Case BriefsHigh Courts

Calcutta High Court:  Rajasekhar Mantha, J. disposed of a petition observing that the Supreme Court is the only authority to clarify  whether the orders passed under a repealed Act can be executed or not.

Petitioner had approached the West Bengal Housing Industry Regulation Authority (WBHIRA) against the private respondents (promoters) for damages arising due to delay in delivery of possession of flat booked, and for money for the same paid by her. The complaint was allowed by WBHIRA and an order was passed and it was put into execution directing the District Collector, North 24 Parganas to effect recovery of the amount due as arrears of land revenue in the manner as provided in “Bengal Public Demand Recovery Act, 1913”, as per Section 40 of the WBHIRA Act, 2017 read with Rule 27 of WBHIRA Rules, 2018.

The WBHIRA was constituted under the West Bengal Housing Industry Regulation Authority under the provisions of WBHIRA Act, 2017 which was struck down by the Supreme Court as being ultra vires the Constitution of India and repugnant to the provisions of Real Estate (Regulation and Development) Act, 2016, in the case of Forum for People’s Collective Efforts (FPCE) v. State of West Bengal, (2021) 8 SCC 599. The Supreme Court had disposed of the Special Leave Petition holding that WB-HIRA was repugnant to RERA, and was hence unconstitutional.

The Court noted that it was evident from the Supreme court judgment that what has been saved by the Supreme Court under Article 142 under the Struck Down Act, are legislation, sanction and permission already granted. The orders already passed under the said Repealed Act, have not been specifically mentioned to have been saved.

The Court thus observed that it is only the Hon’ble Supreme Court under Article 142 of the Constitution of India, that can clarify as to whether the orders passed under the erstwhile WBHIRA, are saved and the execution thereof can be continued post the decision in the Forum for People’s Collective Case (Supra) or whether the execution should be carried out under the Real Estate Regulation Authority Act, 2016 keeping in view the decision of the Supreme Court in State of Manipur v. Surjakumar Okram, 2022 SCC OnLine SC 130.

[Saptaparna Ray v. District Magistrate and Collector, 2022 SCC OnLine Cal 436, decided on 28-02-2022]


For the petitioner: Ms Priyanka Agarwal

For the private respondent: Mr Pratip Mukherjee, Mr Ranjit Rajak

For the State: Mr Raha Saha, Mr Biswabrata Basu Mallick


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Orissa High Court:  A Division Bench of S.K. Mishra and Savitri Ratho, JJ., dismissed the petition being devoid of merits.

The instant petition was filed by Hi-Tech Edifice Pvt. Ltd., Khurda- in all and prayed to declare the proviso to Sub-Section (5) of Section 43 of the Real Estate (Regulation and Development) Act, 2016 (“the Act, 2016”) to be ultra vires of the Constitution of India.

The Petitioner asserts that Proviso to Sub-Section (5) of Section 43 of the Act, 2016 is vague and arbitrary inasmuch as it provides for three different, disproportionate and illusory modes of calculation of the amount to be deposited in the Appellate Tribunal by the promoter, as a precondition for the appeal to be entertained by the Tribunal. It is further submitted that the provision leaves an unbridled power in the hands of the Authority in that regard.

The Court relied on judgment Tecnimont Pvt. Ltd. v. State of Punjab, 2019 SCC OnLine SC 1228  and observed that a condition of pre deposit imposed by legislature in their wisdom cannot be considered to be unconstitutional not being unreasonable or onerous. It was also observed that Section 43 of the Act provides for three modes of calculation of the amount to be deposited in the Appellate Tribunal by the promoter as a precondition for the appeal to be entertained by the Appellate Tribunal. The intention of the legislature behind providing three different modes for calculating the amount to be deposited in the Appellate Tribunal before entertaining appeal depends on facts of each case. The facts may vary from case to case and hence it is not necessary or advisable to provide a strait jacket formula for every case. Hence, a pre deposit conditional order is quite reasonable. A concessional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner.

It was observed in M. Nagaraj v. Union of India, (2006) 8 SCC 212

“19. Constitution is not an ephermal legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges.”.

The Court further observed that while granting the right of appeal the legislature can impose condition for the exercise of such right. As long as the conditions are not so onerous, that it amounts to unreasonable restrictions rendering the right almost illusory.

A provision cannot be held to be unconstitutional being unreasonable and arbitrary. The admitted amount received from the allottee should be kept in deposit as condition precedent because the further right of the allottee to get compensation and penalty will be considered at the time of final hearing of the appeal. As such the right of the allottee will be protected and the proceeding will be finalized at an early date.

The Court observed the provision of sub-section (3) provides for deposit of amount which is already calculated by the Authority in a quasi judicial proceeding after taking into consideration all the materials available on record, a condition imposing a pre deposit by the promoter is not unreasonable or onerous.

The Court held “Sub-Section (5) of Section 43 of the Real Estate (Regulation and Development) Act, 2016 is not arbitrary, unreasonable or onerous requiring the same to be declared ultra vires.” [Hi Tech Edifice Pvt. Ltd. v. Union of India, 2021 SCC OnLine Ori 1633, decided on 07-10-2021]


Arunima Bose, Editorial Assistant has reported this brief.


 Appearances

For Petitioner:  Mr Subhankar Rout

For Opp. Party 1 &2: Mr B.Nayak, Mr P. K. Parhi and Mr D. R. Mohapatra

For Opp. Party 3: Ms R Ronald

For Opp. Party 4: Mr M. Agarwal

Case BriefsHigh Courts

Patna High Court: The Three-Judge Bench of Ashwani Kumar Singh, Birendra Kumar and Anil Kumar Upadhyay, JJ. disposed of an appeal arising out of a reference made by the Division Bench of this Court, in view of conflicting judgments on the aspect of maintainability of a claim for compassionate appointment of a child born from the second marriage of deceased employee, while the first marriage is subsisting.

A circular issued in 2005 under by the Personnel and Administrative Reforms Department of Government of Bihar declared that if a government servant marries while earlier marriage is subsisting, without the permission of the government, then such spouse and the ward of such spouse would be disentitled for appointment on compassionate ground. In a petition filed before this Court, the learned Single Judge quashed the said circular and directed the petitioner authority to appoint minor-respondent herein (whose father died in harness and who was the son of deceased’s second wife) on compassionate grounds. 

The Court relied on Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097 where the right to compassionate appointment to child of second marriage was acknowledged under Section 16(1) and 16(3) of the Hindu Marriage Act, 1955 (HMA); and where it was held that while designing a policy of compassionate appointment, State can prescribe the terms on which it can be granted. However, while making a scheme/ rule, State could not lay down conditions inconsistent with Article 14 of the Constitution of India.

It was opined that once Section 16 of HMA regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, the State could not exclude such a child from seeking the benefit of compassionate appointment. An employer, who is amenable to Part III of the Constitution, could not deny the benefit of compassionate appointment available to other legitimate children. Such a condition of exclusion would be arbitrary and ultra vires as it would bring out unconstitutional discrimination between legitimate children, who form one class.

If a government servant performs the second marriage, it would amount to misconduct committed in service. In such a case, if he is proceeded against for such misconduct while in service and misconduct is proved, the government may be free to take any action against such employee and the same may be a relevant consideration for denying the prayer for compassionate appointment of dependents of the deceased employee. However, if no disciplinary proceeding is initiated for any misconduct against an employee while in service; after his death, his dependents cannot be denied compassionate appointment on the ground that while in service, the employee had been guilty of misconduct.

It was observed that appointment on compassionate ground is not a source of recruitment but an exception to the general rule, the purpose of which is to prevent destitution and penury in the family of a deceased employee. Application for compassionate appointment must be decided on facts of each individual case. Therefore, the impugned order was modified and the subject circular was quashed to the extent it prevented children of the second wife from being considered for appointment on the compassionate ground; with a direction to the appellant to consider the claim of the respondent for appointment on compassionate ground on merit.[Bihar State Electricity Board v. Chadra Shekhar Paswan, 2019 SCC OnLine Pat 562, decided on 18-04-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Dhiraj Singh Thakur, J., dismissed a writ petition filed against the order of the Deputy Chief Electoral Officer, whereby re-poll had been ordered for the post of a Sarpanch in the Panchayat Halqa Upper Sanai, Block Surankote.

The main issue that arose before the Court was whether the Deputy Chief Electoral Officer was justified in ordering re-poll while the matter was pending for enquiry before the Deputy Commissioner.

The Court observed that the difference of a number of votes between the candidates was 13 and the total number of missing votes was 25. The enquiry as given under Rule 37 of the Rules framed under the J&K Panchayati Raj Act, is limited to the extent of determining whether the votes had been lost or destroyed. In the instant case, it was alleged that 25 votes had gone missing after some persons entered the polling booth, who were related to one of the people contesting elections. This vitiated the sanctity of the election and hence a re-polling was suggested and subsequently ordered.

The Court held that the report about 25 votes gone missing was clear and unambiguous and hence the order of re-polling does not violate the provisions of the J&K Panchayati Raj Act. The Court held that the manner of arriving at the decision for ordering re-poll does not suffer from any illegality or perversity. Resultantly, the petition was dismissed.[Abdul Karim v. State of J&K, 2018 SCC OnLine J&K 864, order dated 26-11-2018]

Case BriefsForeign Courts

Supreme Court of Zambia: An appeal was filed before a 3-Judge Bench comprising of M. Malila, C. Kajimanga and J.K. Kabuka, JJS., against the order where respondent’s entitlement to the pension was decided in favour of respondent.

The facts of the case were that the respondent was a member of the National Pension Scheme Authority retiring at the age of 55 with 137 contributions to the National Pension Scheme Authority (NAPSA). The fact that the provision for normal pension benefit required minimum 180 contributions resulted into payment of only a lump sum pension benefit, mandatory to be granted by virtue of Section 21 of the National Pension Scheme Act, 1996, Chapter 256 of the Laws of Zambia which was denied to him. The matter went before the trial court where respondent was granted lump sum pension amount on the above reasoning. Appellant preferred an appeal before the High Court where on the facts of the case it was found that the respondent was entitled to pension from the appellant. It is the above order against which appellant filed the present appeal before the Supreme Court. Respondent further filed a cross-appeal questioning the validity of Regulation 3 of the National Pension Scheme (Benefits and Eligibility) Regulations 2000 which widens the scope of persons who qualify beyond what is provided in Section 18 of the Act, pleading it to be ultra vires the act being inconsistent with Section 18 of the Act.

Appellant contended that he had the discretion to pay or not pay the lump sum amount to the respondent under Section 9(3) irrespective of the fact whether minimum required contributions were made or not and if such power is interfered with then it would undermine the entire essence of a scheme of pension. Whereas the respondent argued that the mandatory nature of Section 21 shows that appellant had no discretion whether to pay or not pay lump sum pension amount to respondent.

Supreme Court was of the view that discretionary power of the appellant cannot neglect the mandatory nature of Section 21 of the Act. With respect to the cross-appeal, Court held it to be ultra vires the Act to the extent of its inconsistency with Section 18. Therefore, appeal was dismissed upholding respondents cross-appeal. [National Pension Scheme Authority v. Phillip Stuart Wood,2018 SCC OnLine ZMSC 2, dated 25-10-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Vineet Kothari, J., decided a writ petition filed under Articles 226 and 227 of the Constitution, wherein the Court quashed the penalty imposed by the Karnataka State Human Rights Commission upon the petitioner-Inspector of Police; holding such power to be ultra vires.

A penalty of Rupees Ten thousand was imposed on the petitioner on the ground of service deficiency in arresting two juveniles and producing them as adults before the competent court instead of the Juvenile Justice Board. Learned counsel for the petitioner argued that Section 18 of the Protection of Human Rights Act, 1993, permits the Human Rights Commission only to recommend the government or authority concerned to make payment of compensation to the victim or his family. However, vide the impugned order, the Commission imposed a penalty of Rupees Ten thousand and further directed it to be deducted from salary of the petitioner. The counsel prayed for quashing of the said order.

The High Court perused the record and considered the submissions made on behalf of the parties. The Court also perused Section 18 of the said Act and found favour with the contentions of learned counsel for the petitioner mentioned hereinabove. The Court was of the opinion that the impugned order passed by the Commission could not be construed to be in the nature of mere recommendations as envisaged in the section. On the contrary, it imposed penalty and directed its recovery from the petitioner, which power is not conferred to the Commission under Section 18 of the Act.

Consequently, the Court allowed the writ petition and quashed the impugned order. [Venkatesh v. State of Karnataka, WP No. 55766 of 2016 (GM-RES), order dated 13.2.2018]