Case BriefsHigh Courts

Uttaranchal High Court: A writ petition was contemplated by Ramesh Ranganathan, CJ and Alok Kumar Verma, J. where the petitioner sought a writ of mandamus to command the respondents to consider the petitioner’s grievances and to consider linking the Voter ID Card of every valid adult voter with his Aadhaar Card, further it was sought that Voter ID card to be treated as valid document for casting vote in every election and to have a common list for every election either for Parliament, Assembly or for Local Bodies and Panchayats.

It was addressed in the Court that Article 243C in Part IX of the Constitution of India, related to the composition of Panchayats and under Clause (1), and the State Legislature makes provision for the composition of Panchayats. Article 243 C(2) stipulated that all seats in Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.

Shobhit Saharia, learned counsel for the Election Commission of India, contended that no relief was sought against the Election Commission of India, the petitioner had, in effect, sought the electoral roll, prepared by the Election Commission of India under the Representation of the People Act, 1951, to form the basis for preparation of the electoral rolls for Panchayati Raj Institutions and Urban Local Bodies in the State of Uttarakhand. It was unnecessary to dwell on this aspect any further since the preparation of an electoral roll was prescribed in the State of Uttarakhand by law made by the State Legislature called the “Uttarakhand Panchayati Raj Act, 2016

It was further highlighted that provisions, similar to Article 243K in Part IX of the Constitution of India, were also prescribed for Urban Local Bodies under Article 243 ZA in Part IXA of the Constitution of India. In terms of the provisions of the Panchayati Raj Act, 2016, a separate electoral roll was required to be prepared for Panchayats in the State. The mode and manner in which these electoral rolls were to be prepared were also stipulated.

The Court noted that it was up to the State Legislature to prescribe by law, that the electoral rolls prepared for Parliamentary and Legislative Assemble Elections should be the basis of for elections to Panchayat Raj Institution and Urban Local Bodies. Court further observed that it was out of their purview to decide and direct such issues and was totally the wisdom of the legislature. Court appreciated the intentions of the petitioner that he wanted to ensure that all those who had the right to vote were permitted to exercise the franchise and arbitrary deletion of their names from the electoral rolls was avoided.

It was held that the power of superintendence conferred on Election Commission was similar to the power conferred on the State Legislature. The Court observed the scope of Article 324 of the Constitution of India, in A.C Jose v. Sivan Pillai, (1984) 2 SCC 656,  where it was held that, “when there is no Parliamentary Legislation, or Rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections; and where the Act or the Rules are silent, the Commission has plenary powers, under Article 324 of the Constitution of India, to give any direction in respect of the conduct of elections.”

Hence the petition was dismissed as the representation was already made before the Election Commission.[Ravindra Jugran v. State Election Commission, 2019 SCC OnLine Utt 913, decided on 12-09-2019]

Case BriefsHigh Courts

Allahabad High Court: Rajesh Singh Chauhan, J. while allowing the writ petition issued a writ in the nature of mandamus so as to command the opposite parties to reconsider the claim of the petitioner.

In the instant case, Nikhat Jahan, the petitioner’s request for appointment under Dying-in-Harness Rules was denied for the reason that she is a ‘divorced daughter’. Her father died on 19-6-2016.

She submitted that earlier her claim was rejected on 7-2-2017 for the reason that ‘divorced daughter’ does not come within the definition of “family” but such order was set aside by this Court vide judgment and order on 9-2-2018 in Service Single No.4418 of 2017 with the direction to the competent authority to consider the case of the petitioner afresh in view of the settled proposition of law, which was settled recently.

When the petitioner produced a certified copy of the aforesaid order, her claim was rejected in view of the dictum of the Supreme Court of 29-7-2016 passed in a special leave to appeal. To this, the petitioner submitted that the aforesaid dictum does not apply to the instant case.

The Court referred to Kusum Devi v. State of U.P., 2009 SCC OnLine All 1941  It was held that a divorced daughter is entitled to compassionate appointment. “A divorced daughter, if dependent upon her father, cannot be excluded and has to be included within the meaning of the word ”family’ since such a ”divorced daughter’, is dependent upon her father, has to be treated at par with an unmarried daughter or widowed daughter as all of them continue to be the liability of their father as member of the family of their ”father’.” The same was held in State of U.P. v. Jayanti Devi, passed in Special Appeal Defective No. 1298 of 2017.

In the instant case expression “Unmarried” used in Rule 2(c) of U.P. Recruitment of Dependant of Government Servants Dying in Harness Rules, 1974, was considered. Normal and common meaning of expression “Unmarried” is “not married” or “Single”. In the Wharton’s Law Lexicon 15th Edition, the expression “Unmarried” has been defined as: – “Unmarried, is a term of flexible meaning; prima facie it means ‘never having been married’.

As per Merriam Webster’s Collegiate Dictionary, 11th edition, “unmarried” means ‘not now or previously married’ or ‘being divorced or widowed’. In Stroud’s Judicial Dictionary of Words and Phrases, 7th edition, the primary meaning of ‘unmarried’ is ‘never having been married’ or ‘without ever having been married’ and the secondary meaning is ‘having no spouse living at the material time’. It is a word of flexible meaning, and slight circumstances could be sufficient to give the word its secondary meaning.

From the above explanations, it is clear that the term ‘Unmarried’ has flexibility in its meaning and it does not only mean “not married” or “single” or “never married”, it also means “not married on relevant date “or “widow” or “widower” or “divorcee”.

In context of the present case, the Court observed that a widow remains to be part of her husband’s family even after the death of such husband, whereas upon the marriage being dissolved, the divorcee daughter does not continue to be a part of the family of her divorced husband and would continue to remain single unless she remarries.

Further, under Rule 2(c) of Rules of 1974, there is no express exclusion that a “divorced daughter” is not entitled to appointment under the Rules.

Therefore, the Court directed the opposite parties to reconsider the claim of the petitioner for compassionate appointment strictly in terms of judgment and order of 03.01.2019 passed by this Court in Special Appeal Defective No. 673 of 2018; State of U.P. v. Noopur Srivastava, with the expedition, preferably within a period of one month from the date of production of a certified copy of the order.[Nikhat Jahan v. State of U.P., 2019 SCC OnLine All 3036, decided on 21-08-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJM and Alok Kumar Verma, J. dismissed a writ petition where the petitioner sought mandamus against the respondent, to direct him to approve appointment of the petitioner as Principal in compliance with the amended second proviso to Rule (2)(1) of the Uttarakhand School Education Council Regulations, 2009.

The said petitioner had earlier filed a writ in the said Court on the same facts and relief to which a Division Bench took note of the contentions and had held that they were not inclined to express any opinion as to whether the petitioner must be deemed to have been appointed as a Principal, merely because the proposal made by the Committee of Management, for his appointment as a Principal, was not rejected within one month of its receipt by the Additional Director, more so as the writ petition was disposed of, with the consent of the parties. The writ petition was disposed of directing the Additional Director, School Education to pass orders on the proposal submitted by the Committee of Management, for the appointment of the petitioner as the Principal.

The counsel for the petitioner, Kartikey Hari Gupta submitted that the petitioner made representation to the Additional Director, who subsequently disposed petitioners to claim and held that promotion of the applicant to the post of downgrade Principal was not possible in the light of the High Court order, and the provisions of the Uttaranchal School Education Act, 2006. Further it was submitted that the Additional Director took note of the order passed by a learned Single Judge, in earlier writ petition of 2016 and observed that the High Court had clarified, in the said judgment, that selection procedure, provided for the post of Principal in the Uttarakhand School Education Act, 2006, and arrangement of downgrade principal provided through amendment in the 2009 Regulations, were contradictory to each other; and the Court gave primacy to the 2006 Act over the amendment to the 2009 Regulations, it had quashed the Regulations, and had suggested to the Government to carry out appropriate amendment in tune with Section 36(2) of the original Act, which was in regard to direct recruitment of Principal.

Kartikey Hari Gupta, counsel for the petitioner, drew attention to the 2018 amendment to the 2009 Regulations, where under, after the proviso to Regulation 2(1) of the Uttarakhand School Education Council Regulations, 2009, it was laid down that, likewise for promotion to the post of Principal at Inter Level, such regular senior-most teachers of the concerned school, who were eligible as per Schedule “A” of Chapter 2 of the Regulations, when they got selected  for grade after 10 years of ordinary grade, and if their work and conduct was satisfactory, they would then be promoted to the post of downgrade Principal, while giving them downgrade pay-scale of Principal; and, after completing 5 years in downgrade, the pay-scale of the Principal would be allowed.

On the contrary, the respondent had submitted that High Court had already quashed the amendment, as the petitioner had applied for the post on the basis of the second amendment, it was noted that the second amendment was allegedly passed without proper procedure and without changing the original Act. Hence the promotion of the applicant was not possible.

The Court observed that the learned Single Judge had already opined that there was a conflict between the Act and Regulations, and in such circumstances, the Act would prevail. It was also held by the Single Judge, “it was always open to the State Government, in its wisdom, to amend Section 36(2) of the Act which talked about direct recruitment; and the State Government had not taken recourse to amend the Act, but had amended the Regulations in contradiction to the Act.”

It was further observed that presumption regarding the constitutionality of subordinate legislation also, in the absence of a specific challenge thereto; it was not to strike down a Regulation on the premise that the Regulations fall foul of the provisions of the Parent Act. In the absence of any challenge to its validity, the Regulations made under the Act must be read harmoniously with the provisions of the Act. Hence, the order by the learned Single Judge was held to be a bad law and was set aside as had not examined the scope and purport of Section 36(2) of the Act, and had proceeded on the premise that Section 36(2) of the Act requires the post of the Head of the Institution to be filled up only by way of direct recruitment.[Somprakash v. State of Uttarakhand, 2019 SCC OnLine Utt 648, decided on 02-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The instant writ petition was entertained by a Division Bench of Ramesh Ranganathan, C.J. and Alok Kumar Verma, J., and the interesting issue discussed was related to  seeking mandamus against the respondent to ‘hold that Schedule-I of the Code of Criminal Procedure, 1973, qua Sections 326, 327, 363A, 377, 382, 386, 389, 392, 394, 409, 455, 458, 467, 493, and 495 of the Penal Code, 1860, were illegal, as they mandated trial by the Magistrate, who otherwise did not have the competence to award the prescribed sentence, and to declare these provisions in the Code of Criminal Procedure, 1973, as ultra-vires.

It was contended by the petitioner to direct the respondents to bring appropriate amendments to the Schedule, hence, to make appropriate trial by the Court of Session instead of Magistrate, Ist Class. Another contention forwarded by the petitioner was related to issue mandamus against the Legislature to amend law.

The Court clearly held that it was a well-settled law that no mandamus could be issued to the Legislature; hence the prayer of the petitioner was disregarded. The Court stated that the petitioner had not explained how the said Schedule violated any provision of the Constitution of India. It was noticed that, “The Constitutional validity of plenary legislation can only be examined in the context of lack of legislative competence, or for violation of any other provision of the Constitution of India. The power to enact the Criminal Procedure Code has been conferred under Entry 2 of List III of the Constitution of India. Since both Parliament and the State Legislatures have the power to make or amend the Criminal Procedure Code under Entry 2 of List III, the Parliament cannot be said to suffer from lack of legislative competence in making the said Law.”

The point of law discussed by the Court was that Section 325 of the CrPC prescribed the procedure when a Magistrate cannot pass a sentence sufficiently severe under his jurisdiction and it required him to forward the record with his opinion, and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he was subordinate; however, there was no provision conferring power on the Chief Judicial Magistrate to refer the matter to the District & Sessions Judge in cases where he lacked the power to impose the sentence prescribed under the Penal Code. Hence the answer cited was referred to Section 323 CrPC, where if in any inquiry into an offence or a trial before a Magistrate, appeared to him, at any stage of the proceedings before signing judgment, that the case was one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained; and, thereupon, the provisions of Chapter XVIII applied to commitment so made.

Hence, the Court found that the apprehension expressed by the petitioner was wholly misconceived and dismissed the petition as power was conferred under Section 323 CrPC, on the magistrate to refer the matter to Court of Session, if he was satisfied that the offence was only to be tried by Court of Session.[Shilpi Lawrence v. Union of India, 2019 SCC OnLine Utt 634, decided on 04-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Alok Singh and N.S. Dhanik, JJ. dismissed a writ petition filed by the 66-year-old petitioner, who sought mandamus against respondent authority to provide police protection to her as respondents threatened her.

The petitioner contended that her estranged son and daughter-in-law were disowned by the husband of the petitioner from all the movable and immovable properties by way of public notice. She further alleged that she had an apprehension of being killed by the respondents.

The Deputy Advocate General for the State argued that the present petition was not maintainable before this Court, in as much as the petitioner had efficacious and alternative remedy; and in view of the law laid down by the Supreme Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 and Lata Singh v. State of U.P., (2006) 5 SCC 475, the petitioner cannot be granted police protection because she had an efficacious and alternative remedy. It was further contended that the petitioner should have registered an FIR if she apprehended any sort of threat to her life. The counsel submitted that the petitioner may approach the Superintendent of Police under Section 154(3) CrPC by an application in writing; even if that did not give any satisfactory result in the sense that either the FIR was not registered, or that even after registering it no proper investigation was held, it was open to the petitioner to file an application under Section 156 (3) CrPC before the Magistrate concerned. If an application under Section 156(3) CrPC was filed before the Magistrate, the Magistrate would direct the FIR to be registered and also a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made.

The Court held that, it was not a case where the Senior Superintendent of Police concerned had to be directed to provide necessary protection to the petitioner and the petitioner was not permitted to abandon or bypass that remedy and invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, when she had an efficacious and adequate remedy open to her.[Sahjahan Begum v. State of Uttarakhand, 2019 SCC OnLine Utt 567, decided on 08-07-2019]

Case BriefsHigh Courts

Madras High Court: Pushpa Sathyanaryana, J. while hearing a petition praying for mandamus against an insurance company, directed the said insurance company to honour the claim of petitioner in respect of her insurance policy.

Petitioner and her husband had applied for a home loan for which they were to be sanctioned a sum of Rs 35,00,000. The loan policy also covered critical illness diagnosis cost. Petitioner’s husband suffered a massive cardiac arrest and died. Petitioner filed a claim petition seeking claim amount but it was denied on grounds that her husband’s death was not covered under major medical illness. Aggrieved thereby, the instant petition was filed.

Learned counsel for the petitioner S.R. Raghunathan argued that the respondent’s argument which stated that massive cardiac arrest did not come under the purview of major medical diagnosis was absolutely false. They were just trying to save themselves from providing rightful insurance claims. He relied on the case of LIC of India v. Asha Goel, (2001) 2 SCC 160 to buttress his argument.

Learned counsels for the respondents S. Manohar and K.J. Parthasarathy contended that the respondent company was not “State” under Article 12 of Constitution of India and therefore the writ petition was not maintainable under law. Secondly, they alleged that the cause of death did not fall within the covered claims.

Issue: Whether a writ petition is maintainable to enforce a contractual right of an insurance claim?

The Court opined that Article 226 of the Constitution of India could be invoked not only for infringement of fundamental rights but also for any other purpose. Thus, the question that required determination was whether private bodies performing public duties can be brought within the purview of judicial review. It considered the judgment in LIC v. Escorts Ltd., (1986) 1 SCC 264 where the Supreme Court while considering activities of LIC, which comes under the purview of public law, observed that “a Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field…. The question must be decided in each case with reference to the particular action”.

The Court remarked that notwithstanding the law on the subject, in reality, there is no parity and balance between the insurer and insured. In many cases, the individual has no legal knowledge about the ambiguous language used in the company’s policy with an intention to waive them from the liability to pay the injured on happening of an agreed event. Many times the companies willfully neglect reimbursing the insured, who instead of getting their amount from the company have to pay the Courts for getting their rights enforced. The case on hand is the classic example of the same.”

 It was opined that the “malpractice and arbitrary use of power by the insurance companies must be restrained by incorporating provisions to reduce the chances of ambiguity at a later date. Or else, the insurer would continue to take advantage of the insured by falsely repudiating the claims made by the insured”.

It was noted that as per Section 3 of the policy in question the medical event of ‘Myocardial Infarction’ was covered under the Policy. Though the cardiac arrest suffered by the husband of the petitioner fell under the abovesaid medical event, the respondents were denying the rightful claim to the insurance cover. The Court asked for a medical report to clear the doubt whether massive cardiac arrest comes under major medical diagnosis, and after a perusal of the said report, it was concluded that the cause of death of the insured was well within the defined medical events prescribed in the policy.

As a concluding remark, the Court urged that insurance companies must focus on educating their customers about the financial backing and this must be done by issuing magazines, booklets and visual contents.

The petition was allowed and the respondent company was directed to honour the claim made by the petitioner without insisting for any further documentation or particulars, in accordance with the law.[Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company Ltd., 2019 SCC OnLine Mad 2246, decided on 06-06-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: M.M.A. Gaffoor, J. allowed a land owner’s application seeking mandamus for derequisitioning of his land and building.

Petitioner’s land was requisitioned for temporary use of respondent in 1972 for the purpose of operation of a bakery, in order to prevent black marketing of bakery products in the area. The requisition was done temporarily in accordance with Section 10 (1) of the Co-operative Societies (Special Provisions) Act, 1970 in view of the urgency of the matter, till permanent arrangements for the construction of a building were made for the respondent society. Petitioner’s case was that though the requisitioning was on a temporary basis, the concerned authorities arbitrarily permitted respondent to be in possession of his land continuously.

Court’s attention was drawn towards Section 10(4) of the Act which states that “where any property is requisitioned by a requisitioning Order, the Minister may, by Order (hereinafter in this Act referred to as ‘derequisitioning order’) published in the Gazette, derequisition such property with effect from such date as shall be specified in the derequisitioning Order.” Petitioner contended that the word ‘may’ be construed as ‘shall’ or ‘must’.

Respondent objected stating that derequisitioning is a discretion vested with the Minister and the circumstances of all parties must be considered. Petitioner had no statutory right for derequisitioning and was thus not entitled to a Mandamus.

The Court noted that the purpose of requisition under Section 10 of the Act is to allow the property to be ‘temporarily used by a principal Society for the purposes of any business of such Society’ Furthermore, Section 10(4) of the Act empowers the Minister to derequisition any such property, and issuance of such order is a matter left to the discretion of Minister. It observed that only if there is a duty, the repository can be compelled to act by a writ of mandamus. But where there is discretion (privilege) to act, a writ cannot be issued to compel a person to act.

The Court relied on excerpts from H.W.R. Wade’s commentary on Administrative Law (5th Edn. at page 353) to opine that no discretion is unfettered and absolute in the public sphere. Even if the empowering statute does not expressly require any jurisdictional fact to be present for the exercise of power, it will be held invalid if the public authority has acted in total disregard for the purpose for which such discretion/power was vested in him.

In the present case, requisition had been made for a ‘temporary use’ of the respondent, but even after 47 years, the building remained as requisitioned property. This was in clear disregard of the purpose of Section 10 of the Act. In view thereof, mandamus was issued directing the Minister of Food Security and the Minister of Industry & Commerce (2nd and 3rd respondents) to derequisition the land together with the buildings thereon, and hand over free and vacant possession of the land and premises to the petitioner.[Noordeen Lebbe Mohamed Raseek v. Mawanella-Hemmathagama Multi-Purpose Co-operative Society Ltd., CA (Writ) Application No. 445 of 2014, decided on 04-04-2019]

Case BriefsHigh Courts

Patna High Court: A Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. denied dismissed a petition filed for consideration of a parole application.

Petitioner 1 and 2 herein, who were awarded life sentence after conviction in a criminal case, filed an application praying for their release on parole on account of the marriage of their daughter and the sister respectively. The instant petition was filed seven days after moving the said application, praying for a mandamus directing the State government to consider parole application in accordance with Section 31-B of the Prisoners Act, 1900.

It was submitted by the State that the power of granting parole is guided by the Bihar Prisoners (Parole) Rules, 1973. Parole can be granted for special reasons including the marriage of son or daughter of the convict. According to Section 31-B of the Act, State government may grant parole on the recommendation of District Parole Board (DPB). The order for such release can be passed only after receiving the recommendation of DPB. Thus, there is a complete procedure provided for the consideration of the grant of parole by the State government to a prisoner.

The Court opined that parole application can be disposed of by the State government on its own, and issuing mandamus for its compliance within seven days may curtail DPB’s time of assessment in order to make a recommendation before such a release is considered. In view thereof, issuance of mandamus was denied observing that it will be open to the State government to pass appropriate orders after complying with the procedure in accordance with the law.[Uma Shankar Tiwary v. State of Bihar, 2019 SCC OnLine Pat 247, decided on 25-02-2019]

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J. entertained a writ petition where the petitioner sought, certiorari and to compel the Commercial Superintendent of Sri Lanka Railways by mandamus to allow him to continue to use the parking area which was allotted to him for the said purpose.

The petitioner contended that the Deputy Commercial Superintendent of Railways had allotted him a temporary parking area in the premises of the Wadduwa Station on a rental basis for the term of 1 year. The said document which gave authorization to the petitioner to run such parking area also had a condition that whenever required the petitioner will hand over unconditionally the allotted area back to the respondent. In the instant writ, the petitioner was aggrieved by the said condition imposed on him. He further contended that the parking area had been used to earn his living and now such a decision of the respondent will put him and his family in jeopardy.

The respondent contended that though by the informal document, temporary permission was given to the petitioner (to do business) only for one year; he had continued to use that area beyond the said permissible term for four years. Commercial Superintendent of the Railways had asked the petitioner to hand over the possession of the parking area to the Railway Master of the Wadduwa Railway Station as that area is required to the Railway Department.

The Court observed that, it was quite obvious that the order issued for dispossession cannot be quashed by certiorari as the said decision was neither illegal nor unjustifiable. By informal document, the petitioner had been temporarily allowed to use the State land for a period of one year, and thereafter he used it for another around four years (by payment of a monthly rent) without any objection from the respondents. The Court noted that such an allotment was temporary hence the argument of the petitioners was not sustainable. “There is no room for the petitioner to have a legitimate expectation that he could continue to use the State land in the Wadduwa Railway Station premises to carry out a business for a profit forever.”

The Court further held that, there was absolutely no public duty on the part of the General Manager/Commercial Superintendent of Sri Lanka Railways to allow the petitioner to occupy the said State land to conduct his private business. Nor the petitioner had any legal right to insist on the said officials to do so. Court observed that such writ had no public interest and was a merely private affair.[Kapuseekuge Sunil Fernando v. General Manager of Sri Lanka Railways, 2019 SCC OnLine SL SC 5, decided on 04-06-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and N.S. Dhanik, J. entertained a PIL which sought mandamus to direct the respondents to constitute a Committee for management/trust of the affairs of the ‘Purnagiri Temple’; to prepare a list of important temples in terms of the order passed in Writ 2015; and a mandamus to direct the first respondent to appoint Commissioners in such important temples, where till date no management committee was appointed.

The learned counsel for the petitioner Ayush Negi and Amit Kapri, placed reliance on In the matter of ‘Constituting a Trust / Board at the Jageshwar Dham, (Jyotirlinga) Almora v. State of Uttarakhand, 2013 SCC OnLine Utt 4074,  whereby certain directions were issued regarding constitution of a Committee of Management for the Jageshwar Dham. The learned counsel also relied upon several judgments where recommendations to the State Government to frame suitable legislation for the proper functioning of Hindu Public Religious Institutions and Charitable Endowments were given, and had directed the State Government to prepare a list of all the public temples throughout the State to bring them within the Schedule. Counsel submitted that power was conferred both on Parliament and State Legislature under Article 246 of the Constitution of India. In the absence of any legislation (plenary or subordinate), power was also conferred on the Executive, under Article 162 of the Constitution of India, to issue administrative instructions.

The Court relied upon various judgments of the Supreme Court and stated that, no court can issue a mandate to a legislature to enact a particular law. Similarly, no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. The Court further stated that, while they had the power to strike down a law on the ground of want of authority, not necessarily Court would not sit in appeal over the policy of Parliament or the State Legislature in enacting a law. The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State.

It was held by the Court that, “As the duty to formulate policies is entrusted to the executive, which is accountable to the legislature, the Court would not direct the executive to adopt a particular policy or the legislature to convert it into enacted law.” Court further relied upon the judgment in, Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796, where it was rightly held that, the exercise of making policy must be left to the discretion of the executive and legislative authorities. The Court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes the fundamental rights guaranteed by the Constitution of India or any other statutory right. As the petitioner had highlighted various illegalities in the manner in which the subject temple is being managed, the Court directed the respondent to consider it appropriate to examine the specific allegations made in the said representation.[Narendra Kumar v. State of Uttrakhand, 2019 SCC OnLine Utt 406, decided on 30-05-2019]

Case BriefsHigh Courts

Allahabad High Court: The Bench of B. Amit Sthalekar and Piyush Agrawal, JJ., dismissed a civil writ petition, seeking certain reliefs on a piece of land, holding that the petition was not maintainable.

The instant petition was filed praying for quashing a notification dated 5-9-2017 and declaration dated 27-2-2019 to the extent of a plot in the Gautambudh Nagar District. The petitioners also prayed for any order in the nature of mandamus directing the respondents to release former’s land and mutate it in their name.

The Bench noted that petitioner herein was one of the parties in a petition titled Vijay Singh v. State of U.P., Writ Petition No. 1228 of 2019, wherein identical reliefs were claimed by the petitioners therein (including present petitioner). No new fact or relief had been stated in the instant petition. The earlier petition was dismissed as withdrawn, but the petitioner’s claim was that the same was wrongly done. 

The Court opined that in case the earlier petition was wrongly dismissed, the proper course was to apply for recall of the said order. It was held that filing of a writ petition seeking certain reliefs and then withdrawing the same with liberty to file a fresh writ petition; and again filing a writ petition seeking the same relief before another Bench, would amount to be “Bench hunting”, which could not be allowed. Therefore, this petition was dismissed as not maintainable. [Dheer Singh v. State of U.P., Writ C No. 12468 of 2019, Order dated 22-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Petitioner had filed this petition before a 2-Judge Bench of Ajay Kumar Mittal and Sudip Ahluwalia, JJ., under Article 226 of the constitution in nature of mandamus.

Petitioner was engaged in the business of manufacturing of glass containers for which he purchased gas from GAIL (India) Ltd. and Bharat Petroleum Corporation Limited to be used in the manufacturing of goods which included taxable goods. As per the registration certificate petitioner was registered under the Haryana VAT Act, 2003 as well as Central Sales Tax Act, 1956. Petitioner was procuring Form ‘C’ and it was issuing the same to the suppliers from time to time. The taxation law was amended in 2017. The petitioner was unable to file the online quarterly returns R-1 for the period July 2017 to June 2018. It was brought before Court that the Excise and Taxation Commissioner issued instructions for issuance of ‘C’ Forms for the purchases made after 01-07-2017.

High Court without expressing any opinion on the merits of the case directed respondent to take decisions on the letter sent by petitioner. [Hindustan National Glass & Industries Ltd. v. State of Haryana, 2018 SCC OnLine P&H 2245, decided on 20-12-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: This writ was filed before a Single Judge Bench of Sheel Nagu, J., in nature of mandamus. 

The grievance of petitioner was that their names were removed from the revenue record of certain agricultural lands which they claimed to be belonging to them by virtue of the operation of law. Petitioner contended that by virtue of The Kanoon Maal Gwalior, Samvat 1983, The United State of Gwalior, Indore & Malwa (Madhya Bharat) Revenue Administration & Ryotwari Land Revenue & Tenancy Act, Samvat 2007 and Madhya Bharat Zamindari Abolition Act, Samvat, 2008, the land belonged to them and they were Bhumiswami of the same. 

High Court viewed that claims of the petitioner had already been raised before the competent court under MPLRC and the revenue Court of SDO which is seized of the matter. Thus, the Court was of the view that it should not exercise its extraordinary writ jurisdiction as the same was filed without any grounds. Therefore, this petition was dismissed. [Bachchu  Singh v. State of M.P.,2018 SCC OnLine MP 919, decided on 13-12-2018]

Case BriefsHigh Courts

Allahabad High Court: This petition was filed before a Single Judge Bench of Ajit Kumar, J. where an interim order in favour of petitioner was passed.

Facts of the case were that petitioner had applied for the UP Teacher Eligibility Test, 2018 and had successfully registered online for the same.  But while paying the online fee due to server problem his fee was not accepted. Thereafter, the petitioner approached the respondent. Respondent could not help the petitioner as offline payment of fee facility was not available. Hence, this petition was filed.

Petitioner contended that similar question was raised in another case of Madhu v. State of U.P., Writ-A No. 23113 of 2018, where an interim order was passed. In the interim order passed petitioner was allowed to participate in the U.P. TET Examination 2018. Respondents admitted that the case was covered under the case referred by petitioner and the directions in respect of candidates were similarly placed.

High Court issued an interim mandamus to the respondent to allow petitioner to participate in UP Teacher Eligibility Examination with a condition that his result would not be declared and would be subject to the outcome of the petition. Therefore, this matter was listed for hearing on another date. [Rachana Mishra v. State of U.P.,2018 SCC OnLine All 2740, order dated 14-11-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Single Judge Bench of Vivek Rusia, J., dismissed a writ petition filed by the petitioner seeking a writ of Mandamus against the respondent authorities.

The main issue that arose before the Court was whether an appointment for the position of a guest faculty can be claimed as a vested right.

The Court observed that from the representation filed by the petitioner it becomes clear that the petitioner was given joining by the respondent authorities to the post of guest faculty, however, some untoward events took place between the petitioner and other teachers of the school and hence he was not allowed to perform his duties. Further, an aspirant does not have a vested right to seek a writ from the Court for appointment to a particular post. In several Supreme Court judgments it has been held that even after a person gets selected for appointment to a particular post, the said candidate cannot seek a writ of Mandamus for an appointment since appointment is not a vested right.

The Court held that the petitioner in the instant case cannot claim appointment as a vested right and hence the writ petition was dismissed.[Hemant Kumar Pandey v. State of Madhya Pradesh, 2018 SCC OnLine MP 811, order dated 02-11-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Jaswant Singh, J., dealt with a writ petition in nature of mandamus.

Petitioner was appointed on the basis of daily wage as Sewadar by Shiromani Gurudwara Parbandhak Committee. He was suspended due to a complaint filed against him. The contention of petitioner was that he was terminated from his services by an oral communication and that he was not provided any copy of termination order. It was also alleged by the petitioner that his natural right to be heard was infringed by respondent. Hence, this writ in nature of mandamus was filed with a prayer that the respondents should be directed to reinstate petitioner.

High Court viewed that petitioner had appeared only once before the Court and had earlier done the same on at least six occasions. This shows that the petitioner was not willing to continue this petition. Therefore, this petition was dismissed for non-prosecution by petitioner. [Jagjeet Singh v. Shiromani Gurudwara Parbandhak Committee, 2018 SCC OnLine P&H 1646, decided on 30-10-2018]

Case Briefs

Calcutta High Court: While addressing a PIL, the division bench of Jyotirmay Bhattacharya, C.J. and Arjit Banerjee J. held that “No major or arterial road/street must be completely blocked and made inaccessible whether to pedestrians or to motor traffic by reason of holding of a meeting/rally/procession”.

On behalf of the petitioner, the learned counsel of the petitioner has submitted that due to the rallies/meetings/processions of the political parties severe blockage from free movement of the public occurs which certainly poses major problems at large. He also states that it is a hindrance to the constitutional right of the citizens.

Petitioner has primarily sought for the issuance of writ of mandamus to the political authorities, to not block any roads or streets for any assembly or meeting or rally processions during working days as in that case the whole city paralyses from any sort of free movement.

Respondents in their defence stated that the right of the people to hold demonstration cannot be curtailed so long as the same is not violent or destructive and right to protest peacefully is recognized as a fundamental right of the Constitution of India.

However the High Court, further taking instance from the case of Pathumma v. State of Kerala, (1978) 2 SCC 1 observed that, Art. 19(1)(b) of the Constitution guarantees the fundamental right of every citizen to hold peaceful assembly or processions though the same is not an absolute right; it comes with certain reasonable restrictions to it. By stating this, the court also mentioned that right to hold peaceful assembly/rally/procession would not mean that the right to free movement and livelihood of the citizens would be curtailed.

Therefore, by disposing the PIL, the Court directed the State administration to ensure that for future instances action would be taken against any members participating in the rallies/processions/meetings indulging in violent activities or destruction of property and unnecessarily causing hindrance in the free movement of the citizens. [Rituparna Sarkar Dutta v. State of W.B,  2018 SCC OnLine Cal 1921, dated 03.05.2018]

 

Case BriefsSupreme Court

Supreme Court: In the appeal against the order of the High Court where it refused to issue mandamus to the Central Government directing the Central Government to issue a notification under Section 11C of the Central Excise Act, 1944 to the effect that duty payable by the appellant on goods manufactured by it shall not be paid, the Court said that where the statute vests a discretionary power in an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique end or extraneous purposes or upon extraneous considerations, or arbitrarily, without applying its mind to the relevant considerations, or where it is not guided by any norms which are relevant to the object to be achieved.

The appellants had contended that excise duty on the goods manufactured by the appellant i.e. Rosin/Turpentine, is, otherwise, payable in law, however, insofar as the history of payment of excise on these goods is concerned, record shows that vide notification No. 179/77-CE dated 18.06.1977, the Central Government had exempted all goods, falling under Item No.68 of erstwhile First Schedule to the Central Government Excise and Salt Act, 1944 in or relation to the manufacturing of such goods where no process is ordinarily carried on with the aid of power, from the whole of the duty of excise leviable thereon. Hence, recovering excise duty from the appellants violates their rights under Article 14 or Article 19(1)(g) of the Constitution.

Rejecting the said contention, the Court held that it would neither be a case of discrimination nor it can be said that the appellants have any right under Article 14 or Article 19(1)(g) of the Constitution which has been violated by non-issuance of notification under Section 11C of the Act. Once the appellant accepts that in law it was liable to pay the duty, even if some of the units have been able to escape payment of duty for certain reasons, the appellant cannot say that no duty should be recovered from it by invoking Article 14 of the Constitution. It is well established that the equality clause enshrined in Article 14 of the Constitution is a positive concept and cannot be applied in the negative.

The Bench of Dr. A.K. Sikri and Ashok Bhushan, said that when ‘power’ is given to the Central Government to issue a notification to the effect not to recover duty of excise or recover lesser duty than what is normally payable under the Act, for deciding whether to issue such a Notification or not, there may be various considerations in the mind of the Government. Merely because conditions laid in the said provisions are satisfied, would not be a reason to necessarily issue such a notification. It is purely a policy matter. [Mangalam Organics Ltd. v. Union of India, 2017 SCC OnLine SC 461, decided on 24.04.2017]

 

Case BriefsSupreme Court

Supreme Court: In the writ of mandamus seeking a direction asking the Union of India to specify what would be constituting disrespect and abuse of the National Anthem, the Court, considering the plea of the petitioner, issued notice to the Union of India returnable within 3 weeks.

The petitioner, along with the plea, also gave the below mentioned suggestions to avoid the abuse of the National Anthem:

  • There should be no commercial exploitation to gain financial advantage or any kind of benefit.
  • There should be no interruption in between till the completion of National Anthem and no abridged version of National Anthem shall be sung at any point of time.
  • There should not be dramatization of the National Anthem and it should not be sung in an entertainment programme.
  • It should not be sung before the people who do not understand it unless they are properly apprised that when the National Anthem of India is to be played, they are required to show respect.
  • It should not be printed on undesirable objects and should not be displayed in such a manner and at such places which may be disgraceful to its status and may tantamount to disrespect.

Stating certain examples that on one occasion, during an interview, the National Anthem was played to test the behavioral pattern of the candidate and that on certain occasions, the same is played in a variety show to dramatize the whole thing, the petitioner contended that sometimes the National Anthem is sung in various circumstances which are not permissible and cannot be legally countenanced regard being had to the national honour. It was also prayed that directions should be issued that the National Anthem should be played in the cinema theaters across the country before the feature film and proper norms and protocol should be fixed with regard to playing or singing of National Anthem in an official function and the functions where certain constitutional dignitaries are present in strict compliance. The Bench of Dipak Misra and Amitava Roy, JJ will hear the matter on 30.11.2016. [Shyam Narayan Chouksey v. Union of India, 2016 SCC OnLine SC 1211  order dated 28.10.2016]

Case BriefsHigh Courts

Delhi High Court: While dismissing a Public Interest Litigation (PIL), seeking a mandamus directing the Union of India to register a criminal case against Shanti Bhushan, Prashant Bhushan, Arvind Kejriwal and Manish Sisodia under Foreign Contribution (Regulation) Act, 2010 (FCRA), G. Rohini, CJ. and Rajiv Sahai Endlaw, J. held that there is no reason as to why the investigative agencies to whom the petitioner has already complained would not look into or are not looking into the allegations or would not discover the truth.

Relying on the decisions laid down by Supreme Court, in a catena of judgments including in the cases of State of West Bengal vs. Committee for Protection of Democratic Rights West Bengal (2010) 3 SCC 571, Babubhai Vs. State of Gujarat (2010) 12 SCC 254 and the most recent one in Mithilesh Kumar Singh Vs. State of Rajasthan (2015) 9 SCC 795, the Court held that though the Courts, in exercise of their power of judicial review, are entitled to direct investigation into an offence alleged to have taken place and such direction would not amount to infringement of the doctrine of separation of powers but such power should not be exercised just for asking or to satisfy the ego or vindicate the prestige of a party interested in such investigation and should be issued only if such a direction is found necessary in the facts and circumstances of the case/situation. The Courts would be justified in issuing such a direction only if it were to find prima facie an offence to have been committed and the Investigating Agency, unwilling to act or if the investigation though undertaken, to be not a fair one or where there are exceptional circumstances and in order to prevent miscarriage of criminal justice.

The Court further said that unless an extraordinary case of gross abuse of power is made out by those in charge of investigation, the Court should be quite loath to interfere with the investigation, a field of activity reserved for Police and the executive. Thus, only if a case of malafide exercise of power by a police officer is made out, would the Court interfere. Since the petitioners were  unable to make out an extraordinary case of gross abuse of power, the petition was dismissed. [Manohar Lal Sharma v. Union of India, W.P.(C) No.6414/2013, decided on 17-12-2015]