High Courts Weekly Round-Up

• No Religion Prescribes Use Of Loudspeakers For Worshipping: Allahabad HC Declines Mosques' Request To Install Loudspeaker For Azaan [Masroor Ahmad & Anr. v. State of UP & Ors.]

Stating that no religion prescribes the use of loudspeakers for worshipping, the Allahabad High Court declined the permission sought by two mosques to install loudspeakers, for the purposes of Azaan. "No religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums and if there is such practice, it should not adversely affect the rights of the others including that of not being disturbed," division bench of Justice Pankaj Mithal and Justice Vipin Chandra Dixit held.

● Sec. 164(2) Of Companies Act Valid; But FY Before 2014-15 Not Relevant For Its Application [Jai Shankar Agrahari v. Union of India & Anr.]

In a significant ruling, the Allahabad High Court has upheld the constitutional validity of Section 164(2) of the Companies Act, 2013, which stipulates that a Director whose company has not filed financial statements or annual returns for any continuous period of three financial years, shall be disqualified from holding the position for five years. The Court has also held that the "financial year" for the purpose of the Section will start only from 2014-15. The division bench of Justices Sudhir Agarwal and Rajeev Misra said that the provision rightly differentiated between tainted and untainted Directors on the basis of an intelligible classification and thus, was not violative of Article 14 of the Constitution.

● Withholding Gratuity Amount Merely Due To Pendency Of Criminal Investigation Violates Article 300A Of The Constitution [Udai Narain v. State of UP & Ors.]

The Single Bench of the Allahabad High Court, Justice Ashwani Kumar Mishra observed that withholding the amount of gratuity payable to a retired employee of State merely on account of pendency of criminal investigation against him at the time of retirement violates Article 300A of the Constitution. "The right of a retired employee to receive pension and gratuity is recognised as a property which cannot be deprived except by having recourse to law in view of Article 300-A of the Constitution of India. The power of State to withhold pension and gratuity, therefore, must be exercised strictly as per the applicable law and if the State action is not found to be in consonance with it, the withholding of gratuity would violate Article 300-A of the Constitution of India. The denial of such constitutional right, therefore, would be liable to be interfered with by this Court under Article 226 of the Constitution of India," held the court.

● Allahabad HC Imposes Cost On State For Delaying Payment Of Post-Death Dues Of An Employee [Sant Prasad Seth v. State of UP & Ors.]

The Allahabad High Court came down heavily upon state authorities for delaying the payment of post-death dues, namely, Provident Fund, Gratuity and arrears of salary etc. of an employee, for over 24 years. "Denial for payment of dues of deceased employee for the last more than 24 years is without any basis and patently arbitrary. It shows that adamant and illegal attitude on the part of respondents. Withholding of post death dues for years together is not only illegal and arbitrary but a sin if not an offence since no law has declared so. The officials, who are still in service and are instrumental in such delay causing harassment must however feel afraid of committing such a sin. It is morally and socially obnoxious. It is also against the concept of social and economic justice which is one of the founding pillars of our constitution," Justice Sudhir Agarwal said.

Bombay High Court

● Asks Petitioner Challenging CAA To Approach SC

The Bombay High Court refused to hear a Public Interest Litigation filed by one Urmila Kowe challenging the constitutional validity of the Citizenship Amendment Act. A division bench of Justice RK Deshpande and Justice AB Borkar of Nagpur bench observed that the Supreme Court was already hearing petitions challenging the said act and asked the petitioner to approach the apex court.

● Power To Attach Bank Accounts Can Be Used In Limited Circumstances, Not An Omnibus Power [Kaish Impex Pvt. Ltd. v. The Union of India]

The Bombay High Court quashed and set aside an order by the Directorate General of GST Intelligence holding that the said order of provisionally attaching the bank accounts of the petitioner was without jurisdiction. A division bench of Justice Nitin Jamdar and Justice MS Karnik was hearing a writ petition filed by Kaish Impex Pvt Ltd through its Director Deepak Kumar. A provisional attachment of the petitioner's bank account was ordered by the GST authorities on suspicion after a transaction between the company which they suspected to be availing input tax credit fraudulently and another company was discovered and a subsequent transfer to the petitioner's account was found.

● Not For Courts To Appoint Or Remove A Person From Women's Commission, Bombay HC Chides State Govt Departments For Inaction [Vihar Durve v. State of Maharashtra & Ors.]

While hearing a Public Interest Litigation regarding appointment of members and other aspects of the State Women's Commission, the Bombay High Court gave an earful to the State government's various departments for inaction while lamenting at the wastage of time of government officials due to various litigation. A division bench of Justice SC Dharmadhikari and Justice RI Chagla observed that it was not for the Courts "to decide each and every aspect of executive governance".

● Even if The Remand Order is Illegal, Still The Writ of Habeas Corpus Is Not An Effective Remedy [Ankit Ghanshyam Mutha v. Union of India]

The Bombay High Court dismissed a writ of habeas corpus filed by one Ankit Mutha, who was arrested on allegations of smuggling gold in a multi-crore scam being investigated by the Directorate of Revenue Intelligence (DRI). A division bench of Justices SS Shinde and NB Suryawanshi followed the judgment of the Supreme Court in Sourabh Kumar through his father V/s. Jailor Koneila Jail and Anr wherein it was held - "Even if Magistrate has acted rather mechanically remanded the accused in judicial custody and has taken the process in a cavalier fashion which shows insensitivity towards denial of personal liberty of a citizen, the Writ of Habeas Corpus is not maintainable if there is order of remand, in which case the remedy lies elsewhere."

Calcutta High Court

● Unreasoned Arbitral Awards Are Opposed To Public Policy U/S 34 Of Arbitration & Conciliation Act [State of West Bengal v. Bihar Vanijya Eastern Pvt. Ltd.]

The Calcutta High Court set aside an arbitral award that it found to be bereft of proper reasoning and application of mind and has asked the claimant party to pursue his claim afresh, in accordance with the law. The bench of Justice Sanjib Banerjee and Justice Kausik Chanda held that an award that is not based on reasons whatsoever, would amount to being an award that is opposed to public policy.

Delhi High Court

• Allocate The Vacant Seats Reserved For Physically Handicapped To Blind Persons: Delhi HC Directs Department Of Revenue [Dileep Kumar Shukla v. Union of India & Ors.]

Delhi High Court directed the Central Government to identify the vacancies in the Physically Handicapped (PH) category which can be filled up by persons in Blind/Low Vision (B/LV) category. The Division Bench of Justice Muralidhar and Justice Talwant Singh has given the authorities a period of 8 weeks to determine which posts in the Indian Revenue Service earmarked for PH category can be allocated for those with B/LV. The appeal was filed against the order of the Central Administrative Tribunal which had held that the Department of Revenue is exempted from the duty prescribed under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

● Office of Controller General of Patents, Designs and Trade Marks Is An Industry U/S 2(j) of Industrial Disputes Act [Union of Indian v. Raj Kumar Shah]

The Single Bench of the Delhi High Court Justice C. Hari Shankar held that the office of a Controller General of Patents, Designs and Trade Marks is an industry under Section 2(j) of the Industrial Disputes Act and it directed reinstatement of workers illegally retrenched from their services. It also held that the Supreme Court's verdict in Umadevi v. State of Karnataka, does not impact the powers of a labour court or power of judicial review of the high court under Article 227 of the Constitution, to order reinstatement of victims of unfair labour practices.

● Delhi HC Asks If Anonymous Instagram Account Holder Wants To Represent All Those Who Shared 'MeToo' Stories : Subodh Gupta Case

The Delhi High Court asked the anonymous holder of the Instagram account 'Herdsceneand' to decide as to whether she would want to be imlpeaded in representative capacity of all women who had raised sexual harassment allegations through the account against artist Subodh Gupta. The Court was considering the defamation suit filed by Gupta against the Instagram account. The Single Bench of the Delhi HIgh Court, Justice Rajiv Sahai Endlaw also said that the issue of maintaining anonymity, or holding an in-camera trial to further the same, will be decided at a later stage post the impleadment of parties. The Court had earlier permitted the account-holder to maintain anonymity in the interim.

● Delhi High Court Orders Application Moved By A Bank For Sale Of Vehicle In Recovery Suits Shall Be Disposed Of Within 60 Days [M/s ICICI Bank Ltd. V. Priya Baveja]

The Delhi High Court has held that applications filed for seeking permission to sell a vehicle seized by the bank in cases of default cannot be kept pending for long and should be disposed of within 60 days. "Considering that a large number of petitions have been filed today, which include suits both at the interim stage and at the final stage wherein the applications under Order XXXIX Rule 6 CPC, for permission to sell the vehicles, are simply being adjourned from time to time, it is deemed appropriate to direct that applications for sale of the vehicle, whenever filed, shall be disposed of within 60 days, except in the case of any unusual or exceptional circumstances.," Justice Prathiba M. Singh ordered.

● 'Courts Have A Duty To Protect The Rights Of Animals': Delhi HC Rejects Habeas Corpus Seeking Production Of An Elephant [Mr. Saddam v. Union of India & Ors.]

Delhi High Court has refused to allow a Mahout (elephant owner) to reunite with his elephant, while rejecting his plea of habeas corpus seeking the production of the animal. The Division Bench of Justice Manmohan and Justice Sangita Dhingra Sehgal has held that jungle is a natural habitat of an elephant as by virtue of its natural characteristics, it requires sufficient water, large area for housing as well as for walking and grazing. Therefore, the court has a duty under the doctrine of parens patriae to take care of the rights of animals.

● Issues Notice To ED In Subramanian Swamy's Plea Challenging FIPB Clearance Given To Air Asia

Delhi High Court has impleaded Enforcement Directorate as a party in Subramanian Swamy's plea challenging the FIPB clearance granted by centre to Air Asia Private Limited. The Division Bench of Chief Justice DN Patel and Justice Hari Shankar has directed Enforcement Directorate to file a status report on the next date of hearing in a sealed cover.During the proceedings, Subramanian Swamy informed the court that there are media reports which suggest that ED has also initiated an enquiry against the airlines for probing allegations of money laundering.

● Delhi HC Paves Way For Middle Schools To Upgrade To Senior Sec Level, Favours Students In Fight B/W Bureaucracy And Edu Institutions. [Action Committee Unaided Recognized Private Schools v. Delhi Development Authority]

Bringing an end to a "tussle between bureaucracy and educational institutions,'' the Delhi High Court paved the way for hundreds of schools to increase their space by declaring that all middle schools, which are members of the Action Committee Unaided Recognized Private Schools, shall be entitled to run as senior secondary schools without payment of any additional charges to the Delhi Development Authority. Justice C Hari Shankar also directed the DDA to modify schools without any charges the lease deeds of the which were allotted plots for setting up primary and middle schools and were allowed to upgrade by one level but not before payment of additional charges.

Gujarat High Court

● Refuses To Quash FIR Lodged Against Anti-CAA Protesters [Amarnath Vasava v. State of Gujarat]

The Gujarat High Court refused to quash FIR lodged against some persons for protesting against Citizenship Amendment Act, 2019. According to the Amarnath Jinkuram Vasava and others, permission was initially granted to conduct a protest meeting against CAA during commemoration meeting in connection with death anniversary of freedom fighters, Ashafaqullah Khan and Ram Prasad Bismil, on 19 December 2019. Later, on 18th December, the permission was cancelled. The petitioners alleged that they were staying at Taj Hotel in Chhapi Town, when they were detained early in the morning at around 8.45 am and other petitioners were picked up from their respective homes and detained.

● Rejects Ex-IPS Sanjiv Bhatt's Plea For Recalling SIT Probe [Sanjiv Bhatt v. State of Rajasthan]

The Gujarat High Court refused to recall its order whereby a Special Investigation Team was constituted to probe the alleged involvement of former IPS officer Sanjiv Bhatt in a 1996 drug planting case. While dismissing Bhatt's petition, Justice JB Pardiwala said, "This application is nothing but one more attempt on the part of the applicant to create unnecessary hindrances and obstructions in the conduct of the trial proceedings...and thereby, thwart the due process of law."

Karnataka High Court

● No New Development Activity Within 10 KM Radius Of Bannerghatta National Park

The Karnataka High Court restrained any new commercial or development activities, within 10 km radius of Bannerghatta National Park (BNP), until the finalization of the draft notification on the declaration of Eco-Sensitive Zone (ESZ). A division bench of Chief Justice Abhay Oka and Justice Hemant Chandangoudar passed the interim order while hearing a petition filed by Bannerghatta Nature Conservation Trust. It said "There will be an interim relief as prayed for. We clarify that the interim relief will operate prospectively and it will not affect the commercial and developmental activities which are already undertaken in the 10 kilometer radius around Bannerghatta National Park."

● Restrains Authorities From Demolition Of Temporary Sheds Alleging Occupants Are Illegal Bangladeshi Migrants [PUCL-Karnataka v, Bruhat Bangalore Mahanagara Palike & Ors.]

A division bench of Chief Justice Abhay Oka and Justice Hemant Chandangoudar while hearing a petition filed by People's Union For Civil Liberties (PUCL) by way of interim relief restrained the Bruhat Bengaluru Mahanagara Palike and the Bengaluru police from evicting those living in sheds in areas of Kariyammana Agrahara, Devarabeesanahalli, Kundalahalli and Bellanduru. Recently, the authorities had carried out a demolition drive, displacing several people, on the pretext that the occupants were illegal Bangladeshi Migrants.

● "It Seems That They Do Not Have Elementary Knowledge Of Criminal Law":Karnataka HC Slams Police For Not Registering FIRs Before Investigation

The Karnataka High Court came down heavily on the State government and senior police officers for not registering a First Information Report (FIR), before investigating alleged cases of Child Pornography. Registration of FIR before investigation of cognizable offence, is mandated by the Supreme Court, in the case of Lalita Kumari Versus State Of Uttar Pradesh. A division bench of Chief Justice Abhay Oka and Justice Hemant Chandangoudar, said "They (Police Officers), it seems do not have an elementary knowledge of criminal law." it orally said to the state "House has to be set in order."

● Trial Courts Can Only Recommend Compensation Under POCSO Rules, Cannot Decide The Quantum [Karnataka State Legal Services Authority v. State of Karnataka]

The Karnataka High Court has held that trial court/special court has to recommend the District Legal Services Authority/state legal services authority to decide and award the compensation in accordance with the POCSO rules, or the victim compensation scheme, but should not decide the quantum of compensation, itself, which is against the provisions of Criminal Procedure Code (CrPC). Justice K Natarajan, allowed the revision petition filed by Karnataka State Legal Services Authority, (KSLSA), challenging and order passed by the trial court, directing KSLSA to pay additional compensation of Rs 35,000, under POCSO rules, to a victim.

● Revenue Authorities Have No Jurisdiction To Decide 'Title Dispute' Between Parties In Respect Of Immovable Properties [Smt. Jayamma v. The State of Karnataka]

A Full Bench of Justice S N Satyanarayana, Justice B Veerappa and Justice K Natrajan, while deciding a reference made by a single judge, by order dated April 2, 2019 held that, "The revenue authorities viz., the Tahsildar, Assistant Commissioner and Deputy Commissioner have no jurisdiction to decide the 'title dispute', between the parties in respect of the immoveable property/properties. It is the exclusive domain of the competent Civil Court to adjudicate, the decree if any passed by the court, will be binding on the parties, as well as the revenue authorities in the State."

Kerala High Court

● Kerala HC Stays Proposed Anti-CAA Resolution By A District Panchayath [K.Shreekanth v. State of Kerala]

The High Court of Kerala stayed a move of District Panchayath to pass resolution against Citizenship Amendment Act, 2019. One K.Shrikant had approached the High Court seeking a stay of the notice issued by District Panchayath, Kasargode in this regard. Before Justice Raja Vijayaraghavan V., it was contended on behalf of the petitioner that the proposed resolution is clearly violative of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995.

● Kerala HC Allows Advocate Commissioner To Serve Notice Through Whatsapp/Email [Alshan K Sundar v. the Kerala University of Health Science]

In a notable development, the High Court of Kerala has allowed an Advocate Commissioner to serve notice on the parties through Whatsapp/E-mail, Fax whichever is practicable. This happened in a case relating to alleged poor living conditions in the hostel of a medical college. To get a status report regarding the state-of-affairs, Justice S V Bhatti appointed an Advocate Commissioner. The Advocate Commissioner was asked to inspect the hostel within 12 hours from the date of receipt of the order. The Commissioner was also asked to serve notice on the Medical College by Fax, Email/Whatsapp which is practicable before making the inspection.

● Schools Which Require Govt Recognition Cannot Impart Religious Studies Of One Religion Exclusively In Preference To Others [The trustee, Hidaya Educational & Charitable Trust v. State of Kerala]

The Kerala High Court held that schools which are required to have recognition under the RTE Act are not entitled to impart religious instruction or religious study of one religion exclusively in preference to other religions. Justice Muhammed Mustaq was examining the question "do private unaided schools which require State recognition have the right to promote a particular religion to the exclusion of other religions while imparting elementary education?" The court ruled that a private school requiring Government's recognition has no freedom to impart religious instructions of a particular religion in exclusion of other religions.

Madras High Court

● Madras HC Frames Guidelines For Conducting 'Jallikettu'

The Division Bench of the Madras High Court, Justices M.Duraiswamy and T.Ravindran framed guidelines for conducting the much debated festival 'Jallikkattu'. The petitioner prayed to direct the District Collector and the Revenue DIvisional Officer, Madurai District to include the representatives of Gounder, Yadhavar, Vellalar, Pandaaram & Vanaar Community and all other lacking communities of Alanganallur Village in "Jallikattu Vizha" Committee formed to conduct and support the "Jallikattu" event for the year 2020. The petitions further prayed to ensure that all communities of Alangallur village to receive just and fair treatment in case of composition and constitution of such committees in future Jallikkattu events.

● Takes Suo Moto Notice Of Issue Of 'Fake Journalists'; Seeks Responses From Govt, Press Bodies

The Madras High Court has taken suo moto notice of the issue of 'fake journalists' and has sought responses from the Tamil Nadu Government, Press Council of India and various journalists' bodies on means to tackle the problem. A division bench of Justices N Kirubakaran and P Velmurugan took notice of the issue on January 10, while hearing a writ petition filed by one S Sekaran seeking proper investigation in the idol theft case.

● Custodial Torture : Madras HC Upholds the Decision of Sessions Court To Award One Lakh Compensation To The Victim [The State of Tamil Nadu v. S.Anand]

The Single Bench of the Madras High Court, Justice Subramoniun Prasad upheld the judgement of the Sessions Judge awarding compensation of Rs. 1,00,000/- to the victim who suffered torture, bodily injury and humiliation while in custody. The victim filed a petition before the Principal District and Sessions Judge for the custodial torture inflicted on him. Though the state filed a counter contending that the victim's mother had already approached the Courts under the Human Rights Act. Since the Principal District and Sessions Judge had already granted Rs. 3,500/- as compensation, the State contended that the victim cannot claim compensation two times for the same incident.

● Acceptance Of Corporate Insolvency Resolution Not A Ground To Quash Case Under Sec 138 NI Act [Ajay Kumar Bishoni v. M/s Rap Engineering]

In a significant ruling, the Madras High Court has held that acceptance of the Corporate Insolvency Resolution Plan under Section 31 of the Insolvency and Bankruptcy Code, 2016 cannot be a ground for quashing the prosecution initiated under Section 138 of the Negotiable Instruments Act, 1881 against the corporate debtor and its officials. "No clause in the Corporate Insolvency Resolution Plan even if accepted by the adjudicating authority/appellate Tribunal can take away the power and jurisdiction of the criminal court to conduct and dispose of the proceedings before it in accordance with the provisions of the Code of Criminal Procedure," single-Judge bench of Justice GR Swaminathan held.

Punjab & Haryana High Court

● Access To Roads Is A Fundamental Right: P&H HC Passes Slew Of Directions To Ensure Road Safety & Traffic Management [ Court on its own motion v. Chandigarh Administration & Ors.]

Holding that "access to roads" is a Fundamental Right, the Punjab and Haryana High Court has passed a slew of directions to ensure road safety and traffic management in the UT of Chandigarh. While hearing suo moto proceedings against misuse of cycle-tracks/ pedestrian paths in southern sectors of Chandigarh, the bench of Justice Rajiv Sharma and Justice Amol Rattan Singh took judicial notice of the conditions of roads in the City as well as of tertiary roads connecting the major roads and ordered re-carpeting within three months, starting from March, 2020.