Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., dismissed a petition which was filed challenging an order passed by the disciplinary authority imposing punishment of reduction of the petitioner’s pay by three stages for a period of four years with future effect.

Petitioner was working as Junior Engineer (Civil) with Border Road Task Force (BRTF) and on 20-01-2017 petitioner was served with a charge-sheet which contained one charge of deficiency of contract materials, irregularities in handing/taking over, improper maintenance and updating of site documents due to which loss to the tune of approximately 2.08 crores arises to Govt. The inquiry was conducted. The inquiry officer submitted his report on 22-07-2017 holding that the charge was proved.

The petitioner did not make any representation against the inquiry officer’s report whereupon the disciplinary authority passed the said order imposing punishment. The petitioner challenged the said order before the appellate authority, unsuccessfully. Hence, this petition.

The Court noted that before the inquiry officer the petitioner had in clear terms admitted the charge unconditionally, in fact during the preliminary inquiry as well as the departmental inquiry the petitioner accepted the charge and had declared the following:

“I GS-195496X JE (Civ) Vaibhav R Jadhav of 477 RMPL/112 RCC have received the brief given by Shri Sudhansu Tyagi, AE (Civ), Presenting Officer. I agree with the contents of the brief given by presenting officer. Once again I reiterate that I have accepted all charges leveled against me with free and cool mind. Since I have accepted all charges levelled against me, therefore, no defence and state witness to be examined by me. Further, after accepting the charge levelled against me no listed document to be examined by me. I again humbly request with disciplinary authority that a lenient view to be kept about me while deciding punishment about me as I was new to the organization.”

The Court was of the view that there weren’t any errors in the order. The first retraction of the admission of the petitioner came before the appellate authority where he contended that his acceptance of the charge was not free. He was promised that a minor punishment would be imposed if he admitted the charge and, therefore, the punishment would be deleted. The appellate authority examined this aspect but did not accept it and, therefore, dismissed the appeal.

The Court while dismissing the appeal stated that the petitioner had not produced any material to establish his averment that the admission of charge which he had made more than once, was forcibly extracted from him. In a writ petition, such a factual issue in absence of any material produced by the petitioner on a bare word cannot be accepted.

[GS-195496X JE(Civ) Vaibhav Jadhav v. Union of India, 2021 SCC OnLine Tri 480, decided on 17-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. dismissed the petition being devoid of merits.

The instant writ petition under Article 226 of the Constitution of India was filed for direction upon the respondents to lodge F.I.R. on the basis of written complaint made by the petitioner.

Counsel for the petitioner Mr. Afaque Rashidi submitted that submits that it is right of the petitioner to lodge F.I.R. and the respondents are liable to lodge F.I.R, which has not been done in the hand in hand.

Counsel for respondents Ms. Shivani Kapoor submitted that filing application under Article 226 of the Constitution is not an appropriate remedy. She submits that a proceeding under Section 107 CrPC has already been initiated. He submits that in this type of cases there is remedy under Code of Criminal Procedure. He submits that if an FIR has not been registered, proposed informant should approach before the Magistrate in terms of the Code of Criminal Procedure.

 The Court relied on judgment Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409 wherein it was held “the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police”

The Court further observed that if police is not registering the FIR, the remedy lies with the complainant to approach the Magistrate in terms of Code of Criminal Procedure. This alternative remedy is available to the complainant.

The Court held “since an alternative remedy is available to the petitioner, the Court is not inclined to exercise its power under Article 226 of the Constitution of India.”

[Agha Sahnawaz v. State of Jharkhand, 2021 SCC OnLine Jhar 330, decided on 08-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Indira Banerjee, JJ has held that the existence of an arbitration clause does not debar the court from entertaining a writ petition.

Stating that the availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case, the Court highlighted that the High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly

(i) where the writ petition seeks enforcement of a fundamental right;

(ii) where there is failure of principles of natural justice or

(iii) where the impugned orders or proceedings are wholly without jurisdiction or

(iv) the vires of an Act is under challenge.

The Court was hearing a dispute between Uttar Pradesh Power Transmission Corporation Ltd. (UPPTCL) and CG Power and Industrial Solutions Limited arising out of a Framework Agreement with UPPTCL for construction of 765/400 KV Substations, at Unnao, Uttar Pradesh. UPPTCL had directed CG Power to remit Labour Cess amounting to Rs.2,60,68,814/-, computed at 1% of the contract value, under Sections 3 sub-section (1) and (2) of the Building and Other 1 Construction Workers’ Welfare Cess Act, 1996, hereinafter referred to as the “Cess Act”, read with Rules 3 and Rule 4 (1), (2) (3) and (4) of the Building and Other Construction Workers Welfare Cess Rules, 1998, hereinafter referred to as the “Cess Rules” and also Section 2 (1)(d), (g) and (i) of the Building and Other Construction Workers (Regulation of Employment and Condition of Service) Act, 1996.

This direction had come after, in the Audit Report, the Accountant General pointed out the lapse on the part of UPPTCL, in not deducting labour cess from the bills of the contractor, that is Respondent No.1, in respect inter alia of the First Conract, observing that every employer was required to levy and collect cess at a rate not exceeding 2% and not less than 1% of the cost of construction incurred by an employer and to deposit the same with the Building and Other Construction Workers Welfare Board.

When CG Power filed a writ petition before the Allahabad High Court challenging the same, UPPTCL did not oppose the writ petition on the ground of existence of an arbitration clause. Nor was there any whisper of any arbitration agreement in the Counter Affidavit filed by UPPTCL to the writ petition in the High Court.

In such circumstances, the Supreme Court held that the existence of an arbitration clause does not debar the court from entertaining a writ petition and that relief under Article 226 of the Constitution of India may be granted in a case arising out of contract. However, the writ jurisdiction under Article 226, being discretionary, the High Courts usually refrain from entertaining a writ petition which involves adjudication of disputed questions of fact which may require analysis of evidence of witnesses.

[Uttar Pradesh Power Transmission Corporation Ltd v. CG Power and Industrial Solutions Limited, 2021 SCC OnLine SC 383, decided on 12.05.2021]


Judgment by: Justice Indira Banerjee

Know Thy Judge| Justice Indira Banerjee

Case BriefsSupreme Court

Supreme Court: In an appeal against the Himachal Pradesh High Court judgment which dismissed a petition after noticing that the appellant has an alternate remedy available, the bench of Dr. DY Chandrachud and MR Shah, JJ has summarised the principles related to the maintainability of a writ petition before High Courts.

Two important judgments on the “rule of alternate remedy”

Whirlpool Corporation v Registrar of Trademarks, Mumbai, (1998) 8 SCC 1

“Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Read full judgment

Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107

“In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Read full judgment

Principles summarised by the Court

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

Background

In the present case, the High Court had dismissed the writ petition instituted under Article 226 of the Constitution challenging orders of provisional attachment on the ground that an alternate remedy is available. The appellant challenged the orders issued on 28 October 2020 by the Joint Commissioner of State Taxes and Excise, Parwanoo provisionally attaching the appellant’s receivables from its customers. The provisional attachment was ordered while invoking Section 83 of the Himachal Pradesh Goods and Service Tax Act, 20172 and Rule 159 of Himachal Pradesh Goods and Service Tax Rules, 20173 . While dismissing the writ petition challenging orders of provisional attachment the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law.

[Radha Krishna Industries v. State of Himachal Pradesh, 2021 SCC OnLine SC 334, decided on 20.04.2021]


*Judgment by Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

For appellant: Senior Advocate Puneet Bali, learned senior counsel appearing on behalf of the appellant

For State of Himachal Pradesh: Advocate Akshay Amritanshu

Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., dismissed the instant petition filed for seeking direction to the Police to conduct an investigation into the role of respondents 2 to 7 in the suspicious death of one Bhargavi, paternal aunt of the petitioner. The Bench stated,

“…motive behind filing the writ petition is the petitioner’s ouster from his house and vesting of the properties of his deceased aunt with respondents 2 to 5.”

The petitioner’s paternal aunt Bhargavi died on 15-11-2019. Suspecting foul play behind Bhargavi’s death, the petitioner requested the police to conduct investigation which yielded no positive result. Therefore the petitioner had approached this Court praying for a direction to the police officials to conduct investigation into the role of respondents 2 to 7 in the suspicious death of Bhargavi.

Noticeably, Bhargavi was a spinster and had assets in the form of immovable properties and cash deposits.  She had executed a Will bequeathing all her properties in the petitioner’s name. However, by a subsequent will the properties were bequeathed in the name of respondents 2 to 5. By this time, there was rivalry in the family and the petitioner was driven out of the house and a partition deed was executed on 22-10-2003 between the petitioner’s father and Bhargavi.

Aggrieved by his ouster from the parental house, the petitioner filed a partition suit arraying his parents, aunt Bhargavi and siblings as defendants. Later, another will was executed by Bhargavi on 01-12-2011, bequeathing all the amounts in her bank accounts to the petitioner’s sisters. According to the petitioner, Bhargavi had executed the last two wills succumbing to the pressures exerted by his sisters and was actually contemplating the execution of a new and final Will, making the petitioner the sole legatee. While so, Bhargavi died on 15-11-2011 at 7.30 am, which according to the petitioner, was under mysterious circumstances. The petitioner alleged that the body of Bhargavi was cremated hurriedly at 12.55 pm on the same day at the Shanthikavadam Gas Crematorium so as to defeat investigation into the death.

Considering the above mentioned, the Bench was of the view that the motive behind filing the writ petition was the petitioner’s ouster from his house and vesting of the properties of his deceased aunt with respondents 2 to 5. As Bhargavi was aged 81 years, as on the date of execution of Will, she would have been 90 by the time she died. Hence, in the absence of clear and cogent evidence to the contrary, the Bench relied on the presumption that Bhargavi had died of natural causes. Since,

“Other than the allegation of Bhargavi having been cremated at the Santhikavadam Gas Crematorium which is 30 Kms from the place of demise, no other suspicious circumstances have been stated in the writ petition.”

Lastly, that petitioner claimed to be a teacher, the Bench vehemently remarked, observing that the conduct of the petitioner was, to say the least, reprehensible and a teacher is not expected to file frivolous writ petition of this nature, motivated by personal animosity.[Vivekanandan K. S. v. Circle Inspector of Police, 2021 SCC OnLine Ker 1614, decided on 30-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the petitioner: Adv. C. Manoj Kumar (Kakkanad) and Adv. P.T. Sebastian Tomy

For the Respondent: Adv. C. A. Anoop

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharyya, J., dismissed a writ petition which, inter alia, sought to challenge the shifting of Sheoraphuli Market following the containment strategy of spreading COVID-19.

Petitioner 1 namely Sheoraphuli Kancha Sabzee Basayee Samity is a registered society whose members had been running a wholesale business of vegetables situated for quite a long time.

Petitioner 2 is the secretary of petitioner 1 – Society.

Respondent 5 vide a memo intimated the Assistant Commission of Police that as per the direction of the competent authority, the Sheoraphuli market would be shifted to Sheoraphuli Regulated Market, following containment strategy of spreading COVID-19.

Further, by another Memo, respondent 5 requested the Secretary, Hooghly Zilla R.M.C to take necessary action for the facilitation of the trader concerned/commission agents regarding clearing of due taxes as per existing law in force, regarding renewal of R.M.C licence operation of the Sheoraphuli ‘Haat’ (market).

The above-stated memoranda have been challenged in the instant petition.

Analysis, Law and Decision

Bench noted that vide Gazette Notification No. 1366-AM/P/5A-17/2013 dated October 17, 2014, the entire market area under the Sheoraphuli Regulated Market Committee (including the site of the Sheoraphuli ‘Hat’) ceased to be a market area and the Market Committee stood dissolved, thus denuding the business, run by the members of the petitioner 1 at the said location, of legal sanction under the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972.

Since the whole Hooghly District had been declared vide a notification to be a market area, there was no legal bar for the authorities concerned to re-locate the Sheoraphuli ‘Hat’ to some other area after it ceased to be a market area. But when the said notifications was read in conjunction with the above notification it excluded the Sheoraphuli market and certain other specific locations from the designated ‘market area’.

Even from the materials on record, it could be seen that a new location is far superior to the previous site.

Further, the Bench observed that the act of purchasing plots of land in the Sheoraphuli area and investing therein by some individual vendors does not ipso facto validate the running of the wholesale vegetable business from there.

As per the scheme of the 1972 Act, “market” includes private market yards, thus subjecting such yards to the provisions of the Act as well. Hence, to trade in wholesale agricultural produce, vendors of private markets must also hold licences under Section 13 of the 1972 Act.

In the present case, members of petitioner 1 had been carrying on wholesale business in agricultural produce, thus coming with the purview of the 1972 Act.

In the decision of Prabhat v. Barkatulla University it was clearly laid down that, unless the members of the suing association are clearly determinate and identifiable, the result of the litigation does not bind all members of the association. The said decision has much persuasive value in the present matter.

Bench held that in the present case, petitioners have no locus standi to represent the interest of other traders/agents, who are not the members of petitioner 1 but still hold, or are eligible to get, valid licenses to carry on such business at the new location of the market.

Hence, the petitioners cannot be said to represent the interest of the entire trading community which is eligible to run business at the shifted site of the market.

With regard to the renewal of licence, the right of such renewal is subject to compliance with Section 13 (4) of the 1972 Act. Such renewal is not a blanket right but circumscribed by discretion of the respondent- authorities, to be exercised in accordance with law.

Lastly, Bench directed the respondents shall, however, ensure that the pending applications for renewal of licence under Section 13(4) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972, if any, made by the members of the petitioner 1-society, are decided in accordance with law as expeditiously as possible. [Sheoraphuli Kancha Sabzee Babsayee Samity v. State of W.B., 2021 SCC OnLine Cal 420, decided on 19-02-2021]

Case BriefsSupreme Court

Supreme Court: In a case where the petitioner sought recusal of Justice Dr. DY Chandrachud from hearing an application seeking recall of a previous order of which Justice Chandrachud a part of, the bench of Dr. DY Chandrachud and MR Shah*, JJ has not found any valid and good ground for recusal and has said that,

“Merely because the order might not be in favour of the applicant earlier, cannot be a ground for recusal. A litigant cannot be permitted to browbeat the Court by seeking a Bench of its choice.”

Background

The petitioner had instituted proceedings under Section 12 of the Protection of Women from Domestic Violence Act 2005 against a man with whom she had claimed to have entered into a relationship ‘in the nature of marriage’. She, however, was unable to prove this claim before the Karnataka High Court and hence, the High Court had, on July 31, 2018, noticed that,

“Domestic relationship means, the relationship between two persons who live or have at any point of time, lived together in a shared household. This concept has not been established by the petitioner.”

The petitioner, hence, instituted a case under Article 226 seeking that the decision of the Single Judge of the High Court dated July 31, 2018 “may be declared void/disabled/ recalled”.

It was her case that,

“In order to put forth a claim based on a relationship in the nature of marriage, it is not necessary under the law that neither of the parties should have a subsisting marriage and that notwithstanding the fact that the respondent was in a subsisting marriage, a valid claim under the Act would be maintainable in a situation such as the one which has been set up by the petitioner as the foundation for the grant of relief. She urged that in a situation such as the present, if the respondent who had a subsisting marriage entered into a relationship with her, there is no reason why a woman in the relationship should be left without a remedy.”

Order dated September 3, 2020

The Bench of Dr. DY Chandrachud and KM Joseph, JJ had declined to entertain the writ petition under Article 226 of the Constitution seeking a declaration of the invalidity of the order dated July 31, 2018 while expressly keeping open the rights and remedies available to the petitioner under Article 136 of the Constitution.

It had said,

“A writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.”

Present order

The Court considered the following factors and dismissed the application at hand:

  • earlier one other application was filed by the petitioner to recall order dated 03.09.2020 which was dismissed.
  • order dated 03.09.2020 was pronounced after hearing the applicant.
  • earlier application for recalling of order dated 03.09.2020 was also dismissed after hearing the petitioner.

The Court also directed that the Registry shall not accept any further miscellaneous application on the subject matter of order dated 03.09.2020 or on the two orders dismissing the application for recall of the order dated 03.09.2020.

[Neelam Manmohan Attavar v. Manmohan Attavar, 2021 SCC OnLine SC 58, decided on 05.02.2021]


*Justice MR Shah has penned this judgment

Also read

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Kerala High Court: P.V. Asha, J. allowed the writ petition questioning status of IDBI Bank as “State” under Article 12 of the Constitution and further stated that the acts of public sector undertakings arising out of contractual transactions between the parties will not fall under the term “public duty” to attract the Court’s jurisdiction.

Brief facts of the case are such that the petitioner challenged the demand of Rs 11,00,000 as a processing fee of a credit facility and retaining of original property documents as security against such facility as arbitrary and illegal, hence, being violative of his fundamental rights. The petitioner, while relying on R.D.Shetty v. International Airport Authority, (1979) 3 SCC 489, contended that as per the order passed by the RBI, IDBI would be treated as a private bank only for regulatory purposes and it would continue to be a public sector bank for all other purposes. It was further argued that IDBI is controlled by the Central Government and it is always under the watch of Central Vigilance Commission.

Counsel for the respondent challenged the maintainability of Petition stating that respondent bank does not perform any public or statutory or sovereign function and it does not enjoy any monopoly in the banking. It was argued that its function is confined to commercial activities and the Central Government does not have any deep or pervasive control over its functioning.

The court dismissed the petition, holding that providing of credit facility or loan on the strength of title deeds given against security cannot be said to be done in discharge of any public function. Hence, even when the bank is a public sector bank, demand for a processing fee or withholding of title deeds towards security cannot be said to be one involving any element of public duty. Therefore, IDBI is not amenable to writ jurisdiction. [Unimoni Financial Services Ltd. v. IDBI Bank Ltd., 2020 SCC OnLine Ker 7347, decided on 16-12-2020]

Case BriefsHigh Courts

Gauhati High Court: Achintya Malla Burjor Barua, J., while allowing a Writ Petition, issues direction to the Director-General of Police (DGP), Assam to consider the application moved for compassionate appointment after the lapse of fifteen years.

Facts

The father of petitioner, who was serving in the Assam Police, died in harness on 11-06-2006. At the time of death, the petitioner was a minor. Therefore, no application for a compassionate appointment could be made. On 20-02-2020, after the lapse of nearly fifteen years, the mother of the petitioner moved an application before the DGP, Assam, stating about the death of her husband on 11-06-2005 and the subsequent challenges faced in raising her family of three children. A statement reflecting her efforts towards the attainment of relief was further made. Upon no response by the concerned authorities, the present Writ Petition was preferred with a prayer that a direction be issued to the respondent authorities to address the grievance of the petitioner-applicant.

Contentions

It was pleaded by the counsel for the petitioner that the requirement of making an application for compassionate appointment was not in place in the year 2005 and the claim of the petitioner, should therefore be calculated not from the year of death but from an appropriate subsequent date.

Respondent argued that the statutory limitation against moving an application for compassionate appointment is one year and given to the fact that the said application falls beyond that, the petition is liable to be rejected.

Decision

While allowing the Writ Petition, the Court directed the respondent authority to at least consider the application made by the petitioner. It further clarified that the said direction is in no manner an obligation for the authority to appoint the petitioner and that the DGP is at liberty to evaluate, examine and decide the claims applying his wise sense of judgment.[Rakesh Deka v. State of Assam, 2020 SCC OnLine Gau 3382, decided on 07-08-2020]

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]

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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]