Tag: #highcourt

POWER OF THE HIGH COURT TO GRANT INTEREST ON LAND ACQUIRED BY THE GOVERNMENT UNDER ARTICLE 226

Posted on

-Report by Moksh Kapoor


Interest was granted to the petitioners in the case of ROSHANBI AZIZ MOTIWALA THROUGH POA MR. ILIYAS AZIZ MOTIWALA AND ORS. Vs THE COMPETENT AUTHORITY AND DEPUTY COLLECTOR AND ORS. Decided on 06-04-2023.


FACTS:


The properties of the petitioners in the present case were acquired by the Competent Authorities. It was contended by the petitioners that the authorities passed an order under section 3(G) of the national highways act dated 15th July 2017 that the compensation awarded to the petitioners according to their building structure will be for an amount of Rs. 1,08,92,995/-. The petitioners contended that the compensation amount which was paid had not been added with the interest on the amount determined by the Competent Authority under the Award from the date of declaration of the Award till the date of payment of the amount of compensation. A similar claim was rejected by the Competent Authority and the petitioners moved to the high court for redressal under Article 226 of the Indian constitution.


APPELLANT’S CONTENTION:

Petitioners claimed they are entitled to interest on the sum given under the Award from the date of the Award until the date of payment. They also claimed that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (Removal of Difficulties) Order dated August 28, 2015, which went into effect on September 1, 2015, provided that the provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (“the said Act of 2013”) relating to the determination of compensation. They further contended that it was the duty of the competent authority to disperse the compensation amount after passing the reward and the competent authority has failed to do the same. Petitioners also stated the case of Tarsem Singh, in which the apex court held that Sections 23(1-A) and (2) of the Land Acquisitions Act relating to Solatium and interest, as well as Section 28 in which interest is payable this provision will also apply to any acquisition made under the 1956 Act.


RESPONDENTS CONTENTION:

The respondent contended the notice to collect the reward to both the petitioner was issued and the petitioner by their will claimed the award in February/March 2015 and the amount was given to them during that time only. The competent authority also contended that after the award was issued the valuation of the property can’t be done therefore the award concerning structure was not passed. They stated that the supplementary compensation amount was deposited in the petitioner’s account as per the letter issued by NHAI dated 27, September 2017 and the notice for the same was issued on 28th September 2017. They claimed the petitioner is provided with the full compensation of their land therefore they are not liable to pay any interest.

JUDGEMENT:


The Bombay High Court in this case held that the claims made by the competent authority of issuing notices to both the petitioners are not maintainable in the court as there is no proof for the same. There was no material produced in the court to back up the claim. The court also held that the question here is not of providing the actual compensation, but rather providing the interest for the delay of providing the compensation by the competent authority. If there is a delay in the actual payment of compensation amount from the date of respective Awards in Petition, the Petitioners would, in our opinion, be entitled to interest from the date of respective Awards. Award valid till the date of payment. In light of the facts and circumstances of both Writ Petition and for the reasons stated above, it would be necessary to direct the Respondents to pay the Petitioners interest at the rate of 9% per annum from the date of award until the date of actual payment.

READ FULL JUDGEMENT: https://bit.ly/3nUWs6T

LANDLORD’S ATROCITY TOWARDS TENANT LEADS TO TURMOIL IN THE MARKET

Posted on

-Report by Anurag Sinha

The present case of Gurjit Singh (D) Through LRs…Versus Union Territory, Chandigarh & Ors., is based on a dispute between a tenant and a landlord. Both of them had marketing licenses but after a period of time, the appellant passed an eviction order against the respondent. Herein, the respondent moved to another shop but was not granted a license for the same. He later was allotted another shop in front of his previous landlord to which the appellant claimed ownership.

FACTS:

The judgment made by the learned Judge, Mr. J Shah, on23.10.2013 passed by the High Court of Punjab and Haryana at Chandigarh, and these sequent order dated 17.12.2013, by which, the Division Bench of the High Court has dismissed the said letters and Patent Appeals. Gurjit Singh, the appellant stated and informed that he had bought Shop no. 27 from the Agricultural Produce Market, Chandigarh and that respondent no. 5 was the tenant of that shop. Both the appellant and respondent no. 5 had market licenses. The appellant evicted respondent no. 5 shortly after. The High Court upheld the eviction. Hence, in 2007, respondentNo. 5 moved as a tenant to Shop No. 12 and applied for a change of address, but it was refused and he was told to surrender his license and apply for a new one. State Agricultural Marketing Board granted the appellant’s fruit/vegetable license. Since then, the appellant runs the business from his Shop No. 27. Respondent No. 5 filed a writ petition with the High Courtchallenging the judgment dated 05.07.2007 that denied his requestto move to Shop No. 12. 05.07.2007 order stayed. The stay was extended until respondent No. 5’s license expired on 31.03.2009. The Market Committee, Chandigarh denied respondent No. 5’slicense renewal application.

Under the order passed by the High Court, respondent No. 5 continued to operate under the former license per the Supreme Court order. That the Licence Committee under Licensing of Auction Platform Regulations, 1981 resolved to allot the platform site based on “One Site One Shop” and listed respondent No. 5 as co-allottee with the appellant.

Aggrieved by this, the appellant filed a writ petition. The HighCourt granted respondent No. 5’s writ petition and renewed his license on 26 September 2011. The High Court further ruled thatrespondent No. 5 can use the platform in front of Store No. 27unless the Act or Regulations are amended to provide alternativeplatform rights. The knowledgeable Single Judge also found thatthe right to utilize the platform and the license to do business in the market region were distinct and unrelated.

APPELLANT’S CONTENTIONS:

The appellant herein is doing business, has a license, and is granted shop No. 27, thus he is entitled to the auction platform adjacent to and/or in front of it. Respondent No. 5 is doing business in shop No. 12, therefore not allowing the appellant(s) todo business on the auction platform, which is close

to shop No. 27, and allotting it to him is unjust and arbitrary. Then, the appellant challenged the site co-allotment to respondent No. 5 before the learned Single Judge. If the appellant fails, they cannot be worse off than before filing the writ petition. Hence, Market Committee sheds collapsed on 10.06.2007 and were rebuilt in 2009. Soon thereafter, the Secretary of Agriculture, U.T. Chandigarh handed down the principles and rules at the first instance, allottees who were assigned sheds for working previousto the collapse of shed 8 on 10.06.2007 were entitled to shed/space as they existed on that day. The appellant was awarded the license on 16.07.2007, however, the sheds collapsed on 10.06.2007, hencehis case is not covered by the policy. The Market Committee’sallocation of sheds follows the Secretary, Agricultural Department, Chandigarh’s guidelines/policy.

RESPONDENT’S CONTENTIONS:

Respondent No. 5 has had a valid license since 1970 and was operating on the platform when the shed collapsed on 10.06.2007. However, at the time of the allotment of freshly constructed sheds, the firm’s license was not valid owing to non-renewal, and theCommittee’s office was considering granting the license, which was finally granted in February 2010. After the Committee was formed, respondent No. 5, Committee licensee and shed owner before its collapse—was allotted the shed. The above arguments request that the appeals be dismissed.

JUDGMENT:

In view of the above and for the reasons stated above and in absence of any specific rule/regulation to the contrary and when the sheds are allotted as per the principles/guidelines of the Secretary, Agriculture, reproduced hereinabove, and in absence ofany specific rule in favor of the appellant, right to claim the allotment just in front of his shop and/or adjacent to the same and when the allotment in favor of respondent No. 5 is made as per. As both the learned Single Judge and Division Bench of the High Court have rightly held against the appellant and have rightly dismissed the writ petition and appeal. The supreme court was in complete agreement with the view taken by the High Court.

The present appeals lacked merit and were dismissed for the reasons indicated above.

READ FULL JUDGMENT: https://bit.ly/3ZKjJpC

Fast Track Judges’ Elevation to High Court: A Matter of Judicial Service

Posted on

-Report by Eshna Ray

The Andhra Pradesh State Judicial Service members have filed a petition under Article 32 of the Constitution seeking appropriate writs or orders to be issued to respondent no. 1. The primary relief sought is the calling of judgments of the petitioners for elevation to the High Court as judicial officers as defined in Art. 217(2)(a) of the Constitution of India. The petitioners have also sought any other writ, direction, or order that the Hon’ble Court may deem fit and proper under the facts and circumstances of the case.

FACTS:

The petitioners, who served as District & Sessions Judge Fast Track, have filed a writ petition claiming that their service should be considered as a judicial service for the purpose of their elevation to the High Court. The Registry had prepared a list of eligible officers for elevation to the High Court, in which the names of the petitioners were not included as they did not have 10 years of regular judicial service. The petitioners claimed that their service as Fast Track Court Judges should be considered as a judicial service, but the Supreme Court, relying on its earlier judgment, held that the petitioners were not entitled to seniority from the date of their initial appointment as Fast Track Court Judges. the plea raised by the petitioners to consider their service as judicial service for the purpose of Article 217(2)(a) of the Constitution is not legally sustainable.

RESPONDENT’S CONTENTIONS:

According to the counter-affidavit filed by the respondents, the petitioners were appointed on an ad-hoc basis to preside over Fast Track Courts under the Andhra Pradesh State Higher Judicial Service Special Rules for AdhocAppointments, 2001. Later, they were appointed on a regular basis in the cadre of District & Sessions Judge under the Andhra Pradesh State Judicial Service Rules, 2007, after going through the selection process. The petitioners’ names appeared in the seniority list of officers working in the District & Sessions Judge cadre, which was notified by the respondents on 5th January 2022. However, despite their seniority, they were not elevated to the High Court, while officers who were junior to them in seniority were elevated. The respondents have defended their decision to overlook the petitioners’ claims for elevation to the High Court.

PETITIONER’S CONTENTIONS:

The primary grievance of the petitioners is that their service as a District & Sessions Judge Fast Track, which they rendered on appointment from 6th October 2003, has not been considered as judicial service for the purposes of their elevation to the High Court bench as defined under Article 217(2)(a) of the Constitution. The petitioners have alleged that despite being eligible for consideration, their names were not considered by the collegium as they had not completed 10 years of regular judicial service, which is the requirement of Article 217(2)(a) of the Constitution. The petitioners have also pointed out that there were nine vacancies in the High Court for elevation from judicial service and a list of 27 eligible officers was placed before the collegium, but their names were not considered. Instead, officers who had completed 10 years of judicial service were considered for elevation.

JUDGEMENT:

The present case concerns a writ petition filed by certain District & Sessions Judges who were not considered for elevation to the Bench of the High Court as defined under Article 217(2)(a) of the Constitution. The petitioners contended that their service rendered as a District & Sessions Judge Fast Track should have been considered as a judicial service for the purposes of their elevation to the Bench of the High Court.

The Supreme Court, in its judgment, referred to the case of Kum C. Yamini Vs. The State of Andhra Pradesh & Anr. (Civil Appeal No. 6296 of 2019 decided on 14th August, 2019), where it had examined the nature of appointment of the District & Sessions Judges Fast Track and had held that the petitioners were not entitled to claim the benefit of seniority from the date of their initial appointment as District & Sessions Judge Fast Track and other consequential reliefs prayed for.

The Court held that the services rendered by the petitioners as Fast Track Court Judges have not been recognized for the purpose of seniority except for pensionary and other retirement benefits. Therefore, the plea raised by the petitioners to consider their service rendered as Fast Track Court Judges as a judicial service for the purpose of Article 217(2)(a) of the Constitution was not legally sustainable.Accordingly, the writ petition was dismissed as without substance. Pending application(s), if any, stood disposed of.

READ FULL JUDGEMENT: https://bit.ly/3KEZXrm

Kirori Mal College Directed to Compensate to Disabled Faculty

Posted on

-Report by Anette Abraham

In a Delhi HC ruling, Hon’ble Justices Suresh Kumar Kait and Saurabh Banerjee directed Kirori Mal College, to pay arrears to a faculty whose permanent appointment was inappropriately deterred. In this case, Kirori Mal College v. Dr. Kusum Lata, the Hindi Lecturer, who was expected to receive permanent employment under the provisions of the PWD quota was deprived of her post in a slight that occurred in 1998. 

FACTS

The lecturer, Dr. Kusum Lata, was visually impaired and fell under the provisions of the Persons with Disability Act, 1995. She applied to Kirori Mal College under the advertisement that posted two vacancies: one for the permanent Hindi Lecturer post and another for part-time Hindi Lecturer. She was given the post of part-time lecturer on 16th July, 1997.

 In the year 2000, another advertisement was posted by the college which detailed the availability of two posts, one – the post of Permanent Hindi teacher under the Scheduled Caste category and the other – a temporary post against leave vacancy. Dr. Kusum was allotted the position of temporary post on 16th April, 2001. Two more permanent posts for Permanent Lecturer were opened where one was reserved for candidates under Persons with Disability, the respondent was given the post of permanent employee on 4th March, 2006. 

Kusum filed a writ petition in the year 2001, assailing the reservation that occurred in 2001 and contesting the lack of appointment she faced. The Court held that Kirori Mal College had failed to implement the reservation aptly and directed the college to pay for the arrears. 

The College was told to pay a sum of Rs. 8,84,583/- to Dr. Kusum to make up for the loss in income she suffered due to incorrect appointment. Further, they were instructed to provide a detailed calculation sheet for the arrears and put the funds in a Fixed Deposit that Dr. Kusum could access within eight weeks. This judgement was then modified slightly by the Delhi High Court where the college was only expected to pay arrears from the year 2001 forward when she was slighted of her position and also the year the petition was filed. 

APPELLANT’S ARGUMENT 

  1. Learned counsel for the Petitioner has argued that the petition in which the impugned judgment was rendered was only filed in 2008, and that there was no challenge to the selection process undertaken in 1997, under which the Respondent was appointed on a part-time basis, prior to the filing of the said petition. Thus, the Petitioner’s challenge in the writ petition to the non-grant of the reservation to physically challenged category applicants in the 1997 selection process was greatly delayed and prevented by laches.
  2. The Counsel proceeded to contend that Dr. Kusum’s petition did not stand under the ambit of reservation since the quota that she falls under, physically challenged, is a horizontal reservation (Article 16 (1) ) and that of the Scheduled Tribe Reservation is a vertical reservation (Article 16 (4) ). 
  3. The appellant additionally claims that the respondent provided inaccurate calculation(s), citing inconsistencies in the values for “Transport Allowance” and “Dearness Allowance.” Finally, the appellant claims that the respondent is incorrectly claiming promotion to Reader with effect from January 1, 2007, as well as concomitant advantages accruing to the higher pay scale as a result of such promotion.

COURT’S DECISION

The Delhi HC held that the circumstances of the case and the court proceedings show that the college freely paid a sum of Rs. 8,84,583/- before the Registrar General, without providing any calculations and on its own free choice. Furthermore, the appellant hasn’t charged Dr. Kusum Lata with any fraud or deception, nor has it made the argument that the money it deposited was more than what was owed to the respondent or that it was an error on its side. Last but not least, the appellant has never requested release of the aforementioned deposited sum on its own and has only made a brief mention of it in its response to the respondent’s application without pressing the matter. 

Further, the Hon’ble Court held that, in light of the facts and the aforementioned conduct of the college, they strongly believe that the appellant, would have deposited the said amount of Rs. 8,84,583/- after making proper calculations and tallying it with the records available, to which it has not objected or raised a dispute. This caused the Court to draw the obvious conclusion that the respondent has a right to the aforementioned already-deposited sum of Rs. 8,84,453/-. Therefore, they concluded that the respondent is qualified to collect the aforementioned amount as the appellant had no good reason to voluntarily deposit it before the Registrar General. After more than four years have passed with no provocation or fault attributable to the respondent, the appellant cannot be permitted to undertake an improper endeavour to collect the previously voluntarily deposited sum. 

Supreme Court Quashes High Court Order Regarding Land Acquisition

Posted on

-Report by Anjana C

It has been held by the Hon’ble Supreme Court of India in the case of Union of India & Anr. v. Subhash Chander Sehgal & Ors. the writ petition stands dismissed, and the current appeal will be pursued.

Facts of the Case: 

  • Unsatisfied with the decision of the Delhi High Court, the petitioner has appealed. 
  • The possession of the land was taken by the authority in 1987and was utilized as a park by the East Delhi Municipal Corporation. 

In the case of Pune Municipal Corporation and Sree Balaji Nagar Residential Association, the following was said that has been applied to this case: 

  • According to Section 24(1)(a), there is no lapse in proceedings if there is an award on the date of commencement of the 2013 Act. 
  • If the award has been made within 5 years (excluding the period of an interim order of the Court), the proceedings will be according to the 2013 Act under Section 24(1)(b) under the 1894 Act, regarding it as not repealed. 
  • If the possession of land has been taken over and compensation has not been paid, there is no lapse. 
  • If compensation is not paid and possession has not been taken, there is no lapse. 
  • If the compensation has not been deposited in court, all beneficiaries to the landholding will be entitled, as on the date of notification, to compensation under Section 4 of the 2013 Act.  
  • Non-deposit does not result in a lapse of land acquisition proceedings. 
  • If compensation has been tendered under Section 31(1) of the 1894 Act, he cannot state that the acquisition has lapsed under Section 24(2) as a result of non-payment or non-deposit of compensation in Court. 
  • The obligation to pay is complete when the amount due is tendered in accordance with Section 31(1). 
  • Landowners refusing to accept compensation/ who seek reference for a higher compensation are not in the position to claim lapse under Section 24(2) under the 2013 Act. 
  • The method of acquiring land under the 1894 Act under Section 24(2) is by making an inquest report/ memorandum. 
  • Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act. It does not reopen cases/ proceedings nor allow landowners to question the legality of the mode of possession.

Judgment of the case: 

If there is no lapse in acquisition proceedings under Section 24(2) of the 2013 Act, the land remains in the possession of the appellant. There will be no question of payment of compensation to the petitioners. It was said that the writ petitioners were entitled to compensation according to the Land Acquisition Act, 1894. All of the above taken into consideration, the Court declared the High Court’s order to be quashed and set aside. The writ petition filed before the High Court was dismissed. 

The present appeal was allowed, and no order was given regarding costs incurred by the parties.

Shilpa Mittal v. State of NCT of Delhi

Posted on

Bench

By Hon’ble Justice Mr. Deepak Gupta and By Hon’ble Justice Mr. Aniruddha Bose

Advocates

Pritha Srikumar, Arunima Kedia (Appellant Side) & B.V. Balaram Das, Hrishikesh Baruah (Respondent’s Side)

Cases Referred

Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice [, SC (2014) 8 SCC 390]

Factual Observations

  • A juvenile ‘X’, aged 16 to 18, is accused of committing an offense punishable under section 304 of the Indian Penal Code, 1860 (IPC)1, which carries a maximum penalty of life imprisonment or up to ten years in prison and a fine in the first part and up to ten years in prison and a fine in the second part.
  • The deceased in the car accident was the appellant’s brother. The Juvenile was between the ages of 16 and 18 at the time of the incident. The appeal to the Children’s Court was similarly turned down. Following that, the juvenile ‘X’ sought the High Court of Delhi through his mother, who ruled that because no minimum term had been set for the offense in question, it did not fall under the purview of section 2 of the Juvenile Justice Act, 2015. The deceased’s sister has now filed an appeal before the Supreme Court.
  • Heinous, petty, and serious transgressions are defined in sections 2(33), 2(45), and 2(54). In the IPC or any other legislation in force, heinous offenses are those for which the sentence imposed is a minimum of 7 years in prison or more.
  • Siddharth Luthra, counsel for the appellant, pointed out to the Court that the Juvenile Justice Act has left out the fourth category of offenses for which the minimum sentence is less than 7 years, or for which no minimum sentence is prescribed but the maximum sentence can be more than 7 years, including homicide not amounting to murder (offense of present case). He persuaded the Court to remove the word “minimum” from the definition of heinous crimes, allowing all crimes to be categorized as “heinous crimes” with the exception of minor and serious offenses.
  • Furthermore, he argued that leaving out the fourth category of charges would result in absurdity, which could not have been the legislature’s objective.
  • Mukul Rohtagi, a skilled senior attorney for the Juvenile, contended that the Court could not amend the law. He stated that the Court could not interpret the legislature’s meaning since a category of offenses was left out and that the Court could not interfere to close the gap in the Act.

Issues Raised

  1. What does Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015 mean and how is it interpreted?
  2. What is the uncertainty created by the word “minimum” in the Statute, and how is it interpreted?
  3. How can a juvenile be treated under a category of an offense that is not defined in the statute but that the appellant argues should be included as an offense?

Contentions

APPELLANT

  • The appellant claimed that there was one type of crime that was not addressed in the Act of 2015, claiming that heinous crimes are those that carry a “minimum” sentence of seven years or more.
  • The unincluded category, it was said, would introduce absurdity, which the Legislature did not intend. The argument was that the Act had a gap in it that generated ambiguity and, as a result, did not specify anything.
  • It was also claimed that the word “includes” was used in the definition of “heinous offenses”2 implying that the definition is inclusive and encompasses things not mentioned in the definition.

RESPONDENT

  • The appearing counsel argued that the Court was not in a position to rewrite the legislation and that the Court could not deduce the Legislature’s intent only based on an unincluded category of offenses.
  • Even if the court had to fill the gap in the Act, it was claimed that this was not practicable in this case.

Difference of Opinion B/W Lower Court and SC

The crucial question before the court was whether the youngster should be tried as an adult or not. In this case, the child was over the age of 16 but under the age of 18 when he committed the offense.

Juvenile Justice Board– Because the youngster committed an offense under the definition of a ‘serious’ offense, the Juvenile Justice Board ordered that he be punished as an adult. The mother of the kid then petitions the High Court because the sentence for the offense was not passed under Section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

High Court– High Court stated that if a kid has committed any heinous offense such as rape or murder, which is punished for more than 7 years, a punishment similar to that given to an adult can be imposed. The order was found to be inconsistent, prompting an appeal to the Supreme Court.

Supreme Court– It was determined that this Act does not apply to the fourth category of offenses, which are penalized for more than seven years but do not include a minimum sentence or a sentence of fewer than seven years. As a result, under the context of this Act, this is referred to as a “serious offense”. This type of issue is to be dealt with according to this procedure unless the Parliament itself deals with it.

Judgment of SC

Luthra’s submission reasoned that it was not the Court’s responsibility to fill in the gaps and fix them. The Court stated that if the legislature’s purpose was clear, it might add or remove terms from the Act. However, in cases where the legislature’s intent is uncertain, the Court cannot add or remove words to provide meaning that the Court deems fit into the scheme of things. The Court was interpreting a statute, which had to be construed following its wording and intent.

The Court dismissed the appeal by resolving the issue and ruling that an offense that does not carry a minimum penalty of seven years cannot be considered terrible. The Act, however, does not address the fourth category of offenses, namely, offenses where the maximum sentence is more than seven years in prison but no minimum sentence or a minimum sentence of fewer than seven years is provided, shall be treated as ‘serious offenses’3 within the meaning of the Act and dealt with accordingly until Parliament takes a call on the matter.

Unless the Parliament acts with it, this type of matter must be dealt with using this approach. It was decided that the Legislature’s objective does not have to be the same as the judge believes it should be. When the statute’s wording is obvious but the Legislature’s intent is ambiguous, the Court cannot add or remove terms from the statute to give it a meaning that the Court believes fits into the scheme of things. However, if the Legislature’s aim is obvious, the Court can see behind the statute’s inartistic or clunky wording and determine the problem that must be handled under the code’s objectives. The court also ordered the High Court to remove the child’s name from the Child in Conflict with the Law registry. As a result, the case was resolved in favor of the child.

Ratio Decidendi:

The rationale or the ratio decidendi is one of the crucial aspects in analyzing the mindset behind a judgment. According to Section 14 of The Children Act, 1960, If the child offender has committed a heinous crime, the Juvenile Justice Board must conduct a preliminary examination to determine the child’s mental and physical capacity to commit the crime, as well as the child’s ability to comprehend the consequences of the crime and the circumstances in which the crime was allegedly committed. The Board has the authority to enlist the assistance of experienced psychologists, psychosocial workers, or other field experts. The statement makes it clear that the preliminary assessment will not focus on the trial’s merits or the child’s allegations.

Further, under section 15 of The Children Act, 1960 –
(1) There is a need to try the child as an adult under the provisions of the Code of Criminal The procedure, 1973 (2 of 1974), and pass appropriate orders after trial, subject to the provisions of this section and section 21, taking into account the child’s special needs, the tenets of a fair trial, and maintaining a child-friendly environment;
(2) There is no requirement for the child to be tried as an adult, and the Board may conduct an inquiry and issue appropriate directions in accordance with section 18. (2) In the case of a child in conflict with the law, the Children’s Court shall ensure that the final order includes an individual care plan for the child’s rehabilitation, including follow-up by the probation officer, the District Child Protection Unit, or a social worker.

In Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice…, on 28 March 20144, only one of the five people was not sentenced to death by the session court on March 28, 2014, according to the Member Juvenile Justice… In their appeal, the petitioners demanded that the juvenile be prosecuted and punished alongside the other four defendants. The first appeal, which was dismissed by the Delhi High Court, was filed. Another appeal was filed with the Supreme Court, but it was dismissed. As a result, Dr. Subhramanian Swamy’s application was denied by the Supreme Court. Furthermore, the court dismissed the victim’s parents’ writ suit.

Concluding Observations:

After analyzing the situation in the instant case, while acknowledging that the court cannot legislate, the reasoning of the bench that if it did not address the issue, the Boards would have no guidance on how to deal with children who have committed fourth-category offenses is concluded to be to the point. The court stated, “Since two viewpoints are feasible, we would prefer to choose the one that is in favor of children.” The bench, therefore, invoked its authority under Article 142 of the Constitution to order that, as of the date the 2015 Act took effect, all children who committed fourth-category offenses to be treated in the same way as children who committed serious offenses. Still, there is a need to make some serious amendments in the BOOKS OF JUSTICE.

We all know the maxim ‘Salum Populi Suprema Lex’ which means ‘the welfare of the society is the supreme law’, but unfortunately the court failed to apply the same in the recent case. I believe that sending the accused to a reform center will not affect him because his parents, who were aware of his repeated infractions, did nothing to stop him and may be able to “buy the system completely.” I personally feel that these verdicts by the Apex Court only encourage teenagers to become criminals and nothing else. A perfect example of the same is NIRBHAYA CASE.

References:

  1. Section 304 of the Indian Penal Code, 1860: Punishment for culpable homicide not amounting to murder
  2. Defined in Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015
  3. Defined in Section 2(54) of the Juvenile Justice (Care and Protection of Children) Act, 2015
  4. Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice, SC (2014) 8 SCC 390.

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

QUO WARRANTO WRIT AND BUSINESS LAWS IN INDIA

Posted on

INTRODUCTION

Whatever is given under power is a writ. Orders, warrants, headings, and so forth given under power are instances of writs. Any individual whose central freedoms are disregarded can move the High Court (under article 226 of the Indian constitution) or the Supreme Court (under article 32) and the court can give bearing or orders or writs. Accordingly, the ability to give writs is principally an arrangement made to make accessible the Right to Constitutional Remedies to each resident. Notwithstanding the abovementioned, the Constitution likewise accommodates the Parliament to give on the Supreme Court ability to give writs, for purposes other than those referenced previously. Additionally, High Courts in India are likewise engaged to give writs for the requirement of any of the freedoms presented by Part III and for some other reason.
In India, both the Supreme Court and the High Court have been engaged with Writ Jurisdiction. Further, Parliament by law can stretch out the ability to give writs to some other courts (counting neighborhood courts) for nearby constraints of the locale of such courts.

WRIT OF QUO WARRANTO

The word Quo-Warranto in a real sense signifies “by what warrants?” or “what is your power”.The Writ of Quo-warranto in the writ is given guiding subordinate specialists to show under the thing authority they are holding the workplace. If an individual has usurped a public office, the Court might guide him not to do any exercises in the workplace or may report the workplace to be empty. Consequently, High Court might give a writ of quo-warranto assuming an individual holds an office past his retirement age.
The Writ of Quo-Warranto can’t be given to an individual working in a private field. This writ is given to an individual in an office, the lawfulness of which is being addressed.

CONDITIONS FOR ISSUE OF THE WRIT OF QUO-WARRANTO

  1. The workplace should be public and it should be made by a sculpture or by the actual constitution.
  2. The workplace should be a considerable one and not only the capacity or work of a worker at the will and during the joy of another.
  3. There more likely than not be a negation of the constitution or a rule or legal instrument, in naming such individual to that office.

CASE LAWS FOR WRIT OF QUO WARRANTO

In the University of Mysore v. Govinda Rao, A.I.R. 1965 S.C. 491(1) case, the Court believed that the writ of quo warranto calls upon the holder of a public office to show to the court under the thing authority he is holding the workplace being referred to. On the off chance that he isn’t qualified for the workplace, the court might limit him from acting in the workplace and may likewise announce the workplace to be empty.

In Amarendra v. Nartendra, A.I.R. 1953 Cal.114. (2) case, the Court held that the writ lies in regard of a public office of a meaningful person and not a private office, for example, participation of a school overseeing panel.

In Mohambaram v. Jayavelu, A.I.R. 1970 Mad.63 (3); Durga Chand v. Organization, A.I.R 1971 Del.73. cases, the Court thought that an arrangement to the workplace of a public examiner can be subdued through quo warranto if in repudiation of significant legal guidelines as it is a considerable public office including obligations of public nature of essential interest to the public.

In K. Bheema Raju v. Govt, of A.P., A.I.R. 1981 (4) A.P. case, the Andhra Pradesh High Court suppressed the arrangement of an administration pleader as the technique endorsed in the significant standards, for this reason, had not been kept.

BUSINESS LAWS

Every one of the laws which relate to how what and why of how organizations are legitimately permitted to and expected to work are included by what is business law. Business law significance incorporates contract laws, assembling and deals laws, and recruiting practices and morals. In straightforward words, it alludes to and relates to the legitimate laws of business and trade in people in general just as the private area. It is otherwise called business law and corporate law, because of its tendency of directing these universes of business.

IMPORTANCE OF BUSINESS LAW

Business law is a significant part of law overall because, without the equivalent, the corporate area, producing area, and the retail area would be in oppression. The point of assembling business and law is to keep up with protected and utilitarian working spaces for all people associated with the business, regardless of whether they’re running it or working for individuals running it.

KINDS OF BUSINESS LAW

There are a few kinds of business laws that are perceived and pursued by nations all over the planet. A portion of these are:

  • Contract Law – An agreement is any record that makes a kind of legitimate commitment between the gatherings that sign it. Contracts allude to those worker contracts, the offer of products contracts, rental contracts, and so on
  • Employment Law – Employment law is the place where business and law should meet. These laws uphold the standards and guidelines that oversee representative boss connections. These cover when, how and for how much, and how long representatives should function.
  • Labour Law – Labour law likewise shows the suitable connection between worker and manager, and pay grades and such. Notwithstanding, an extra component to work laws is the relationship of the association with the business and representative.
  • Intellectual property Law – Intellectual property alludes to the immaterial results of the working of the human brain or mind, which are under the sole responsibility for a single substance, as an individual or organization. The approval of this possession is given by intellectual property law, which consolidates brand names, licenses, proprietary advantages, and copyrights.
  • Securities Law – Securities allude to resources like offers in the financial exchange and different wellsprings of capital development and gathering. Securities law precludes businesspersons from leading false exercises occurring in the protections market. This is the business law segment that punishes protections extortion, for example, insider exchanging. It is, accordingly, additionally called Capital Markets Law.
  • Tax Law – As far as business law, tax assessment alludes to charges charged upon organizations in the business area. It is the commitment of all organizations (aside from a couple of expense excluded humble organizations) to pay their duties on schedule, inability to finish which will be an infringement of corporate duty laws.

BUSINESS LAWS IN INDIA

In the Indian setting, there are a few business law areas vital to the country’s business area. A portion of these are:

Indian Contract Act of 1872 –
The Indian Contract Act administers the working of agreement laws in our country. A portion of its necessities for contract laws are:

  • Complete acceptance of the contract by both parties.
  • Lawful consideration from both parties.
  • Competent to contract:
  • Neither party should be a minor.
  • No party should be of unwell mind.
  • Free consent: neither party should have been pressurized into signing.
  • Agency: when one party engrosses another party to perform in place of it.
  • Final enforcement of contracts

Sales of Goods Act 1930 –
The exchange of responsibility for substantial, enduring ware between a purchaser and a dealer for a concluded measure of cash warrants an offer of products contract, whose particulars are described by the Sale of Goods Act 1930.

Indian Partnership Act 1932 –
An association in business alludes to when at least two business elements meet up to make another endeavor together. The speculation and benefits are parted equally between the elaborate gatherings. The Indian Partnership Act gives the laws under which associations in India can work.

Limited Liability Partnership Act 2008 –
This Act is separated from the IAP of 1932. A Limited Liability Partnership is a different legitimate element, which proceeds with its business with no guarantees, regardless of whether an organization breaks down, just experiencing the responsibility as referenced in the agreement.

Companies Act 2013 –
This is a definitive business law, which administers and gives the principles relating to every part of creation just as the disintegration of organizations set up in India.

This article is written by Sara Agrawal student at Sinhgad Law College, Pune.

Jayamma & Anr. v. The State of Karnataka

Posted on

Case number

Criminal Appeal No. 573 of 2016.

Equivalent citation

(2021) 6 SCC 213.

Bench

CJI N. V. Ramana, Hon’ble Justice Surya Kant and Hon’ble Justice Aniruddha Bose.

Date of Judgement

May 7, 2021.

Relevant Act(s)

The “Evidence Act, 1872”; the “Indian Penal Code, 1860” and the “Code of Criminal Procedure, 1973”.

Facts of the case

Both parties were very much related to each other. There had been clashes going on for a long time between the family of Jayamma (appellant), who is the wife of Reddinaika and the family of Jayamma (respondent), who was the deceased wife of Sanna Ramanaika. An argument took place between the two families in 1998 on September 10. During this argument, Reddinaika was assaulted by Ramanika’s son, i.e., Thippeswamynaika. After this incident happened, the appellants arrived at the respondent’s place on 21 st September to confront them about the actions of Ramanaika’s son. A sum of Rs. 4000 was also demanded by the appellants in order to cover the medical treatment costs. A heated altercation happened, as a result of which the appellant party poured kerosene on Jayamma (who is now deceased) and set her on fire. The appellants were explicitly blamed for the death of Jayamma (respondent). Jayamma’s family members heard her screams and tried to set off the fire. In the meantime, the appellants ran away from the scene. Jayamma was then admitted to a “public health entre”. Jayamma was given pain killers and basic treatment by Dr A. Thippeswamy. A medico-legal case was then sent to the Thalak police station. Jayamma gave her statement and she had implicated the whole appellant party under “sections 307, 504, 114” read along with “section 34” of the IPC. Finally, on September 23, Jayamma passed away. The post-mortem report said that she died due to shock which came as a result of her injuries. The appellants got arrested, but with the help of anticipatory bail, they had to be released. When the matter was presented in the trial court, a number of witnesses turned hostile. The issue then was whether Jayamma’s death was suicidal in nature or if it was homicidal. It was noted by the court that all of this was based on the dying declaration of Jayamma. The accused were not convicted due to a lack of genuineness and evidence (except for the dying declaration). Therefore, the court acquitted the appellants. During the High Court hearing, it was decided that the judgement of the trial court would be reversed. The HC of Karnataka decided that a dying declaration was enough to convict an accused. The Hon’ble court convicted the accused under “section 302” read with “section 34” of IPC.

Issues

  1. Was it right on the High Court’s part to reverse the decision taken by the trial court?
  2. Was it successfully established that Jayamma’s death was not suicidal, and instead was homicidal in nature?

Arguments

  • Argument made by the appellants:
    The appellant’s side claimed that the decision taken by the trial court was well structured, unlike that of the High Court which was vague and confusing. It was also contended that the High Court failed to examine the conclusions of the trial court. Thus under “section 378” of the CrPC “, it failed to discharge its obligation”. They claimed that a decision should not be taken just on the basis of a dying declaration and that the motive of the appellants could not be established. Hence, the acquittal is incorrect.
  • Argument made by the respondent:
    The learned counsel contended that in cases of death from 100% burn injuries, the dying declaration can be considered enough for a conviction.

Judgement

After a thorough investigation, the Supreme Court found that some modifications had been done in the dying declaration and that the HC of Karnataka had unnecessarily depended a lot on just the dying declaration. The Court also concluded that since Jayamma was in a lot of pain she might have not been in a state to give a proper statement before dying. Hence, the Apex Court decided to acquit the appellants in the present case. The Court also mentioned that high accuracy had been maintained in the dying declaration which was unlikely for an individual who was in such physical condition and also Jayamma was not that literate to describe the whole situation with such details. Jayamma was alive for almost 30 hours, but the authorities did not contact the Executive Magistrate to record the statement of the patient. Hence, the apex court was not convinced enough to accept the dying declaration as the sole piece of evidence to convict the appellants. The Court also pointed out the fact that it was not a family member who had complained to the police, instead it was the doctor. Thus, this also questions the homicidal nature of death. Apart from these, it was also held that it was unfair on the High Court’s part to exercise “section 378” of the CrPC, that too when the trial court gave a right decision.

Conclusion

This is an important judgement that primarily talks about the usage of dying declaration as the sole piece of evidence in any case. A point that should be noted here is that it took so many years to serve justice to Jayamma and her family. During this course of time, the family had to go through a lot. There are so many cases in India that are pending, and the party that suffers the most in these cases are one of the parties. Also, it is not fair to assume that the investigation done by lower courts is inadequate or incorrect. The Supreme Court had given a very detailed and reasonable judgement in this case. This judgement is one of the most significant judgements of 2021.

This article is written by Aaratrika Bal student at National Law University Odisha.

Karansinh Chetansinh Vaghela through Wife Vaghela Bhumikaba Karansinh vs. the State Of Gujarat

Posted on

Case Number:

Letters Patent Appeal No. 699 of 2021 in Special Civil Application No. 6853 of 2021

Bench:

Chief Justice Vikram Nath

Justice Biren Vaishnav

Date of Judgment:

23/08/2021

Relevant Acts:

Gujarat Prohibition Act, 1949

Gujarat Prevention of Anti-social Activities Act, 1985

Facts of the Case:

The appellant being in jail was detained according to the provisions of the Gujarat Prohibition Act under Sections 66(1)(b), 65(a), 65(e), 116-B, 98(2), and 81 concerning the order dated on April 06, 2021, in the backdrop of registration of offenses against the appellant.

Contentions were raised under Article 226 of the Indian Constitution about the detention of the appellant stating that the appellant was arraigned in the offenses where he does not fall within the scope of the definition of “Bootlegger” section 2(b) of the Gujarat Prevention of Anti-social Activities Act, 1985.

Advocate Mohddanish M. Barejia, representing the appellant-detenue, argued that the detenu does not fit the definition of a “bootlegger” as defined by Section 2(b) of the Gujarat Prevention of Anti-social Activities Act, 1985, and that there was no violation of the law, indicating “public order,” entailing his detention.

Assistant Government Pleader Shruti Pathak rejected the prayer, claiming that the detaining authority’s powers and procedural precautions were not designed to allow people to continue criminal acts, and thus the detention was justified and is in accordance with the law’s procedures.

The issue before the High Court:

Whether the subjective satisfaction exercised by the detaining authority deserves no interference?

Whether there was any disturbance of public because a solitary offense has been registered against the detenue?

The ratio of the Case:

In the case of Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of Police in L.P.A. No.2732 of 2010, the court cited a clear distinction made by the Supreme Court between public and law.

The court stated that the term “public order” implies that not every assault or harm to a specific person results in public disorder. Any law infringement impacts order, but before it can be called to affect public order, it must affect the community or the general public at large. Thus, a simple disturbance of law and order that leads to disruption is not always adequate for proceedings under the Preventive Detention Act, but a disturbance that will impact public order qualifies.

Based on a detailed examination of the order of detention, which includes the grounds for the custody and the materials on record, the Court examined the contentions, albeit the Court was hesitant to interfere with the detaining authority’s subjective satisfaction.

The decision of the Court:

The Court stated that based on the facts of the case and an examination of the law, the appellant could not be classified as a bootlegger. The Court decided that numerous instances could not designate a person as a bootlegger in this case because there is only one FOR connected to prohibition offenses.

The appeal of the Letters Patent has been granted. The learned Single Judge’s judgment and ruling in Special Civil Applications No.6853 of 2021, dated June 24, 2021, was quashed and set aside by the Division Bench and the appellant was ordered to be set free if not wanted for any other offense.

The present article has been written by Aathira Pillai.

The present article has been edited by Shubham Yadav, a 4th-year from Banasthali Vidyapith.

Latest Posts

Archives

Kajal Mukesh Singh And Ors v. State of Maharashtra

Posted on

Equivalent Citation

Criminal Writ Petition no. 6065 of 2019

Bench 

Prithviraj K. Chavan

Date of judgment

 30 September 2020

Act 

Immoral Traffic Prevention Act, 1956

Facts 

The complainant, who is a constable in the police, has approached the social service branch, Mumbai. Mr. Revle has secretly informed that a person Mr. Nijamuddin Khan, a pimp provides women for prostitution in Malad’s guest house. A trap has been set out for the raid in the guest house. The raiding team had arrested a client and victim girls and taken them into custody. The victim girls were produced in Metropolitan Magistrate (MM). They were allowed to contact their parents. In an inquiry it found that the victims belong to the Bediya community, the community has a custom that the girl after attaining puberty sent for prostitution. The victims’ parents were aware of their profession and they did not have a problem. The Magistrate has observed that the girls have not been sent to their parents because it is not safe. The court held that the victims need care and protection. Victims were directed to be detained in shelter homes. They were sent to ‘Nari Niketan’ for one year for shelter and vocational training. The MM order has been challenged and appealed in the session court. The appeal dismissed and confirmed the order passed by MM. 

The issue before the court

Indulging in prostitution is not punishable under the Immoral Traffic (Prevention) Act, 1956, if the victims are not being forced.

The ratio of the court

Petitioners argued that the lower court’s interpretation of Section 17 of the Immoral Traffic Act is not correct. The victims could not be accused and prosecuted according to Sections 3 and 9 of the Immoral Act. The victims were indulged in prostitution because of their choice. They were not forced by someone. The law clarified by High Court that it does not criminalize sex workers and instead, it seeks to protect them. Sexual exploitation for commercial purposes like pimping and also soliciting or seducing in public places is prohibited under law. Running brothels or allowing prostitution from a place is also illegal. The law assumes that the persons offering their bodies in exchange for money are victims and not doing immoral acts. The Immoral Traffic (Prevention) Act, 1956 criminalize sexual exploitation and abuse of a person for commercial purpose and does not criminalize the commission of prostitution. The court observed that petitioners were indulging in the seduction of any person nor were they running a brothel to seduce a person.  The Court has observed the order passed by MM because they belong to a particular caste but the magistrate ought to have considered their willingness and consent before detention. Victims have the right to reside at the place of their choice.

High court decision

The court observed that victims were not prosecuted under the Immoral Traffic Prevention Act so they cannot be detained in ‘Nari Niketan’ or any other institution. The Metropolitan Magistrate does not have the right to hold custody of the victims for more than three weeks in the absence of a final order which is due process of law. The purpose of the Immoral Traffic Prevention Act is prohibited where the victim is forced by a person or seducing any person in public places. But Act does not prohibit prostitution or punished prostitutes. There is no provision under law that criminalizes prostitution or punishes a person who indulges. 

The present article has been written by Prachi Yadav, a 2nd-year student from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

The present article has been edited by Shubham Yadav, a 3rd- year student from Banasthali Vidyapith.

Latest Posts

Archives