Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of P.N. Prakash and B. Pugalendhi, JJ., addressed a petition wherein writ of mandamus was sought to direct the respondent to issue a Standard Operating Procedure to be followed while re-opening all religious places of worship in physical function.

Bench dismissed the above stated issue on not finding any merit as the government did not take any decision as to when the temples are to be reopened.

Thus, Court in view of the above, cannot issue any direction to the Government to issue a Standard Operating Procedure. [M. Jayabharathi v. State of T.N., 2020 SCC OnLine Mad 1137 , decided on 08-06-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and C. Hari Shankar, J. dismissed a writ petition that sought modification of the Order dated 17-4-2020 issued by the Directorate of Education, Delhi (“DoE”), and direction to the schools not to charge the tuition fees from the students keeping in view the present situation of COVID 19 at least for the lockdown period in the interest of justice.

Backdrop & issue

Notably, in its Order dated 17-4-2020, the DoE took stock of the emergent situation that has arisen as a result of the COVID-19 pandemic, as well as of the precautionary and restrictive measures imposed, by the Central and State government, to contain its spread, including the imposition of lockdown. While appreciating the efforts of private unaided schools in providing online education to students, the DoE took note of certain malpractices indulged in by some schools and it issued certain directions. Of these, the petitioner claimed to be aggrieved by the first direction whereby schools have been interdicted from charging any fee, except tuition fee, from parents. The petitioner complains against this exception. The writ petition, therefore, prayed that this exception be done away with, and the impugned Order dated 17-4-2020, be consequently modified, by granting complete exemption from payment of any fee, including tuition fee, at least for the period during which the presently existing lockdown continues to be in place. In the alternative, the writ petition prayed that the impugned Order dated 17-4-2020, be modified to the extent that tuition fees be charged “after an appropriate and reasonable time from the reopening of the schools”.

Decision & discussion

Rule 165 of Delhi School Education Rules

Dr N. Pradeep Sharma, Advocate for the petitioner, relied on the first proviso of Rule 165 of the Delhi School Education Rules, 1973, which, in a case in which the school is closed on the 10th day of the month (by which date fees are payable), defers the requirement of payment of fees to the date following the 10th day on which the school reopens. Schools, being presently closed, the petitioner sought to rely on this proviso to submit that tuition fees cannot be charged by schools, during the period of such closure.

Disagreeing, the High Court was of the opinion that so long as education is being imparted online, and students are availing the benefit thereof, schools cannot be treated as “closed”, so as to disentitle them from charging tuition fees. It was observed that ex facie, the first proviso merely defers the stage of payment, of school fees, in such cases, to the appropriate time, when such payment would become possible, and no more. Rule 165 does not deal with the chargeability of tuition fees, but only with the payability thereof. The Court held:

“Rule 165 cannot be pressed into service to seek exemption, from the requirement of payment of tuition fees, for the period during which the schools remain physically closed, and are imparting education through online platforms. Students would be mandatorily required to pay tuition fees during this period, and, in so requiring, we do not find the impugned Order, dated 17th April, 2020, of the DoE, deserving of interference in any manner.” 

Direction re financial hardship clause

Refuting the contention of the petitioner concerning the grounds of financial hardship, Ramesh Singh, Senior Standing Counsel for DoE, submitted that the impugned Order dated 17-4-2020, itself prohibits schools from denying ID and password, to students, for obtaining access to online learning platforms, merely because, “owing to financial crisis arising out of closure of business activities in the ongoing lockdown condition”, the parents of such students are unable to pay school fees. 

As per the High Court this is a wholesome provision. However, its misuse is to be checked. The Court directed that:

“It would be necessary for parents, seeking the benefit of this relief, to establish, to the satisfaction of the school, or the DoE, that, owing to the lockdown, they are, in fact, financially incapacitated from paying school fees.”

Policy decision & ambit of issuing mandamus

Dr Sharma, for the petitioner, then relied on the residual clause of the guidelines framed by the Central Government under the Disaster Management Act and submitted that “necessary relief” in the form of exemption from payment of tuition fees may be directed to be provided. According to the Court, the contention was totally misconceived. It is not for the High Court to arrive at a policy decision, regarding the relief that is to be provided to persons affected by any disaster including the COVID-19 epidemic.

Dr. Sharma further submitted that unaided schools were, in all cases, run by trusts or societies, and, instead of charging fees from students, schools should, during the period of COVID lockdown, source their expenses from the monies available with their parent trusts, or societies. Outrightly rejecting the submission, the Court said:

“It is not possible for this Court to issue any mandamus, directing unaided schools – who, it is trite, received no financial aid from the executive and are, therefore, dependent on fees for their expenses – to delve into the monies available with their parent trusts, or societies, for defraying the expenses involved in payment of salaries, maintenance of their establishment and imparting of online curricular education.”

The Court was of the opinion that the impugned Order dated 17-4-2020 issued by the DoE strikes correct balance between the legitimate concerns of the institutions, and of parents/students, even while safeguarding the interests of parents who may find themselves in impecunious circumstances, owing to the lockdown presently in place, or due to closure of their businesses/establishments. The writ petition was accordingly dismissed. [Naresh Kumar v. Director of Education, WP(C) No. 2993, decided on 24-4-2020] 

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. dismissed a petition on the ground that that the same was not in public interest, wherein a direction was sought to open the wine shops in State Karnataka for a few hours during the lockdown period.

Petition has been filed to issue a writ of mandamus or any other appropriate direct the respondents to keep open the wine shops in the State of Karnataka at least for few hours in a day, if not for the whole day and etc.

The second prayer issued by the petitioner was that of providing alcohol in wine shops in limited quantities to the public during lockdown period.

Bench stated that when it expressed the view that there is no public interest involved in the present petition especially when large population is deprived of even elementary facility of food and shelter, petition Dr Vinod G. Kulkarni paid a sum of Rs 10,000 by way of donation to the Chief Minister’s Relief Fund COVID-19.

Petitioner also stated that he would not press the writ petition.

Bench thus dismissed the petition and made it clear that no public interest was involved in the same. [Late G.B. Kulkarni Memorial v. State of Karnataka,  2020 SCC OnLine Kar 439 , decided on 07-04-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and R.I. Chagla, JJ., issued a writ of mandamus directing respondents to issue a fresh visa to a 19 year old girl stranded at the Dubai Airport so as to enable her to come to Mumbai and be with her family, in view of Airlines misinterpreting the travel advisory issued by the Indian Government.

The present petition was filed as petitioners daughter — Nyla was denied a visa in the teeth of the Consolidated Travel Advisory for Novel Coronavirus Disease (COVID-19) issued by Government of India through Ministry of Health and public Welfare read with restriction related to COVID-19.

Petitioner was constrained to file the petition in view of the high-handed, arbitrary and wrongful action on the part of respondent 1 and 2.

Petitioner’s daughter was born in U.S.A and this is a citizen of U.S.A, though she moved to India in 2007 and did her schooling from Mumbai and later got admission for further studies at Tufts University, Boston.

Nyla holds an OCI Card and also had valid 5 year multiple entry visa along with an Aadhaar Card.

Senior Counsel representing the petitioner submitted that in wake of Coronavirus Disease Outbreak, Nyla’s University directed the students staying on campus to vacate the same and return to their permanent residence. For the same purpose her return travel was arranged by the petitioner.

Indian Government had issued a Consolidated Travel Advisory for Novel Coronavirus Disease (COVID-19) imposing restrictions on travel by foreigners to India. All the existing visas (excluding diplomatic, official, UN/International Organisations, employment, project visas) were suspended till 15-04-2020. Visa free travel facilities granted to OCI card holders were also kept in abeyance.

Further, he submitted that, in light of the aforesaid visa restrictions imposed by the Indian Government and to ensure that Nyla arrives in India before the restrictions became effective, petitioner modified her reservations and arranged a flight on 12-03-2020.

During Nyla’s transit at Dubai Airport, she was not allowed to board the flight based a complete wrong interpretation of the Consolidated Travel Advisory dated 11-03-2020 read with Visa Restrictions related to COVID-19. According to the airlines, Nyla was already past the deadline.

Thus, in view of the above, writ petition was filed.

In accordance with the issued advisory, petitioner’s counsel submitted that it was clear that as long as the passenger departing from its original port of departure before 12:00 GMT (5.30pm IST) on 13-03-2020 the passenger would be entitled to complete the journey and thereafter arrive into Mumbai.

In the present case Nyla made her departure from original port before 12:00 GMT (5.30pm IST) on 13-03-2020, she should not have been denied boarding by the Airlines at Dubai as she was only a transit passenger.

Thus, in view of the above, Court considered the compelling and urgent circumstances, it is expedient to dispose off the present writ petition. Clauses of the Consolidated Travel Advisory as well as the Visa restrictions issued by the Bureau of Immigration makes it clear that all existing visas (excluding diplomatic, official, UN/International Organisations, employment, project visas) stand suspended till 15-04-2020. The said restriction was to come into effect from 1200GMT on 13-03-2020 at the port of departure.

A Passenger in transit would not fall within the word ‘port of departure’.

Court stated that in the present circumstances, Nyla can travel to India is she is issued a fresh visa. The visa can be issued only for compelling reasons as more particularly stated in the issued advisories.

Therefore, the Court held that Nyla was wrongly denied boarding by the Airlines and thus writ of mandamus is issued directing the respondents either through themselves or through any one acting through them to issue a fresh visa to the petitioner’s daughter Nyla so as to enable her to come back to Mumbai.

Petition is disposed of in the above terms. [Sabah Manal Colabawalla v. Union of India, WP (L) No. 871 of 2020, decided on 17-03-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a petition filed under Article 226 of the Constitution of India challenging the impugned First Information Report dated 28-12-2019, seeking a writ of certiorari to quash the impugned FIR; and a writ of mandamus, commanding and directing the Respondents 1 & 2 not to arrest the petitioner in connection with the FIR.

The FIR stated that Respondent 3 had some conflict with her husband and the petitioner gave emotional support to her, later, they ended up in a hotel having physical relations in Dehradun, further, it stated that they again met in a hotel in Mumbai after few months. Respondent 3 stated that she wanted him to marry her or secure the future of her children.

The counsel for the petitioner Ranveer Singh Kundu and Raj Kumar Singh submitted that in the first instance given by the respondent the petitioner was detained at RVC Centre and College, Meerut Cantt. on duty, and regarding the second instance the petitioner did not go to Mumbai in the month mentioned by the respondent.

The Court while allowing the petition directed that no coercive action shall be taken against the petitioner as the respondent was an adult and had her willful consent in the physical relations. [Rajendra Kumar Swain v. State of Uttarakhand, 2020 SCC OnLine Utt 42, decided on 28-01-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: Goutam Bhaduri, J., while dismissing the present petition held that,

Legislature has before it a full panoply of legislative powers and as an incident of those powers, the express constitutional authority to disapprove an ordinance. If an ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the legislature incorporating its provisions.

Petitioners counsel submitted that notification inviting application by Public Service Commission respondent 1 was published on 27-11-2019 pursuant to official communication of 23-11-2019.

It has been submitted that the above-said notification did not carve out any space for the Economically Weaker Section (EWS) which was brought about by the Constitution (One Hundred and Third Amendment) Act, 2019.

Governor of Chhattisgarh had promulgated the Ordinance of 2019 as the State Legislature was not in session.

Legislative Assembly of the State was held on 2nd and 3rd October, 2019, but no legislative business was laid held. For the legislative business, the Assembly started on 25-11-2019 till 02-12-2019 and therefore the ordinance which was promulgated on 04-09-2019 would hold the field.

If the State took the decision to conduct an examination prior to publication of the notification, it would amount to playing fraud with the Constitution. He also referred to the case Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, and submitted that laying of an Ordinance before the legislature is mandatory.

State Counsel submitted that the Ordinance by the Governor was on 04-09-2019 and re-assmbly took place on 02-10-2019, therefore by virtue of Article 213 (2), six weeks expired on 13-11-2019 and the Ordinance ceased to operate. Subsequently, even if re-assembly of State Legislature started on 25-11-2019 till 02-12-2019 even after expiry of six weeks therefrom ordinance was not laid in the House, therefore, mandamus to this effect cannot be issued the Court.

Analysis

“Article 174 shows that the Governor has power to call for the sessions of the State Legislature and the time limit gap of 6 months is provided. Article 213 further gives power to the Governor to promulgate the Ordinance during the recess of Legislature.”

Since Article 213(2) mandates that the ordinance will expire from six weeks of the date of reassembly of the legislature, the ordinance having not been laid before the legislative assembly, within six weeks it would expire on 13-11-2019. Consequently, the said Article shows that after 13-11-2019, the ordinance ceased to function in operation.

Thus, keeping in view the facts and circumstances of the case and on perusal of the above-stated analysis, it is apparent that, if the State has not placed ordinance for EWS in the Legislative Assembly, the Court cannot issue a writ to promulgate the ordinance by way of mandamus on the principles of separation of powers.

Court also clarified that the reliance place on Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 does not endorse the view that if the ordinance is not placed within the time prescribed under Article 213(2), the Court will assume such power of effective review or reconsideration.

Laying of an Ordinance before the State Legislature sub-serves the purpose of Legislative control over the ordinance-making power.

Therefore, Court cannot issue a writ of mandamus to Legislature as it would amount to encroaching the turf of the State Legislature. [Irfan Qureashi v. Chhattisgarh State Public Sevice Commission, 2020 SCC OnLine Chh 7, decided on 07-02-2020]

Case BriefsHigh Courts

Allahabad High Court: Rajesh Singh Chauhan, J. while issuing the writ of mandamus commanded the opposite parties to reinstate the petitioner and post him at any place where the Competent Authority deems fit and proper within two weeks from the date of production of a certified copy of this order.

In the instant petition, the petitioner had assailed the impugned suspension order of 14.08.2019 passed by the Additional Director of Education (Basic), U.P., Prayagraj.

Counsel for the petitioner, Manish Kumar submitted that petitioner was working as a Steno-cum-Clerk when the suspension order was passed by Additional Director of Education (Basic) other than Joint Director of Education (Basic) who has the authority to suspend.

The Counsel objected to the contents of the instructions letter of 21.11.2019 produced by Counsel of the respondent, J.B.S. Rathour, wherein it was indicated that the petitioner was serving on the post of Personal Assistant Grade-II (as promoted) at the time of suspension. As proof, salary certificates and preliminary inquiry reports were provided.

Counsel drew the attention of this Court towards the Division Bench judgment of this Court in re Ashok Kumar Singh v. State of U.P, (2006) 3 UPLBEC 2247, in which it was categorically held that the order of suspension can be passed only by the Disciplinary Authority. However, the order to initiate the disciplinary proceedings may be passed by the Superior Authority. In ESI v. T. Abdul Razak, (1996) 4 SCC 708, the Supreme Court had laid down the same law as Ashok Kumar.

After considering the submissions of the parties and law laid down in various judgments put before the Court, the Court observed that suspension order of 14.08.2019 was not passed by the Competent Authority; therefore, it is liable to be quashed.[Jai Prakash Tiwari v. State of U.P., 2019 SCC OnLine All 4950, decided on 22-11-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pankaj Naqvi and Suresh Kumar Gupta, JJ., while disposing of this petition directed the complainant to avail alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC.

The instant writ petition was filed for seeking a writ of mandamus commanding the respondent to conduct a fair investigation, under Sections 452, 376, 504, 506 IPC and 3(2)(v) SC/ST Act.

Counsels for the petitioner, Santosh Kumar Pandey and Rajnish Kumar Pandey submitted that petitioner is an informant and despite an application to the authorities concerned for a fair investigation, no action whatsoever was taken.

It was propounded in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 and reiterated in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 that in the event of unsatisfactory investigation, remedy of the aggrieved person is not to approach the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned under Section 156(3) CrPC.

The Court observed that in this country, the High Courts are flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. If the High Courts entertain such writ petitions, there will be no work other than these. [Kamlesh Kumari v. State of U.P., 2019 SCC OnLine All 3873, decided on 18-10-2019]

Case BriefsHigh Courts

Karnataka High Court: Alok Aradhe, J. dismissed a petition filed under Articles 226 and 227 of the Constitution of India with respect to the claim for compensation under the Victim Compensation Scheme been rejected.

In the present petition, the petitioner sought a writ of certiorari with respect to the quashing of communication through which the claim for petitioner’s compensation under the Victim Compensation Scheme was rejected. Along with the stated petitioner also sought a writ of mandamus to the Karnataka State Legal Services Authority to release an amount of Rs 7 lakhs as compensation in accordance with the revised scheme.

In accordance with the facts of the case as stated, the petitioner claimed to be a rape victim on the basis of which after the FIR and investigation were duly completed, the petitioner’s father made a representation for grant of compensation under the Victim Compensation Scheme before the District Legal Services Authority.

Further, the above-stated authority passed an award by which the petitioner was directed to pay a sum of Rs 3 lakhs as compensation. Though, during the pendency of the proceeding before the Authority, in the criminal case, the petitioner and petitioner’s father were both declared hostile.

Thus in view of the above, the Karnataka State Legal Services Authority through an order had set aside the order awarding compensation passed by the Authority on the ground of petitioner and petitioner’s father turning hostile following which the petitioner approached the High Court.

Conclusion

High Court on perusal of the facts and circumstances of the matter, stated that in the exercise of powers under Section 357-A of the Code of Criminal Procedure, 1973 the State Government framed Karnataka Victim Compensation Scheme, 2007. Clause 6(3) and clause 7(10) of the scheme read as under:

“6(3) The victim/claimant shall cooperate with police and prosecution during the investigation and trial of the case.”

7(10) If a victim or his dependants have obtained an order sanctioning compensation under this scheme of false/vexatious/fabricated complaint which is so held by the Trial Court, the compensation awarded shall be recovered with 15% interest per annum.

From the perusal of the above-stated clauses of the scheme, it is evident that the victim has to cooperate with the prosecution during the investigation and trial and the complaint filed by her should not be fabricated.

High Court held that the petitioner, as well as her father, were declared hostile, they violated clause 6(3) of the scheme and therefore, were not entitles to seek compensation. Thus on finding no merits in the case, the Court dismissed the same. [XXX  v.  Karnataka State Legal Services Authority, 2019 SCC OnLine Kar 1738, decided on 16-09-2019]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: Application under Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka was contemplated by Yasantha Kodagoda and Arjuna Obeyesekere, JJ.  for issuance of Writs of Certiorari, Prohibition and Mandamus.

The factual matrix of the case was that the petitioner filed an application where he sought certiorari against the respondent- Inspector General of Police, in lieu to quash the decision of dismissal of the petitioner from the Police Department. Such dismissal order was passed because; a complaint was filed against the petitioner who was a Sub-Inspector, for the illicit relationship with a married woman. The complainant was the husband of the woman with whom the petitioner was in the alleged relationship. The complainant had detained the petitioner when he was found in his house.

A preliminary investigation was conducted and a charge sheet was filed accordingly. It was stated that in the investigations carried out by the Police Department it was revealed that the Petitioner had made an entry in the Information Book that he left the Station to attend lectures at the University of Sri Jayawardenapura. However, inquiries had revealed that, instead the Petitioner had visited the wife of the complainant on that particular day. It was further examined by the Court that all the charges were based on the petitioner who made a false entry in the information book and thereafter had engaged in an illicit relationship with the wife of the complainant and also duping her with an amount of Rs 50,000. He was charged for violating the disciplinary code and bringing the Police Service to disrepute. Eventually, he was found guilty by the Court. Although the Inquiry Officer had only recommended, by way of punishment, the suspension of salary increments and promotions due to the Petitioner, the Senior Deputy Inspector General in charge of the Petitioner had recommended that the services of the Petitioner be terminated as provided for in Section 24:3:2 of Chapter XLVIII of the Establishments Code, as the Petitioner was still under probation at the time the aforementioned incident occurred.

The Court had examined the said provision of the Establishments Code and found that the said recommendation was in terms of the Establishments Code. The Inspector-General of Police had agreed with the said recommendation and by a Disciplinary Order, petitioner to be terminated from the services.

Petitioner then appealed to the National Police Commission which had dismissed his appeal. Aggrieved by which he again appealed to the Administrative Appeals Tribunal, where his appeal was dismissed. The counsel for the petitioner submitted that although the charge sheet contained seven charges, the Inquiry Officer had found the Petitioner ‘guilty’ of only three charges. He further submitted, however that the Senior Deputy Inspector General of Police, the Inspector General of Police, the National Police Commission and the Administrative Appeals Tribunal have all proceeded on the basis that the petitioner had been found guilty of all seven charges, thus, was an error on the face of the record and vitiated their finding.

The Court, observed that the Inquiry Officer had dealt with all the charges and found him guilty of the relevant ones. Thus, the Inquiry Officer has, in fact, found the Petitioner ‘guilty’ of all charges, but had grouped the charges under three heads in his conclusion. The Court further observed that, it was clear to the Court that the Inquiry Officer was satisfied with the core offence – i.e. making a false entry and engaging in conduct unbecoming of a Police officer – which was common to all charges, had been established. It was held that, “Although the Inquiry Officer was required to record his conclusions on each charge separately, no prejudice has been caused to the Petitioner by the course of action adopted by the Inquiry Officer in lumping together charges of a similar nature. The Administrative Appeals Tribunal too has proceeded on the basis that the Petitioner has been found guilty of the principal allegation made against him. In these circumstances, this Court does not see any merit with the submission of the learned Counsel for the Petitioner.”

Hence, the Court found no merits in the application of the petitioner and found him guilty of the said conduct. The application was dismissed.[Ranawana Wedaralalage v. C.D. Wickramaratne, 2019 SCC OnLine SL CA 8, decided on 17-09-2019]

Case BriefsHigh Courts

Karnataka High Court: Alok Aradhe, J. while disposing of this petition made clear that this order would not come in the way of the police invoking the provisions of the Karnataka Police Act, 1963 (the Act) if the members of the Bantwal Recreation Club (Petitioner) are found to indulge in any unlawful or immoral activities.

This instant petition was filed under Articles 226 and 227 of the Constitution of India with a prayer to direct the Respondents 1 to 3 from not interfering in skill games played in computerized electronic machines in the club.

Counsel for the Petitioner, Rajarama Sooryambail submitted that the petitioner seeks a writ of mandamus declaring that the petitioners and their members are entitled to play games like Rummy, Andhar Bahar, Carrom, Chess and other such skilled games. It was further submitted that by doing this they neither contravene any of the provisions nor attract any amount of offence under the Act. Therefore, the Respondents 2 to 4 should be restrained from causing any interference of any sort.

This particular controversy in the instant writ petition was already covered in a review petition.

The Court after observing the submissions of the parties and analyzing the case at hand disposed of the writ petition with certain dos and don’ts to the petitioner. Firstly, CCTV cameras shall be installed where games are played within six weeks and at least prior fifteen days period of footage shall be made available to the police. Secondly, identity cards shall be issued to the members so that they are able to produce when asked for. Thirdly, the petitioner shall not permit any activity by any of its members like indulging in acts of amusement as per Sections 2(14) and 2(15) of the Act and shall neither be allowed to play any kind of games for profits nor shall be allowed to play in an unlawful manner.

The Court also directed the respondents not to interfere in lawful recreational activities of the members of the petitioner and gave police the liberty to visit the premises periodically.[Bantwal Recreation Club v. State of Karnataka, 2019 SCC OnLine Kar 1444, decided on 04-09-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., dismissed a petition filed under Article 226 Constitution of India to direct the respondents to register an FIR on the basis of the complaint made by her.

The main question before the High Court to decide was ‘whether a writ petition under Article 226 of the Constitution of India for registration of the FIR is tenable or not?’

The Supreme Court in the case of Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542 had held that the High Court in exercise of its power under Article 226 can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of the process as provided for in the Code. Even in cases where no action is taken by the police on the information given to them, the informant’s remedy would lie under Sections 190, 200 of CrPC, but a writ petition in such a case cannot be entertained.

Similarly, in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Supreme Court held that cases like these do not pertain to issue of entitlement to writ of mandamus for compelling the police to perform statutory duty under Section 154 CrPC without availing alternative remedy under Sections 154(3), 156(3), 190 and 200 of CrPC.

Therefore, the Court finally dismissed the petition as the petitioner still had an efficacious and alternative remedy of filing a criminal complaint before the Court of competent jurisdiction.[Mamta Prajapati v. State of Madhya Pradesh, 2019 SCC OnLine MP 2477, decided on 06-09-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. dismissed a Writ Petition on the basis of formal closure of ‘Rehbar-e-Taleem Teachers’ (ReT) scheme by Government’s order.

A writ petition was filed by the petitioner requesting the High Court to issue a Writ of Mandamus commanding the respondents to select the petitioner and appoint him on the basis of merit eligibility against the post of ReT in a newly opened school. Respondent 7, who was placed at Serial 1, got less percentage than the petitioner, who was placed at Serial 3, and also her certificate was not certified by the University Grant Commission. The petitioner raised an objection to that.

The learned senior Additional Advocate General, entering on the behalf of the respondents, submitted that the government has formally sanctioned the closure of the ReT scheme vide Government Order No. 919-Edu of 2018, and therefore no indefeasible right has accrued to the petitioner claiming her appointment.

The Court held that since the government had formally withdrawn the appointment under ReT scheme, the Court could not direct the respondent to appoint the petitioner against a non-existing position. The Court was of the view that when the Government had taken a policy decision canceling all the advertisements for engagement of ReT,  the Court could not direct appointment against such post.

Hence, the writ petition was held to be devoid of any merit and dismissed in limine. However, the petitioner was granted liberty to challenge the Government Order No. 919-Edu of 2018.[Rayees Qadir Padder v. State of J&K, 2019 SCC OnLine J&K 418, decided on 07-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Ramesh Ranganathan, CJ. and N.S. Dhanik, J. allowed an appeal against the interlocutory order passed by learned Single Judge, for construction of the Advocates’ Chamber without giving appropriate time extension to the appellant. 

The appellant filed an appeal seeking relief and pleading extension of time against the impugned order directing them to file a final affidavit and to take immediate decision on the project. They contended that sanction of Detailed Project Report (for short DPR) is linked to releasing of funds. It is only if a budgetary sanction is accorded for construction of the Advocates’ chambers, would the question of approval of the DPR arise; and as funds can only be sanctioned by the State Legislature, and not Executive, a mandamus to the Executive is wholly unjustified.

The respondents in the aforementioned writ are practicing Advocates of the respective High Court; they had previously requested the Court for issuing the writ of mandamus and directing the appellant to complete the construction and to constitute a competent committee for allotment of new chambers and to review the existing chambers. The further allegation was that because of the negligence on the part of State, they are forced to work in harsh conditions. 

The learned Single Judge observed negligence and inaction on the part of State and the concerned agencies despite a constant reminder from the Registrar General of High Court, who identified and allotted the land area for construction. After the declaration of Chief Minister sanctioning funds for the particular project, State remained inactive and failed to deliver the project in time. 

The Court inquired about the laws which obligate State to finalize DPR only after adequate funds are sanctioned. Hence, the Court observed that there were no such laws and it was only the customary practice which required the State to approve DPR only when funds are released. The Court held, “It is not in dispute that a DPR is a pre-requisite for the commencement of construction, and it is only if the detailed project report is approved by the State Government, would the question of commencement of construction arise thereafter.” 

The Bench, however, observed that funds are undoubtedly required, but in absence of any such law which makes obligatory on the part of State to approve DPR after sanction of funds, upheld and modified the order of learned Single Judge and directed State to finalize DPR within three months. [State of Uttarakhand v. Pradeep Kumar Chauhan, Special Appeal No. 268 of 2019, Order dated 02-05-2019]

Case BriefsHigh Courts

High Court of Madhya Pradesh: The Court while hearing a public interest litigation filed by the petitioner as objections against certain provision stated in the draft of “Madhya Pradesh Outdoor Advertisement Media Rules, 2016” for regulating the installation of hoardings/advertisements erected on the road sides, the Bench comprising of SK Gangele and Anurag Shrivastava, JJ., observed that since the State invited objections while framing the rules mentioned above and now the said rules are in final stage of publication hence a writ of mandamus cannot be issued against the State Government and the petitioners have no locus standi to make objections at this juncture.

The petitioners have submitted that it is obligatory on the part of the Court to consider the objections filed against draft rules as the illegal hoardings/advertisements erected on the road sides without any permission from the Municipal Corporation are causing threat to the life of commuters as eye-catching advertisements put on the hoardings attract attention of drivers of the vehicles.

The Court perusing the contentions of parties held that it is well-settled principle of law that the Court cannot issue a writ of Mandamus against the State to frame particular sets of rules and since the Court had already issued interim directions to the State to consider the rules made by other State Governments or Corporations for finalising its draft rules hence, it is the duty of the State Government to frame the above-mentioned draft rules as early as possible preferably within a period of three months from the date of receiving the copy of the order in order to regulate the safe traffic movement in the State. [Satish Kumar Verma v.  State of Madhya Pradesh,  2017 SCC OnLine MP 333, decided on 28th February 2017]