Case BriefsHigh Courts

Allahabad High Court: This writ petition was filed before a Divison Bench of Pankaj Kumar Jaiswal and Dr Yogendra Kumar Srivastava, JJ., for issuance of direction to respondent to consider the claim of petitioners for providing compensation in lieu of acquisition of plot situated in Village Pratap Patti District Varanasi in accordance with the provisions of Land Acquisition Act, 1894 along with interest and other consequential benefits.

Repondent submitted that petitioner on an earlier occasion filed a writ petition which was dismissed by the Court. Both the instant and earlier writ petitions were seeking similar reliefs which was dismissed and instant petition being filed with same cause of action could not have been entertained as the underlying principle under Order 23 Rule 1 of the Civil Procedure Code.

Catena of cases were referred to for understanding the settled principle that though the Code does not apply to writ proceedings but it may be extended to the same in the interest of administration of justice. Allahabad High Court Rules, 1952 were mentioned wherein Rule 7 of Chapter 22 specifically barred filing of a second application under Article 226 on the same facts.

High Court noted the specific bar in the aforementioned rule of the High Court Rules, 1952 and relied on the case of Forward Construction Co. v. Prabhat Mandal, (1986) 1 SCC 100 where it was held that the order dismissing the first writ petition operates as res judicata between the parties and the person against whom the order has been passed has got no right to file a second petition on the same set of facts and in light of the underlying principle in Civil Procedure Code which were founded on public policy, no second writ application could have been filed. Therefore, this writ petition was dismissed. [Pawan Kumar Singh v. State of U.P., 2019 SCC OnLine All 1777, order dated 13-02-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of Sonia Gokani, J., allowed a petition directing the concerned authorities to release the seized-vehicle.

In the pertinent case, the petitioner was the owner of the seized vehicle which was seized on receiving secret information of the vehicle in question carrying liquor, while the police personnel were on patrolling. An FIR was subsequently lodged for the offence under the Gujarat Prohibition Act. 

The petitioner urged the Court to exercise its wide powers under Article 226 of the Constitution of India. Also, relied on Sunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 283, where the Apex Court lamented the scenario of a number of vehicles having been kept un-attended and becoming junk within the police station premises. 

High Court chose not to enter into the present matter and reserved it to be decided upon in future since the issues raised in reference to Sections, pertained to the Gujarat Prohibition Act and hence being a contentious issue. Instead, the Court exercised the powers under Article 226 and 227 of the Constitution of India. The Court further directed the release of the vehicle subject to certain restrictions to be adhered by the petitioner. And even went to the extent of directing, that in cases of unclaimed vehicles by the accused, owner, or the insurance company of such vehicle may be ordered to be auctioned by the Court. [Hansaben Jagdishbhai Vasava v. State of Gujarat, 2019 SCC OnLine Guj 253, Order dated 08-02-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner had filed this petition before a Bench of Subodh Abhyankar, J., under Article 226 of the Constitution of India against the order passed by the respondent.

It was directed by the respondent that preference should be given to the warehouses of MP Warehousing and Logistic Corporation if allotment of warehouses occurs and after exhausting the same, other warehouses of private parties may be used, which were taken on rent. Petitioner submitted that he had taken a loan from SBI for construction of a warehouse and since the order of preference to the warehouses of MPWLC only was passed, petitioner could suffer undue loss despite entering into an agreement with the Warehousing Corporation. Thus, impugned order was not justified.

High Court found the arbitration clause in the agreement between petitioner and respondents according to which the validity of impugned order is a dispute and petitioner should have gone for arbitration. Accordingly, since there was an alternate remedy available, the present petition was dismissed as the Court could not invoke its jurisdiction under Article 226 of the Constitution of India. [Gupta Warehouse v. State of MP, 2019 SCC OnLine MP 98, dated 03-01-2019]

Case BriefsHigh Courts

Sikkim High Court: The Bench of Bhaskar Raj Pradhan, J. allowed an impleadment through the present petition.

The petitioner in the present case submitted that during the mid-eighties Sikhs in the Indian Army and members of other professionals collected funds and built a Gurudwara at Gurudongmar Lake and placed the Nishan Sahib there and since then it has been open for public to offer prayers for which the Government of Sikkim has always issued permission to the pilgrims.

It has been stated that “Dzumsa” with the help and assistance of local administration and more particularly the sub-divisional magistrate removed the holy Guru Granth Sahib Ji, uprooted the Nishan Sahib, dismantled all internal furniture and removed the holy items from the premises of Gurudwara. All of this leads to the present writ petition under Article 226 of the Constitution of India.

The directions sought by the petitioners are the restoration of the Guru Granth Sahib Ji, the Nishan Sahib and direction to fix all internal furniture, next direction was upon the State-respondents to refrain from dismantling Gurudwara, further, a writ of prohibition was also prayed for in the same respect.

State of Sikkim provided the background of the dispute regarding the construction of the Gurudwara near the Gurudongmar Lake on reserved forest land. “Dzumsa” opposes the building of the Gurudwara by the Army. Applicant pleads that the applicant is a necessary party, the application is bonafide and the impleadment of the applicant would not change the nature and character of the writ petition and no prejudice would be caused to the petitioner as well as the private respondent.

Further, petitioner pleaded that the petition had been filed for the purpose of complaining about the gross violation of Article 25 of the Constitution of India by State-respondents regarding illegal acts committed.

“Rule 101 of Sikkim High Court (Practice & Procedure) Rules, 2011 provides that every person likely to be affected in any manner by the result of the petition shall be joined as a respondent thereto and any petition in which a necessary party is not impleaded is liable to be dismissed.”

Applicant sought a prayer of prohibition upon the State of Sikkim, not to dismantle the Gurudwara. Any activity if in a reserved forest area would necessarily need the permission and involvement of the Applicant. For the issuance of writ of prohibition, it is necessary to hear the applicant.

It is necessary to implead the applicant to enable this Court to effectively and completely adjudicate upon and settle all the questions involved in the writ petition. Therefore, application for impleadment of the PCCF-Secretary, Forest Environment & Wildlife Management Department, Government of Sikkim as a respondent was allowed. Array of respondents may be amended accordingly and the applicant permitted to file a counter-affidavit. [Sri Guru Singh Sabha v. State of Sikkim, 2018 SCC OnLine Sikk 241, Order dated 01-12-2018]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J., allowed the writ petition which was filed against the act of arbitrary stoppage of the salary of the panchayat teachers.

The facts of the case are that petitioners were appointed as panchayat teachers in the year 2010 and they continued till April 2017. From the month of May, 2017 their salary had been arbitrarily stopped without issuing any order in respect thereof.

The respondents asserted that the petitioners’ degrees of integrated course from Central Board of Higher Education, New Delhi were not recognized in view of the letter issued by the Principal Secretary and as such the very appointment of the petitioners as panchayat teacher was bad.

The Court held that there was nothing in the counter affidavit to show that prior to withholding of such salary/stoppage of salary with effect from May, 2017 the petitioners were ever afforded any opportunity of being heard in the matter. It is trite law that when an order is violative of the principles of natural justice, the plea of alternative remedy would not be a bar to exercise of jurisdiction under Article 226 of the Constitution of India in such matter.

The Court observed that whether the petitioner’s degree obtained in 2010 on basis of which petitioners were appointed as panchayat teacher was recognized or not was an issue which was required to be looked into by the authority before inflicting such harsh penal consequence.[Kanchan Kumari v. State of Bihar, 2018 SCC OnLine Pat 2293, Decided on 06-12-2018]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench of Meenakshi Madan Rai, J. addressed an application under Article 226 of the Constitution of India.

Facts of the case were that the petitioners had a shop on the first floor of “non-veg” building for the purpose of selling fish, dressed chicken and mutton. The petitioners were aggrieved by the fact that the respondents were opening a shop on the ground floor with same products having the same price. The ground on which respondents’ license was challenged was that it would hamper similar business being run by the petitioner on the first floor as a customer would prefer to buy from the ground floor then go to the first floor for the same product at the same price.

The petitioners contended that the stalls allotted to the respondents had been earmarked for construction of toilets for use of the vendors, workers and the customers of the said building but had instead been allotted to the respondents without adherence to the tender process. In furtherance of their contention, the petitioners added that the government had assured the construction of toilets which estopped the State from allotting stalls and license to private respondents.

The High Court was of the view that the petitioners could not seek to restrain private respondents from carrying business for their livelihood. The doctrine of promissory estoppel was not applicable as any document to show assurance of government to build toilets was not found. If requisite conditions were fulfilled then the respondents could not be stopped from getting licenses for selling meat. Therefore, the writ petition was dismissed. [Dawa Phuti Bhutia v. State of Sikkim, 2018 SCC OnLine Sikk 226, dated 02-11-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Dhiraj Singh Thakur, J., dismissed a writ petition filed against the actions of private respondents 6 to 13, whereby respondents were interfering with the property owned by the petitioner.

The main issue that arose before the Court was whether the writ petition filed by the petitioner was maintainable.

The Court observed that in the Supreme Court judgment of Mohan Pandey v. Usha Rani Rajgaria, (1992) 4 SCC 61, it was held that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitution of India shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged. In such a case, the court will issue appropriate direction to the authority concerned. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extra-ordinary and should not be exercised casually or lightly.

The Court held that in the instant matter, the dispute between the parties was a property dispute which could be well resolved by filing a suit before the appropriate court. Further, the parties involved in the matter were private parties and not statutory authorities. The Court refused to interfere in the matter and the writ petition was dismissed.[Kuldeep Singh v. State of J&K,2018 SCC OnLine J&K 806, order dated 03-11-2018]

Case BriefsHigh Courts

Meghalaya High Court: This petition was filed before a Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ, under Article 227 of the Constitution of India.

Facts of the case were that an application was filed by the petitioner before the Trial Court seeking interim relief. An ex parte interim relief was granted directing status quo regarding subject matter to be maintained. Respondent submitted the existence of two title suits. It was submitted before Trial Court that preliminary decree was still operative not challenged by anyone and suit property was the same. Court observed that interim order cannot be extended beyond the date already mentioned by the court. Petitioner was aggrieved by the above order and thus filed petition before the High Court where petition’s maintainability was challenged as the petitioner had two alternate remedies available i.e. application for modification of interim relief under O. 39 R. 4 CPC and the second to file an appeal under O. 43 CPC. Respondent relied on the case of State Bank of Travancore v. Mathew K.C. (2018) 3 SCC 85 where it was observed that relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person.

High Court was of the view that respondents have not yet filed objections before the court. After the respondent file their objection the trial court ought to hear both parties in few weeks and then decide the matter. The petition was thus dismissed. [Md. Saquib v. Md. Ilyas,2018 SCC OnLine Megh 177, order dated 28-09-2018]

Case BriefsHigh Courts

Tripura High Court: A writ petition for the claim of compensation in a medical negligence case was filed before a Single Judge Bench comprising of Ajay Rastogi, CJ.

Facts of the case are that the petitioner is the father of the deceased child who incurred a head injury. The child was shifted immediately to a hospital but after three days after the accident, he was moved to AGMC & G.B.P. Hospital, where he succumbed to his injuries. Petitioner alleged medical negligence in criminal complaint after which FIR was registered. For purpose of examining the same, a committee was constituted by the order of Director of Health Services. The report of committee examined the matter and concluded that treatment given to the patient was in accordance with the existing protocol and no negligence was found on part of the doctors involved in the treatment of deceased.

 The High Court was of the view that under limited scope of judicial review under Article 226 of the Constitution of India it is not possible to examine the allegation of medical negligence as the parties have not yet provided evidence in respect of their respective claims. Therefore, Court observed the quantification of compensation to be out of their scope due to the above reasons and the writ petition was dismissed. [Krishna Sarkar v. Government of Tripura,2018 SCC OnLine Tri 209, Order dated 13-09-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising of Kalyan Rai Surana, J. dismissed a revision petition filed under Section 115 CPC read with Article 226 of the Constitution against the order of Civil Judge whereby he returned the plaint filed by the petitioner for filing the same before appropriate court in Delhi.

The petitioner had filed a money suit against the respondent before Civil Judge, Kamrup, Gauhati. The action arose out of a written agency agreement between the parties. It is pertinent to note that the same agreement contained a clause that made all the claims arising out of or in relation to the agreement to be subject to jurisdiction of the courts at Delhi. Accordingly, the Civil Judge returned the plaint directing the petitioner to file the same before courts at Delhi. Aggrieved by the same, the petitioner filed the instant revision.

The High Court perused the agreement. The question before the  Court was ‘whether courts at Gauhati had jurisdiction to adjudicate the claim or whether the clause conferring jurisdiction to Delhi courts would act as an ouster of jurisdiction?’. On appreciation of the facts, the Court noted that all the transactions between the parties occurred within the territorial jurisdiction of courts both in Delhi and Gauhati. It was also noted that the present transaction for which the action was brought (security deposit clause) was not independent of the agreement between the parties subjecting all disputes to jurisdiction of Delhi courts. Reliance was placed in Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd., (2013) 9 SCC 32 to hold that notwithstanding where the agency agreement was to be performed, the existence of the jurisdiction clause makes intention of the parties very clear that they desire the disputes relating to the agreement to be settled by the Delhi courts. Accordingly, it was held that courts at Delhi would have jurisdiction to settle disputes between the parties. The revision petition was, thus, dismissed. [Pankaj Baid v. Bawa Masala Co.,2018 SCC OnLine Gau 908, dated 17-08-2018]