Manipur High Court
Case BriefsHigh Courts

   

Manipur High Court: In a writ petition filed to quash the dismissal order dated 18.1.2005 on the ground that it has violated the principles of natural justice and during the departmental enquiry, the Enquiry Officer proceeded the disciplinary proceedings without the Presiding Officer, thus, not affording a reasonable opportunity of being heard to the petitioner is in violation of Article 311(2) of the Constitution of India, M.V. Muralidaran,J. has observed that there is no disproportionation in awarding the punishment nor any violation of the principles of natural justice, as the petitioner has failed to maintain discipline and had done grave misconduct by overstaying his leave without permission.

In this case, the petitioner was serving in Central Reserve Police Force (CRPF) and has applied 15 days casual leave due to the serious illness of his father and was granted the same. Unfortunately, his father expired due to his illness and the petitioner's wife left him which led to serious bouts of drinking and substance abuse, thereby driving him into depression.

The Court noted that while the petitioner was undergoing treatment for depression with psychotic features, the respondents initiated departmental enquiry against him, on the ground of misconduct and absenting from duty continuously, with effect from 27.9.2003, without any permission of the competent authority. Further, the departmental proceedings against the petitioner were proceeded by only appointing the Enquiry Officer, and without Presenting Officer . Thereafter, an impugned order dated 18.1.2005 dismissing the petitioner from service was issued.

The Court observed that “nothing has prevented the petitioner from sending an application for extension of leave to the concerned authority and without any intimation, he was absent from duty. Further, the unfortunate events that led to his severe depression and that he could not inform the authorities of his conditions nor could take part in the departmental enquiry stated by the petitioner are all concocted for the purpose of filing the writ petition and there is no bonafide in it”. Further, the story narrated by the petitioner that as soon as he recovered from his depression, he applied for the dismissal order as well as the departmental proceedings under Right to information, and after obtaining it, he filed the writ petition is also invented for the purpose of filing the writ petition.

The Court viewed that the dismissal order as well as departmental proceedings were furnished to the petitioner in 2019 itself, thus, if he is really aggrieved by the impugned order of dismissal, he could have immediately filed petition in the year 2019 itself. However, he filed the writ petition in the year 2022, which itself shows that his conduct is not appreciable. Thus, there is no bonafide in the claim of the petitioner and the writ petition suffers from delay and latches. Further, there is no convincing explanation forthcoming from the side of the petitioner and the reason for the delay attributed by the petitioner is not sufficient.

The Court observed that “it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic”. Further, if there is an inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. Therefore, the Court refrained from exercising its extraordinary discretion due to the unexplained delay on the part of the petitioner in filing the writ petition.

The Court took note of the report of the Enquiry Officer and observed that the said report was communicated to the petitioner calling for his explanation/representation through registered post, however, the petitioner has not submitted any explanation and the disciplinary authority proceeded to pass the impugned order. Thus, there is no procedural violation of conducting and concluding the departmental enquiry against the petitioner, as despite giving the opportunity to the petitioner to defend the enquiry, he has not responded and availed of the opportunity. It was observed that the petitioner overstayed from attending the office for nearly 17 years and such a long absence without any communication/information cannot be taken lightly and is a serious misconduct.

It was also observed that the petitioner, being a member of CRPF could not overstay without permission and absence from duty without leave under CRPF is a gravest misconduct and that the disciplinary authority was right in awarding punishment of dismissal from service.

The Court took note of the rulings in State of Meghalaya v. Mecken Singh N. Marak, (2008) 7 SCC 580 and in Union of India v. Dwarka Prasad Tiwari, (2006) 10 SCC 388 , wherein the Court held that “the punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review”, and observed that it is clearly established that the petitioner, being a member of the disciplined force, failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his act of overstaying of leave without permission was prejudicial to the department. Therefore, the Court did not interfere with the punishment imposed by the disciplinary authority and upheld its decision.

[Shri Romi Kumar v. Union of India, Writ Petition (C) No. 676 of 2022, decided on 14.09.2022]


Advocates who appeared in this case :

M. Devananda, Advocate, for the Petitioners;

Boboy Potsangbam, Advocate, for the Respondents.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a writ petition filed for directing the respondents to obtain a declaration from the organisers of all Dusshera Groups and Sound Hire Service Providers to prohibit singing and playing any non-devotional songs and ‘Kuthu Pattu’ during Dusshera festival at Arultharum Mutharamman Thirukovil, Thoothukudi District, the division bench of R. Mahadevan and J. Sathya Narayana Prasad, JJ., has directed the police authorities to prohibit obscene and vulgar dance performance during Dusshera Festival. The Court took note of the photographs of Dusshera festival, filed by the petitioner and observed that show that such dances are performed by paid dancers exhibiting obscene and vulgar postures making mockery of the traditional culture and customs to be followed in Dusshera festival and denigrating the Hindu religious sentiments. Further, portrayal of women in an indecent fashion itself is an offence under the provisions of the Indecent Representation of Women (Prohibition) Act, 1981.

The Court noted that petitioner has initially filed seeking the very same relief for the Dusshera festival of the year 2017 and again in 2018. Wherein the Court has directed the authorities to ensure that there is no display of vulgarity or obscenity in connection with the temple festival of Arultharum Mutharamman.

The Court viewed that the petitioner has produced materials to substantiate his plea of exhibition of obscene and vulgar dance during the earlier Dusshera festival for the years 2017 and 2018. Thus, the apprehension of the petitioner to protect the traditional culture and customs of Dusshera festival from the vulgar and obscene dance performance, is well founded, and directed that the obscene and vulgar dance performance should be specifically prohibited by the Police authorities in the forthcoming festival and if anyone violates the same, appropriate action shall be taken against them in line with the Circular Memorandum dated 09.04.2019 issued by the Director General of Police, Tamil Nadu, that provides consolidated instructions regarding the procedures to be followed while granting permission to conduct cultural events, sports events, procession/meeting etc.

[B.Ramkumar Adityan v. District Collector, 2022 SCC OnLine Mad 4591, decided on 14.09.2022]


Advocates who appeared in this case :

For Petitioner: Advocate S. Sankar

For Respondents: Government Pleader P. Thilakkumar

Additional Public Prosecutor T. Senthil Kumar

Advocate M. Muthugeethayan

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a batch of writ petitions filed for directing the State Government to provide similar Pension benefit as granted to the other similarly situated Tripura Government Undertakings, Arindam Lodh, J. has held that the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body, thereby observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government and the court cannot direct the State or its instrumentalities to formulate such policy

The issues in the present matter were, whether the court can direct the State government to provide necessary funds to the corporation, and whether the court can determine the amount of pension an employee may be entitled to.

The Court took note of the report of the expert committee constituted by the State government, wherein it is found that provision of providing pension benefit to these organizations has been made either by adopting the Civil Services (Pension) Rules, 1972 or introducing separate pension scheme. Further, these autonomous bodies had created a separate scheme and had been able to generate their own funds from their own contribution and opened subscriber accounts with specified schemes of the organization like Life Insurance Corporation of India (LICI), banks etc. Moreover, the petitioners have already retired from service, and are drawing pension under Employees Provident Fund scheme.

The Court further noted that the service conditions including pension scheme of the employees of these corporations are governed by their respective statutes, as the corporations are government undertakings. Further, all the corporations are utilizing the funds provided by the State government even to the extent of 100%, and have been running in loss, though, these organizations are supposed to be profit making as observed by the expert committee. Thus, the court held that “the employees of these statutory organizations cannot claim, as a matter of right, the pensionary benefits, as provided to few of the corporations who have been able to generate their own funds with one-time support from the state government”

Furthermore, the Court viewed that the petitioners cannot be treated equally to the employees of those organizations whose pension schemes have been introduced under different schemes with the assistance of some other organizations like LICI, banks, etc., as the pension of the members of the petitioner’s organization is based on the pension scheme subscribed by them during his/her service tenure in the respective organization and are primarily controlled and regulated by the Employees Provident Fund Organisation. Thus, the petitioners cannot complain of discrimination having regard to the equity clause enshrined under Article 14 of the Constitution of India.

Moreover, the Court observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government, the court cannot direct the State or its instrumentalities to formulate certain policy because it would have a scaring effect having huge financial implication, thus, it should be left to the expert committee.

The Court also observed that the grant of pensionary benefit is not a one-time payment and extension of such benefit is a recurring expenditure with continuous liability involving huge government funds. The State Government and the corporation should ultimately take a policy decision as to whether such benefits should be provided to its employees or not, as it is outside the court’s jurisdiction to make an enquiry regarding the fund status of the respective corporation or to choose a scheme suitable to the employees of such corporation without the aid and advice of the expert body.

Moreover, the Court viewed that it is a settled proposition of law that the interference of the judiciary to such a policy matter having serious financial implication and/or having a cascading effect is not at all warranted and justified. Further, it held that “the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body following the well-neigh principle of self-restraint in the matter of policy decisions of the government”. Thus, the Court dismissed the writ petitions.

[All Tripura EPS Pensioners’ and Employees’ Association v. State of Tripura, 2022 SCC OnLine Tri 619, decided on 06.09.2022]


Advocates who appeared in this case:

For Appellant(s): Advocate S. Saha

Advocate S. Datta

For Respondent(s): Advocate KC Bhattacharjee

Advocate B.S. Bhowmik

Advocate S. Bhattacharjee

Advocate AK Pal

Advocate D. Sarkar

Advocate A. Chakraborty

Advocate HC Chakraborty

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: In a writ petition filed for quashing of the notification dated 21.6.2016, whereby the State Government has amended the Chhattisgarh Secretariat Service Recruitment Rules, 2012 and added a new Clause 6 in Rule 13, the division bench of Arup Kumar Goswami, C.J. and Deepak Kumar Tiwari, J has observed that it is explicit that there is no malafide exercise of powers for extending relaxation by the impugned notification nor there was any occasion to issue conditional appointment order to such candidates who have not passed the Skill test and to give them two years’ time to pass the aforesaid tests. As 36 candidates had fulfilled the requisite conditions earlier, therefore, they were placed above the petitioners in the gradation list. There is no material to show that the State Government has exercised the power of granting relaxation with an oblique or unauthorized purpose.

In the present case, the Department of General Administration had issued an advertisement for 100 posts of AG-III on 24.8.2005. The petitioners had applied for the said post and appeared in the examination conducted by the Chhattisgarh Madhyamik Shiksha Manda, and all the petitioners succeeded in the written examination. As per the terms and conditions of the selection process, the probation period would commence from the next date of passing of the departmental examination, however, in the case of some candidates, the respondent authorities commenced the probation period from the date of their joining, which has caused dissatisfaction and the gradation list has also been affected. Thus, the petitioners prayed for the quashment of the notification dated 21.6.2016, the gradation list with effect from 1.4.2011 and asked for the grant of seniority from the date of their joining.

The Court noted that as per the conditions stipulated in the advertisement dated 24.8.2005, a candidate must pass the computer skill test and Hindi typing examination, but it was found that 61 candidates did not clear these tests, and the above condition was made applicable only for the candidates who have not acquired the certificates of both the tests at the time of appointment and not passed the test at the first instance. Thus, the Court observed that there was no error in fixing the seniority of the candidates, as the petitioners did not pass both the tests, thus the candidates who were qualified at the first instance were placed above them.

The Court took note of the ruling in Hardev Singh v. Union of India, (2011) 10 SCC 121, wherein the Court held that “it is always open to an employer to change its policy in relation to giving promotion to the employees”, thus the Court observed that “it is a settled law that no employee has a right to get promotion, but only has a right to be considered for promotion. It is also well settled that the employer has power to change its policy in giving promotion to its employees”

The Court also took note of the ruling in Rajendra Kumar Agrawal v. State of U.P., (2015) 1 SCC 642, wherein on the issue relating to power of relaxation for filling up the posts by promotion, the Court observed that “we do not find any material to show that the State Government resorted to exercise of power under Regulation 20 for some unauthorised purpose”. It further placed reliance on the ruling in State of U.P. v. Vikash Kumar Singh, (2022) 1 SCC 347, wherein it was observed that “relaxation may be at the discretion of the competent authority, and it cannot be prayed for as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because the Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service”.

Thus, the Court viewed that the petitioners have utterly failed to demonstrate that the impugned notification dated 21.6.2016, wherein the State Government has amended the subject Rules by adding new clause 6 in Rule 13, was issued by the State with an oblique or unauthorized purpose, which shows any arbitrariness on the part of the State. Further, the Court cannot strike down a policy decision taken by the Government merely because it feels that another policy would have been fairer or wiser or more scientific or logical as it is not within the domain of the Court to weigh the pros and cons of the policy or to test the degree of its beneficial or equitable disposition. The power of relaxation is within the exclusive domain of the State Government and, therefore, impugned notification cannot be held to be bad in law.

Moreover, placing reliance on the decision in Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724, the Court viewed that the petitioners have not placed all the selected candidates as party respondent, thus, the writ petitions suffer from non-joinder of the necessary party, and no relief can be granted to them.

[Vidya Bhushan v. State of Chhattisgarh, 2022 SCC OnLine Chh 1559, decided on 02.09.2022]


Advocates who appeared in this case:

For Petitioners: Senior Advocate Kishore Bhaduri

Advocate Vivek Verma

Advocate Santosh Bharat

For Respondents: Deputy Advocate General HS Ahluwalia

Advocate Animesh Tiwari

Advocate Akhand Pratap Pandey

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: The Division bench of Munishwar Nath Bhandari, CJ. and N. Mala, J. has held that the temple or group of temples which were constructed as per the Agamas would be governed by the custom and practice, not only in respect of the worship of the deity, but in all respects, which includes even the appointment of Archakas, and not by the Tamil Nadu Hindu Religious Institutions Employees (Conditions of Service) Rules, 2020. ( ‘The Rules 2020')

The Court observed that:

“If any appointment of Archaka is made offending the Agamas, it would be amenable to challenge before this court by the individual aggrieved person. It is again clarified that the direction in this judgment would apply only to temples which were constructed as per Agamas, and not for any other temple and, therefore, we have not accepted the challenge to Rules 2(c), 2(g), 7, 9 and 11 to 15 of the Rules of 2020, but apply the doctrine of reading down to protect the rights guaranteed under Articles 16(5), 25 and 26 of the Constitution of India.

In the present case, a batch of writ petitions were filed challenging constitutionality of certain provisions of the Rules, 2020 in reference to Articles 16(5), 25 and 26 of the Constitution of India and the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. (‘The Act, 1959'). It is regarding the appointment of Archaka in those temples where construction, installation of idols and worship of deity is as per Agamas. The petitioners argued that the government, by ignoring the rituals and customs stipulated in the Agamas, framed the Rules of 2020 of prescribing eligibility and qualification for different posts, including Archaka.

The Court reiterated Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11, and Adi Saiva Sivachariyargal Naia Sangam v. Government of Tamil Nadu , (2016) 2 SCC 725, wherein the appointment of Archaka has been allowed as per the Agamas. The Court was of the view that the judgments of the above two cases need to be squarely applied to the facts of the present case, but certain clarification on the facts is required and for that even the issue is to be addressed in reference to the challenge to the Rules of 2020.

The Court first dealt with the constitutionality of Rule 2(c), of the Rules of 2020 which defines the term “appointing authority”, under which the appointing authority is not only trustee, but even a Fit Person. The petitioners challenged the authority of the Fit Person to appoint Archakas.

The Court observed that the definition of the term “appointing authority” is not offending the constitutional provisions in any manner or even the provisions of the Act of 1959. The Court also stated that “the right to make appointment of the Archakas lies with the trustees, but this court cannot be oblivious to the fact that in the absence of the trustees, the affairs of the temple have to be looked after by someone. Only in the absence of trustees or for any reason given in Section 49 of the Act of 1959, a fit person is appointed to exercise the power of trustees”.

The Court directed the government to not continue the arrangement of fit person for indefinite period and ordered that the trustees should be nominated or appointed at the earliest.

Further, Rules 7 and 9 of the Rules of 2020 have been challenged mainly on the ground that they stipulate eligibility, qualification and age even for appointment of Archakas, and even if an Archaka is performing pooja for last many years and gained experience, he would be ineligible for appointment in the absence of requisite qualification. The Court, while upholding the constitutionality of Rules 7 and 9 of the Rules of 2020, read down these provisions in regard to the appointment of Archakas in the temple or group of temples, which were constructed as per Agamas and observed that “if Rules 7 and 9 of the Rules of 2020 are struck down, it will create a situation where the appointment to other posts than of Archakas would remain unguided (…). However, the appointment of Archakas in the temples constructed as per Agamas would be governed by the Agamas and for that the Rule under challenge would not apply. It would otherwise offend Articles 25 and 26 of the Constitution of India.”.

It was further observed that Rule 2(g) of the Rules of 2020 that provides the definition of the term “Executive Authority”, do not offend any constitutional provision because Section 28(1) of the Act of 1959 directs the trustees to administer the affairs of the temple in accordance with the terms of the trust or the usage of the institution. Hence, the inclusion of the word “Executive Officer” after the words trustee and fit person would not be any person other than who can administer the religious institution.

Rule 11 to 15 of Rules 2020 were held to be constitutional. Further, the Court, by not holding Rule 17 to be unconstitutional, held that “Necessary protection given under Article 26 of the Constitution of India would be maintained and thereby the transfer of the Archakas would not be permissible unless it is a case of transfer of Archaka of the temple governed by a particular Agama to a temple governed by same Agama”.

The Court clarified that this judgment would not be applicable to those temples which are not constructed as per the Agamas. It also pointed out the grey area as to the identification of the temples constructed as per the Agamas and observed that “while the Apex Court recognized the right of a doctrine or belief guaranteed under Article 26 of the Constitution of India, it left it open for the individual to challenge the appointment of Archakas in the temples which were constructed as per Agamas”. Thus, the Court has issued direction to the State Government to constitute a Five-Member Committee and appointed M. Chockalingam, Retired Judge of the Madras High Court as its Chairperson to identify the temples which were constructed as per Agamas.

[All India Adi Saiva Sivacharyargal Seva Sangam v. State of Tamil Nadu, Writ Petition No 17802 of 2021 decided on 22-08-2022]


Advocates who appeared in this case :

Advocate General. P Valliappan, Advocate, Counsel for the Petitioners;

R. Shanmugasundaram and N.R.R. Arun Natarajan, A.G.Shakeenaa, Advocates, Counsel for the Respondent.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar, J., while dismissing the present writ petition primarily for want of territorial jurisdiction held that even if a small part of cause of action is said to have arisen within the territorial jurisdiction of this Court, it would not be proper to entertain the petition applying the principle of forum conveniens.

This petition has been preferred by the petitioners for quashing and setting aside Certificate dated 30-12-2021 issued to the movie namely, “Holy Wound”, by Central Board of Film Certification (‘CBFC’), Kerala praying to stop the release of the said silent movie on OTT platform/ Youtube etc. or on any other social media platform as the movie is blasphemous in nature, hurting the religious sentiments of the petitioners and the Christian community at large.

Arguments:

Counsel for the petitioner claims that the movie’s trailer is available on a variety of social media sites, where it can be seen that the movie shows a sexual relationship between two female characters who have been in an emotional relationship since childhood and are eventually split when one of them joins a Catholic Church.

The counsel for the petitioner further submits that the film’s very disparaging content undoubtedly damages the Catholic Church’s reputation and that of its believers, which would demoralize those who entered the priestly orders and nunship. He contended that the CBFC should have followed the “Guidelines for Certification of Films for Public Exhibition” which provides that the objectives of film certification are to ensure that the medium of film remains responsible and sensitive to the values and standards of society. According to Clause-2(ix) of the said Guidelines, the CBFC must ensure that scenes degrading or denigrating women in any manner are not presented.

He further points out that soon after the trailer was released, the petitioner received several phone calls inquiring as to whether such things happened inside the convents which disturbed her mental disposition.

The counsel for petitioner put reliance on Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 where it was held that the question as to whether the court has territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. It has further been held that in order to confer jurisdiction on a High Court to entertain a writ petition, it must be disclosed that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the court to decide the dispute and that the entire or a part of it arose within its jurisdiction. It has further been held that the place from where an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was passed at a place outside the said area. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum.

ASGI appearing on behalf of the respondent (‘UoI’), at the outset, raises issues with regard to the maintainability of the present writ petition. It was argued that the head office of CBFC is situated in Mumbai and the impugned certificate has been issued by the regional office situated in Kerala. It was pointed out that even a small part of the cause of action has not arisen within the territorial jurisdiction of this Court and as such the present petition is liable to be dismissed without entering into the merit of the case for want of jurisdiction.

Issue:

Whether it would be proper to entertain the present writ petition applying the principle of forum conveniens?

Observation and Analysis:

The Court observed that the said concern shown by the petitioners appears to be omnibus in nature and there is every possibility that nuns residing in different parts of the country may have similar grievances as that of the petitioners. If the same issue is raised in different High Courts, there may be a possibility of divergent views coming up creating an impossible situation for the implementing agency to comply with all such orders.

The Court observed that in Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, the Supreme Court has held that even if a small part of the cause of action arises within the territorial jurisdiction of a High Court, the same by itself may not be considered to be a determinative factor compelling the said High Court to decide the matter on merit. The court, in appropriate cases, may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

Thus, the Court held that it would not be proper to entertain the petition applying the principle of forum conveniens and dismissed the petition.

[Sithara Joy v. Union of India, 2022 SCC OnLine Jhar 716, decided on 30-03-2022]


Advocates who appeared in this case :

Mr. Shubhashis Rasik Soren, Advocate, for the Petitioner;

UoI: Mr. Prashant Pallav, ASGI, Advocate, for the Respondent;

State: Mr. Mohan Kumar Dubey, AC to AG, Advocate, for the Respondent.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The division bench of Sanjaya Kumar Mishra, acting C.J., Ramesh Chandra Khulbe, J., held in the writ petition is maintainable, as the cancellation of GST registration affects the rights of livelihood enshrined under Article 21 of the Constitution of India.

The division bench observed that in absence of a GST registration number, a professional cannot raise a bill which affects the chances of getting employment or executing works. Such denial of registration, therefore, affects the right of livelihood that is violative of Article 21 of the Constitution. If the situation so prevailing continues, then it will not only amount to a violation of Article 21 but also the right to life of a citizen of this country.

Facts:

The petitioner is a working mason/ painting professional who applied for GST registration and the registration no. was allotted to him but, hee failed to file his return for a continuous period of six months which was mandatory under the Uttarakhand Goods and Services Tax Act, 2017. Hence, his registration got canceled on 21-09-2019.

The petitioner preferred an appeal before the First Appellate Authority which got dismissed on the grounds of delay. Thereafter, a writ petition was filed which was also dismissed as not maintainable by the Single Judge. It was observed in the writ petition that an alternative remedy of appeal was available to the petitioner under Section 107 of the Uttarakhand Goods and Services Tax Act, 2017. Aggrieved by the order of the Single Judge, the petitioner filed this intra court appeal.

The appellant argued that the High Court can exercise its jurisdiction even in cases where alternative and efficacious remedies are available. It was also argued that the Statute does not provide any prohibition against the exercise of the writ jurisdiction under Article 226 by the High Court.

Issue:

1. Whether a writ petition is maintainable when the limitation period provided for filing an appeal is not extendable?

2. Whether the Assistant Commissioner of GST, whose order is challenged in this case, is an adjudicating authority, or not?

Analysis & Observation:

The Court observed that the law made by the Parliament regarding appeals is very strict. It was pointed out that the law does not grant the First Appellate Authority to extend the limitation beyond one month after the expiry of the prescribed limit due to which the petitioner is put to hardship and left with no remedy.The Court noted that a notice was given on the website regarding the cancellation of GST registration which was not sufficient and a personal notice was supposed to be given. . The Court while allowing the appeal and remanding the matter back said that the petitioner is a semi-skilled labourer and now-a-days bills for any work executed for a private player or, even for the Government agency, are drawn on-line. In most cases, the payments are made direct to the bank on production of the bill with the GST registration number. In the absence of GST registration number, a professional cannot raise a bill. So, if the petitioner is denied a GST registration number, it affects his chances of getting employment or executing works. Such denial of registration of GST number, therefore, affects his right to livelihood. The Court relied on Radha Krishan Industries vs State of Himachal Pradesh, (2021) 6 SCC 771,

wherein it was held that a Commissioner is not an adjudicating authority, hence an appeal will not lie against the orders passed by him under Section 107 of the Uttarakhand Goods and Services Tax Act, 2017. The Court, hence, set aside the order by learned Single Judge and held that the learned Single Judge has committed error by holding that the writ petition is not maintainable.

[Vinod Kumar v. Commissioner Uttarakhand State 2022 SCC OnLine Utt 777, decided on 20-06-2022]

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: S. M Subramaniam, J. upheld the government order that stated, the Degree of B.Sc (Biochemistry) awarded by all Universities in the State recognized by the University Grants Commission is not equivalent to the Degree of B.Sc in Chemistry for the purpose of employment in the public service. The Court refused to interfere with the opinion of the Equivalence Committee, Personnel and Administrative Reforms Department constituted by the rules in force because when the Committee has made certain recommendations and such recommendations were accepted by the Government and an order was issued, then there is no reason to exercise the powers of judicial review under Article 226 to undo the exercise done by the expert body.

The writ petition was filed to quash a Government Order No. 24 dated 04-02-2011 issued by Personnel and Administrative Reforms Department which declared that degree qualification of B.Sc (Biochemistry) will not be equivalent to B.Sc in Chemistry. This was done in accordance with a report submitted by the Equivalence Committee. This order effected the qualification required for selection to the post of B.T. Assistantcandidates with a degree of B.Sc Chemistry can only apply for the post.

The petitioner are the candidates who studied B.Sc Biochemistry and they contended that they have studied chemistry subject and they have attended classes on par with the candidates who have studied B.Sc in Chemistry.

The Court noted that the impugned order was passed on the recommendation of the Equivalence Committee which is a competent authority to evaluate the syllabus and other aspects of the degrees. The Equivalence Committee examined the syllabus and equivalence between both the degrees, this recommendation was accepted by the Government of Madras.

Thus, the Court, while dismissing the petition, stated that judicial review can be exercised only if any unconstitutionalty or violation of statutory rules are established, and it cannot be exercised to undo a work done by a competent authority.

[S.K. Sujatha v. The State of Tamil Nadu,W.P. No. 23805 of 2014 , decided on 06-07-2022]


Advocates who appeared in this case :

A.R. Suresh, Advocate, for the Petitioner;

M. Bindran for R1, R2 and R4 and C. Kathiravan for R4, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court (Dharwad Bench): Suraj Govindaraj, J. while deciding a matter regarding handcuffing of an accused during arrest, held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others.

Some disputes had arisen between a law student studying in Shikshan Prasrak Mandals Law College at Raibag (‘the petitioner’) and Babu Annappa regarding a mortgage deed executed in respect of agricultural lands belonging to the petitioner. Due to this, five criminal cases were filed against the petitioner for offences under Section 138 of the Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of the said mortgage. Pursuant to this, the petitioner was arrested by the Respondent 3- Police Sub-Inspector, Ankali Police Station after a non-bailable warrant was issued Thereafter, he was allegedly paraded with handcuffs in Ankali Town and later on was taken in a bus in handcuffs from Ankali to Chikodi Police Station, without being produced before the Court.

Later on, the petitioner’s bail application was rejected, and he was remanded to judicial custody. He appealed the order of conviction which was thereby stayed The petitioner alleged that despite the conviction being stayed, he was repeatedly harassed by the police as they would illegally arrest or detain him, visit his house, and threaten him. Thus, the petitioner filed the present writ petition seeking relief in nature of compensation under Articles 226 and 227 of Constitution of India, for the damage caused to his life and reputation due to illegal detention and illegal handcuffing even prior to the petitioner being proven guilty.

Issues framed by the Court:

1. Whether the accused who is arrested can be handcuffed? If so, under what circumstances?

2. If there is any violation by the Arresting Officer, would the accused be eligible for compensation?

3. On what basis is the compensation required to be determined and paid?

4. Whether the accused suffered damage to his life and reputation or not? If yes, then what amount of compensation should be awarded?

Relevant Statutory Provisions regarding Arrest and Handcuffing

A perusal of Section 46 of the Code of Criminal Procedure, 1973 ‘CrPC’ indicates that a person can be arrested by touching or confining the body of the person to be arrested, unless there is a submission to custody by word or action. It is only when there is a resistance to the arrest or evasion of arrest that the Police Officer may use all means necessary to effect the arrest.

Section 49 CrPC indicates that a person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Therefore, it is the requirement of law that the restraint has to be reasonable and only to the extent that the person does not escape from custody.

Section 220 of Penal Code, 1860 ‘IPC’ indicates that if a person who has legal authority to confine a person, confines such a person contrary to law, he shall be punishable with imprisonment, which may extend to seven years or with fine or with both.

Sections 831, 832, 833, 834 and 835 of the Karnataka Police Manual provide for instructions for using handcuffs. A perusal of the said provisions would indicate that the prisoner should not be normally handcuffed, unless he is violent or disorderly or circumstances necessitate such handcuffing. In the event of an accused is handcuffed, the facts and reasons for it is required to be recorded in the Station House Dairy.

Analysis and Findings:

Reliance was placed on Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 and Antonio Sebastiao Mervyn Degbertde Piedade Pacheco v. State of Goa 2008 (6) AIR Bom R 585 and observed that normally during arrest an accused cannot be handcuffed. Only under extreme or exceptional circumstances, such as violent tendencies or the possibility of escape, can an accused be handcuffed. Furthermore, there are some requirements to be fulfilled by the authorities in such a case:

  • When an accused is handcuffed, the Arresting Officer is required to record the reasons for handcuffing, which would have to sustain the scrutiny of the Court.

  • Whenever an accused is produced before the Court of law, it would be required of the Court to enquire if the accused had been handcuffed or not and if handcuffed, to ascertain the reasons recorded by the Arresting Officer on the justifiability on the same.

Thus, the court held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others. The nature of offences and the punishment prescribed for the said offence are not relevant for the matter of handcuffing.

Dealing with the issue regarding compensation, reliance was placed on D.K. Basu v. State of West Bengal (1997) 1 SCC 416 and Nilabati Behera v. State of Orissa (1993) 2 SCC 746 and observed that “if there is a violation by the Arresting officer in putting handcuffs on the petitioner, the petitioner would be eligible for compensation”. Thus, in the present case, the State is responsible for compensating the petitioner and the amount of damage is to be calculated on the basis of any evidence and documents produced by the petitioner.

Regarding the third issue, the court held that there are a few considerations that have to be made while awarding the compensation, these considerations are as follows:

  • The court should take into consideration the loss/damage that might have been caused to the person who has been handcuffed.

  • The court should also consider the imposition of compensation as a deterrent to the Police Officers who do not discharge their duties in a proper manner and/or violate the applicable law. Additionally, although the State would be required to pay the compensation, the State would be at liberty to recover the same from the concerned defaulter(s).

Thus, the court observed that “Compensation which is required to be paid as aforesaid being a Public Law Remedy, there cannot be a straitjacket formula which could determine the amount of compensation that has to be paid. Be that as it may. The compensation which is required to be paid is by applying the principles of strict liability.

Lastly, the court held that the evidence provided by the petitioner does not sufficiently prove that the petitioner was paraded in handcuffs and his reputation has been as immensely damaged as he claims. Thus, for the procedural irregularity of handcuffing, the petitioner was awarded Rs. 2 lakhs as compensation as opposed to Rs 25 lakhs which was originally demanded.

[Suprit Ishwar Divate v. State of Karnataka, 2022 SCC OnLine Kar 1133 decided on 10-06-2022]


Advocates who appeared in this case :

Santosh P. Pujari, Advocate, for the Petitioner;

Praveen K. Uppar, Advocate, for the Respondent.

SCC Part
Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 41 Rr. 4 & 33, Ss. 96, 100 and Or. 20 R. 18 — Partition suit — Appeal — Non-appealing plaintiffs: Some of plaintiffs whose claim was denied by trial court and who had not challenged same by way of appeal before first appellate court, held, are entitled to relief in second appeal. In a partition suit, all parties stand on the same pedestal and every party is a plaintiff as well as a defendant. Position of plaintiff and defendant can be interchangeable. Trial court could grant relief even to non-appealing plaintiffs and make an adverse order against all defendants and in favour of all plaintiffs. Merely because trial court had not granted relief in favour of some of plaintiffs, would not come in the way in High Court allowing their claim. [Azgar Barid v. Mazambi, (2022) 5 SCC 334]

Constitution of India — Art. 226 — Maintainability of writ petition — Proceedings under SARFAESI Act: If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. [Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir, (2022) 5 SCC 345]

Constitution of India — Arts. 32 and 226 — Issue as to legislative competence — Maintainability: Matter already standing determined by a Constitution Bench of the Supreme Court. [M.C. Mehta v. Union of India, (2022) 5 SCC 291]

Constitution of India — Sch. VII List I Entry 84 and List II Entry 51: State Legislature, held, has no legislative competence to levy tax on waste liquor after distillation which is not suitable for human consumption. [State of Orissa v. Utkal Distilleries Ltd., (2022) 5 SCC 326]

Criminal Procedure Code, 1973 — S. 190(1)(b) r/w Ss. 173, 193 & 319 and Ss. 161 & 164 — Taking cognizance of offence on basis of police report — Protest petition: Even after process has been issued against some accused on one date, held, process can still be issued by the Magistrate against some other person against whom there is some material on record, but whose name is not included as accused in the charge-sheet. Lastly, Magistrate or court need not wait till stage of S. 319 CrPC to exercise such power. [Nahar Singh v. State of U.P., (2022) 5 SCC 295]

Foreword to a book: A foreword to the book “Competition Law” by Cyril Shroff. Foreword to competition law by Cyril Shroff, (2022) 5 SCC (J-25)]

Foreword to a book: A foreword to the book “Criminal Law and Criminal Justice: An Introduction to the Writings by Justice M.N. Venkatachaliah, Foreword to Criminal Law and Criminal Justice: An Introduction to the Writings by Justice M.N. Venkatachaliah, (2022) 5 SCC (J-22)]

Foreword to a book: A foreword to the book “Transgenders and the Law” by Justice A.K. Sikri. Foreword to transgenders and the law by Justice A.K. Sikri, (2022) 5 SCC (J-28)]

Government Contracts and Tenders — Formation of Government Contract — Modes of entering into a Government Contract — Public Auction/Tender — Award/Non-award of contract — Judicial review: Author of the tender document, reiterated, is taken to be the best person to understand and appreciate its requirements. Thus, if the interpretation of such author is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further, the technical evaluation or comparison by the Court is impermissible. Thus, even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given, so long as such interpretation is not arbitrary or whimsical. [Agmatel India (P) Ltd. v. Resoursys Telecom], (2022) 5 SCC 362]

Petroleum and Natural Gas Regulatory Board Act, 2006 — S. 16 — Noti. dt. 12-7-2010: Directions regarding adjudication of pending and new applications by Board i.e. post S. 16 coming into force, issued. [Petroleum & Natural Gas Regulatory Board v. Indraprastha Gas Ltd., (2022) 5 SCC 292]

Petroleum and Natural Gas Regulatory Board Act, 2006 — S. 16 r/w S. 17 — “Deemed authorisation” clause under S. 16 proviso — Scope of — Deemed authorisation: If one reads S. 16 proviso in isolation, the inference undoubtedly would be that every entity which had started laying and building pipelines and networks was the recipient of the deemed authorisation clause i.e. the provision sought to retrospectively regularise activities by all entities, however, such a plain and facial construction is unacceptable. Thus held, S. 16 proviso is not unqualified. The “deemed authorisation” clause is subject to other provisions of Ch. IV and S. 17 is one such provision under Ch. IV. Further, the scheme of S. 17 intrinsically classifies the two i.e. Central Government authorised entities, and others and the underlying basis for this statutory classification is that only entities which had been cleared or authorised by the Central Government prior to the coming into force of the Act were deemed to have authorisation under the Act, and therefore, had to furnish certain details. As with regard to the others i.e. entities not authorised by the Central Government, fresh applications were necessary which were to be assessed by the Board on a case-by-case basis and in accordance with uniform standards. [Adani Gas Ltd. v. Union of India, (2022) 5 SCC 210]

Service Law — Promotion — Criteria/Eligibility — Length of service/qualifying service — Time-bound promotion — Entitlement to: Services rendered by employee on work-charge basis may considered for computing 12 yrs of service for grant of time-bound promotion (TBP). [State of Maharashtra v. Madhukar Antu Patil, (2022) 5 SCC 322]

Service Law — Promotion — Criteria/Eligibility — Qualification/Experience — Classification based on nature of experience — Validity of: Policy decision to provide incentive marks for specified work experience inside the State and not for such work experience from some other State due to work pattern peculiarities and socio-economic/geographical peculiarities of the State, held, not arbitrary. Courts should be slow in interfering with policy matters unless the policy is found to be palpably discriminatory and arbitrary. [Satya Dev Bhagaur v. State of Rajasthan, (2022) 5 SCC 314]

Service Law — Regularisation — Entitlement to regularization: In this case, respondents were appointed on contractual basis for period of 11 months (which was continued from time to time), on fixed salary for temporary project. Their employment was continued based on interim order of High Court. It was held that respondents were appointed on temporary unit which was not regular establishment and posts on which they were appointed and continued to work were not sanctioned posts. Hence, impugned judgment directing State to consider cases of respondents for regularisation sympathetically and if necessary, by creating supernumerary posts, held, unsustainable and without jurisdiction. [State of Gujarat v. R.J. Pathan, (2022) 5 SCC 394]

Territorial Jurisdiction of Courts in Domestic Arbitration: In this article, issue of territorial jurisdiction of courts in arbitrations in India has been discussed. Territorial Jurisdiction of Courts in Domestic Arbitration: The Saga of seat and venue continues by Arjun Krishnan and Ankur Singh, (2022) 5 SCC (J-1)]

Treatment of Personal guarantors under the Indian insolvency regime: This article seeks to delineate the position of personal guarantors under the Insolvency Code and to discuss the treatment of promoters as personal guarantees under the Indian insolvency regime in light of the judgment in Lalit Kumar Jain, (2021) 9 SCC 321 and other relevant decisions. General principles relating to the treatment of Personal guarantors under the Indian insolvency regime by Sriram Venkatavaradan and Saai Sudharsan Sathiyamoorthy, (2022) 5 SCC (J-8)]

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sujoy Paul and Prakash Chandra Gupta, JJ., disposed of a petition reserving liberty to the petitioner to avail alternative remedy of appeal.

Petitioner had  filed Writ Petition challenging impugned order which was an interlocutory order passed by the Debts Recovery Tribunal, Jabalpur, whereby the interim relief was denied to the Petitioner as he had failed to establish violation of the SARFAESI Act, 2002, in the proceedings initiated by the Respondent Bank under the Act.

Counsel for the petitioner submitted that the present writ petition was properly drafted and pregnant with the necessary specific pleadings. He further submitted that the DRT came to hold that under the provisions of SARFAESI Act, 2002 no interim relief was due to the petitioner. Hence, the only remedy to the petitioner is of filing of present petition.

Counsel for the respondent/Bank placed reliance on the recent order of Supreme Court wherein the Supreme Court had deprecated the practice of entertaining the writ petition despite availability of alternative remedy.

The Court reiterated Section 18(1) of the SARFAESI Act, 2002 and noted that the appellate provision made it clear that the legislature in its wisdom has used the words “any order” made by the Debts Recovery Tribunal against which the appeal lies. The Court was of the opinion that expression “any order” was wide enough to include an interlocutory order drawing support from various decisions given by the High Courts of India in this regard.

The Court considering the backdrop of the present case stated that there was nothing which made it obligatory for the Court to entertain this writ petition when efficacious alternative remedy is available to the petitioner. The Court considered the case of Kotak Mahindra Bank Ltd. v. Dilip Bhosale, Special Leave to Appeal (C) No.(s). 13241-13242/2019, decided on May 11, 2022 relied on by the Counsel  for the respondent/Bank and reiterated the relevant part which was:

“Before parting with the order, we would like to observe that this Court is consistent of the view and can be noticed from the judgment in United Bank of India Vs. Satyawati Tandon (2010) 8 SCC 110, that when a remedy under the statute is available and in the instant case which indeed was availed by the respondent/borrower, filing of a writ petition under Article 226 of the Constitution of India is to be discouraged by the High Court.”

The interference was declined in view of availability of alternative remedy.

[Devendra Kumar Rai v. State Bank of India, 2022 SCC OnLine MP 1295, decided on June 13, 2022]


For petitioner: Mr N.S. Ruprah

For respondent/Bank: Mr Prabhanshu Shukla


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Mahendar Kumar Goyal, J. dismissed the writ petition in view of availability of alternative remedy to the petitioners under the provisions of the SARFAESI Act. 

The instant writ petition was filed by the borrowers for quashing the order dated 15-03-2022 passed by the Chief Metropolitan Magistrate, Jaipur Metropolitan-I in Civil Miscellaneous Case No.164/2022 under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, “SARFAESI Act”) with a further direction to the respondent to grant them benefit of moratorium.

Counsel for petitioners submitted that remedy of appeal is not available to them against an order passed under Section 14. He submitted that in view of existence of an arbitration clause in the loan agreement and filing of an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for brevity, “the Act of 1996”) by the respondent, the respondent could not have resorted to the provisions of Section 14 of the SARFAESI Act.

Counsel for the respondent submitted that the writ petition is not maintainable as the petitioners have an alternative and efficacious remedy under Section 17 of the SARFAESI Act.

The Court relied on Balaji Enterprises v. Authorised Officer in SB Civil Writ Petition No 9054 of 2021 wherein it was observed that

“These writ petitions filed by the petitioners deserves to be dismissed for the reasons; firstly, the petitioners are having alternative efficacious statutory remedy under the SARFAESI Act, 2002; secondly, the guidelines issued by the R.B.I. can be very much looked into by the Debts Recovery Tribunal as well as by the banks while examining the reply if submitted by the petitioners against the notices served upon them and lastly in the facts and circumstances in view of the judgment passed by the Hon’ble Supreme Court in the matter of I.C.I.C.I Bank Limited as well as the Pheonix India (both supra), I am not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Hence, these writ petitions stand dismissed.”

The Court observed that the contention of learned counsel for the petitioners that in view of availability of arbitration clause and invocation of Section 9 of the Act of 1996, the proceedings under the SARFAESI Act could not have been resorted to, does not merit acceptance.

The Court held “the writ petition is dismissed in view of availability of alternative remedy to the petitioners under the provisions of the SARFAESI Act.”[Om Prakash v. Hero Housing Finance Ltd., S.B. Civil Writ Petition No. 6199/2022, decided on 11-05-2022]


Appearances

For Petitioner(s): Mr. Prahlad Sharma

For Respondent(s): Mr. Pramod Kumar


Arunima Bose, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: Suraj Govindaraj, J., allowed the petition and quashed the compromise decree in the original suit filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings.

The facts of the case are such that a compromise petition was filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings by a person claiming to be the power of attorney holder of the petitioner and as such the petitioner’s interest in the suit schedule property therein was compromised without the knowledge of the petitioner and therefore a fraud was committed on the petitioner by resorting to an abuse of the process of the Court and filing of a compromise petition in the Lok-Adalat. Thus instant petition was filed under Articles 226 and 227 of the Constitution of India praying to quash the compromise decree and restore the original suit before Principal Senior Civil Judge at Huballi on merits.

Counsel for petitioner Mr Mahesh Wodeyar submitted that the petitioner not having executed any power of attorney in favour of respondent 1, the power of attorney claimed by respondent 1 is fabricated one and as such neither the agreement of sale could be executed by respondent 1 in favour of respondent 2 nor could a compromise be entered into by the respondent 1 with respondent 2 for the Lok-Adalat to record. Thus, the petition needs to be allowed and the compromise recorded by the Lok-Adalat be set aside.

Counsel for the respondent Mr Padmanabha Mahale submitted that respondent 1 is the power of attorney holder of the petitioner and respondent 1 has entered into a compromise with the knowledge and consent of the petitioner with respondent 2. The compromise having been filed before the Court and the Court having forwarded the matter to the Lok- Adalat the compromise is one which is filed before the Court and as such the present petition is not maintainable since the trial Court having taken the compromise on record, only a suit challenging the compromise is maintainable.

The Court after perusing all the material facts observed that the plaintiff in a suit cannot array a defendant to be represented by power of attorney showing the address of the said power of attorney without even showing the address of the defendant. It was also observed that the net result of the entire proceedings and procedure followed is that the plaintiff who was not aware of the said proceedings, a compromise decree has been passed against the petitioner who though arrayed as a party to the preceding was never served with the notice nor did the defendant contest the said the proceedings. There is a procedural irregularity inasmuch as the compromise petition was filed before the Court and thereafter the matter referred to Lok-Adalat for recordal of the compromise.

The Court relied on Akkubai v. Venkatrao, 2014 SCC OnLine Kar 10110  and deprecated the said practice of recording compromise before the Court and thereafter referring to Lok-Adalat, as it is not contemplated in the Legal Services Authorities Act, 1987 and such compromise if recorded before the Lok Adalat is required to be set aside.

The Court also issued general directions in matters relating to compromise before the Lok Adalat which are challenged by way of writ petitions

(i) When a compromise is filed before the Court in terms of the decision in Akkubai v. Shri Venkatrao, 2014 SCC OnLine Kar 10110  it is for the Court to record the compromise and not refer the matter to the Lok- Adalat.

(ii) It is only if there is no settlement arrived at before the Court and the parties request for the matter to be referred to Lok-Adalat to enable a settlement then in such event the parties are to be referred to the Lok-Adalat and in the event of a compromise being arrived at before the Lok- Adalat, the same could be recorded by the lok- Adalat.

(iii) When the matter is referred to Lok-Adalat, separate order sheets would have to be opened and maintained by the said Lok-Adalat and the order sheet of the Court in the suit cannot be used by the Lok-Adalat.

(iv) The trial Court and or the Lok-Adalat while recording compromise is required to ascertain if the parties are present personally as also to ascertain and verify their identities by production of suitable documentary proof.

(v) In the event of a power of attorney appearing, it would be the bounden duty of the Court or the Lok-Adalat to ascertain if the concerned party has been served with notice.

(vi) The Court as also the Lok-Adalat would always have to be suspicious if the party were to enter appearance even before service of notice which is a red flag that there is something that is fishy in the matter.

(vii) When recording a compromise being entered into by a power of attorney, the original of the power of attorney is required to be examined by the Court and the Lok-Adalat and necessary endorsement made in the order to that effect and the original power of attorney returned to the parties.

(viii) As far as possible the trial Court and or the Lok- Adalat to secure the presence of the party and obtain signature of such party rather than the power of attorney.

(ix) The Trial Courts shall ensure that proper and acceptable proof of identity of the parties to proceedings as mandated by the Government for various purposes (such as Aadhar Card, Driving Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.

The Court allowed the petition and quashed the compromise decree dated 26-07-2014 in O.S. No.246/2014. [Renuka v. Ramanand, Writ Petition No. 103766 of 2018, decided on 31-03-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where the members of the Lok Adalat, Madhya Pradesh High Court had entered into the merits of the writ petition and had dismissed it on merits, the bench of MR Shah* and AS Bopanna, JJ has set aside the order and has held that it was not open for the members of the Lok Adalat to enter into the merits of the writ petition and to dismiss the same on merits, in absence of any settlement arrived at between the parties.

Relevant provisions under the Legal Services Authorities Act, 1987 explained

As per sub-section (5) of Section 19, a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or a settlement between the parties to a dispute in respect of

  • any case pending before; or
  • any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised.

As per sub-section (1) of Section 20 where in any case referred to in clause (i) of sub-section (5) of Section 19- (i) (a) the parties thereof agree; or (i) (b) one of the parties thereof makes an application to the court, for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement or (ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat.

It further provides that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties.

As per sub-section (3) of Section 20 where any case is referred to a Lok Adalat under sub-section (1) or where a reference is made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. Sub-section (5) of Section 20 further provides that where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (1) for disposal in accordance with law.

Analysis of the provisions

The provisions make clear that,

  • the jurisdiction of the Lok Adalat would be to determine and to arrive at a compromise or a settlement between the parties to a dispute and once the aforesaid settlement / compromise fails and no compromise or settlement could be arrived at between the parties,
  • the Lok Adalat has to return the case to the Court from which the reference has been received for disposal in accordance with law and in any case,
  • the Lok Adalat has no jurisdiction at all to decide the matter on meris once it is found that compromise or settlement could not be arrived at between the parties

Conclusion

The impugned order passed by the Lok Adalat dismissing the writ petition on merits was found to be unsustainable and deserves to be quashed and set aside.

In the present case, the consent to place the matter before the Lok Adalat was to arrive at a settlement and or a compromise between the parties and not for placing the matter before the Lok Adalat for deciding the matter on merits.

“Once there is no compromise and/or a settlement between the parties before the Lok Adalat, as provided in sub-section (5) of Section 20, the matter has to be returned to the Court from where the matter was referred to Lok Adalat for deciding the matter on merits by the concerned court.”

[Estate Officer v. Colonel H.V. Mankotia, 2021 SCC OnLine SC 898, decided on 07.10.2021]
____________________________________________________________________________________________________________

Counsels:

For appellant: Vikramjit Banerjee, ASG


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Tripura High Court
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.

Jharkhand High Court
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

Kerala High Court
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]