Case BriefsHigh Courts

Madhya Pradesh High Court: This case was filed before a Bench of Rohit Arya, J., where petitioner who was a sarpanch was suspended.

Petitioner contended that he was suspended by the impugned order on the ground that a case had been registered for the commission of offence under Sections 7, 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988. It is under Section 39(1)(a) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 that the competent authority had the power to suspend an office bearer of Panchayat if any charges are framed under any criminal proceedings under Chapters V-A, VI, IX. Thus, impugned order was without jurisdiction and illegal since no charges were framed against the petitioner.

High Court found substantial force in the submission made by the petitioner regarding the scope of Section 39 of the Act.  Thus, Court was of the view that impugned order was without authority and exceeded the powers under Section 39(1)(a) of the Act. Therefore, the impugned order was set aside. [Vinod v. Panchaya and Social Justice, 2019 SCC OnLine MP 137, dated 14-01-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed the petition which challenged the order of the district judge of preventive custody.

The detenue was arrested from his home for the commission of offences punishable under Section 121-A RPC, 7/25 Arms Act and 13 ULA (P) Act and while in custody impugned order of detention was issued.

The contention of the petitioners forwarded by Mr Mir Shafaqat Hussain was that the Grounds of detention stated were vague, non-existent and unfounded. Thus the respondents were stated to have violated the procedural safeguards as provided under Article 22(5) of the Constitution of India and to have ignored to provide material relied upon by the detaining authority.

The contention of the respondents was that activities of detenue were highly prejudicial to the security of the State and also that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him.

The Court considering the fact that the respondents did not bring anything on record to indicate that the copy of the FIR, statements recorded under Section 161 CrPC and other material collected in connection with investigation of the case were ever supplied to the detenue, held that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue.

The petition was thus allowed. [Abdul Rashid Magloo v. State of J&K, 2018 SCC OnLine J&K 983, decided on 18-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Anu Malhotra, J. gave a decision by upholding the decision of Presiding Officer of Labour Court-X, Karkardooma, Delhi, regarding the illegal termination of services of the workmen.

In the present case, services of two work persons Laxmi and Raj Kumar were allegedly terminated by the management i.e. New Delhi Institute of Management.

It was contended by the management; both the work persons were appointed on ad hoc basis and thus the Minimum Wages Act, 1948 would not be applied. Nevertheless, both of them were paid the salary higher than the market standard. As per the statement of claim, the management was not providing the legal facilities such as PF, ESI, appointment letter, attendance card, leave book, payslip, annual and casual leave, overtime wages, bonus etc. to its employees and on their demanding the minimum wages, the management got annoyed with them and terminated the services of both the stated work persons on obtaining their signatures on blank papers. Further, their claim was entertained by the Labour Conciliation Officer but no settlement was arrived at.

Management had failed to prove that Raj Kumar had made a request for settlement of his dues as he had taken up some other job and similarly Laxmi had made a request for settlement of her dues as she was not in a position to continue her services and thus it was held that the management had failed to prove that the resignations were voluntary, which led to illegal termination of the workmen. Management had assailed the award contending the impugned award to be erroneous and proceeded on wrong presumption of law and facts.

Workmen had submitted that the management was misleading the Court by interpreting the salary vouchers as being towards ‘full and final’ settlement. The phrase ‘full and final payment’ was later inserted by the management malafide to thwart the course of justice. Further, the workmen contended that they had never resigned and their services were terminated by the management.

Hence, on consideration of the record available, the Court was of the view that the Labour Court’s decision cannot be faulted as there is no error of law that is apparent on the face of record of the impugned award. No requisite notice was issued to the workmen for termination of their services; they could have been terminated in accordance with Section 25 F of the Industrial Disputes Act, 1947, which having not been done so, it was rightly concluded by the labour Court that the termination of services of the workmen was in contravention of the law and was illegal.

The writ petitions were disposed of accordingly. [Laxmi v. New Delhi Institute of Management,2018 SCC OnLine Del 12290, decided on 03-11-2018]

Case BriefsHigh Courts

Allahabad High Court: In this petition, petitioner wanted to bring on record certain orders passed in proceedings under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act, before a Single Judge Bench comprising of Anjani Kumar Mishra, J., filed against petitioner with regard to his unauthorized occupation of a plot.

The facts of the case were that petitioner had filed an application under Rule 109-A for implementation of order passed in favour of petitioner where in a  revision arising out of an objection under Section 20 of the U.P. Consolidation of Holdings Act the subject plot was declared chak out on the ground that it was petitioner’s original holding and valuable road side land. Direction for the issuance of a parwana amaldaramad was passed by the Consolidation Officer, which later was set aside by Deputy Director of Consolidation.

It was contended that the petitioner could not have occupied the plot in question due to the proceeding under Section 122-B drawn against him regarding the plot. Court was of the view that the petitioner is a Muslim by caste for which sub-section 4-f of Section 122-B could not be applied to him.

The High Court found that the order which petitioner was willing to implement was illegal thus, no case in favour of petitioner was made out, therefore, this writ petition was dismissed. [Maqbool Hasan v. Deputy Director of Consolidation,2018 SCC OnLine All 2298, order dated 26-10-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of District Magistrate, Anantnag, under Section 8 of the J&K Public Safety Act, whereby the petitioner was placed under preventive detention.

The main issue that arose before the Court was whether the order passed by the detaining authority was good in law.

The Court observed that even though the petitioner was granted bail in the concerned criminal case, he was not released, rather he was taken into custody vide the impugned detention order. In the detention order there is no mention of bail which was granted to the petitioner and hence it can be fairly concluded that there was non-application of mind on the part of detaining authorities. The Court further observed that the materials which formed the basis of detention order were not supplied to the petitioner. The Court then referred to the Supreme Court judgment of Thahira Haris v. Government of Karnataka, (2009) 11 SCC 438, wherein it was held that in cases where documents forming ground for detention are not supplied to the detenue, the order of detention becomes illegal.

The Court held that the order of detention passed by the detaining authorities was illegal since there was non-application of mind while passing the order and the materials that formed the very basis of such an order were not supplied to the petitioner. Non-supply of materials rendered the petitioner helpless in filing an appropriate representation against such an order and it also violated the fundamental right of petitioner guaranteed to him under Article 22(5) and (6) of the Constitution of India. Resultantly, the order of detention was quashed and the petition was allowed. [Subeel Javid v. State of J&K,2018 SCC OnLine J&K 758, order dated 23-10-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur and Deepak Gupta, JJ. disposed of substantive applications in Kant Enclave Matters directing the illegal construction in Aravali Hills to be demolished. The Court further directed the State and R. Kant and Co. to compensate the citizens duped by them into investing large amounts in the illegal colonising activity.

Factual background of the matter is that R. Kant and Co. was granted exemption by the State of Haryana in 1984 for setting up a film studio and allied complex in Faridabad district. The land in exemption to which the exemption was granted, falls in the Aravali Hills range. According to the terms and conditions of exemption, the company was to complete the construction within 5 years which did not happen. There was nothing on record to show that an extension was granted for group housing (activity subsequently undertaken by the company). Subsequently, the State took decision to close all construction activity in certain areas, which included the subject land, due to serious environmental concerns vide a notification dated 18-8-1992 issued under Punjab Land Preservation Act, 1900. However, the Town and Country Planning Department of the State, on the basis of the exemption granted in 1984, encouraged the company to carry on its colonising activity. It is notable that many a number of citizens had invested large sums of money in the properties sold by the company in the subject land — Kant Enclave. Also, some of them even started/completed construction in the same. The present proceedings were in connection to a writ petition filed by M.C. Mehta being WP No. 4677 of 1985.

The Supreme Court, after considering whole factual matrix, held that the colonising activity in the subject land was illegal. The Notification having been issued, the company should have refrained from all further activity in the subject land. The Court noted that there were two categories of persons who were taken for a ride by R. Kant and Co. In respect of the first category — persons who only made investments — it was ordered that the company will repay the entire amount of investment with an interest at 18% pa from the date of investment so made. In respect of second category — persons who also made construction — it was ordered that the construction done before 18-8-1992 (date of the Notification) will remain, while those done after that date would be demolished. The company was directed to pay such persons, the entire amount of investment with interest at 18% pa. The Court, following Godrej and Boyce Mfg. Co. Ltd. v. State of Maharashtra, (2014) 3 SCC 430, held that well-meaning citizens were led up the garden path by the State allowing such illegal construction. Therefore, State, along with the company, was directed to pay Rs 50 lakhs as compensation to those whose construction is to be demolished. Furthermore, referring to Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212 and Vellore Citizens Welfare Forum v.  Union of India, (1996) 5 SCC 647, the Court held that polluter pays principle is a wholesome and universally accepted principle. It was observed that the damage caused to Aravali Hills due to such illegal activity was irreversible. Consequently, R. Kant and Co. was further directed to pay Rs 5 crores (10% of the total amount spent on developing Kant Enclave) for rehabilitation of the damaged areas. [M.C. Mehta v. Union of India (Kant Enclave Matters), 2018 SCC OnLine SC 1426, decided on 11-09-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal: A two-member bench comprising of S.J. Mukhopadhaya, J. (Chairperson) and Bansi Lal Bhat, J. (Member, Judicial), allowed an appeal filed against the order passed by the National Company Law Tribunal (Adjudicating Authority) whereunder application under Section 9 of Insolvency and Bankruptcy Code 2016, preferred by the respondent was admitted and Insolvency Resolution Professional was appointed.

The appeal was filed by the Director of Lepton Projects (P) Ltd. which was the ‘Corporate Debtor’. The respondent Sanghvi Movers Ltd. was the ‘Operational Creditor’. An application was filed by the Operational Creditor under Section 9 of the I&B Code, after the admission of which ‘Moratorium’ was passed and ‘Insolvency Resolution Professional’ was appointed by NCLT in terms of the Code. However, the appellant challenged the said order of NCLT contending that no notice in terms of Section 8(1) of the Code was given to the appellant before such order was passed.

The Appellate Tribunal perused the record and considered the submissions made on behalf of the parties. It was brought to the notice of the Appellate Tribunal that when the respondents reached to the office of the appellant, no one was found occupying the premises. The Appellate Tribunal also found favour with the contention of the appellant that had a demand notice in terms of Section 8(1) or notice of petition been served on the appellant, they could have settled the claim with the respondent- Operational Creditor. Further, the appellant submitted that the amount had already been paid, which was not contended by the respondent. In such circumstances, the Appellate Tribunal though it fit to set aside the impugned order. Accordingly, the order was set aside as illegal, application preferred by the respondent under Section 9 was dismissed, and the appellant was released from all rigours of law in the matter concerned. [Lepton Projects (P) Ltd. v. Sanghvi Movers Ltd., Company Appeal (AT) (Insolvency) No. 273 of 2048, dated 31-5-2018]

Case BriefsHigh Courts

Bombay High Court: In an highly structured and ornate decision concerning the deficiencies of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 placed in the form of a PIL, the Division Bench comprising of A.S. Oka and Riyaz.I.Chagla, JJ., have remarkably given the explanation on the objects of enacting the Trees Act, which clearly is a leading path towards the growth of trees rather than the destruction in urban areas.

The focal point of addressing the present PIL was the challenge placed by the petitioners on the validity of the amendment to the Trees Act. The talked about PIL in this case constitutes two petitions and the authorities involved in them are “Municipal Corporation of Greater Mumbai” and “Municipal Corporation of City of Thane”. The challenge in both the petitions is to the sub-section (6) added in Section 8 of the Trees Act and there is a challenge to the constitutional validity of the said provision on the ground of violation of Articles 14 and 21 of the Constitution of India.

The first and foremost submission posed by the petitioners was that in regard to the constitution of the Tree Authority and the kind of mindless decision making process they have adopted towards granting the felling of trees. Her contention is that the entire process is vitiated by illegality due to which they cannot be allowed to function. The next submission was made in regard to the primary challenge of the PIL which concerns sub-section (6) of Section 8, in which she states that, the said provision is arbitrary in nature and has no nexus with the purpose or object sought to be achieved and it certainly violates Article 14 of the Constitution of India. Along with the mentioned contentions, the other concern was that of the violation of a Fundamental Right of citizen under Article 21 of the Constitution of India due to the manner of exercise of power by the Municipal Commissioner under the above mentioned sub-section.

Further, even in the other writ, petitioner posed a similar issue by challenging his submission to sub-section (6) of Section 8 by stating that intelligible differentia is not present for the classification under the said sub-section which clearly carves the vagueness and ambiguity due to complete absence of guidelines.

Noting all the contentions posed by the petitioners and prioritising the issue by issuing various directions towards the alarming issue of decisions being taken for felling of trees by the authorities acting in an arbitrary manner, the Hon’ble High Court of Bombay has taken care of the issues by limiting the powers of the Municipal Commissioner by making the authorities a little more diligent towards the issue of felling of trees and therefore, allowing the citizens to appeal against such decisions. [Rohit Manohar Joshi v. Tree Authority, Thane; PIL No. 119 of 2017, dated 23.04.2018]