed to come up with instructions to make the required number of doses of vaccine available within 3 months.

Noticing that nothing substantial had been done by the State with regard to Court’s order regarding vaccination of Shopkeepers and vegetable vendors since they are vulnerable section of the society who are also potential spreader of the virus due to the nature of their profession, the Bench warned the State government to take some pragmatic steps so that priority is given to these groups of people at the earliest. Concerning the health workers, the data submitted before the Court suggested that out of 25,000 plus only 15,000 plus had taken the vaccination and out of that 10,000 plus had taken their 2nd dose. Finding these figures concerning because these they are the people who are delivering the health service to the people, the Bench stated that in case they are infected they will be the ones who will be spreading the virus to others. The Bench further stated,

“We are aware of the fact that nobody can be forced to take vaccine unless they volunteer. However, the authorities should make sure that these health workers, in case they do not volunteer to take the vaccine, produce their testing certificate as and when they report for duties.”

The District Task Force was also directed to ensure that private hospitals also follow the same directions. Appreciating that vaccination camps had been organized at Secretariat and Directorate level regarding other Government servants, the Bench cautioned the Government and authorities concerned that no such camp had been organized the judicial fraternity.

Acknowledging the nature of work with regard to the journalist community, the Bench also directed that a special camp should also be organized for them.  Lastly, the Bench remarked, “since no one knows as to when this war against Covid will end, the Government should come up with some pragmatic plan so that office works are not affected for such a long time.”

[Kohima, In re., PIL (Suo Moto) 1 of 2021, decided on 30-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: Mr. Taka Masa

Counsel for the State: Mr. K. Sema, Addl. Sr. Advocate General

Counsel for the Health Department: Mr. N. Mozhui

Counsel for Union of India: Ms. Akhala, ASGI

Case BriefsCOVID 19High Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., expressed that vaccinating oneself may not only be to protect oneself but also in the larger interest of public health.

As per the State Government’s report, adequate measures were taken to vaccinate persons with disabilities, particularly the ones who were homebound.

Another significant point that was noted from the state report was that there was reluctance in some quarters to take the vaccine.

Bench asked the State to try and persuade persons with awareness campaigns and scientific data to indicate the efficacy of the vaccines and the indispensable nature in dealing with the present pandemic.

Right to Refuse Vaccine: Can it be exercised?

Bench opined that when a larger interest of public health comes into play, it is possible that a person who has not taken the vaccine may not reveal the symptoms but still be a silent carrier, it is doubtful whether in such circumstances the right to refuse vaccine can be exercised.

While concluding, High Court hoped that all persons with disabilities, irrespective of status and resources, are taken care of by the State in due course.

Matter to be taken up in 4 weeks, i.e. on 28-08-2021 since vaccination drive in the State had only begun in right earnest, though larger supplies of vaccine were awaited. [M. Karpagam v. Commissionerate for the Welfare of Differently Abled, WP No. 11850 of 2021, decided on 30-06-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Coram comprising Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members) took suo motu cognizance of the matter regarding alleged prevention of entry of app-based taxi aggregator companies in the State of Goa.

Based on newspaper reports regarding alleged concerted action to prevent entry app-based taxi aggregator companies in the State of Goa, Commission took up the present matter suo motu against tourist taxi unions operating in the State of Goa.

Another significant issue in the matter was that the constant strikes by various taxi unions, tourists were getting affected in Goa.

What were the demands of the above-stated Unions?

  • Crackdown on Illegal Taxi
  • Cancellation of installation of speed governors.

Prima Facie Observation of the Commission

Taxi Unions conduct in not allowing any app-based service providers in the State of Goa was putting a restrain on services based on technology and limiting the competition, technical development as well as investment in provision of relevant services.

Another observation was that the reforms by the State Government in terms of bringing transparency and improvement in the delivery of services was also being prevented.

The above resulted in restriction to the choice of consumers which was in contravention of Section 3(3)(b) read with Section 3(1) of the Competition Act.

In view of the above observations, DG was directed to conduct an investigation and submit a report.

What was in the DG’s report?

DG found the conduct of taxi unions to be in violation of Sections 3(1) and 3(3)(b) of the Competition Act.

DG noted that there are no fare meters and organised groups of taxi operators in Goa control the rates as well as the routes. Further, it was observed that the taxi operators in North and South Goa use different rate charts and tourists in Goa have to pay more than thousands of rupees even for short distance travel.

During investigation, certain violent incidents were reported alleging manhandling of Zoomcar users and their vehicles damaged by local taxi union operators.

Commission’s Observation on perusing DG Report

Coram noted that no material was placed in regard to conduct of OPs indulging in strikes except few YouTube videos, Facebook Blogs and news clippings and such material remained uncorroborated and unauthenticated.

DG failed to examine the reasons mentioned by the OPs for resorting to strikes, which included increase in fees for permits, backdoor entry of app-based taxi aggregators and installation of speed governors in taxis. OP-4 had pointed out certain other issues such as:

proposed Mopa Airport, Speed Governors, Harassment of taxi drivers at the airport, frequent requests to the Government of Goa for putting up taxi fare rates at all tourist destinations, to stop private cars operating as illegal taxies, and to stop private cars being given on rent for self-driving’

Restriction on entry of OLA and UBER

Authorised representative of Uber stated that Uber did not even apply for any license for starting app-based taxi services in the State of Goa.

With regard to OLA, DG failed to examine the reasons behind its exit from the State of Goa, though it was noted that Shekhar Dutta, Senior Director, ANI Technologies (OLA), had stated that they had received threats from Taxi Owners Associations (without naming any specific OPs) and the association members vandalized the assets and did gherao of their office premises without elaborating any details of such incident in precise manner.

“…meeting with head of political executive in a joint representation, raising grievances cannot be said to violate the provisions of Competition Act.”

Though nothing on record was placed to show that the OPs gave any joint representation to the State Government.

Concluding the matter, Coram observed that State of Goa took a policy decision and issued guidelines titled as “Guidelines for Taxi Operator/ Radio Taxis/ Rent A Car and Taxi App Aggregators in the State of Goa” as per which app-based taxi aggregators were permitted to operate and were allowed to have range bound dynamic pricing which was on lines of the business model of OLA & Uber.

“despite the opposition of OPs, the State of Goa does not appear to have acceded to or conceded to the demands of the OPs and the policy allowing entry of app based taxi aggregators was eventually notified.”

Hence no case of contravention of Sections 3(1) read with 3(3) of the Competition Act was made out. [Alleged anti-competitive conduct of taxi unions in the State of Goa, In re., Suo Motu Case No. 2 of 2018, decided on 22-06-2021]

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]