Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): A Bench comprising of Divya Prakash Sinha, Information Commissioner allowed an appeal and directed the CPIO to adequately liaise with the officers to carry out his duties in the present matter.

In the pertinent case, the appellant has sought details of the sanctioned strength of SAS Grade, JAG, Senior-Scale Grade, Junior Scale Grade and Group-B in legal cadre of Indian Railways from the year 2000 to 2016. Details of the incumbents, names and details of the working place and revised list of the details against each grade issued in the light of orders of CAT were also sought for. The respondent submitted in return that since the seniority list of gazetted employees is made by Zonal Railways while list of non-gazetted employees is made by Railway Board, therefore consolidated information was not available.

The Court directed the CPIO to seek the assistance of the concerned holder of information and provide it directly to the appellant free of cost within 30 days from the date of receipt of this order. [Kasi Vishwanathan v. CPIO, 2019 SCC OnLine CIC 27, Order dated 06-02-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Jayant Nath, J. allowed an appeal filed against the previous order whereby the right of defendants to file written statement was closed as 120 days prescribed in CPC for filing a written statement had expired.

Ms Sudeepti, Advocate appearing for the defendants submitted that a written statement was filed within 120 days but there was a delay in re-filing the same. She relied on the order of the Joint Registrar where it was noted that a written statement was filed but returned under office objection.

The High Court took note of the admitted fact that defendants have filed a written statement. Reference was made to Indian Statistical Institute v. Associate Builders, (1978) 1 SCC 483 and it was observed to be a settled legal position that delay in re-filing has to be considered on a different footing. Contention put forward by N. Prabhakar and Dhruv Sharma, Advocates for plaintiffs that re-filing tantamount to fresh filing did not find favour with the Court. Accordingly, the appeal was allowed. The written statement was directed to be taken on record if re-filed within one week. [Narender Kumar Sharma v. Maharana Pratap Educational Centre, 2018 SCC OnLine Del 13146, dated 13-12-2018]

Case BriefsHigh Courts

Madras High Court: Petitioner had approached this Court before a Single Judge Bench of Pushpa Sathyanarayana, J., with a prayer to block the link of all websites involved in online sale of Schedules H, H1 and Schedule X medicines which is in violation of Rules 65 and 97 of the Drugs and Cosmetics Rules, 1945 until they receive requisite license.

Respondent contended that petitioner had already filed a writ petition with the same prayer thus this petition not only is a multiplicity of proceedings but also petitioner is guilty of suppressio veri and suggestio falsi. This petition was filed without a new cause of action. Petitioner defended by stating that there is no res judicata and constructive res judicata, as there was no order of the Court which finalized the issue raised before it. Therefore, there was no res judicata. Sections 12 and 33 of the Act empowered the Central Government to make rules with respect to the import of drugs, cosmetics, and its manufacture, sale, and distribution of drugs and cosmetics. It is to be noted that draft rules though published in the Gazette, are not yet notified. Without these rules, it would become difficult to curb the sale of medicines online.

It may be noted that earlier on 31-10-2018, the Court had granted an interim injunction against the online sale of medicines without license after taking note of the seriousness of the issue and public cause.

High Court viewed that though the online sale has many benefits but it has many flaws too and there is a need to curb the online sale of medicines. Court directed respondents to notify the proposed Drugs and Cosmetics Amendment Rules, 2018 and ordered that unless the aforementioned rules are notified, the online traders should stall their online business in drugs and cosmetics.

However, by a subsequent order the Division Bench comprising of M. Sathyanarayanan and P. Rajamanickam, JJ. have suspended the operation of the earlier stay order in following terms:

“It is brought to the notice of the Court that the learned Judge has suspended Paragraph No. 38 of the impugned order passed in the writ petition till 10.30 a.m. and since the Court has already entertained the writ appeals and on hearing the rival submissions, has reversed orders in the miscellaneous petitions for interim order, till it pronounces orders in the miscellaneous petitions, the order of suspension shall be continued. It is made clear that the continuance of the order, shall not create any equitable rights in favour of the appellants and it is subject to the result of the orders to be passed in the miscellaneous petitions for interim orders.”[Practo Technologies (P) Ltd. v. Tamil Nadu Chemists and Druggists Assn., 2018 SCC OnLine Mad 3577, Order dated 20-12-2018]

Case BriefsHigh Courts

Madras High Court: A Single Judge Bench comprising of N. Seshasayee, J., allowed an appeal on the ground that the respondent gave up his interest in the Order that he had obtained in his favour. 

The facts of this case are that respondent is the biological father of the child and the appellant is the maternal grand father of the child. Seeking custody of the minor child, the respondent filed a petition before the Additional District Court, and the same was ordered in his favour. Challenging the order of the lower Court, the appellant preferred the present appeal.

The counsel for petitioner, Advocate R.Shivakumar, argued that the respondent had gotten married and settled down and did not turn up to see his daughter. It was also reported that the child was 17 years and she does not remember to have seen her father.

The counsel for the respondent, Advocate N.U. Prasanna submitted that the respondent had no interest to take immediate custody of the child since the child was only few months to attain majority and that she had not been in his care through out the duration of this litigation.

This Court allowed the appeal on the ground that the respondent gave up his interest in the order that he had obtained in his favour. [R. Venkatesan v. J. Gunasekaran, 2017 SCC OnLine Mad 35492, Decided on 10-11-2017]

Case BriefsHigh Courts

Punjab and Haryana High Court: This appeal was preferred before a 2-Judge Bench of Rakesh Kumar and  Anupinder Singh, JJ., against the judgment and decree passed by the Additional District Judge by which petition filed under Sections 11 and 12 of the Hindu Marriage Act, 1955 by the respondent-husband for annulment of marriage with the appellant-wife was allowed.

During the pendency of this appeal, the appellant filed an application for maintenance pendente lite under Section 24 of the Act. The above application was allowed and thereby the respondent was supposed to pay Rs. 5,000 per month towards maintenance pendente lite. But since respondent failed to do so he was directed to pay entire arrears of maintenance pendente elite. The only contention made by respondent for non-payment of maintenance was that he did not have any money to give. High Court struck off respondent’s only defence leaving with the issue that if the respondent has no defence can the judgment and decree passed by the trial Court sustain or is to be set aside.

High Court struck off the defence of respondent on the ground of non-payment of maintenance, that he wanted annulment of marriage on the ground that appellant had already married twice and marriage with respondent was her third marriage with previous marriage subsisting. Thus, there remained no defence on record for annulment of marriage. Therefore, this appeal was allowed and judgment and decree passed by trial court was set aside. [Sonia v. Deepak, 2018 SCC OnLine P&H 2024, decided on 04-12-2018]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench comprising of Dinesh Maheshwari CJ and S. Sujatha, J. declined to exercise PIL jurisdiction in petition filed by residents of Kottur Town Panchayath challenging approval for construction of town panchayath building on a land.

Mr N. Shankarayana Bhat, counsel on behalf of the petitioners, placed reliance on the Record of Rights (RTC) and submitted that the subject land was reserved for public purpose and specifically shown as ‘park and overhead water tank’ in revenue records. It was submitted that the order granting approval for construction of new panchayath building in that land was not as per procedure prescribed under Section 306 of the Karnataka Municipalities Act, 1964 and as such unsustainable in law.

Learned counsel Mr M.V. Hiremath, appearing on behalf of respondent, refuted the contentions of petitioner and submitted that the subject land was purchased by respondent for constructing town panchayath office and water tank, and RTC records clearly depicted the land to be for official buildings and water tank.

The Court noted that the subject land was purchased by respondent through a registered sale deed for constructing panchayath building and water tank. However, mistakenly, the RTC extracts reflected purpose of land as ‘park and water tank’. The said mistake was corrected on respondent’s representation and that order remained unchallenged. The said order, having attained finality, petitioner could not seek liberty to maintain a park in the subject land.

It was further held that Section 306 of the Act is applicable only if Deputy Commissioner is of the opinion that execution of any order or resolution of a town municipal council is unlawful, or is likely to cause injury/ annoyance to public, or lead to a breach of peace.

Since the proposal to use subject land for building panchayath office and water tank did not militate against public interest, the petition was dismissed.[K.S. Iswara Goud v. Town Panchayath, Kottur, 2018 SCC OnLine Kar 2705, decided on 10-12-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of respondent authorities, whereby petitioner was taken into preventive custody and lodged in Central Jail, Kotebhalwal, Jammu.

The main issue that arose before the Court was whether an order of preventive detention can be passed while the accused is already in police custody.

The Court observed that as per the judgment of Sama Aruna v. State of Telangana, (2018) 12 SCC 150, it is a settled proposition of law that a person cannot be taken into preventive detention while he is already in police custody. In that case, the Supreme Court had held that an order of preventive detention cannot be passed against an accused while considering a stale incident which took place a long time ago. The Court further observed that it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenu, to file an affidavit in order to attach a semblance of fairness to his actions.

The Court held that the respondents in the instant matter had placed the petitioner under preventive detention while he was already in police custody; this action on the part of respondents is unjustified. Further, the respondents did not even supply the material to the petitioner, which formed the basis of the order of preventive detention. Resultantly, the petition was allowed and the order of preventive detention was quashed.[Farooq Ahmad Bhat v. State of J&K,2018 SCC OnLine J&K 924, order dated 01-12-2018]

Case BriefsHigh Courts

Patna High Court: A Single judge bench comprising of Ahsanuddin Amanullah, J. while hearing a civil writ petition ruled that lawful possession of a property cannot be interfered with by way of ouster or locking of the premises in the absence of a Court order to that effect.

Petitioners herein were the land owners and tenants of certain shops in Gaya and respondents were the buyers of these shops. The present petition was filed assailing the action of State authorities whereby petitioners’ shops were locked and the main entrance thereto was forcibly blocked by unloading sand and stone chips in front of the said shops. Petitioners submitted various documents and circumstances to indicate their lawful ownership/ tenancy of the land/ shops in question.

The primary question for consideration was as to whether the District administration or any private person can forcibly seal and put lock in the premises occupied by another person without following due process of law.

The Court noted that the report submitted by District administration showed that the petitioners were in lawful possession of the subject premises. Thus, without going into the question of title or otherwise, it was held that once the tenant petitioners were in possession of the shops in question, they could not have been dispossessed or their shops locked without the order of a civil court.

The petition was disposed of with a direction to the District Magistrate and Senior Superintendent of Police, Gaya to ensure that the possession of shops in question be handed over to the petitioners after taking due receipt of the materials inside the shop.[Bigan Mistry v. State of Bihar,2018 SCC OnLine Pat 2148, decided on 28-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench comprising of R.K. Agarwal, J., M. Shreesha, Member, allowed an appeal filed against the order of the Chandigarh State Commission, whereby the commission held that a settlement had arrived between the parties.

The main issue that arose before the Commission was whether the State Commission was justified in passing an order on the basis of an alleged settlement between the parties.

The Commission observed that the alleged settlement between the parties was not available in writing. The respondents clearly stated that the settlement was not in writing but the counsel for respondent had contended before the State Commission about a settlement having been entered into between the parties and the State Commission thereafter proceeded on this premise. The Commission further observed that the counsel for respondents sought time to produce the written agreement setting out terms and conditions of settlement, however, no such agreement was produced.

The Commission held that in the absence of a written agreement the State Commission could not have passed an order which was based on the existence of the alleged settlement between the parties. The order of the State Commission was set aside and the appeal was allowed. [Sumit Kumar v. Silver City Housing and Infrastructure Ltd., 2018 SCC OnLine NCDRC 414, 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 BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI): G. Mahalingam, whole time Member, in this order granted exemption from application of Section 3(2) of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

An application was filed under Section 11(1) and Section 11(2)(h) of the SEBI Act read with Regulation 11(5) of the SAST Regulations, 2011 seeking exemption from application of Section 3(2) of the SAST Act on acquiring of shares and voting rights in the target company. The matter before the Board was that the promoters were willing to transfer by way of gift all the equity shares of the Target Company to the acquirer trusts. The transferor submitted the grounds on which they seek an exemption. Major grounds being the objective with which the transfer is proposed that is seamless intergenerational transfer of the trust fund in view of the fact that the beneficiaries are family members being non-commercial transaction. The other ground being that the ownership or control of the target company had not been affected. Also, pre and post-acquisition shareholding of promoter group would remain same. The acquirer/transferee confirmed that they have adhered to the Guidelines outlined in the Schedule to the SEBI Circular. Board noted all the grounds and ordered that the Target Company shall continue to be in compliance with the minimum public shareholding requirements under the Securities Contracts Regulation Rules, 1957 and the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015.

Board was of the view that the exemption prayed by the applicants should be granted with certain conditions which the transferor and transferee needs to fulfill. Therefore, exemption from application of Section 3(2) was granted. [Proposed Acquisition of Shares and Voting Rights in Target Company FDC Ltd., In re,2018 SCC OnLine SEBI 156, order dated 21-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J. dismissed a writ petition filed against the order of the Magistrate recalling his earlier order.

Brief facts of the case are that the Magistrate concerned, on an earlier occasion, had ordered investigation under Section 156 CrPC in a criminal case. Subsequently, the same Magistrate, vide the order impugned, recalled his earlier order. The petitioner submitted that the subsequent order was passed without jurisdiction as CrPC does not empower a Magistrate to recall his earlier orders. Reliance was placed upon Supreme Court decisions in Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324 and Iris Computers Ltd. v. Askari Infotech (P) Ltd., (2015) 14 SCC 399.

The High Court, at the outset, observed that the principle laid down in the cases mentioned hereinabove does not cover a case of the instant nature. A trite principle was laid down in the said cases that a Magistrate does not have any power under CrPC to recall, review or reconsider his own order, howsoever illegal it might be. However, in the present case, it was not a matter of legality or otherwise of the order passed by the Magistrate but the manner in which the order was procured by misleading the Court by suppression of material facts and circumstances. Fraud vitiates everything, observed the Court. It was noted that the petitioner failed to disclose the fact of filing a complaint with the police; he misused the process by approaching a different Magistrate and had solicited the order which was subsequently set aside by the order impugned. Such and additional facts were serious matters which constitute fraud on the court. The Court was of the view that there was no illegality committed by the Magistrate in recalling his own order. The writ petition was accordingly dismissed. [Deepak v. Shriram,2018 SCC OnLine Bom 2199, dated 20-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and AM Khanwilkar and Dr DY Chandrachud JJ., allowed an appeal by setting aside the order of the Manipur High Court.

The present matter dealt with the essence of Section 3(4) of the National Security Act, 1980, specifically the meaning of ‘forthwith’ in the said provision.

The appellant challenged the order of preventive detention as the detaining authority violated the provision of Section 3(4) of the NSA, 1980. He contended that the District Magistrate had failed to report the State Government ‘forthwith’ his report of detention under the said provision of NSA, 1980, as the district magistrate reported it to the government after a lapse of 5 days.

Therefore, on careful consideration of the facts and circumstances of the case, the Supreme Court found that the report to the state government was sent after 5 days for which no reason was stated causing the order to be vitiated. Supreme Court relied on the case S.K. Salim v State of West Bengal, (1975) 1 SCC 653 for emphasising the interpretation of laws of preventive detention along with the point that the report to be sent under Section 3(4) should not carry any laxity with it in reporting to the Government. The appeal was allowed in the present case for the above-said reasons and the order of the High Court of Manipur was dismissed. [Hetchin Haokip v. State of Manipur,2018 SCC OnLine SC 713, dated 20-07-2018]

Case BriefsHigh Courts

Manipur High Court: A Single Judge Bench comprising of Ramalingam Sudhakar, CJ, dismissed a contempt petition filed against the Sub-Deputy Collector, Sawombung (Imphal East).

The matter related to a property suit between the parties. The suit was decreed by the learned Civil Judge against the defendants (petitioners herein), against which they preferred an appeal before the learned District Judge. The appeal was admitted; however, no interim order was passed. The plaintiffs moved to Sub-Deputy Collector for mutation of revenue records based on the decree passed. Recording that there was no stay on the decree passed by the Civil Judge, the Sub-Deputy Collector allowed the amendment to revenue records. The defendants alleged that the Sub-Deputy Collector committed contempt in terms of Section 2(b) of Contempt of Court Act 1971.

The High Court perused the record and found no merit in the contentions put forth by the defendants. The Court categorically observed, “in absence of stay or injunction in the appeal, the party who succeeds in the litigation should be entitled to enjoy the fruits of the decree unless there is a restraint order by the appellate forum”. The Court found that there was no stay order against the decree passed by the Civil Judge. As such, the Sub-Deputy Collector did not disobey any order of the Court. In such circumstances, the Court held the contempt petition to be sans merit. The petition was accordingly dismissed. [Huidrom Ningolakpa Singh v. Lunguiba Thangal, 2018 SCC OnLine Mani 53, dated 02-06-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Arun Bhansali, J., dismissed a writ petition filed challenging the order of suspension passed against the petitioner.

The petitioner was aggrieved by the order of Deputy Director, Secondary Education, Bikaner, whereby the petitioner was placed under suspension and his headquarter was fixed at Senior Secondary School, Gadiyala, Bikaner. The petitioner assailed the said order stating it to be against Rule 13 of Rajasthan Civil Services (Classification, Control, and Appeal) Rules 1958, wherein a suspension can only take place in contemplation of an inquiry or pending inquiry; however, no inquiry was pending against the petitioner as was indicated by the impugned order.

The High Court considered the submission made by the respondent Deputy Director that the order was passed contemplating enquiry against the petitioner. A preliminary inquiry had already started and the prima facie finding was that the petitioner had hit the Principal. The Court perused the impugned order and observed that the language used in the order though gives an impression that inquiry was pending against the petitioner, however, the respondents had clarified the real intention was to suspend the petitioner contemplating inquiry. The Court opined that the use of incorrect phrase in the order does not by itself vitiates it. In such facts and situation, the Court held that no interference was called for in the impugned order. Thus, the petition was dismissed. [Vijay Kumar Sharma v.  State of Rajasthan, 2018 SCC OnLine Raj 1335, dated 01-06-2018]

Case BriefsHigh Courts

Calcutta High Court: A petition filed against the decision of the State Authorities cancelling the food supply license granted to the petitioner was allowed by a Single Judge Bench comprising of Harish Tandon, J.

The petitioner’s licence was cancelled by the respondents on the ground that he violated the provisions of the West Bengal Kerosene Control Order. An inspection was conducted by the respondents at the premises of the petitioner and thereafter, the Sub-Division Officer (F&S) issued a show cause notice to the petitioner. Subsequently, the petitioner’s license was cancelled. Such order of cancellation is challenged.

The High Court perused the record and inter alia found that the said order was passed without recording any reasons for cancellation of petitioner’s license. It was observed that in any adjudication it is imperative to record reasons for passing such order; an order which is bereft of any reasons is no order in the eyes law. Reasons are heart and soul of an order without which it cannot survive. In the instant case, the order punishing the petitioner was passed by respondents without giving adequate reasons for the said adjudication. According to the High Court, the impugned order, being bereft of reasons was liable to be set aside, which was accordingly ordered. [Ram Sankar Sahoo v. State of W.B.,  2018 SCC OnLine Cal 3199, dated 15-05-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Arun Bhansali J., dismissed a writ petition on the basis of unreasonable and baseless grounds placed in regard to the grievance.

The brief facts of the case are that the petitioner was a widow and had been appointed in the said category of “widow” as a grade three teacher and eventually she had been transferred to a few other schools one after the other.

The primary contention of the petitioner is that she being an appointee in the category of “widow” is aware of the fact that in accordance to Rule 7B of the Rajasthan Educational Service Rules, 1970, she can only be replaced with a widow in place of her, whereas there was a violation of a rule in which as she was replaced by some person named Sanwat Singh Rathore. She also placed further contention saying that, due to certain ailments she was restricted from any kind of movement. For the stated reasons she had filed the petition asking for quashing of transfer order.

The Hon’ble High Court, concluded its order by stating that the contentions posed by the petitioner in regard to manning of her position has been declared to be illegal, the point which talks about violation of provision 7B of the Rules of 1970, the Court stated that the rule only talks about the reservation of vacancies for women and not the transfers/postings made. Though the Court by dismissing the petition has been considerate about the physical condition of the petitioner but subsequently observed that this cannot be the ground for invalidating the said transfer order. [Rani Lamba v. State of Rajasthan, 2018 SCC OnLine Raj 1301, dated 24-05-2018]