Rajasthan High Court Weekly Roundup: May 9 To May 15, 2022

Raju Singh v. Twinkle Kanwar 2022 LiveLaw (Raj) 160

Adarsh Shiksha Parishad Samiti & Anr v. Gajanand Sharma & Ors. with other connected matter 2022 LiveLaw (Raj) 161

State Of Rajasthan & Anr. v. M/s. Godhara Construction Company 2022 LiveLaw (Raj) 162

Mumtaz Mohd. V District Collector Pali and ors 2022 LiveLaw (Raj) 163

Judgments/ Orders of the Week

1. Divorce| Rajasthan HC Sets Aside Family Court's Order Refusing To Waive 6 Months Cooling-Off Period In Absence Of Documentary Evidence

Case Title: Raju Singh v. Twinkle Kanwar

Citation: 2022 LiveLaw (Raj) 160

The Rajasthan High Court observed that a family court had committed illegality in rejecting the divorce application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence, especially when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018.

Notably, a joint application was filed by the parties before the Family court for waving six months' cooling-off period as provided under Section 13-B of the Hindu Marriage Act of 1955 on 26.04.2022, however, the Family court rejected the same while observing that the parties have failed to produce documents to prove the fact that both of them are living separately since July, 2018.

Justice Vijay Bishnoi, while allowing the writ petition and setting aside the order passed by the Family Court, observed,

"In the present case, when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018, the court below has committed illegality in rejecting the application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence."

2. Prior Approval Of Education Director Not Necessary For Disciplinary Action Against Employee Of Unaided Recognized Educational Institution: Rajasthan HC

Case Title: Adarsh Shiksha Parishad Samiti & Anr v. Gajanand Sharma & Ors. with other connected matter

Citation: 2022 LiveLaw (Raj) 161

The Rajasthan High Court has reiterated that prior approval of the Director of Education is not necessary before taking disciplinary action against an employee of Unaided Recognized Educational Institutions.

In this regard, reliance was placed on the High Court's judgment in Central Academy Society Vs. Rajasthan Non-Govt. Educational Institutional Tribunal [2010(3) WLC 21] as well as the decision of Apex Court in T.M.A. Pai Foundation Vs. State of Karnataka [2002 (8) SCC 481].

A division bench of Justice Pankaj Bhandari and Justice Anoop Kumar Dhand, while allowing the appeal, observed,

"Hence, in view of the judgment of the Hon'ble Apex Court, we see no reason to take a different view as the controversy involved in this appeal has already been put to rest by the Constitutional Bench of 11 Judges of the Hon'ble Court in the case of T.M.A. Pai Foundation (supra) and the three Judges Larger Bench of this Court in the case of Central Academy Society (supra), that prior approval of the Director of Education is not necessary before taking disciplinary action against the employee of the Unaided Recognized Educational Institution."

3. Condonation Of Delay | S.5 Limitation Act Not Applicable To Proceedings U/S 34 Arbitration & Conciliation Act: Rajasthan High Court

Case Title: State Of Rajasthan & Anr. v. M/s. Godhara Construction Company

Citation: 2022 LiveLaw (Raj) 162

The Rajasthan High Court has observed that the provision of Section 5 of the Indian Limitation Act does not apply to the proceedings contained under Section 34 of the Arbitration and Conciliation Act, 1996.

Justice Anoop Kumar Dhand, while dismissing an appeal preferred by the State government observed,

"In view of the discussions made above, this Court of the opinion that the application under Section 34(3) of the Act of 1996 filed by the appellant for setting aside the arbitral award dated 29.07.2000 was beyond the mandatory period of limitation permitted under the Act of 1996. Hence, the same could not have been entertained by taking the recourse of the provisions of the Limitation Act."

The court observed that the proviso to Section 34(3) of the Act of 1996 empowers the court if it is satisfied that the applicant was prevented by sufficient cause from making application within the said period of three months to further extend the period and filing of the application for setting aside the arbitral award by 30 days but not thereafter.

4. Opportunity Of Being Heard Necessary: Rajasthan HC Asks Tehsildar To Hear The Poultry Farmer Before Ordering Him To Shift His Farm

Case Title : Mumtaz Mohd. V District Collector Pali and ors

Citation: 2022 LiveLaw (Raj) 163

The Rajasthan High Court recently asked the Tahsildar to hear the poultry farmer before he decides to ask him to shift his farm elsewhere.

The observation came from Justice Vinit Kumar Mathur:

"A bare perusal of the Annex. 5 dated 09.09.2016 shows that the petitioner has not been extended any opportunity of hearing before passing the notice impugned. This Court feels that since the notice impugned 09.09.2016 having evil consequences, an opportunity of hearing is required to be given to the petitioner."

In the present matter, the petitioner was an owner of a poultry farm who moved the court challenging the notice issued by Tehsildar for shifting of the poultry farm without extending a reasonable opportunity of hearing to the petitioner.

Petitioner argued that he has complied with all the eligibility and requisite qualifications and a 'No objection certificate' for running the poultry farm.

Other Important Updates

1. Disqualification Notices By Speaker | Rajasthan High Courts Issues Notice To Sachin Pilot Camp

Case Title: Prithviraj Meena & Ors. v. The Honble Speaker & Ors.

The Rajasthan High Court has recently issued notices to Sachin Pilot and other 18 Members of Legislative Assembly (MLAs) in the 2020 matter whereby disqualification notices were issued by the Speaker to the aforesaid persons.

Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain, observed,

"As no instructions have been pleaded on behalf of the petitioners No.2 to 19, issue notice to the petitioners No.2 to 19 for fixed date of hearing on 25.05.2022."

Essentially, it was on July 14 that the Speaker, Dr C P Joshi, served the notices on the 19 dissident MLAs, including Pilot, amid their rebellion against Chief Minister, Ashok Gehlot. They were initially given time till 1 PM, July 17 to submit the replies.

The basis of the notices was the complaint filed by Mahesh Joshi, the Congress Party Whip, who alleged that rebel MLAs had attracted disqualification under Tenth Schedule of the Constitution with their anti-party statements and refusal to attend the party meetings on July 13 and 14, defying the whip's directives.

2. After SC Order Freezing Sedition Law, News18 Journalist Aman Chopra Gets Relief From Rajasthan High Court In 124A IPC Case

Case title: Aman Chopra v. State Of Rajasthan and another

The Rajasthan High Court (Jodhpur Bench) has directed the state police to not investigate allegations leveled against News 18 Journalist Aman Chopra of committing offence punishable under Section 124-A of the Indian Penal Code (sedition)

This relief for Chopra has come in an FIR registered against him for airing a discussion show named as "Desh Jhukne Nahi Denge" and subsequently posting it on his Twitter account, which allegedly resulted in communal disharmony and communal riots on 22.04.2022 at Alwar.

Importantly, the Bench of Justice Dinesh Mehta has issued this direction in the light of order of the Supreme Court wherein 152-year-old sedition law [under Section 124A of the Indian Penal Code] has been kept in abeyance till the Union Government reconsiders the provision.

3. Rajasthan HC Issues Notice In Plea Challenging Vires of Age Restriction of 50 Years Under Tribunals Reforms Act, 2021 For Appointment of Chairperson(s)/ Member(s)

Case Title: Rekha Madnani v. Union of India

Case No.: CMS/ 6974/ 2022

The Rajasthan High Court has issued notice in a plea challenging vires of age restriction of 50 years prescribed by proviso to Section 3 (1) of Tribunals Reforms Act, 2021 for appointment of Chairperson(s) or Member(s) of the Tribunals.

The plea has been filed by one Jaipur based advocate Rekha Madnani, who claims to have put in more than 20 years of professional practice and is thus alleged to have qualified to be appointed as Judicial 26 Member in Railway Claim Tribunal.

According to proviso to Section 3(1) of Tribunal Reforms Act, 2021, eligibility qua age has to be seen on the date of appointment. The plea states that vacancy circular issued by Respondent No.2 did not indicate any cut-off date on which age of candidate is to be seen, which only meant age of incumbent has to be seen on the date of appointment and not at any time prior to it.