Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Dr S. Muralidhar and Avneesh Jhingan, JJ., dismissed the instant petition upon discovery of availability of alternate remedies to the petitioner.

In the present case, the petitioner has questioned the demand for concession fees to the tune of Rs 2,19,10,897 sought from the Petitioner by the Respondent/Airport Authority of India, through minutes of meeting dated 25-05-2020 and letter dated 01-07-2020.

During the course of the proceedings, Article 22.1 of the Concessionaire Agreement (CA) dated 11-12-2019, caught the attention of the Court which affirmed the liability of the petitioner to pay the respondent for actual advertisement area made available to it at Amritsar Airport. The Dispute Resolution clause is reproduced below for reference-

“22.1 – Dispute Resolution – Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Concession Agreement (including its interpretation) between the parties, shall be governed and regulated in accordance with the provisions contained at Clause 5.16 of the RFP and in accordance with the provisions of Arbitration and Conciliation Act, 1996 as amended from time to time.”

On perusal of the above stated Clause 22.1 along with Clause 5.16 of the Request For Proposal (RFP), the Court was successful in grasping that any grievance under the CA has to be resolved via a two-tier mechanism. The mechanism includes submission of a written application before the Dispute Resolution Committee (DRC) and later, resolution under the Arbitration and Conciliation Act, 1996, if the same remains unresolved.

The petitioner invoked the dispute resolution mechanism subsequent to which a meeting of DRC was held on 25-05-2020. Counsel for the respondent, Vivek Singla has asserted that the petitioner ought to have availed all the further remedies in terms of the CA.

When the counsel for the petitioner, Varun Singh was catechized over the maintainability of the present petition, he referred to a plethora of cases such as Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107, Hindustan Petroleum Corpn. Ltd. v. Super Highway Services, (2010) 3 SCC 321 and Union of India v. Tantia Construction (P) Ltd., (2011) 5 SCC 697. However, unfortunately, the Court found all of them to be of no assistance in the petitioner’s case. The Court was not content with the arguments advanced by the petitioner with respect to the maintainability of the present petition.

Thus, the Court declined to exercise its jurisdiction under Article 226 of the Constitution of India since an “efficacious and effective alternative remedy” is available to the petitioner in view of the CA. In the event of a dispute, the parties could also plead for interim relief under the Arbitration and Conciliation Act, 1996.

Given the circumstances, the Court declined to examine the factual dispute leaving it open for the parties to avail other remedies under the law.

In view of the above, the petition has been dismissed by the Court.[Proactive In and Out Advertising (P) Ltd. v. Airport Authority of India, 2020 SCC OnLine P&H 1172, decided on 11-08-2020]

Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar, J. dismissed the petition on grounds of maintainability.

The present writ petition was filed for following reasons:

  1. to quash the bill for the month of November-2019 as it relates to Rs 10,10,903 allegedly shown as dues up-to October-2017 for which neither any detail nor any earlier arrear has been 
  2. to issue direction upon the respondents to give the details of arrear
  3. to issue direction upon the respondents not to levy Minimum Guarantee Charges during the period of disconnection since the disconnection of the line itself was absolutely illegal and 
  4. to issue direction upon the respondents to accept the current monthly charges from the month of November-2019 onwards.  

The counsel Navin Kumar for the respondent-JUVNL, raised a preliminary objection as to the maintainability of the writ petition and submitted that the respondent-JUVNL has constituted five different forums for redressal of the consumers grievance in view of Section 42(5) of the Electricity Act, 2003 and they have an efficacious/statutory remedy of filing a complaint before the concerned forum on the present issue. 

The Court dismissed the present petition on grounds of maintainability and held that as the respondent-JUVNL has already constituted Consumer Grievance Redressal Forums at five different places for adjudication of electricity dispute, the present writ petition is not maintainable at this stage and directed to prefer a complaint before the Electricity Consumer Grievance Redressal Forum.

In view of the above, the writ petition is disposed of. [Jahirul Islam v. Jharkhand Urja Vikas Nigam Limited, 2020 SCC OnLine Jhar 229, decided on 02-03-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.S. Karnik and Nitin Jamdar, JJ., addressed the petition filed by ex-MD of ICICI Bank Limited — Chanda Kochhar regarding the challenge towards her termination order.

The present petition was by the Ex- Managing Director of ICICI Bank who was terminated from her service. The same was approved by the Reserve Bank of India (RBI), which has been challenged by the petitioner in the present petition.

Complaints against the petitioner were received,

ICICI, in its meeting held on 29 May 2018, constituted an enquiry by a retired Judge of the Supreme Court of India. In June 2018 the Petitioner informed ICICI that Petitioner would go on leave till the enquiry is completed. By letter dated 3 October 2018, the Petitioner sought early retirement. ICICI, by the communication dated 4 October 2018 accepted the request for early retirement subject to certain conditions. On 27 January 2019, the report of the enquiry was submitted. The report was adverse to the Petitioner. In the meeting held on 30 January 2019, the Board of the ICICI treated the separation of the Petitioner’s service as a Termination for Cause. A communication to that effect was issued to the Petitioner. By further communication dated 1 February 2019, ICICI revoked the retirement benefits of the Petitioner. Correspondence ensued between the parties. The Petitioner called upon the ICICI to restore to the Petitioner the existing and future entitlements, including unpaid amounts, stock options, medical benefits. ICICI refused the request.

Petitioner along with the challenged to her termination order also sought to refrain ICICI from recovering and/or cancelling the benefits granted to her for early retirement.

Preliminary objection of ICICI was that the said bank id not an authority under Article 12 of the Constitution of India and performs no public duty. It is only a private bank having a purely private character. Services of the Petitioner are not governed by any statute, but it is a purely contractual relationship with ICICI.

Thus, the dispute raised by the petitioner was purely private in nature and would not be subject to writ jurisdiction.

RBI did not enter into an employer-employee dispute while the approval of the termination of the petitioner.

Section 35(1)(b) of the Act is a regulatory provision only to oversee that the action of the bank does not have an adverse impact on the depositors or the banking system. Scrutinizing the rights of MD as against the employer is not a matter of focus

Analysis

Writs can be issued to the State; an authority; a statutory body; an instrumentality or agency of the State; acompany financed and owned by the State; a private body run substantially on State funding; a private body discharging public duty or positive obligation of public nature; and a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function. A private company would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution.

A Writ would not lie to enforce purely private law rights.

Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. Before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such authority, is in the domain of public law as distinguished from private law.

Further, it was observed that, if the private body is discharging a public function and the denial of any right is in connection with public duty imposed on such body, the public law remedy can be enforced.

ICICI Bank is a private bank administered by the Board of Directors and it is not established under any statutory instrument. It also doesn’t receive funds from the government.

Section 35(B)(1) shows that appointment, reappointment and termination of Chairman, Managing Director, will not have effect unless it is with the previous approval of the Reserve Bank

Also noted that, Courts exercise writ jurisdiction when a public law element involved if the services are governed by a statute

Banking companies such as ICICI have the freedom to conduct their affairs; however, Reserve bank ensures that their activities will not affect the economy in general. The supervision by the Reserve Bank is in the realm of larger policy.

Bench stated that

Reserve Bank does not uphold or, adjudicate or decide the rights of the parties inter se, but only focuses on the consequences of the proposed action. The grant of approval by Reserve Bank does not mean that the action of termination is valid in terms of the service dispute. The approval is based on the opinion that no impact on the banking system is discernible.

Thus, in the present case, the service conditions of the petitioner are not governed by any statute. Termination of the petitioner is in the realm of contractual relationships. Since Section 35(1)(B) does not regulated service conditions, approval for termination under it does not adjudicate the rights of the petitioner as an employee.

Hence,

Legal implications of the grant of approval, non-grant of approval or post-facto approval, as the case may be, would be grounds and arguments in the contractual dispute.

Thus merely because the approval under Section 35B(1)(b) is questioned, that cannot infuse a public law element in this dispute, which remains a contractual dispute. For the contractual remedies, the Petitioner will have to approach the appropriate forum and not writ jurisdiction. Preliminary objection upheld on the above perusal. [Chanda Deepak Kochhar v. ICICI Bank Ltd., 2020 SCC OnLine Bom 374, decided on 05-03-2020]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Panda, ACJ and S.K. Sahoo, J.  did not entertain the writ petition because the petitioners had suppressed material facts and approached the court with unclean hands.

In the present case, the petitioners are the representatives of the villagers of Matha Sahi who have applied for grant of license to open a new IMFL ‘ON’ liquor shop at Hotel Florence under Bhadrak Municipality. On enquiry by Inspector of Excise, Bhadrak Range revealed that the proposed building for the liquor shop violates Rule 26 of the Odisha Excise Rules, 2017 and is at a distance of 103 mtrs. away from Dream India School, 330 mtrs. from Presidency College, 380 mtrs. from State Highway, 550 mtrs. from National Highway and 514 mtrs. of NH service lane. The violation was subject to relaxation by the State Government under Special Circumstances. The Collector, Bhadrak invited objection from the public and after inquiring the objections, the Inspector reported that Saraswati Sishu Mandir is at the back side of the proposed shop and such shop had been constructed as per planning with approval of Town Planning Authorities as some local people demanded opening of the proposed shop.

Hence a writ petition was filed under Article 226 of the Constitution to direct the opposite parties to cancel the license granted in favor of OP-5.

In the face of protests by the people at large, the Inquiring Inspector submitted the opinion of two persons demanding opening of proposed shop reveals the malafide intention and the Government still chose to grant license to open the liquor shop at the objectionable site. 

The opposite party averred through counter affidavit that the petitioners have no cause of action to file the writ application and they have no locus standi to file the writ application and they are not residents of the ward where the ‘ON’ shop is functioning. It was further stated that the petitioners have not approached the Court with clean hands and as such, the writ application is liable to be dismissed. 

It was further stated that the Collector, Bhadrak after receiving all objections pursuant to Form-VIII notice, submitted the entire papers to the Commissioner of Excise for onward recommendation to the Government for grant of license and the Collector, Bhadrak has suggested relaxation of the restrictions in exercise of power conferred under Rule-26 of the Odisha Excise Rules, 2017. The Superintendent of Excise, Bhadrak filed a counter-affidavit on behalf of OPs- 1, 2 and 3 wherein it stated that the Government after considering the objection petitions have relaxed the restrictions mentioned in Rule 26(1) of Odisha Excise Rules, 2017.

It was further stated that the school building of Saraswati Sishu Vidya Mandir is under construction and is non-functional presently and has no direct connection to the proposed ‘ON’ shop. 

The Court held that IMFL ‘ON’ shop of the is functioning after obtaining necessary permission from the Government and the petitioners-institution has not yet been made functional and the petitioner has suppressed material facts and hence it is not inclined to entertain the writ petition.

In view of the above, the writ petition stand dismissed.[M.M. Saraswati Sishu Vidya Mandir v. State of Odisha, 2020 SCC OnLine Ori 56, decided on 24-02-2020]

Case BriefsHigh Courts

Chhattisgarh High Court: A Full Bench of Prashant Kumar Mishra, Rajendra Chandra Singh Samant and Gautam Chourdiya, JJ., has held that the prospective accused is neither necessary nor a proper party in a writ petition seeking direction for registration of FIR and investigation into a cognizable offence. The Court was answering the question formulated by the Single Judge.

The daughter of the petitioner was married to one Mithilesh Kumar. The petitioner alleged that on account of ill-treatment and demand of dowry, his daughter committed suicide by hanging. He filed an application before the police against Mithilesh and his family members. Since no action was taken by the police, the petitioner filed the writ petition seeking a direction to the police authorities to register FIR and arrest Mithilesh and his family members for committing offences punishable under Sections 498-A and 304-B IPC. The Single Judge before whom the petition was placed, referred the following question for an effective pronouncement by the Full Bench:

“Whether in a writ petition preferred under Article 226, 227 of the Constitution of India seeking direction for registration of FIR and investigation against the accused persons alleged to have committed the cognizable offence(s), the said accused persons are necessary or proper party and they are required to be noticed and heard before issuing any such writ/direction, if any?”

Relying on a catena of decisions including Lalita Kumari v. State of U.P., (2014) 2 SCC 1Union of India v. WN Chadha, 1993 Supp (4) SCC 260Anju Chaudhary v. State of U.P., (2013) 6 SCC 384; etc., the High Court observed: “In the above view of the matter, it is an absolutely settled legal position that a prospective accused has no right of hearing before registration of FIR and investigation by the police officer or before the Court including the writ court, therefore, in a writ petition seeking direction for registration of FIR and investigation into a cognizable offence, the prospective accused is neither necessary nor a proper party.”

The Full Bench answered the reference accordingly and directed the matter to be placed before the appropriate Bench for further proceedings. [Dhananjay Kumar v. State of Chhattisgarh, 2020 SCC OnLine Chh 4, decided on 30-01-2020]

Case BriefsHigh Courts

Rajasthan High Court: Arun Bhansali, J. dismissed this Writ Petition by the petitioners for restraining the respondents to terminate their services that was on a contract basis for a very long time.

On 03-09-2015, the petitioner applied for a post under the Deendayal Antyodaya Yojna (‘DAY-NULM’). The above mentioned got restructured in 2014-15 and was renamed too. The posts were for a contractual basis. One T&M Services Consulting Private Limited was engaged by the respondents for manning various posts including post of Manager etc. Now, in 2019 the respondents are terminating the office of their present employees and replacing them with a new set of contractual based employees.

On 03-09-2015, the petitioner applied for the post and got selected for a period of 1 year from the date of selection. Though his tenure got extended time and again. Now, again on 08-03-2019, the respondents issued notices for inviting bids for shortlisting of HR Agencies as a service provider for implementation of the DAY-NULM scheme.

It was submitted the engagement of placement agencies by the respondents is not justified. Mere engagement does not justify anything. The reliance was put on Supreme Court judgment in Mohd. Abdul Kadir v. DGP, (2009) 6 SCC 611. It was held by the Supreme Court that the persons that are appointed on a contractual basis, even if their service is extended for decades on the same contractual job, such a person cannot claim regularization. The service of such a person comes to an end as when the scheme or project is completed.

The Court held, merely because the respondents issued a notice for inviting bids for shortlisting of HR agencies does not give any cause of action to the petitioner for this petition. Except for the challenge made on the notice, which is supported by Mohd. Abdul Kadir case, the petitioner does not have the right to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Hence, the Court dismissed this writ petition.[Om Prakash Vyas v. State of Rajasthan, 2019 SCC OnLine Raj 4884, decided on 03-12-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. dismissed a writ petition filed by the petitioners claiming that the Additional Director General of Police was unlawfully encroaching upon their land. 

The petitioners had claimed that they had approached the relevant authorities, but no action was taken by them. They subsequently filed a writ petition praying the Court to declare the construction over the land in dispute by the respondent as illegal, unauthorized, and encroachment. They prayed for dismantling the unauthorized construction of the hotel building and to remove the restriction/hindrance caused in the way of the petitioners in approaching the property.

The Counsel for the petitioners, Balwant Singh Kushwah, argued that the right to hold the property was a fundamental right and, therefore, the petition was maintainable. It is also submitted that the respondent had also encroached upon some other plots and accordingly, the husband of the petitioner had also filed a civil suit for declaration of title and permanent injunctions. By an order dated 30-06-2014 passed in a Civil Suit, the respondent was restrained from interfering with the possession, however, the respondent had dispossessed the husband of the petitioner, therefore the suit would not be an efficacious remedy. It was further submitted that the husband of the petitioner had not filed an application under Order 39 Rule 2-A CPC. Furthermore, there was no averment in the petition that the order stated above had attained finality.

The Court, however, held that it was incorrect to state that, “right to hold a property is a fundamental right”. They explained that the petition was filed primarily against the respondent in his individual personal capacity and not against any act done by him in the capacity of Additional Director General of Police. It is a well-established principle of law that the writ petition against a private individual is not maintainable. If the petitioner was of the view that the respondent was illegally trying to encroach upon the land or had illegally taken possession of the said land, then they always have an efficacious remedy of filing a Civil Suit. The Court was of the opinion that the petition was not maintainable and dismissed it. [Laxmi Devi v. State of M.P., 2019 SCC OnLine MP 3629, decided on 25-11-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Dismissing a writ petition filed by the kin of former Chief Minister Farooq Abdullah, a bench comprising of Ali Mohammad Magrey, J. declined to intervene stating that the petitioner’s plea involved disputed questions of fact and therefore the High Court was not the appropriate forum to approach the court by way of a writ petition.

In the present case, the petitioner’s counsel Mohammad Shafi Mir had approached the Court stating that the petitioner was being unlawfully detained in his house since August 5, 2019. The State countered the allegation through communication by the Additional Deputy Commissioner which stated that neither the petitioners have been placed under house arrest nor has their liberty been curbed. In response, the petitioners’ counsel had submitted newspaper clippings to show that the petitioner was in fact under house arrest.

The Court proceeded to observe that in writ proceedings, a fact is to be supported and proved by authentic documentary evidence and that a Writ Court is neither to hold an enquiry into the allegations made in a petition nor take oral evidence.

The Court further observed that once facts are disputed, the writ petition is rendered not maintainable. In such circumstances, the only option available to a Writ Court was to dismiss the writ petition, leaving the party concerned free to take recourse to appropriate remedy. [Muzaffar Ahmad Shah v. State of Jammu and Kashmir, Criminal Writ Petition No. 444 of 2019, decided on 05-11- 2019]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J. dismissed a writ petition filed by a serving officer of the Indian Army seeking to quash an FIR registered against him in Imphal, Manipur.

At the relevant time, the petitioner was posted at Dimapur, Nagaland, and was the Commanding Officer of 50 Coy ASC (Supply). It was alleged that during his tenure, he accepted illegal gratification from a local contractor engaged in supplying edible oil and pulses to 50 Coy ASC (Supply). An FIR was registered against him by the CBI Anti-Corruption Branch at Imphal.

Ripu Daman Bhardwaj, Special Public Prosecutor appearing for the Central Bureau of Investigation, at the outset, raised objections regarding the jurisdiction of the Delhi High Court to entertain the instant petition. Per contra, Lovkesh Sawhney, Durgesh Kumar Pandey and Deepak Kumar, Advocates, representing the petitioner, contended that the petition was maintainable.

The Court was of the view that the principal question for consideration was whether the Court should exercise its jurisdiction in the facts of the case. It was noted: “Undeniably, a substantial part of the offence alleged against the petitioner was committed outside the jurisdiction of this Court. As noticed above, the petitioner was posted in Dimapur and the allegation is regarding his conduct of receiving illegal gratification while serving as the commanding officer of 50 Coy ASC (Supply). Whilst it may be correct that the funds are stated to have been received by the petitioner; the allegation is that the same was done at the instance of the petitioner, who was, at the material time, posted in Dimapur.”

In such view of the matter, the High Court was of the view that it would not be apposite for the Court to entertain the instant petition. It was also observed: “Insofar as the principle of forum conveniens is concerned, the said principle has to be applied keeping in view the place where the substantial cause has arisen and where the substantial evidence for adjudicating the cause is available.”

Resultantly, it was held that trial in the instant matter was required to be conducted within the jurisdiction of another High Court. The petition was therefore dismissed.[Amit Sharma v. CBI, 2019 SCC OnLine Del 10129, decided on 13-09-2019]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Anant S. Dave, ACJ. and Biren Vaishnav, J. disposed of a writ petition without going into the merits of it. 

This petition was filed by a Gujarat based Non-Profit Organisation as a result of an increase in pollution and environmental degradation. An RTI application was filed, to supply details of a number of BRTS buses plying on CNG based engine and the reply received was that there are no CNG buses in the city of Ahmedabad.

Counsel for the petitioner, N.M. Kapadia alleges that the reply is arbitrary as the State authorities are duty bound under Article 51-A (g) of the Constitution of India to safeguard the environment. The cases like M.C. Mehta v. Union of India, (2016) 4 SCC 269 and Vardhman Kaushik v. Union of India, Original Application No. 21 of 2014 of the National Green Tribunal, New Delhi were referred to.

The petitioner prayed dutifully for the following:

A. Issuance of Writ of mandamus or order directing the ban on Diesel Goods Carriers including Chhakdas and of BS I and BS-II stage old autorickshaws instead only CNG auto rickshaws of BS IV stage be permitted.

B. Ban on diesel vehicles of more than 10 years old and on petrol vehicles of more than 15 years old.

The Court after observing the matter submitted before it advised the petitioner to take alternative efficacious remedy before the National Green Tribunal and thus, disposed of the petition.[Paryavaran Mitra v. Secretary, 2019 SCC OnLine Guj 1193, decided on 24-06-2019]

Case BriefsHigh Courts

Calcutta High Court: Tapabrata Chakraborty, J. dismissed a writ petition filed by the petitioner, Dr Kashninath Ghosh Hazra, under Article 226 of the Constitution of India.

The petitioner claimed to be the owner of an un-partitioned land at plot nos. 4933, 4934, 4935 and 4936 of Mouza Sadpur, Block- Kandi, Khatian No. 714, P.O. & P.S. Kandi, Pin 742 137, District- Murshidabad, West Bengal. On 10-02-2019 the petitioner came to learn that the private respondents were demolishing the structures existing on the said property. The petitioner maintained that without taking steps towards the partition of the said property and without obtaining any appropriate sanction plan from the municipal authorities, the private respondents had started raising unauthorized construction including a boundary wall. Aggrieved thereby, this petition was filed.

The Court had passed an interim order on 26-02-2019 restraining the private respondent’s 14 to 20 from demolishing any structure existing on the said property and from raising any fresh construction till the end of April, 2019 or until further orders.

Respondent 14 by filing an affidavit-in-opposition and a vacating application stated that a partition suit pertaining to the said property, being T.S. No. 38 of 2003, was initially filed by Amala Bala Ghosh impleading the petitioner herein. The final decree was passed on 17-01-2014. The said decree was executed and the 3 parties obtained possession of the decretal property in the year 2014. Thereafter, the names of the respondent’s 14 and 15 were mutated and some portions of the said property had also been sold to third parties.

In reply, the petitioner submitted that he had no knowledge about the institution of the said partition suit and the preliminary decree and the final decree were passed ex parte.

The Court, in view of the arguments made by the parties, held that the said property had already been partitioned and hence no direction could be passed in the present writ petition. The Court observed that the grievance of the petitioner was that he was not given appropriate notice for which he could not appear and contest the partition suit. It was opined that such grievance ought to have been ventilated by the petitioner before the competent civil forum. But without taking such steps the petitioner had preferred the present writ petition involving the municipal authorities. In view thereof, the petition was dismissed.[Dr Kashinath Ghosh Hazra v. State of West Bengal, An application under Article 226 of the Constitution of India filed on 19-02-2019, In re, 2019 SCC OnLine Cal 655, decided on 15-05-2019]

Case BriefsHigh Courts

Delhi High Court: C. Hari Shankar, J. reiterated that once the provision for a “special chance” stood removed from the statutes of Delhi University in 2017, the right of students to attempt papers which they could not clear, beyond the span of period, also stood discontinued.

The petitioner secured her admission in Sri Ram College of Commerce of Delhi University in 2012. In the same year she appeared in the Common Proficiency Test conducted for the Institute of Chartered Accountants of India and secured 14th rank on an all-India basis. She simultaneously continued both courses. As per the petitioner, she had cleared all papers of the B.Com (H) course, except the final semester paper of Business Communications. She approached SRCC in May 2019 seeking permission to attempt the paper, which was denied.

The petitioner, represented by Apoorv Agarwal, Advocate, submitted that her parents were suffering ailments and her brother was blind from birth. She was residing in Ajmer with her family. Owing to such circumstances, she could not come to Delhi to attempt the paper. Per contra, Mohinder J.S. Rupal, Hardik Rupal and Prang Newmai, Advocates for Delhi University; and Aman Rewaria for Amit Bansal, Advocate for SRCC made submissions in support of their decision not to allow the petitioner to appear for the paper.

It is pertinent to note that Ordinance (V) of Delhi University provides for a maximum span of 6 years, from the time of joining of the course by the student, within which she may be allowed to complete the course.

Relying on Avadesh Kumar v. Delhi University, 2016 SCC OnLine Del 1949, the High Court observed: “during the currency of her Chartered Accountancy course, the petitioner herself decided to place her B. Com (H) course on the back burner…Perhaps, the petitioner did so because there was a provision, in the statutes governing the University, at that point of time allowing, to the Academic Council, the latitude of permitting candidates who had crossed the span period, a special chance, to appear in papers which remained to be attempted by them. The said provision, however, admittedly stood removed from the statutes governing the University in 2017.”

Holding that a writ petition cannot be founded on the ground of sympathy, and nor a judicial order can be based on such consideration alone, the High Court dismissed the appeal. [Aruvita Mishra v. Delhi University, 2019 SCC OnLine Del 7985, decided on 09-04-2019]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of CJ Vijai Kumar Bist, disposed of a writ petition on carefully observing that an alternative remedy under the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018 is available for claiming compensation by filing a claim petition thereunder.

In the present petition, the petitioner had started to construct his house on a plot at Karthok Block, Pakyong, East Sikkim. He had constructed a protective wall in order to withstand the natural calamities. Petitioner on completion of the construction of ground floor found that all the walls of the ground floor had developed many major and minor cracks.

The Counsel for the petitioner submitted that the damaged building was assessed by the Buildings and Housing Department, Government of Sikkim for Rs 65,41,062 and he was entitled to the same from the State Authority. High Court’s order for complying with same was not adhered to which led to the filing of the contempt petition before this Court.

An additional submission was that the respondents had paid compensation to other affected persons except for the petitioner.

Thus, the Court noted the submissions of the parties and reached a conclusion by stating that the petitioner is entitled to compensation for the loss and damage suffered by him, but same cannot be awarded to him by issuing direction in this petition due to the alternative remedy available to him under the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018. The writ petition was accordingly disposed of. [Hantey Gyatso Kazi v. State of Sikkim,2018 SCC OnLine Sikk 233, dated 15-11-2018]

Case BriefsSupreme Court

Supreme Court: Addressing an issue of public importance relating to difficulties faced by visitors at Shri Jagannath Temple (Puri), the Bench comprising of Adarsh Kumar Goel and Ashok Bhushan, JJ., passed an interim order issuing directions for regulation and upkeep of the Temple.

The writ petition was filed by Mrinalini Padhi, a practicing advocate before the Orrisa High Court, highlighting the issues of public importance which need to be addressed and monitored so as to ensure safe custody of the valuables of the Temple; proper hassle-free worship by the devotees; and the clean and hygienic environment in the Temple. The issues put forth, also include the harassment of visitors by sevaks of the Temple. The Hon’ble Supreme Court noticed that the issues raised, involve the enforcement of fundamental right under Article 25 and directive principles under Articles 38, 49, 51A (f) and (g) of the Constitution. The Court further observed pilgrimage centers are of undoubted religious, social, historical and architectural importance, representing cultural heritage of our country. Millions of people visit these centers not only for tourism but for seeking inspiration for righteous values.

Having regard to the nature of the issue, Hon’ble Court directed the District Judge, Puri, to submit a report on factual aspects of the matter including difficulties faced by visitors and deficiency in management. Further, the Administrator was directed to review arrangement of CCTV cameras; and ensure that no direct collection of offerings is made by any sevak. The State of Odisha was directed to constitute a committee to study the management of other important shrines. Hassle free darshan by the visitors and utilization of offerings for righteous objects was considered to be of prime importance by the Hon’ble Court; hence, it was observed that the sevaks need to be compensated by legitimate remuneration as determined by the concerned Authority. Mr. Gopal Subramanium, learned Senior Counsel, was appointed as the Amicus Curiae to assist the Court. The matter is to be listed on 5-7-2018 for further consideration. [Mrinalini Padhi v. Union of India, 2018 SCC OnLine SC 602, decided on 08-06-2018]

Case BriefsHigh Courts

High Court of Judicature at Madras: The Single Judge Bench of K. Ravichandrabaabu J., recently addressed a writ petition filed under Article 226 of the Constitution, which sought to direct the respondent to dispose of his representation wherein the petitioner had objected to register any document in connection to the subject-matter property.

The Court held that since the petitioner himself had admitted that 3 suits were pending in respect of the subject-matter properties between the parties, it is upon the petitioner to work out his remedy in the civil proceedings by filing interim applications, if he has any cause of action to receive interim relief. The Court observed that the petitioner had parallely proceeded with a complaint before the first respondent and also filed a writ petition seeking for its disposal. The Court was of the view that the petitioner could not do so without pursuing remedy before the Civil Court and hence, the writ petition would not be entertained. [G. Rohit v. Inspector General of Registration, 2018 SCC OnLine Mad 716, order dated 13.3.2018]

Case BriefsHigh Courts

Karnataka High Court: While deciding the points of reference as laid before the Court in a set of writ petitions filed under Article 226 and 227 of the Constitution, a Full Judge Bench comprising of Subhro Kamal Mukherjee, CJ, B.V. Nagarathna, J. and Aravind Kumar, J. held that a second writ petition assailing the same detention order is maintainable on fresh grounds or new grounds.

The instant order of reference arose under provisions of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drugs Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985. Three points were referred to the High Court for appropriate orders. The Court decided on all the three points in seriatim.

On the point of maintainability of a second writ petition challenging the detention order, when the first one was already dismissed, the High Court held that a second writ petition based on the same grounds which were raised in the first petition is not maintainable on the principles of res judicata. However, it is maintainable if it is based on fresh grounds or those different from the ones taken in the first petition.

On the second point, it was held that the non-mentioning of the period of detention in the order of detention would not vitiate the same. However, in such a case the detenu could not be detained after a maximum period of twelve months as provided under Section 13 of the Act.

Lastly, the High Court held that there was no nexus between Sections 3(1) and 3(2) of the Act, as Section 3(1) relates to the order of detention passed by the State Government, and

Section 3(2) relates to the order as passed by the delegated Authority. And the time period mentioned in both the provisions, have no nexus either. The time mentioned in the first provision relates to the period of detention and that mentioned in the second provision relates to the period of delegation.

The points of reference were answered accordingly and the writ petitions were directed to be placed before the appropriate bench. [Abdul Razak v. State of Karnataka, 2017 SCC OnLine Kar 2855, dated 7.10.2017]

Case BriefsHigh Courts

High Court for Andhra Pradesh & Telangana: The Court dismissed a writ petition seeking a writ of mandamus which claimed that the request for extension of parole of the petitioner has been pending and no action whatsoever has been taken on it.

The petitioner, serving a life sentence, requested for his parole to be extended from 31.07.2017 to 30.01.2018 on the ground that his mother is quite old and suffering from serious health issues. This request petition has not been disposed of.

The Court stated that sub-rule 16 of  Rule 974 of the Andhra Pradesh Prison Rules clearly specifies that parole cannot be granted for prolonged illness of relatives. Sub-rule 12 states that the period of parole cannot exceed two weeks except in cases of emergency. The petitioner had already been granted parole for 30 days which was further extended by 15 days. Since the grounds mentioned by the petitioner are anyway not allowed under the Rules, therefore, no case can be made out for non-passing of orders. Hence the petition was dismissed. [P. Liyakat Ali Khan v. State of A.P., Writ Petition No. 25526 of 2017, decided on 02.08.2017]

Case BriefsSupreme Court

Supreme Court: In the ‘money for change of land use’ scam involving Ram Kishan Fauji where it was alleged that no appeal lies against the order passed by the Single Judge of the Punjab & Haryana High Court in exercise of criminal jurisdiction, the 3-Judge Bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagoudar, JJ held that  the Letters Patent Appeal was not maintainable before the Division Bench and, consequently, the order passed therein is wholly unsustainable and, accordingly, it is set aside. The Bench, however, granted liberty to the State to assail the order of the learned Single Judge in accordance with law, as the State had been diligently agitating its grievance in a legal forum which it thought had jurisdiction.

The question for determination before the Court was that whether the learned Single Judge, in the obtaining factual matrix has exercised criminal jurisdiction or not. The Court, hence, noticed that the writ petition was filed under Article 226 of the Constitution for quashing of the recommendation of the Lokayukta. The said recommendation would have led to launching of criminal prosecution, and, as the factual matrix reveals, FIR was registered and criminal investigation was initiated. The learned Single Judge analysed the report and the ultimate recommendation of the statutory authority and thought it seemly to quash the same and after quashing the same, as he found that FIR had been registered, he annulled it treating the same as a natural consequence. Thus, the effort of the writ petitioner was to avoid a criminal investigation and the final order of the writ court is quashment of the registration of FIR and the subsequent investigation.

Stating that the nomenclature of a writ petition is not the governing factor but what is relevant is what is eventually being sought to be enforced, the Court held that in such a situation, to hold that the learned Single Judge, in exercise of jurisdiction under Article 226 of the Constitution, has passed an order in a civil proceeding as the order that was challenged was that of the quasi-judicial authority, that is, the Lokayukta, would be conceptually fallacious.

As per the facts of the case, the Chief Secretary to the Government of Haryana in exercise of power under Section 8(1) of the Haryana Lokayukta Act, 2002 (for brevity, “the Act”) made a reference to the Lokayukta, Haryana to enquire into the allegation of bribery levelled in the alleged Compact Disc (CD) of the sting operation against the appellant are correct and whether Change of Land Use (CLU)/Licence was granted in pursuance of these allegations. The Lokayukta, hence, recommended for registration of FIR for offences punishable under the provisions of the Prevention of Corruption Act, 1988. The appellant, hence, filed a Civil Writ Petition before the High Court, seeking issue of writ in the nature of certiorari for quashing of the said order. [Ram Kishan Fauji v. State of Haryana, 2017 SCC OnLine SC 259, decided on 21.03.2017]

 

Case BriefsSupreme Court

Supreme Court: In the writ petition relating to appointment of constitutional authorities where the President of India was made the first respondent, the Court said that despite the decision of the constitutional bench in Rameshwar Prasad v. Union of India, (2006) 2 SCC 1 where it was clearly held that the President of India cannot be arrayed as a party to the litigation, the petitioners being emboldened by some kind of imaginative faculty have described the President as a Respondent.

The petitioners had sought issue of a quo warranto declaring that one of the respondents is not eligible to hold the constitutional post or alternatively issue a writ of mandamus not to continue on the post in question, the Court said that the writ petition preferred under Article 32 of the Constitution is absolutely the product of disgruntled minds obsessed with their own litigation. Their individual grievances do not confer any right on them to file a writ petition of the present nature. It is an assault on the Constitution, more so, when the high constitutional authorities are involved. No litigant can be permitted to browbeat or malign the system. This is essential for maintaining the integrity of the institution and the public confidence in the delivery of justice. It is sheer malice. The question of issuance of any kind of writ does not arise.

The bench of Dipak Misra and R. Banumathi, JJ further directed that in future the petitioners shall be debarred from filing any kind of public interest litigation in any constitutional court and none of their petition under Article 226 or Article 32 of the Constitution shall be entertained unless they are personally grieved. [Anindita v. Pranab Kumar Mukherjee, 2017 SCC OnLine SC 71, decided on 30.01.2017]