Case BriefsHigh Courts

Madras High Court: Stating that the past generations have handed over the ‘Mother Earth’ to us in its pristine glory, S. Srimathy, J., expressed that it is the right time to declare/confer juristic status to the “Mother Nature”.

Factual matrix

It was stated in the present matter that, the petitioner had served in the Revenue Department for the past 35 years and lastly served as Distillery Officer in the cadre of Deputy Collector in the Rajashree Sugars and Chemicals Private Limited. The petitioner attained superannuation in 2006 and was not allowed to retire but was placed under suspension because of the pendency of the disciplinary proceedings.

Further, in 2009, the Government decided to impose the punishment of compulsory retirement for the proven charges and later in 2012, by a Government Order, the petitioner was eligible for 2/3rd pension and the 1/3rd of the eligible pension and the retirement gratuity was reduced as penalty.

Petitioner contended that the Government did not provide any opportunity before imposing the punishment.

Hence, aggrieved with the above, petitions were filed.

Analysis and Decision

High Court opined that, since the co-delinquent’s disciplinary proceedings were quashed, the petitioner was entitled to the same benefit. The Bench added that the delinquents deserved to be treated equally in the matter of punishment in departmental proceedings for the acts of omissions and commissions.

The Bench while noting that the land in question was classified as “forest land”, observed that the mother nature ought to be preserved.

Indiscriminate destruction or change is leading to several complications in ecosystem, ultimately is endangering the very existence of the animals, flora and fauna, forests, rivers, lakes, water bodies, mountains, glaciers, air and of course human. Strangely the destruction is carried on by few humans. Any such act ought to be checked at all levels. 

Invoking the “parens patriae jurisdiction”, Court declared the “Mother Nature” as a “Living Being” having legal entity/legal person/juristic person/juridicial person/moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them.

Adding to the above, Court stated that, the State Government and the Central Government are directed to protect the “Mother Nature” and take appropriate steps to protect Mother Nature in all possible ways.

High Court held that, since the petitioner had issued patta to the Megamalai forest land, the petitioner ought to be punished.

Lastly, the Court concluded by stating that the punishment of compulsory retirement ought to be modified as a stoppage of increment for six months without cumulative effect and consequential monetary benefits shall be conferred on the petitioner.

In view of the above discussion, petitions were allowed.[A. Periyakaruppan v. Revenue Department, 2022 SCC OnLine Mad 2077, decided on 19-4-2022]

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., held that, the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the PC&PNDT Act on the complaint of an Appropriate Authority or any officer authorised on this behalf by the Central Government or the State Government or the Appropriate Authority under sub-Section (1) of Section 28 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

Petitioners sought to quash the complaint by the Appropriate Authority for violation of Rules 4 and 9 of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (PC&PNDT Rules) punishable under Section 23 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the proceedings pursuant thereto including framing of charges against the petitioners.

Question for Consideration

Whether cognizance of the complaint filed by a single member of Appropriate Authority is illegal warranting quashing of the complaint and proceedings pursuant thereto?

On a perusal of Section 28 of PC&PNDT Act, it is evident that the Metropolitan Magistrate/Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under this Act on the complaint of an Appropriate Authority or any officer authorized in this behalf by the Central or State Government or the Appropriate Authority under Section 28(1). Further, the complaint could also be filed by any person who gave notice of fifteen days to the Appropriate Authority.

Central Government and the State Government can even authorize an officer other than the Appropriate Authority to file a complaint on which cognizance can be taken by the Court.

In the present matter, the complaint against the petitioner had been filed by Dr Aruna Jain was a single member authority.

The Bench stated that since the cognizance of the complaint of an Appropriate Authority or an officer authorized on this behalf is a sine qua non for taking cognizance of an offence under the PC&PNDT Act, the Appropriate Authority should be validly appointed.

The notification dated 4-7-2003 issued by the Ministry of Health and Family Welfare, Union of India appointing a three-member Appropriate Authority for the Union Territory of Delhi is in the exercise of its power conferred under clause (a) of sub-Section 3 of Section 17 PC&PNDT Act and not in respect of clause (b) of sub-Section 3 of Section 17 of the PC&PNDT Act.

High Court noted that the functions assigned by the appropriate authority are multifarious and in view, thereof the Act contemplating appropriate authorities at the State level and District, or part of the State level is duly conceived by Sections 17 (3) (a) and Section 17 (3) (b) PC&PNDT Act.

Hence, every time when a raid is conducted in different areas of the State, it cannot be accepted that an officer of the Department of Law will be available every time.

In view of the plain language of Section 17(3)(b) PC&PNDT Act, it cannot be held that even for part of State, a Multi Member Committee would be a validly constituted Appropriate Authority.

Therefore, by giving a purposive construction to Section 17(b) and (c) of the Act, the acts performed by the Appropriate Authority of filing complaints pursuant to valid notification cannot be quashed.

The Bench added that, incomplete and improper maintenance of records are indicative of the fact that ultrasound was being done without keeping proper records for concealment of facts so that unwanted pregnancies for particular sex can be terminated, there is thus clear violence of PC & PNDT Act and MTP Act.

High Court found no ground to quash the complaint filed by the respondent and the proceedings thereto. [Manish Gupta v. State NCT of Delhi, 2022 SCC OnLine Del 1154, decided on 22-4-2022]


Advocates before the Court:

For the petitioner: Mr. Amardeep Singh, Adv. with Ms. Shruti Khosla, Adv.

For the respondent: Mr. Rajesh Mahajan, ASC for State with Ms. Jyoti Babbar, Ms. Shrutika Vedi, Advs. With SI Vineet Kumar, P.S. Timarpur

Mr. Anil Soni, CGSC for UOI

Hot Off The PressNews

NHRC ensures payment of Rs. 13 lakh relief in the case of the death of a Tamil Nadu Government woman employee after slipping into a septic tank near her office; action against the guilty officials and construction of toilets in all the Agriculture Extension Centres

The intervention of the National Human Rights Commission, India resulted in the payment of monetary relief of Rs. 13 lakh to the next of kin of a Tamil Nadu Government lady Warehouse Manager, who died on 07th December, 2020 after falling into a septic tank near an under construction building to answer call of nature as there was no toilet in her office. She was working in the Kancheepuram Agriculture Development office. The relief amount includes the service benefits of the victim and Rs. 10 lakh from Chief Minister’s Relief Fund.

The State government has informed the Commission that it has also taken action against the guilty officers besides ordering setting up of toilet facilities on a war footing at all the Agriculture Extension Centres (IAECS)/Sub Agriculture Extension Centres in various parts of the State. It is also considering appointment of the victim’s elder sister on compassionate ground.

The Commission has asked the Chief Secretary, Government of Tamil Nadu to submit the status report on the construction of restrooms in all the Agriculture Extension Centres (IAECS)/Sub Agriculture Extension Centres within 8 weeks.

The Commission had taken cognizance of the fatal incident on the basis of a complaint.


National Human Rights Commission

[Press Release dt. 25-3-2022]

Hot Off The PressNews

The National Human Rights Commission, India has taken suo motu cognizance of media reports that 8 persons, including women and children were allegedly burnt to death in Bogtui village in Rampurhat area of Birbhum district, West Bengal on 22nd March, 2022, after TMC leader was killed in a bomb attack.

The Commission has issued notices to the Chief Secretary and the Director General of Police, West Bengal calling for a detailed report in the matter within four weeks including the status of the FIRs registered in the matter, steps taken to ensure safety of the people in the village and any relief or rehabilitation provided by the State Government.

Issuing the notices, the Commission has also observed that going by the contents of the media reports, the incident of hate violence indicates that the law and order is not appropriate in the area.

According to the media reports, the doctors at Rampurhat Government Hospital, where the bodies were taken for post-mortem, stated that the condition of the bodies made their work very difficult. It is further stated that the presence of blood suggests that the victims were first physically attacked and then the houses were put on fire.


National Human Rights Commission

[Press Release dt. 24-3-2022]

Case BriefsHigh Courts

Kerala High Court: While expressing that, it is the duty of the welfare Government to protect not only the citizens, but to continue with, all the Government work as expected, the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., directed that Government servants should be prevented from engaging in a strike.

An Advocate, S. Chandra Chooden Nair had filed the present public interest petition, in order to bring to the notice of this Court the mala fide and illegal attempt of respondents 1 to 3 to aid and assist the General strike by permitting eligible leave with salary to the State Government employees taking part in the General Strike by not declaring died non in terms of the directions of this Court in WP (C) No. 5752 of 2019. 

Against the policies of the Central Government, respondents 1 to 3 had acted hand in glove with the trade unions and encouraged the Government servants and teachers to participate in the general strike by offering to regularise the absence in strike days as eligible leave with salary.

In WP (C) No. 5752 of 2019, the Government Order granting eligible leave and salary to the striking employees was challenged, and the Court quashed the impugned order directing the respondent 1 to 3 to verify the attendance register and take action in accordance with law.

However, no such steps as stated above have been taken by the respondents to date and infact they have extended unbridled support to the strike by declaring dies-non nor even mandating the compulsory attendance of government servants on the days of proposed General Strike.

Trade Unions offered eligible to leave and salary to the Government servants for abstaining from office.

Analysis, Law and Decision

This Court expressed that it had struck down the Government Order which granted permission to the employer, to grant eligible casual leave to the Government employees and teachers, who has not attended duty during the national general strike, taking note of the statutory provisions, circulars and other decisions.

Further, Rules 86 of the Kerala Government Servants’ Conduct Rules, 1960 makes it clear that no Government servant shall engage himself in any strike or any similar activities.

Government servants should not engage themselves in any concerted or organised slowing down or attempt at slowing down Government work or in any act, which has the tendency to impede the reasonably efficient and speedy transaction of Government Work. Concerted or organised refusal on the part of Government servants to receive their pay will entail severe disciplinary action.

Bench opined that the Government Servant should also take adequate steps to prevent the Government servants to engage in any activity specified in Rule 86 of the Rules.

Whether trade unions can call for a nationwide strike, in matters not related to trade union dispute under the Trade Unions Act, 1926, and when there is no industrial dispute with the employees in Kerala, within the definition of Industrial Disputes Act, 1947?

High Court expressed that, it is the duty of the Government to prevent the Government servant from joining in strikes.

Trade union activities pertaining to the statutory provisions under the Trade Unions Act, 1926, cannot be allowed to impede governance.

Elaborating further, the High Court added that the disciplinary action can be taken if only there was the participation of the Government, which fact again requires a detailed enquiry.

Merely because there is disciplinary action provided, that does not absolve the State Government from taking preventive action. What is prohibited in Rule 86 is different from what is provided in rule 14A of the Kerala Service Rules.

Lastly, the Court found that Government did not issue orders in advance preventing Government servants from taking part in the strike nor provided any machinery enabling others to attend office.

Bench directed the Government of Kerala to issue appropriate orders to prevent the Government servants from engaging in the strike and also to issue necessary orders forthwith to all the Heads of the Departments, to ensure that Rule 86 of the Government Servants Conduct Rules, 1960 and circular extracted above are not violated. [Chandra Chooden Nair S v. State of Kerala, WP (C) 10478 of 2022, decided on 28-3-2022]


Advocates before the Court:

Petitioner Advocate: SAJITH KUMAR V.,REMYA VARMA N.K,APARNA CHANDRAN,GODWIN JOSEPH,VIVEK A.V.

Case BriefsHigh Courts

Patna High Court: The Division Bench of Sanjay Karol, CJ and S. Kumar, J., directed the Chief Secretary, Government of Bihar to take all steps ensuring the establishment of State Mental Health Authority as per Section 45 of the Mental Health Care Act, 2017.

The object and purpose of the Mental Health Care Act, 2017 is to provide for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during the delivery of mental healthcare.

Chapter VII of the said Act specifically deals with the establishment and composition of the State Authority, to be termed as the “State Mental Health Authority”.

The Bench noted that as per the affidavit of the State, the said authority as referred to above has not yet been constituted.

High Court remarked that,

“It appears that mental health of a person and/or treatment of those who are in need, more so during the time of COVID-19, is the least priority of the State Government.”

Bench noted that the step for establishing the authority commenced in the year 2020, that too, with the publication of an advertisement in the newspaper and since then nothing has been done to expedite the process.

The affidavit filed by the Additional Directors, Health, Bihar Patna has averments as vague as they can be, it does not address the pertinent questions regarding how much time would it take for the establishment, who all are engaged in the selection process and on which stage it is.

Bench added that,

“We only remind the Government that Covid-19 was declared as a ‘Pandemic’ only on 24th of March, 2020 and since then despite the first, the second and the third wave, which fortunately we have been able to overcome despite the adversities; challenges; and the hardships, all institutions/establishments/organs of the State have become fully operational and functional.”

Hence, the Court directed the Chief Secretary, Government of Bihar to forthwith take all the steps ensuring the establishment of the authority as stipulated under Section 45 of the Act and an affidavit be filed with regard to indicating the latest status by the Chief Secretary, Government of Bihar before the next date.

Matter to be listed on 25-2-2022. [Akanksha Maviya v. Union of India, 2022 SCC OnLine Pat 305, decided on 10-2-2022]


Advocates before the Court:

For the Petitioner/s :

Mr. Vishal Kumar Singh, Advocate Mr. Akash Keshav, Advocate

Mr. Deepak Kumar Singh, Advocate Mr. Shashwat, Advocate

For the Respondent/s :

Mr. Dr. K. N. Singh ( ASG )

Mr. S.D. Yadav, AAG-9

Mr. Kumar Priya Ranjan, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): Noting a nationwide cartel amongst certain Beer companies, Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma, Bhagwant Singh Bishnoi (Members) imposed penalty on three beer companies on finding regular communications with respect to planning and coordinating of price hikes to propose to State authorities

CCI initiated the present matter suo motu, pursuant to the filing of an application by Crown Beers India Private Limited (OP-2) and SABMiller India Limited (OP-3), both ultimately held by Anheuser Busch InBev SA/NV (Ab InBev) against the captioned parties (OPs) for alleged cartelization in relation to the production, marketing, distribution and sale of Beer in India.

Commission noted that there appeared existence of collusion amongst OPs 2 and 3 along with United Breweries (OP-1) and Carlsberg India Private Limited (OP-4) to:

  • Align the prices of Beer
  • Seek/implement price adjustments in several States and Union Territories of India, irrespective of whether the model of distribution of alcohol (including Beer) therein was of corporation market, auction market or free market.

The aim of the companies appeared to be to ensure consistency in their pricing policies, in particular, price increases and to achieve this aim, OP1 to OP-4 appeared to have coordinated by way of series of multilateral and bilateral meetings and e-mail exchanges amongst themselves as well as through common platform of All India Brewers’ Association (OP-5).

On 31-10-2017, Commission passed an order forming an opinion that prima facie, the conduct of the OPs appears to be in contravention of the provisions of Section 3(1) read with Section 3(3)(a) of the Act and consequently, directed DG to cause an investigation into the matter. 

DG’s Report

DG noted that the sale of liquor (including Beer) does not fall within the ambit of the Goods and Services Tax (‘GST’). As such, each State/UT in India has its own unique method of regulating the sale of liquor (including Beer) within its territory, leading to differences in pricing regulations and approvals, imposition of different taxes, different excise duties and differing terms of licensing, among others.

Issue

  • Whether the OP’s indulge in cartelization in the domestic Beer market I India in contravention of the provisions of Section 3 of the Act?

DG concluded that OPs 1,3 and 4 indulged in the exchange of vital information amongst themselves about pricing and other confidential and business-sensitive information. These companies approached the State Governments collectively through the common platform of OP-5 to get price revisions to agreed levels so as to avoid price wars among themselves.

Hence, they contravened the provisions of Section 3(3)(a) read with Section 3(1) of the Act.

Analysis

Commission noted that the DG has established cartelization amongst the OPs in 10 States/UTs out of total 36 States/UTs in India.

In view of evidences collected by the DG, and analysed by the Commission, in the following States/UTs, cartelization amongst the OPs stood established:

(1) Andhra Pradesh – Price co-ordination between OP-1 and OP-3 in 2009 and 2013, in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act;

(2) Delhi – Price co-ordination between OP-1, OP-3 and OP-4 through OP-5 in 2013, in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act;

(3) Karnataka – Price-co-ordination between OP-1 and OP-3 from 2011 to 2018 with OP-4 joining in from 2012, in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act; and cartelisation between OP-1 and OP-3 with respect to supply of Beer to premium institutions in the city of Bengaluru in 2010, in contravention of the provisions of Section 3(3)(c) read with Section 3(1) of the Act;

(4) Maharashtra – Price co-ordination between OP-1 and OP-3 from 2011 to 2018 with OP-4 joining in from 2012, in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act; cartelisation between OP-1 and OP-4 to restrict/limit the supply of Beer in 2017, in contravention of the provisions of Section 3(3)(b) read with Section 3(1) of the Act; and sharing of market between OP-1, OP-3 and OP-4 from 2013 to 2017, in contravention of the provisions of Section 3(3)(c) read with Section 3(1) of the Act;

(5) Odisha – Price co-ordination between OP-1 and OP-3 in 2009 and 2010, in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act; price co-ordination by OP-4 in 2015 and 2016, in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act; and cartelisation between OP-1, OP-3 and OP-4, through OP-5, to restrict/limit the supply of Beer in 2015–16, in contravention of the provisions of Section 3(3)(b) read with Section 3(1) of the Act;

(6) Puducherry – Price co-ordination between OP-1, OP-3 and OP-4 in 2017, in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act;

(7) Rajasthan – Price co-ordination between OP-1, OP-3 and OP-4 through OP-5 from 2011 to 2018 with OP-4 joining in from 2014, in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act; and

(8) West Bengal – Price co-ordination between OP-1 and OP-4 through OP-5, from 2012 to 2018, in contravention of the provisions of Section 3(3)(a) read with Section 3(1) of the Act; and cartelisation between OP-1 and OP-4, through OP-5, to restrict/limit the supply of Beer in 2018, in contravention of the provisions of Section 3(3)(b) read with Section 3(1) of the Act.

Second-Hand Bottles

Further, apart from price co-ordination and limiting/restricting supply of Beer in various States/UTs, the DG also reached to a finding of co-ordination amongst OP-1 and OP-3 with respect to purchasing of second-hand bottles.

Commission observed that the provisions of the Act do not just pertain to the end-consumers of goods/services.

“No distinction in the Act, for the purposes of assessment of anti-competitive conduct, is made between the end-consumers, and intermediaries falling in the supply chain.”

 Coram opined that given the sheer magnitude and size of the OP companies, their countervailing buying power over small time bottle collectors, would have been substantial.

Hence, cartelization amongst OP-1 and OP-3 from at least 2009 to 2012 in the purchase of second-hand bottles was clearly established.

OP-1 and OP-3 had an ‘understanding’ to share their off-take of old bottles from the market for re-use in their breweries. They had also agreed upon the rate at which they would procure such bottles from the bottle collectors. They closely monitored each other’s purchase of old bottles. Such conduct of OP-1 and OP-3 may have resulted in limiting and controlling the supply of second-hand Beer bottles in the market, amounting to contravention of the provisions of Section 3(3)(b) read with Section 3(1) of the Act.

 OP-4 was not found guilty of cartelization with respect to second-hand Beer bottles.

Commission stated that OP-1 and OP-3 indulged into nation-wide cartelisation from 2009 to at least 10.10.2018 (till the DG conducted search and seizure operation at the premises of the OPs), with OP-4 joining in from 2012 and with OP-5, since 2013, serving as a platform for facilitating such cartelisation, which is in contravention of the provisions of Section 3(3)(a), 3(3)(b) and 3(3)(c) read with Section 3(1) of the Act.

15 individuals were liable for the anti-competitive conduct of their respective companies.

Conclusion

In terms of proviso to Section 27(b) of the Competition Act, in cases of catelisation, Commission is empowered to impose upon the contravening entities penalty of upto 3 times of the profit of each year of the continuance of the cartel, or 10% of its turnover for each year of the continuance of the cartel, whichever is higher.

Commission determined the quantum of penalty imposed on the parties @ 0.5 times profit for each year of the continuance of the cartel or 2% of the turnover for each year of the continuance of the cartel, whichever is higher.

Lastly, the Coram directed the parties to cease and desist in future from indulging in any practice/conduct/activity, which has been found in the present order to be in contravention of the provisions of Section 3 of the Act. [Alleged anti-competitive conduct in the Beer Market in India, In Re.; 2021 SCC OnLine CCI 53, decided on 24-9-2021]


Advocates before the Commission:

For United Breweries Ltd. (UBL), Mr. Kalyan Ganguly of UBL, Mr. Kiran Kumar of UBL, Mr. Perry Goes of UBL and Mr. Shekhar Ramamurthy of UBL:

Mr. Amit Sibal, Senior Advocate alongwith Mr. Ravishekhar Nair, Ms. Avantika Kakkar, Mr. Sahil Khanna, Mr. Abhay Joshi, Mr. Kirthi Srinivas, Mr. Ambar Bhushan, Mr. Saksham Dhingra, Mr. Animesh Kumar, Ms. Shreya Joshi and Ms. Sree Ramya Hari, Advocates and Mr. Govind Iyengar, Senior VP Legal of UBL, Mr. Kiran Kumar in person, Mr. Perry Goes in person and Mr. Shekhar Ramamurthy in person

For Mr. Shalabh Seth of UBL:

Mr. Ramji Srinivasan, Senior Advocate alongwith Mr. Gaurav Desai, Ms. Apurva Badoni and Mr. Shivkrit Rai, Advocates

For Mr. Steven Bosch of UBL:

Mr. Prashanto Chandra Sen, Senior Advocate alongwith Ms. Nisha Kaur Oberoi, Mr. Gautam Chawla, Mr. Rishabh Juneja and Ms. Shambhavi Sinha, Advocates

For Anheuser Busch InBev SA/NV (i.e., Crown Beers India Private Limited and SABMiller India Limited):

Mr. Manas Kumar Chaudhari, Mr. Pranjal Prateek, Mr. Sagardeep Rathi and Ms. Radhika Seth, Advocates alongwith Ms. Ajita Pichaipillai, Legal and Compliance Director of AB InBev

For Mr. Anil Arya of SABMiller India Ltd.: For Mr. Nilojit Guha of SABMiller India Ltd.:

Mr. Talha Abdul Rahman, Advocate
Mr. Tahir Ashraf Siddiqui, Advocate with Mr. Nilojit Guha in person

For Mr. S. Diwakaran of SABMiller India Ltd.:

Mr. Shreyas Mehrotra, Advocate

For Carlsberg India Pvt. Ltd. (CIPL), Mr. Anil Bahl of CIPL, Mr. Dhiraj Kapur of CIPL, Mr. Mahesh Kanchan of CIPL, Mr. Michael Jensen of CIPL and Mr. Nilesh Patel of CIPL

Mr. Rajshekhar Rao, Ms. Manika Brar, Ms. Atrayee Sarkar, Mr. Anandh Venkataramani, Mr. Nilav Banerjee, Ms. Kajori De, Ms. Afreen Abbassi and Ms. Raveena Sethia, Advocates alongwith Mr. Amit Sethi of CIPL

For Mr. Pawan Jagetia of CIPL:

Ms. Deeksha Manchanda and Mr. Shruti Rao, Advocates

For All India Brewers’ Association (AIBA): For Mr. Sovan Roy of AIBA:

Mr. Subodh Prasad Deo and Ms. Rinki Singh, Advocates, with Mr. Sovan Roy in person

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 Draft 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