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High Courts Weekly Roundup [Jan 11...

High Courts Weekly Roundup [Jan 11 – Jan 17]

Akshita Saxena

17 Jan 2021 7:46 PM IST

Summation of important High Court orders this week

Allahabad High Court 1. Mandatory Publication Of Notice Of Intended Marriage Under Special Marriage Act Violates Right To Privacy: Allahabad High Court [Safiya Sultana v. State Of UP] A Single Bench of Justice Vivek Chaudhary held that requirement of publication of notice of intended marriage under Section 6 and inviting/entertaining objections under Section 7 of the Special...

Allahabad High Court

1. Mandatory Publication Of Notice Of Intended Marriage Under Special Marriage Act Violates Right To Privacy: Allahabad High Court [Safiya Sultana v. State Of UP]

A Single Bench of Justice Vivek Chaudhary held that requirement of publication of notice of intended marriage under Section 6 and inviting/entertaining objections under Section 7 of the Special Marriage Act is not mandatory. It observed that making such publication mandatory would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.

While giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954, the court observed. The court added that, in case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. "However, it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case.", the judge observed.

Also Read: Allahabad HC Verdict Comes As Saviour For Inter-Religious Couples Caught Between Special Marriage Act & UP Anti-Conversion Ordinance

Also Read: UP Ordinance On Conversion Is Nothing But Criminalization Of Inter-Faith Marriages : Petitioner's Rejoinder In Allahabad High Court

2. SC/ST Act: Allahabad HC Issues Directions Regarding Timely Service Of Notice Of Bail Pleas To Victim & Placing Of Same Before Court [Ajeet Chaudhary v. State of UP & Anr.]

While hearing the concerns of parties that certain anomalies in the practices of hearing of bail applications/bail appeals under the SC/ ST (Prevention of Atrocities) Act, a Bench of Justice Ajay Bhanot issued certain directions regarding placing of bail application/bail appeal under the Act before the Court and timely delivery of notice to victim. The Court noted that Bail applications should be processed expeditiously and placed before the court for hearing in a reasonable and definite time frame.

Access full report to read directions

3. 'Home-Buyers Facing Hostile Actions From Builders': Allahabad High Court Issues Directions For Expedient Disposal By Development Authorities [Shipra Sristhi Apartment v. State of UP & Ors.]

A Division Bench of Justices Pankaj Naqvi and Piyush Agrawal expressed concern over increasing number of cases being filed by home-buyers, facing hostile and arbitrary actions at the hands of builders, who often violate buyer agreement. It observed that home-buyers spend their hard-earned life savings to buy an apartment and instead of resolving their disputes, the concerned Development Authorities often become mute spectators.

It further observed that the issue at hand is of huge public interest and it shall be appropriate to issue a general mandamus to the Competent Authorities to dispose of the grievance of the home-buyers within a stipulated period, so as to obviate an individual home-buyer or a registered association, as the case may be, from approaching this Court time and again.

Access full report to read directions

4. Allahabad High Court Grants Protection To Inter-Faith Couple, Who Married 3 Years Ago, From Police Harassment Under UP Ordinance [Chandni & Anr. v. State of UP & Ors.]

A Division Bench of Justices Ritu Raj Awasthi and Saroj Yadav restrained the UP Police from taking action against a married inter-faith couple, alleging harassment ever since invocation of the controversial Love-Jihad Ordinance. It ordered that till the next date of listing, the petitioners shall not be harassed by the police on the basis of the impugned F.I.R.

The couple claimed that they married out of their own sweet will three years back and they are living peacefully and enjoying their matrimonial life. They also have one child aged one and a half year. They alleged that they were compelled to approach this court at present due to harassment by the police under the garb of the said ordinance.

5. Plea Seeking Implementation Of Rights Of Persons With Disabilities Act: Allahabad HC Seeks State's Response, Orders Govt. Buildings Inspection [Shabih Fatima & Ors. v. State of UP & Ors.]

In a petition for writ filed by 16 students seeking complete implementation of the Rights of Persons with Disabilities Act, 2016, Bench of Chief Justice Govind Mathur and Justice Saurabh Shyam Shamshery allowed the State Government to file a response to the petition and listed the matter for further hearing on February 1, 2021.

It further directed the District Social Welfare Officer, Prayagraj to make a complete inspection of all the Government buildings situated in the town of Prayagraj (relating to application of the Act of 2016).

6. Online Classes: Allahabad High Court To Decide Plea For 50% Relaxation In School Tution Fees On Jan 18 [Prashant Kumar Shukla & Ors. v. Union of India & Ors.]

A Division Bench comprising Chief Justice Govind Mathur and Justice Saurabh Shyam Shamshery listed the PIL seeking 50% relaxation in school tution fees until commencement of physical classes, for final disposal on January 18.

The pleas were filed by the High Court Bar Association as well as the District Bar Association, along with UP Vyapari Mandal and other private parties, highlighting that conducting online classes is a much cheaper schooling model as compared to the regular education model requiring physical presence, and therefore it is "in the interest of all the canons of justice, equity, and good conscience, the fees of 'SitAt-Home Education', can by no means be equated with or the charged the same as the older actual/physical education of the pre-COVID-19 Era."

Other developments:

Andhra Pradesh High Court

1. 'Creates Hindrance To Proposed Vaccination Programme': Andhra Pradesh High Court Suspends Schedule For Local Body Elections [State of Andhra Pradesh v. State Election Commission & Ors.]

"Decision to conduct elections certainly hampers and create hindrance to mammoth vaccination programme taken up by the Union of India," observed a Single Bench of Justice M Ganga Rao while presiding over a writ petition filed by the Jagan Mohan Reddy government in Andhra Pradesh.

It was averred that the SEC's order to conduct the local body elections in four phases in February was based on consideration of material extraneous to record, arbitrary and irrational rejection of the views of the government, and on surmises, conjectures, and assumptions, vitiated by malice in law.

In its order, the High Court observed that the SEC issued the impugned order without preceded by any pragmatic decision, based on the decisional consultation with the state government, as mandated by the Supreme Court. The it suspended the schedule set by the State Election Commission for conducting local body elections in the State, in the interest of public health.

Bombay High Court

1. Demand Of Outstanding Loan Amount From Defaulting Borrower Not Abetment To Suicide: Bombay High Court [Rohit S/o Nawanath Nalawade v. State of Maharashtra]

"The demand of outstanding loan amount from the person who was in default in payment of loan amount, during the course of employment as a duty, at any stretch of imagination cannot be said to be any intention to aid or to instigate or to abet the deceased to commit the suicide," a Bench of Justices VM Deshpande and AS Kilor held.

The Division Bench observed that the allegations against the accused in this case were only to the effect that the he demanded outstanding loan amount from the deceased, which was the part of his duty being employee of the Finance Company. It hus held that it is necessary for the prosecution to at least prima facie establish that accused had an intention to aid or instigate or abet the deceased to commit suicide.

2. "We Have Serious Reservations About Invoking Sedition Charges Against Kangana Ranaut and Her Sister": Bombay High Court

A division bench of Justices S S Shinde and Manish Pitale extended the interim relief of no coercive action against actor Kangana Ranaut and her sister Rangoli Chandel till January 25 in connection with an FIR registered against them under sedition and other charges. The HC also directed the city police not to summon the duo for questioning till then.

Ranaut and her sister were booked under sedition charges and for allegedly "trying to create hatred and communal tension" through their posts on social media, was registered pursuant to orders passed by the Bandra magistrate's court, directing the police to carry out an inquiry against Ranaut and her sister following a complaint lodged against them.

3. Writ Jurisdiction Cannot Be Extended Against The Rejection Of Nomination Papers At An Intermediate Stage Of Gram Panchayat Elections: Bombay HC [FB] [Karmaveer Tulshiram Autade & Ors. v. State Election Commission & Ors.]

A full bench of the Bombay High Court comprising of Chief Justice Dipankar Datta, Justice AS Gadkari and Justice GS Kulkarni held that a writ petition under Art. 226 challenging the rejection of nomination papers by the Returning Officer cannot be entertained as it is not a step in facilitating the election process. The Court was hearing a reference made to a larger bench after the division bench of the High Court was dealing with two conflicting opinions of the Court raising different opinions with regards to the maintainability of the petitions.

The bench also clarified that Art. 243-O(b) of the Constitution places a bar on the HC for entertaining writ petitions under Art. 226 against impugned orders passed by the Returning Officer rejecting the nomination papers.

Access full report for more details

Other developments:

Calcutta High Court

1. Calcutta High Court Imposes 20k Costs On Party Seeking Adjournment In Commercial Matter Citing Travel Risk Amid Pandemic [Pioneer Property Management Ltd. v. Amazon Sellers Services Private Limited & Anr.]

A Bench of Justice Moushumi Bhattacharya directed a party to pay Rs 20,000 as costs (to be paid to Bharat Sevasram Sangha, Kolkata) "for unnecessarily delaying the trial in a Commercial Suit." The Court imposed the costs since the party in a commercial suit sought adjournment by stating before the Court that its witness is not willing to take the risk of travel by reason of the pandemic.

"On 7^th December, 2020 this matter had been fixed on 11^th January, 2021 as is evident from the order passed on that date. The defendant no.2 was represented but as it appears from the order no such ground of inconvenience or otherwise was taken on that date. It is also not clear as to how the additional two weeks would encourage the witness to travel to the Court for the cross-examination," the Court observed in the facts of the case.

2. Approach UNHCR Over 4 Rohingyas Who Have Served Their Sentence But Remain In Jail: Calcutta High Court Asks State Govt. & UOI [Nur Mahammad & Ors. v. Union of India & Ors.]

A Bench of Chief Justice Thottathil B. Radhakrishnan & Justice Arijit Banerjee asked the West Bengal Government & Union of India to take requisite steps to move the United Nations High Commissioner for Refugees (UNHCR) in connection with the case of 4 Rohingyas who have served their sentence but continue to remain in prison.

The Court noted that the West Bengal Correctional Services Act, 1992 excludes the facility of open jails in such a way that persons who are not residents of West Bengal cannot be housed in open jails. In this backdrop, it observed, "we are of the view that it is for the Government of the State of West Bengal and the Government of the Union of India to take requisite steps to move the United Nations High Commissioner for Refugees (UNHCR)…"

3. Covid-19: 'Opt For E-Snan', Calcutta High Court Advises Pilgrims Ahead Of Ganga Sagar Mela [Ajay Kumar De v. State of West Bengal & Ors.]

A Bench of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee advised the worshippers visiting to participate in the Ganga Sagar Mela 2021, to opt for 'E-snan', instead of bathing in the river, amid the ongoing pandemic. "The State Administration shall continue to make all endeavours to dissuade the pilgrims for going for a holy dip and opt for E-snan," the Court, concerned by the risk of spread of Covid-19 infection.

4. "At Least In Death She Is Entitled Some Dignity As Every Citizen Blessed By Constitution"; Calcutta HC Orders Second Autopsy On The Body Of A Pregnant Woman [Sankar Ruidas v. State of West Bengal & Ors]

A Bench of Justice Sanjib Banerjee and Justice Arijit Banerjee ordered a second post-mortem on the body of a Pregnant Lady (who died in April 2020) to ascertain and interpret the exact cause of her death. It expressed its displeasure at the fact that she did not enjoy the affection, care and respect that the Constitution requires every citizen to receive, irrespective of station or status.

The Court specifically said, "(She) was a citizen of India…She may not have belonged to the entitled class. Her family may not have been empowered or even well off to provide the basic amenities that she needed as a would-be mother. At least, in death, (she) is entitled to some dignity as every citizen blessed by our glorious Constitution deserves."

5. Same-Gender Sexual Harassment Complaints Maintainable Under POSH Act : Calcutta High Court [Dr. Malabika Bhattacharjee v. ICC, Vivekananda College & Ors.]

A Single Bench of Justice Sabyasachi Bhattacharyya held that same-gender complaints are maintainable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the POSH Act. The Court observed that Section 2(m) of the 2013 Act shows that the term "respondent" brings within its fold "a person", thereby including persons of all genders.

The Court was deciding a writ petition which challenged the action of the Internal Complaints Committee of an institution to accept a complaint under the Act as without jurisdiction on the ground that both the complainant and the respondent belonged to the same gender. Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized", the High Court said.

Other developments;

Delhi High Court

1. Delhi High Court Issues Notice On Plea For Declaration Of Child Marriage As Void Ab Initio [Aisha Kumari v. NCT of Delhi & Ors.]

A Division bench of Chief Justice DN Patel and Justice Jyoti Singh issued notice on a plea seeking directions for the declaration of Section 3(1) of the Prohibition of Child Marriage Act, 2006 as ultra vires of the Constitution insofar as it makes child marriage 'voidable'. It specifically seeks the declaration of child marriages as performed in the state of Delhi to be treated as 'void ab initio'.

The petitioner in this case claimed that she was forcefully married to her aunt's son, by her and his parents while she was in the 10th standard. She submitted that she had had "no choice to go against the wish of her parents and community and despite her request, she was forced to give her consent for the said ceremony of child marriage." She sought protection from the court under its parens patriae jurisdiction, and the intervention of the court to the extent of protecting her from the ramifications of the said child marriage by the declaration of such marriage as null and void.

2. "Charity Beyond Law Is Cruelty To Others": Delhi High Court Dismisses Plea For 16 Grace Marks For Admission To IGNOU's BSc Course

Observing that, "Charity outside the law is cruelty to others," a Division Bench led by Chief Justice DN Patel rejected a plea by a female BSc aspirant of IGNOU seeking 16 grace marks for admission into the open university's BSc (Biology) degree course.

The petitioner in this case had preferred a LPA challenging a Single Judge bench order which had also rejected her plea. She stated that she was a "brilliant child", who had secured admission into various other courses as well, including the Delhi University's LLB programme. However, she had failed to secure the passing marks (36) in the entrance for admission into IGNOU's BSc (Biology) course, wherein she secured 20 only. She sought relief on the ground of her brilliance and on grounds of being a female child.

3. "Power To Attach Bank Account Can Only Be Exercised In Compliance With Statutory Power": Delhi High Court Quashes GST Authority Order [Proex Fashion Pvt. Ltd. v. Govt of India & Ors.]

A Single-Judge Bench of Justice Prateek Jalan held that power to attach a Bank Account can only be exercised in strict compliance with statutory power. The court was hearing a challenge to the order of the GST Authority pertaining to Provincial Attachment wherein the Petitioner's bank account had been attached by the Authority under Section 83 of the Goods and Services Act.

The Court clarified that as attachment of a bank account entailed serious consequences to the assessee, this power could only be exercised in strict compliance with statutory power. Therefore, in the absence of any statutory precondition for the exercise of power of attachment, an order under Section 83 would be illegal.

4. Delhi High Court Stays Order Of Rs. 96 lakh Penalty Imposed By Financial Intelligence Unit To PAYPAL, Notice Issued To RBI

Directing PayPal to maintain a record of all its transactions, a Bench of Justice Pratibha Singh granted stay on a plea by the payment gateway challenging the imposition of Rs. 96 lakh as penalty on it, for alleged violation of India's money laundering law. The relief is subject to the deposit of Rs. 96 lakh bank guarantee by PayPal before the court within a period of 2 weeks.

The Court issued notice on the plea by PayPal and directed the Financial Intelligence Unit (FIU) to file its response on the matter by Feb 26. RBI has also been added as a party in the case. The plea concerns itself with issues regarding the inclusion of PayPal as a reporting agency under the Prevention of Money Laundering Act, and directs RBI and the Finance Ministry to take a policy decision on the issue after the deliberation over the same by a committee of its representatives.

5. GST Authorities' Power Of Arrest Under CGST Act Prima Facie Constitutional: Delhi High Court [Dhruv Krishan Maggu v. Union of India & Ors.]

A Division Bench of Justices Manmohan Singh and Sanjeev Narula expressed a prima facie view to uphold Sections 69 and 132 of the Central Goods and Service Tax (CGST) Act provision which gives the authorities the power to arrest any person if there exists a "reason to believe" that the person has committed tax evasion.

The Petitioner in this case had submitted the aforementioned provisions are unconstitutional as they were provisions which were criminal in nature and therefore, could not have been enacted under Article 246A of the Constitution of India, 1950. The Court however held that the provisions could be enacted under Entry 1 of List III, as laying down of a crime and providing for its punishment is criminal law.

6. Delhi High Court Issues Notice In Plea Seeking Regulation Of Digital Lending Platforms [Dharanidhar Karimojji v. Union of India & Anr.]

The High Court issued notice in a writ petition filed seeking regulation and control of digital lending platforms. The Centre has been asked to file its reply to the petition by 19.02.2021.

The petition refers to a circular dated 23.12.2020 issued by the Reserve Bank of India cautioning against unauthorized digital lending platforms and prays for regulation and control on working of online digital lenders working through mobile software applications and other media. Amongst other things, the petition also highlights the charging of exorbitant interest by these lenders on loans, and seeks the fixing of a maximum rate of interest chargeable by these lenders, as a solution.

Other developments:

Gauhati High Court

1. "Akhil Gogoi Led Mob Brushed Aside Noble Concept Of Satyagraha": Gauhati High Court Rejects His Bail Plea [Akhil Gogoi v. The National Investigation Agency]

A Bench of Justice Kalyan Rai Surana & Justice Ajit Borthakur rejected the bail plea of peasants' rights activist Akhil Gogoi, in connection with a terror case registered against him under Sections 120B, 124A, 153B IPC r/w relevant provisions of the UA(P) Act.

Stating that it is unable to record its satisfaction that the materials brought on record, in all probability, may not lead to (Gogoi's) conviction, the Court remarked, "The call transcripts, which are accompanying the charge-sheet, clearly indicate that the appellant wanted to protest in such a manner which would disrupt all modes of rail and road transport and to paralyze Government machinery not only on other dates, but specifically on the date when the Japan's Prime Minister was slated to visit the State."

Gujarat High Court

1. 'Such Decision Must Have Been Taken After Due Deliberations': Gujarat HC Refuses To Interfere With CBDT's Decision To Not Extend Deadline For Filing ITRS [All Gujarat Federation of Tax Consultants v. Union of India]

A Division Bench of Justice JB Pardiwala and Justice Ilesh J. Vora declined to interfere with the decision of the Central Board of Direct Taxes (CBDT), to not grant any further extension for filing of Audit Reports and Income Tax Returns for the Assessment Year 2020-21. "We believe that such decision must have been taken after due deliberations, and in taking such decision, many financial experts must have applied their minds," the Court observed while upholding the executive Body's decision.

"When there is a power coupled with duty, there is an obligation on the Board to exercise the same if the facts so warrant. Upon due consideration of all the relevant aspects of the matter, if the Board has taken the final decision not to extend the time limit any further, then it is difficult for this Court to issue a writ of mandamus to the Board to extend the time limit on the assumption that undue hardship would be caused to the taxpayers and the tax professionals, more particularly, in view of the latest data put forward before us by the Revenue," it added.

Also Read: 'Govt Needs Revenue To Carry Out Relief Work For Poor In These Difficult Times': CBDT Declines Further Extension Of Due Dates For Filing ITRs

2. 'Orders Passed To Facilitate Private Commercial Activity': Gujarat High Court Raps Authorities, Sets Aside Father-Son Externment Orders [Digesh Harishchandra Solanki & Harishchandra Motilal Solanki v. State of Gujarat and Ors.]

A Bench of Justice Paresh Upadhyay reprimanded the authorities for externing a son and his father from Navsari district "to facilitate a private commercial activity of a private individual." It was hearing the pleas filed by the son and his father, challenging identical externment orders passed by the Sub-Divisional Magistrate, Navsari dated in February 2020.

The Court noted that Father-son duo are office bearers of a co-operative housing society in which they are residing and that there was a dispute, which was essentially between the society where the petitioners are residing and the adjoining society, where constructions work was going on. The Court further observed that the Externing Authority asked the father-son duo to settle the dispute with the contractor and since that settlement did not materialise, the externment order was passed.

Other developments:

Karnataka High Court

1. Environment Protection Act Passed At Instance Of 'Foreign Powers', Says NHAI; Karnataka High Court Takes Strong Objection [United Conversation Movement Charitable & Welfare Trust v. MoEF & Ors.]

A division bench of Chief Justice Abhay Oka and Justice Sachin Shankar Magadum took strong exception to a statement made by the National Highways Authority of India (NHAI) that the Environment Protection Act 1986, has been passed by the Parliament "at the instance of foreign powers."

"We are shocked to know approach of agencies and instrumentality of the state, they want the court to believe that entire exercise of framing the Environment Protection Act is undertaken at the instance of Foreign powers." After noting that the statement has invited the Court's displeasure, the NHAI sought to withdraw it.

The bizarre claim has been made in the statement of objection filed by R B Pekam, working as Deputy General Manager (T) in the regional office of the National Highways Authority of India, Bangalore. The reply was filed while opposing a petition filed by United Conservation Movement Charitable and Welfare Trust , through it advocate Prince Isac, challenging the notification dated August 22, 2013 issued by the MoEF &CC, which recommends exemption of EIA process for expansion of National Highways.

2. Karnataka HC Issue Notice On PIL Challenging Cattle Slaughter Prevention Ordinance [Mohammed Arif Jameel v. State of Karnataka & Ors.]

A division bench of Chief Justice Abhay Oka and Justice Sachin Shankar Magadum issued notice on a plea challenging the Karnataka Prevention of Slaughter and Preservation of Cattle Ordinance, 2020.

The petition states that a complete ban on sale of purchase or resale of animals would cast a huge economic burden on farmers, cattle traders, who find it difficult to feed their children but would be required to feed the cattle as it is an offence under the law to starve an animal or failure to maintain it. It is also said that it would lead to the rise of "Cow Vigilantes".

It was averred that the law violates the fundamental rights of citizens and is unconstitutional. Further it is said that Article 19 (1) (g) of the Constitution of India guarantees citizens to carry out trade and business, subject to reasonable restriction as mentioned in clause 6 of that Article.

3. Karnataka High Court Issues Notice To Centre On Plea Challenging Section 2(c)(i) Of Contempt Of Courts Act [Krishna Prasad & Ors. v. Union of India & Ors.]

A Bench led by Chief Justice Abhay S. Okay issued notice to the Central Government on a petition challenging the constitutional validity of Section 2(c)(i) of the Contempt of Courts Act, 1971, which criminalises publication of such matter that may "scandalize the courts".

The plea filed by journalists Krishna Prasad and N. Ram, former Union Minister Arun Shourie and Advocate Prashant Bhushan states that the impugned provision violates Article 19 and 14 of the Constitution, is incurably vague and is manifestly arbitrary. The matter is likely to be listed next on 22 February.

4. 'If Chief Justice Also Says He Belongs To Karnataka, Where Will You Go?' CJ Oka To Petitioner Who Wanted Other-State Judge To Hear His Case

A division bench of Chief Justice Abhay Oka and Justice Sachin Shankar Magadum dismissed a petition filed by one V Gururaj in which he sought issuance of writ of mandamus seeking that a petition in which he is a respondent, and pending before a single judge bench, should be heard by the bench of Chief Justice or any other court which is constituted by a judge, hailing from a different state other than Karnataka.

The petitioner had alleged that the roaster judge will not give him justice, on the footing that there is excessive interference of a former Chief Justice of India, who was specifically named in the petition. It was also alleged that most of the judges who hail from Karnataka Bar, one way or the other show their allegiance to the said former Chief Justice of India.

In its order the court said: "On the face of it such allegation scandalizes the high court of Karnataka and lowers the authority of this court. Moreover, such allegations constitute interference in due course of judicial proceedings. Such allegations tend to interfere with administration of justice."

5. 'Issued Mechanically': Karnataka High Court Directs Govt To Reconsider Circular Asking Disabled Employees To Report For Work [Karnataka Federation of Blind v. State of Karnataka]

A division bench of Chief Justice Abhay Oka and Justice Sachin Shankar Magadum directed the state government to reconsider its circular dated January 5, by which it has directed 50 percent of officers/officials who are blind and employees with other disabilities working in the state government/quasi government officers etc to attend the office on alternate days.

It orally said "Firstly we don't understand this rationale, of saying that 50 percent of the blind persons should work. Either 100 percent should work or 100 percent should not work." It added, "Still in the city of Bengaluru more than 400 cases are reported everyday. You (State) expect pregnant women to travel to her workplace by a BMTC bus, thus exposing herself to all the infection. A person who travels will take precaution but he cannot ensure that others are wearing proper masks etc. Same is the case with a blind person if he has to travel by a BMTC bus. The circular is issued mechanically."

6. Karnataka High Court Seeks Details Of CEN (Cyber Economics & Narcotic Crimes) Police Stations In Bengaluru

A division bench of Chief Justice Abhay Oka and Justice Sachin Shankar Magadum directed the State Government to set out the details of the infrastructure provided to the 8 CEN (Cyber Economics and Narcotic Crimes) police stations set up in the city of Bengaluru. The Court issued notice to the respondents while hearing a PIL alleging that the police stations are not discharging their functions due to lack of basic facility and poor staff strength.

7. 'Beneficiaries Of State Largesse' : Karnataka High Court Holds Bangalore Turf Club, Mysore Race Club As Public Authorities Under RTI Ac [Bangalore Turf Club Ltd. v. State Information Commissioner]

A single bench of Justice PB Bajanthri held that Bangalore Turf Club Limited, Mysore Race Club Limited, The Institution Of Engineer (India) Karnataka State and Ladies Club, are all 'public authority' as defined under the Right to Information Act, 2005.

While refusing to interfere with the order passed by the Karnataka Information Commission against the companies, the Bench said "In the present case, State Largesse has been extended to the petitioners under lease deeds. Therefore, they are holding lease lands on behalf of the people and are accountable to the people. If these material information is taken into consideration, one has to draw inference that petitioners do fall under the definition of 'public authority' under Act, 2005."

Other Developments:

Kerala High Court

1. Torture Of Convict : Unhappy With DIG's Enquiry; Attempt To Protect Prison Officials, Says Kerala High Court

A Division bench comprising Justices K Vinod Chandran and MR Anitha expressed dissatisfaction at the enquiry report submitted by the DIG Prisons regarding the torture of Tittu Jerome, a convict serving life term in the Kevin murder case, in Central Prison, Poojappura. "We are unhappy at the manner in which enquiry report has been submitted by the DIG, who has been authorized by the DGP", observed the Court.

The bench also expressed a prima facie view that the DIG's report is an attempt to "safeguard the prison personnel who are involved in the alleged torture of inmates of the Central Prison". The bench made these significant observations in the habeas corpus petition filed by Tittu Jerome's parents saying that their son was subjected to brutal assault in the prison.

2. LIFE Mission Case Suggests Involvement Of High Officials; But Criminal Liability Can't Be Extended To Political Executive : Kerala HC Rejects Challenge Against CBI Probe [Santhosh Eappen v. Union of India & Ors.]

A single bench of Justice P Somarajan dismissed the petitions filed by the CEO of Life Mission Project of Kerala Government and Santhosh Eappen, the MD of the contractor company, challenging the CBI investigation into the case related to alleged corruption and FEMA violations in the construction of apartments for the homeless at Wadakkanchery as part of the LIFE Mission project. The Court however held that the criminal liability of the non-political actors in the case cannot be extended to the political executive of the State, just because the crime was done while executing a policy decision of the government.

The court explained in the order that the executive of the State consists of the political executive (ministers) and non-political executive (the civil servants). The non-political executive implements the policy decisions taken by the political executive. If criminal misdeeds are done by the non-political executive while implementing a policy decision of the political executive, such criminal liability cannot be extended to the political executive just because the latter took the policy decision.

3. To Attract Drunk Driving U/S 185(a) Of MV Act Accused Should Be Subjected To Breath Analyser Or Blood Test [Manoj Kumar K. v. State of Kerala]

A Single Bench of Justice VG Arun held that in order to attract the offence of drunken driving under Section 185(a), the accused should have been subjected to a breath analyser or any other test including a laboratory test and his blood must be found to contain alcohol exceeding 30 mg per 100 ml.

The court relied on the decision of Kerala High Court in Sagimon v. State of Kerala [2014(3) KLT 782] and held that, prior to 2019 Amendment, it was mandated to determine the alcohol content in blood through breath analyser test. After the amendment, the statute mandates to conduct either the breath analyser test or any other laboratory tests. In this instant case, the proceedings under Section 185 of MV Act cannot be sustained on the basis of an opinion of a doctor without detecting alcohol in blood through any breath analyser/laboratory tests.

4. COVID-19 Tests: Kerala High Court Directs Govt To Consider Private Labs' Objections Against Price Cap [R-Cell Diagnostics & Research Centre & Ors. v. State of Kerala & Ors.]

A single bench of Justice PV Asha directed the Kerala Government to consider the grievances of private laboratories against the November order which capped the price of COVID-19 tests as Rs 1500(R Cell Diagnostic and Research Centre and others v State of Kerala and others).

It also directed the Government to take a decision within 3 weeks from the date of receipt of the judgment. Till then, the Court allowed the labs to charge up to Rs 2100 for COVID-19 tests, as has been fixed by a government order issued in October 2020.

5. No Detention Under Section 129 Of CGST Act On Mere Suspicion Of Mis-Classification Of Goods: Kerala High Court [M/s Podaran Foods India Pvt Ltd v. State of Kerala]

A single bench of Justice A Jayasankaran Nambiar held that mere suspicion of mis-classification of goods cannot be the basis for a detention of goods under Section 129 of the Central Goods and Services Tax Act 2017. Reliance was placed on decision of the Gujarat High Court in M/s Synergy Fertichem Private Limited v. State of Gujarat and earlier decisions of the Kerala High Court in NVK Mohammed Sulthan Rawther& Sons v. UOI & Ors and Rams v. STO.

"Taking cue from the aforesaid decisions, I am of the view that a mere suspicion of mis-classification of goods cannot be the basis for a detention under Section 129 of the Act", the Court observed. It further said that a detention under Section 129 can be justified only if there is "contravention of the provisions of the Act in relation to transportation of goods or their storage while in transit".

Madhya Pradesh High Court

1. Madhya Pradesh High Court Issues Directions For Registration Of FIRs In Respect Of Economic Offences [Rajendra Singh Pawar & Ors. v. State of MP & Ors.]

Noting that a number of petitions are filed before High Court as Police does not take any decision on a complaint made by a party regarding economic offences, a Single Bench of Justice Vishal Dhagat issued directions to the Police authorities in the State, to make sure that the complaints/ first information reports filed in respect of economic offences are disposed of properly.

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Other developments:

Madras High Court

1. Madras High Court Directs Puducherry Fee Committee To Fix Fees For PG Medical Courses From 2017-18 Onwards Until Guidelines Are Framed By UGC/ NMC [VBR Menon v. Government of Puducherry & Ors.]

A Division bench of Justices TS Sivagnanam and V. Bhavani Subbaroyan ordered the Puducherry Fee Committee to fix the fee for Post Graduate Medical and Dental courses in Deemed Universities, for the from the academic year 2017-18 onwards till 2020-21. Further, students shall be entitled for refund of excess fees paid by them in terms of a previous order of the High Court.

The order was passed after taking note of the fact that reasonably high, arbitrary and prohibitive fees is being collected by the respondent Deemed to be Universities from the students.

2. Authorities Need To Be Told That Right To Property Has Close Nexus With Right To Life Under Article 21: Madras High Court [Jayalakshmi & Ors. v. State of Tamil Nadu]

A Bench of Justice N. Seshasayee observed that State Authorities need to be told that the Right to Property has close nexus with Right of Life under Article 21 of the Constitution of India. the remarks came in a plea wherein it was alleged that the State failed to take any action regarding the lands of the Petitioners despite Court's direction that the State should "go for fresh acquisition following the due process of law".

Coming down heavily upon the authorities, the Court said, "By their inaction, they have denied the right of these citizens at least for 10 years, and to that extent, they have transgressed the quality of life of the citizens of this Country within the meaning of Article 21 of the Constitution of India"

Orissa High Court

1. Orissa High Court Disposes Of PIL For Waiver Of School Fees During Covid-19, Based On MoU Submitted By Institutions For Flat Rate Concession [Mohammed Mustaq Ansari v. State of Odisha & Anr.]

A Bench of Chief Justice Dr. S. Muralidhar and Dr. Justice BR Sarangi disposed of a batch of PILs seeking waiver of school fees levied by private unaided schools in the State, in the wake of COVID-19 pandemic from March, 2020 onwards. The matter was closed after 14 private unaided schools submitted a MoU for waiver of fees at a flat rate in different slabs mentioned therein.

The MoU contemplates waiver of maximum 26% Tution/ composite fee for institutions where fees is above Rs. 1 lakh per annum. Similarly, there a separate slab rates, based on the fee amount. All schools charging fees upto Rs. 6,000/- shall not be liable to offer any waiver.
The institutions have decided to waive of 'Other Optional Fees' till reopening of schools. However, the charges on Transport and Food shall remain as per actual.
There is a flat waiver of 30% on Hostel fees.

Punjab & Haryana High Court

1. WhatsApp Message Has No Evidentiary Value Without Certificate Under Section 65B(4) Evidence Act : Punjab & Haryana High Court [Rakesh Kumar Singla v. Union Of India]

A single bench of Justice Jaishree Thakur, while deciding a bail application in a case under the NDPS Act, observed that WhatsApp messages will have no evidentiary value unless they are certified as per Section 65B of the Indian Evidence Act.

To oppose the bail application, the Narcotics Control Bureau (NCB) had relied on certain alleged WhatsApp chats of the accused. The NCB submitted that screenshots of WhatsApp messages connected the petitioner with the contraband. However, the Court asked if such messages are accompanied with Section 65B certificate.

On getting a negative reply, the bench observed: "The recent judgment rendered by the Supreme Court in the matter of Arjun Panditrao Khotkar Vs. KailashKushanrao Gorantyal and others (2020) 7 SCC 1 has held that a certificate Section 65B of the Indian Evidence Act is required when reliance is being placed upon electronic record. Therefore, the said message would be of no evidentiary value as on date".

Rajasthan High Court

1. In Digital Era, Employees Working In Different States To Be Treated As 'One Work Place' For Purposes Of Sexual Harassment At Workplace: Rajasthan High Court [Sanjeev Mishra v. Bank of Baroda & Ors.]

A Single Bench of Justice Sanjeev Prakash Sharma made it clear that in the digital age, posting of the Complainant in a different state from the accused would not be a barrier in prosecuting the latter for sexual harassment at workplace.

"In the present digital world, work place for employees working in the Bank and who have earlier worked in the same Branch and later on shifted to different branches which may be situated in different States has to be treated completely as one work place on a digital platform," the Court observed.

Uttarakhand High Court

1. Shivalik Elephant Reserve: Uttarakhand High Court Stays Denotification Of The Only Elephant Reserve Of State

A Bench of Chief Justice RS Chauhan and Justice Lokpal Singh stayed the denotification of the Shivalik Elephant Reserve, the only elephant reserve in the State.

It is important to note that a Division Bench comprising of Acting Chief Justice Ravi Malimath and Justice Alok Kumar Verma has already taken suo motu cognizance of denotification of the Shivalik Elephant Reserve. It is set to hear the case on February 22.

2. 'State Making Rosy Promise': Uttarakhand High Court Expresses Concern Over Unpreparedness Of Govt To Handle Demographic Explosion During Kumbh Mela

"The medical health care system is woefully lacking," remarked a Division Bench of Chief Justice Raghvendra Singh Chauhan and Justice Manoj Kumar Tiwari while hearing a batch of PILs concerning Covid-management during upcoming Kumbh Mela celebrations. It observed that the State Government is too ill-prepared to tackle the demographic explosion that Haridwar is about to witness within a month.

"It is the foremost duty of the State to protect the people from the COVID-19 pandemic. It is the foremost duty of the State to ensure that the lives of the people are not reduced to a mere animal existence. Therefore, while trying to organize a mega event, which is the largest congregation on the Planet Earth, it is the duty of the State to be thoroughly equipped for any contingency that may arise during the period of two months when the Kumbh Mela would be celebrated," the Bench reminded the Government and issued a slew of directions to handle the situation.

Access full report to read instructions

Also Read: Kumbh Mela Amid Pandemic: Uttarakhand High Court Directs Authorities To Frame SOP

Other developments:

High Courts Weekly Roundup [Jan 11 – Jan 17]

Akshita Saxena

Summation of important High Court orders this week

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