Tag: #lawstudents

-Report by Himanshi Chauhan

In the recent judgement of YOGESH NAVINCHANDRA RAVANI v. NANJIBHAI SAGRAMBHAI CHAUDHARY & ORS, an appeal is filed by the appellant challenging the final judgement of the High Court of Gujarat at Ahmedabad whereby the High Court passed strictures against the appellant and restored the second appeal to its original number and status.

FACTUAL BACKGROUND:

One Jesangbhai Kachrabhai Parmar (hereinafter referred to as “original plaintiff”) had filed a suit before the Additional Senior Civil Judge, Mehsana challenging the sale deed dated 14 September 2000 which was executed by Nanjibhai Sagrambhai Chaudhary in favour of Sureshbhai Hirabhai Chaudhary with respect of suit property. The said suit was dismissed by the Additional Civil Judge and this order was passed on 12 June 2008. But it is to be noted that the original plaintiff had died on 31 December 2006 i.e. during the pendency of the suit. Therefore, a further suit is presented by his legal representatives (“LRs” for short).

The first appeal was filed by the LRs of the original plaintiff including the appellant- Lalitbhai Jesangbhai Parmar who is the son of the original plaintiff. This appeal was filed before the Additional District Judge. It was dismissed vide judgment and order dated 23 July 2015.

Thereafter, a second appeal was filed in the High Court by the LRs of the original plaintiff including the appellant. In this appeal, it was displayed that all the LRs of the original plaintiff are appellants. It is to be noted that this appeal was preferred by Vitthalbhai Maganbhai Parmar who was the Power of Attorney holder of the original plaintiff. It was executed in his favour before the death of the original plaintiff. Another Power of Attorney was also executed in his favour by the appellant i.e. Lalitbhai Jesangbhai Parmar. The appellant was Power of Attorney holder only for him and not for other LRs of the original plaintiff on whose behalf the appeal was preferred. Furthermore, the Vakalatnama was not signed by other LRs of the original plaintiff.

The High Court after recognising the said discrepancy raised office objections as to whether the Vakalatnama had been signed by all the appellants or not. In spite of repeated opportunities, these objections were not removed. Therefore, the second appeal was dismissed by High Court on 27 November 2015. Thereafter the application was filed for restoration of the second appeal wherein it was stated that the Power of Attorney holder i.e. Vitthalbhai Maganbhai Parmar had informed the registry of the High Court about his inability to obtain an authority letter from all the LRs of the original plaintiff. Thereby, their transposition as defendants were requested. The HC allowed the said application and restored the second appeal.

The appellant on coming to know about the filing of the second appeal by his Power of Attorney holder cancelled the Power of Attorney through public notice because this appeal was filed without his knowledge or instruction. Furthermore, he engaged Yogesh Navinchandra Ravani, an advocate, to file a pursis for withdrawal of the second appeal. The High Court considered the said pursis and permitted the withdrawal of the second appeal.

However, even after the cancellation of Power of Attorney, Vitthalbhai Maganbhai Parmar filed a Misc. Civil Application in HC for review of its order and consequent restoration of the second appeal. He also seeks condonation of delay. The HC allowed this application and restored the second appeal to its original number and status. In addition to it, costs were imposed upon the appellant- Lalitbhai Jesangbhai Parmar and strictures were passed against the appellant- Yogesh Navinchandra Ravani for his conduct as an advocate while seeking withdrawal of the second appeal. 

Hence the present appeal was filed in the Supreme Court challenging the final judgement or order of the High Court.

PETITIONER’S CONTENTIONS:

➢ The learned counsel for the appellant submits that application filed by Vitthalbhai Maganbhai Parmar was not maintainable because the Power of Attorney executed in favour of him stood cancelled via Public Notice.

➢ The learned counsel further submits that the application for review which was filed using earlier Power of Attorney could not have been filed as on the death of the original plaintiff he had no authority to continue with the proceedings.

➢ It was further stated that once the appellant had filed an application for transposing of the other LRs as defendants and once the HC had allowed the said application, he became the dominus litis.

➢ It is submitted that the strictures passed by HC against the appellant- Yogesh Navinchandra Ravani who was only a lawyer appearing on the behalf of appellant, were totally unwarranted and uncalled for.

 ➢ Therefore, it was urged that the second appeal should not be restored and the strictures passed against the appellant- Yogesh Navinchandra Ravani should be cancelled by this court.

RESPONDENT’S CONTENTIONS:

➢ The respondent no. 5 to 7 has filed their reply stating that they had not executed any Power of Attorney in favour of said Vitthalbhai Maganbhai Parmar.

 ➢ Therefore, this reply was used by the appellants and through this they submitted that they also did not intend to challenge the order passed by the Additional District Judge.

JUDGEMENT:

The Supreme Court after considering the facts and contentions of both the parties held that the application filed by said Vitthalbhai Maganbhai Parmar was not tenable as the Power of Attorney executed in his favour by the appellant- Lalitbhai Jesangbhai Parmar stood cancelled by issuing public notice. The position of the appellant- Lalitbhai Jesangbhai Parmar being a dominus litis, has a right to withdraw the second appeal. After the withdrawal of the such appeal, an application for restoration of said appeal filed by the Power of Attorney holder whose Power of Attorney stood cancelled was not at all tenable.

The Apex Court further stated that the observations made by High Court against appellant- Yogesh were totally unwarranted and uncalled for. Thereby it was held that the decision and order passed by High Court is not sustainable in law. The same is quashed and set aside.

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

-Report by Himanshi Chauhan

In the recent case of Ruksana v. Jawahar Lal Nehru University, a writ petition was filed, in the Hon’ble Court for the violation of Articles 14 & 15 of the Indian Constitution, by the petitioner i.e. Ruksana. 

FACTS:

The petitioner i.e. Ruksana belongs to the OBC category. She applied for admission to the Ph.D course of “Social Exclusion & Inclusive Policy” at JNU for the academic year 2021-22. There were a total of 8 seats for the said course out of which only 2 are reserved for the OBC category. For admission in the said course, a computer-based test (CBT) was conducted by National Testing Agency. The petitioner took the test and secured Rank-08 in the OBC category. Therefore she was not selected for the course. 

But at the same time, Mr Shahid C. who secured Rank-07 in the OBC category was selected for the Ph.D course. He blocked his seat but had failed to submit his documents and certificates before 19.01.2022 which was the last date of admission according to the petitioner. Mr Shahid C. also via an email to the respondent university on 15.02.2022 requested the cancellation of the seat blocked by him.

Therefore, the petitioner is of the view that the vacant seat should have been offered to the petitioner as she was the next candidate on the merit list. Petitioner relied on clause 6.3 of the Admission Policy & Procedure 2021-22 notified by the JNU which provides that seats that remained vacant could be offered to the candidates next in the merit list.

PETITIONER’S CONTENTIONS:

➢ The learned counsel for the petitioner submits that through the texts received by Mr Shahid C., it is evident that the last date for submitting documents and certificates was 19.01.2022 and in the event of the failure to submit requisite documents by 19.01.2022 the admission will be deemed as cancelled.

➢ He further contended that Mr Shahid C. had failed to submit the required documents by 19.01.2022, therefore, his admission will be deemed as cancelled. He also submits that Mr Shahid C. had also conveyed his intention to the respondent university to cancel his admission through an email.

➢ The learned counsel, therefore, urged that seat should have been offered to the petitioner due to the vacancy created.

➢ The learned counsel further submits that the last date for admission according to the timetable was 20.02.2021 but the fifth and final list was issued by the university on 28.01.2022 i.e. much later than the deadline. It clearly shows that the university itself did not adhere to the last date of admission.

➢ He further contended that the date of admission written on the Semester Registration Card of Mr Saddam Hussain is 04.03.2022 which is much later than the deadline for admission. The learned counsel, therefore, submits that the respondent had the discretion in deciding whether candidates were to be admitted or not after the last date.

RESPONDENT’S CONTENTIONS:

➢ The learned counsel for the respondent submits that Mr Shahid C. was pursuing M. Phil from Pondicherry University but at the same time, he had blocked a seat for Ph.D. in JNU. But a student cannot be registered in two regular courses at the same time.

➢ The council draws the attention of the court to the circulars dated 24.12.2022 which provided that the students pursuing M. Phil from other universities had to submit the dissertation in their respective universities on or before 31.01.2022 and simultaneously had to submit a certificate with the JNU for confirming their admission in Ph.D. program. 

➢ The counsel further submits that Mr Shahid C. kept the seat blocked till the final merit list i.e. on 28.01.2022 and accordingly, no vacant seat was available which could be offered to the petitioner.➢ The learned counsel further submits that the cancellation of admission by Mr Shahid C. on 15.02.2022 was of no use to the petitioner as the admission process was already closed by then.

➢ As far as the date on the registration card of Mr Saddam Hussain was concerned, it was submitted that he had already blocked his seat in Ph.D. program in the first merit list itself. Further, due to Covid, the semester started late and the date mentioned in the registration card is the date on which the same was generated at the school/centre level.

➢ Therefore it was urged by the respondent university that they had acted in the four corners of the admission policy and the petitioner had no right to seek admission when there was no vacant seat available till the last merit list.

JUDGEMENT:

The Hon’ble court while deciding the case, referred to clause 6.3 of the Admission Policy & Procedure 2021-22 which makes it clear that only such seats which are vacant before the deadline for admission, shall be offered to the eligible candidates next in the merit list. But in the present case, Mr Shahid C. had blocked his seat till 15.02.2022 which was much later than the deadline for admission i.e. 28.01.2022. Therefore the seat in the Ph.D. program was not vacant till the admission process continued and the same could not be offered to the petitioner contrary to the mandate of clause 6.3 of the Admission Policy & Procedure, 2021-22.

The court thus held that as there was no vacant available, the petitioner cannot claim the right to admission against the said seat and no mandamus can be issued directing the respondent institute to grant admission to the petitioner contrary to the approved timeline.

READ FULL JUDGEMENT: https://bit.ly/41Bn4c5

-Report by Sakshi Tanwar

The question in the present writ petition is whether the past service rendered by the petitioner as a Civil Judge can be counted for the purpose of calculating the qualifying service viz. ten years as Civil Judge, for appointment to the Delhi Higher Judicial Serviceby promotion on the basis of merit through Limited Departmental Competitive Examination (‘LDCE’).

FACTS:

The petitioner joined the HCS as a Civil Judge on June 27, 2012. Following that, the petitioner successfully completed the Delhi Judicial Service. Examination, 2015, and joined the Delhi Judicial Service (‘DJS’) through the proper process, i.e., after being discharged from the post of Civil Judge (Junior Division)-cum-Judicial Magistrate. Upon her request, the petitioner was exempted from mandatory induction training and was given the benefit of her HCS service for the limited purpose of being exempted from training in the DJS, carry forward of leave, Leave Travel Concession and pay protection. In a letter, the petitioner sought that the Court enable her to appear for the LDCE 2022 for promotion to the DHJS by including her previous service with the HCS towards the required service of ten years as a Civil Judge. The petitioner’s request was heard by the Court’s Examination Committee and later rejected.

PETITIONER’S CONTENTION:

According to the learned counsel, the petitioner was initially appointed in the HCS on June 6, 2012. He stressed that the petitioner’s remuneration in both HCS and DJS was the same. As a result, he claims, the petitioner made a lateral entry into DJS. He stated that the provision making Civil Judges with ten years of qualifying service eligible for promotion in the 10% LDCE quota for DHJS came into effect only on April 19, 2022, as a result of a Supreme Court of India judicial order in All India Judges Association Vs. UOI & Ors. He contended that the competent authority had not considered the above judgment of the Supreme Court. He stressed that the Government of India had issued an O.M. dated September 1, 1998, for all its workers to count past service for the fulfilment of qualifying service for promotion in the new department.  He contended that the interpretation of O.M. is no longer res integra because it has been interpreted by the Supreme Court in accordance with the petitioner’s claim in Renu Mullick vs. Union of India, (1994) 1 SCC 373.

RESPONDENT’S CONTENTION:

The learned counsel submitted that the judicial officers nominated to HCS and DJS are subject to distinct service rules and are overseen by different High Courts, and so the terms of service of people subject to various rules cannot be equated as a matter of right.He submitted that Rule 2(e) of the DJS Rules categorically defines the word ‘service’ as the ‘Delhi Judicial Service’ and there is nothing in the DJS Rules which states that the service rendered as a judicial officer in another State is to be counted for calculating the qualifying service. He contended that the benefits of carry forward of leave, LTC, and pay protection, all of which fall within the monetary genre, were granted to the petitioner in accordance with the guidelines provided in O.M. dated 17th August 2016 of the Government of India. He also contended that the petitioner’s entire case violates the well-established legal concept that the fundamental qualification for a position is completely determined by the employer.

JUDGEMENT:

The High Court stated that there is no merit in the present writ petition. Accordingly, the present writ petition along with applications stands dismissed but with no order as to cost.

READ FULL JUDGMENT: https://bit.ly/3V4sObO

-Report by Utkarsh Kamal

In this case, according to the Supreme Court, the State Government cannot argue that Rules of Business were not followed throughout its decision-making process when the Cabinet establishes a committee and the latter’s acts are approved by the Minister and the rest of the Council. The Rajasthan Industrial Development and Investment Corporation Ltd. v. M/s Arfat Petrochemicals Pvt. Ltd. & Ors. case was decided by a bench consisting of Justice Surya Kant and Justice Vikram Nath, and they upheld the subcommittee’s decisions by ruling that the rules of business were followed because the subcommittee was only carrying out its duties on behalf of the entire Council of Ministers.

FACTS:

To J.K. Synthetics Ltd. (“JKSL”) in the Large-Scale Industrial Area of Kota (“LIA, Kota”), the State of Rajasthan granted a leasehold allocation of land (“Land”). The allocation was decided in accordance with the Rajasthan Land Revenue Act of 1956 and the State Government’s industrial policy. The Rajasthan State Industrial and Mineral Development Corporation Ltd. (“RSIMDC”) were established to carry out development projects throughout the State while the lease was still in effect. Following its division into two parts, Rajasthan State Industrial Development and Investment Corporation Ltd. (“RIICO”) took over as the immediate successor to RSIMDC. The RIICO Disposal of Land Rules, 1979 (“1979 Rules”) were established to manage RIICO’s operations with regard to areas under its ownership. In 1998, JKSL was deemed to be a sick firm, and on the directives of the Appellate Authority for Industrial and Financial Reconstruction (“AAIFR”), M/s. Arfat Petrochemicals Pvt. Ltd. (“Respondent No.1”) took over JKSL’s operations. A change was made to the lease of land originally granted to JKSL in favour of Respondent No. 1. After a while, Respondent No. 1 was unable to resuscitate JKSL’s industrial divisions. Respondent No. 1 then presented a plan to RIICO for changing the leased land’s use from industrial to commercial and for subdividing the land. In 2018, RIICO authorized the subdivision and conversion of land; nevertheless, the Model Code of Conduct went into effect the very following day in anticipation of the forthcoming Rajasthan State Assembly Elections. Following the 2018 elections in Rajasthan, which resulted in a new administration, the conversion of leased land came under examination. On January 1, 2019, the newly elected Council of Ministers established a Cabinet Committee to examine actions performed by the former ruling administration during the six-month period prior to the elections. The approvals granted to Respondent No. 1 were revoked by order of the State Government to RIICO. Which were newly won the state assembly election so respondent no.1 file the case in the High Court under article 226 of the constitution. The Cabinet Committee’s decision and RIICO’s actions to revoke the allocation to Respondent No. 1 were both overturned by the High Court. Following that, RIICO and the State Government chose to appeal to the Supreme Court.

LAW RELATED TO THE CASE:

Article 138. Enlargement of the jurisdiction of the Supreme Court

(1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer

(2) The Supreme Court shall have such further jurisdiction, and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court

Article 226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

LEGAL ISSUE

1) Whether the action taken by the Riico without the cabinet interference is valid or not

2) Whether the Riico has the power to allot the land to the petitioner or not 

RESPONDENT’S CONTENTION:

The first Respondent contested the appeal on the grounds that the government judgment is illegal if it does not follow the Rules of Business established under Article 166(3) of the Indian Constitution. The Industries Department is responsible for handling RIICO-related issues, and the Minister for Industries would serve as the nodal authority for making final decisions in this regard. The decision to revoke the lease and subdivide the land is invalid because the Minister for Industries was not involved in the Cabinet Committee or when the final decision was made. Riico is not allowed to allot the land to anyone, so the land allotted to the petitioner is invalid 

APPELLANT’S CONTENTION:

The lease deed was renewed by the District Collector and not by the RIICO since the State Government, which is a party to the petitioner’s proceedings, was involved. According to the notification dated 18.09.1979, the State Government transferred the industrial areas developed and maintained by the Department of Industries to RIICO. As a result, the largest industrial area in Kota, where the subject land is located, was also transferred to RIICO by the State Government via a notification dated 28.09.1979. Therefore, as it is also authorized for the lands that have already been allocated, the RIICO is qualified to provide permissions or approvals under Rule 12 of the Rules of 1959. In order to build affordable housing under the CMJAY program, the petitioner company requested permission from the District Collector. Under this particular program, the District Collector had the right to provide permission regardless of whether the land was owned by the State Government or the RIICO. The fact that the District Collector personally sought the RIICO’s advice in this matter is clear evidence that the RIICO controlled the aforementioned land.

JUDGMENT:

One cannot claim that the State Government violated the Rules of Business when the Cabinet Sub-Committee is only acting on behalf of the entire Council of Ministers. The Bench noted that the Committees had been established by the Council of Ministers to investigate various anomalies. The investigation of the actions taken by RIICO and its alleged abuse of inexistent powers in favour of Respondent No. 1 was also given to a specific committee. It was stated that governance needed to be done in a practical and effective way. The Rules of Business also advocates for collective governance by the Council of Ministers in terms of recommendations made to the Governor. As a result, the Bench determined that the Council had a collective say in the decision to form subcommittees to review decisions made by the previous administration, including those involving activities by RIICO. The Bench determined that the subcommittee was acting on behalf of the full Council of Ministers when it advised Respondent No. 1 to revoke the licenses and approvals. As a result, the Rajasthan Rules of Business were not broken. The decision of the High Court has been overturned

READ FULL JUDGMENT: https://bit.ly/3V4ags8

-Report by Mehul Jain

It was held by the Delhi High Court in the case of Alliance of Digital India Foundation Vs Competition Commission of India & Ors that on April 24, It is made clear that the observations made herein are only to the extent of deciding the present law before this Court and shall not tantamount to any expression on the merits of the case and the same is therefore, without prejudice to the rights and contentions of all the parties, to be taken at an appropriate proceeding. It is the conclusion of the Delhi High Court.

FACTS

The judgment is made by the learned Single Judge bench “Hon’ble Mr JusticeTushar Rao Gedela” On 24 April 2023. 

The petitioner has filed the instant writ petition that the following facts shorn of all unnecessary details and germane and relevant to decide the dispute are as under: -1. On 20.02.2020, an anonymous informant filed an information before the Competition Commission of India (hereinafter referred to as “CCI”) under Section 19 of the Competition Act, 2002 (hereinafter referred to as “Act”) against Respondent No. 2 – 5 (collectively referred to as ‘Google’) (First Information). The CCI registered the First Information as Case No. 07 of 2020. 2. Thereafter, on 09.11.2020, the CCI issued a prima facie order under Section 26(1) of the Act in Case No. 7 of 2020 directing the Office of the Director General (DG) to investigate Google. 3. Subsequently, on 29.06.2021, a second informant (Match Group Inc.) (Respondent No. 6 herein) filed information before the CCI against Google under Section 19 of the Act (Second Information). The Commission registered the Second Information as Case No. 14 of 2021. The same was followed by an application for interim relief filed by Alliance of Digital India Foundation (Petitioner) against Google on 06.10.2021 (First IRA) in Case No. 07 of 2020 and Case No. 14 of 2021, seeking ad-interim relief restraining Google from implementing its Payments Policy under Section 33 of the Act. 4. That thereafter, on 18.10.2021, Petitioner filed a piece of information against Google under Section 19 of the Act (Third Information). The CCI registered the Third Information as Case No. 35 of 2021, which was finally clubbed by Case Nos. 07 of 2020, 14 of 2021 vide its Order dated 02.11.2021. 5. Consequently, from 16.03.2022 till 01.09.2022, the proceedings of these cases moved in full swing by the filing of an investigation report by the DG, which was subsequently followed by its response filed by Google, and the detailed hearings conducted thereafter by the CCI. All such proceedings reached their conclusion by CCI and the matters were reserved for orders. 6. After the conclusion of CCI oral hearings and when the final order was reserved, Google swiftly announced a user choice billing (UCB) pilot program for non-gaming app developers in India on 01.09.2022. 7. The CCI passed the final order in Case No. 07 of 2020, 14 of 2021 and 35 of 2021, which was challenged by Respondent Nos. 2 to 5 by filing a statutory appeal before the National Company Law Appellate Tribunal (NCLAT). 8. Therein, Google, on 25.01.2023, submitted its Compliance Report on its supposed implementation of the eight remedial directions given by the CCI. 9. To the said Compliance Report filed by Google, Petitioner filed three applications, one after the other, under Section 42 of the Act, before the CCI, mainly for causing an inquiry into the compliance report filed by Google along with certain other prayers. That all such applications filed before CCI on 31.01.2023, 06.03.2023, and 28.03.2023 under Section 42 of the Act are still impending adjudication to date.

APPELLANT‘S CONTENTION

At the outset, Mr Roy, learned counsel for the petitioner submits that the interpretation of Section 15 of the Act, insofar as the CCI is concerned, is no more res integra since this Court in Cadd Systems and Services Private Limited vs. Competition Commission of India reported in AIR 2019 Del 194, categorically has, after examining the decision in Mahindra and Mahindra Ltd. vs. Competition Commission of India reported in 2019 SCC OnLine Del 8032 is also the judgment rendered by the Hon’ble Supreme Court in B.K. Srinivasan and Others vs. the State of Karnataka and Others reported in (1987) 1 SCC 658and State of Gujarat vs. Utility Users Welfare Association reported in (2018) 6 SCC 21, concluded, after examining the provisions of Section 15 of the Act, that the said provisions amply make it clear that no act or proceedings of CCI would be invalid because of any vacancy or defect in its Constitution. Learned counsel submits that as a result of the aforesaid observation, the Coordinate Bench of this Court in Cadd Systems (supra) concluded that notwithstanding that a judicial member is required to be appointed at CCI, the order passed by CCI cannot be called into question. Learned counsel relies upon Paras 26,38,39 of the judgment of learned Single Judge in Mylan Laboratories (supra) and fairly submits that the judgment in Mylan Laboratories (supra) was rendered in respect of Intellectual Properties Appellate Board Particularly Section 84(2) of the Trade Marks Act, 1999, regarding the constitution of its bench. Learned counsel has also placed on record a compilation of judgments which have also been considered.

RESPONDENT’S CONTENTION

Learned senior counsel submits that the petitioner is aware that on merits, so far as the charges are concerned, the CCI had given a finding in favour of respondent nos. 2 and 3 and the same was never challenged by the petitioner by filing a statutory appeal thereagainst. He submits that having not challenged the said finding, now to challenge the same by way of the present writ petition or even the application under Section 42 of the Act would amount to the re-agitation of an issue which has been decided by the CCI. On that basis, the learned senior counsel submits that the observations and findings reached by the CCI are final and binding upon the petitioner. Thus, neither the application under Section 42 of the Act nor the present petition is maintainable either on facts or on the law. 

Mr Sandeep Sethi learned senior counsel appears on behalf of respondents nos. 4 and 5 and vehemently opposes the submissions made by the petitioner. According to Mr Sethi, learned senior counsel, Section 8 of the Act decides the composition of the Commission. Referring to sub-Section 1 of Section 8 of the Act, Mr Sethi submits that by the usage of the word “shall”, the legislative intent is to ensure that the Commission would necessarily consist of a Chairperson and not less than two and not more than six other members makes it clear that the minimum quorum for the composition of a competent commission would be minimum of three Members, including the Chairperson.

Learned senior counsel also submits that having said that, the respondents have challenged the directions contained in the Final Order dated 25.10.2022 before the NCLAT. On an overall conspectus, Mr Sethi submits that the present petition is devoid of any merit, is an abuse of the process of law and ought to be dismissed in limine with exemplary cost.

JUDGEMENT

This Court has heard the submissions made on behalf of the respective parties and considered the ratio laid down in various judgments passed by the Hon’ble Supreme Court as well as the judgments delivered by the Division Bench of this Court as well as other High Courts.

Moreover, according to Mr N. Venkataraman, learned ASG, the CCI is constituted following the provisions of the Competition Act, 2002 and is very much functional and also simultaneously carrying out adjudicatory functions. Because of the above, there is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of the Act, as filed by the petitioner, for hearing and considering the same following law on or before 26.04.2023. Accordingly, the petition stands disposed of in the above terms. It is made clear that the observations made herein are only to the extent of deciding the present is before this Court and shall not tantamount to any expression on the merits of the case and the same is therefore, without prejudice to the rights and contentions of all the parties, to be taken at an appropriate proceeding.

READ FULL JUDGEMENT: https://bit.ly/44dYM9V

-Report by Arunima Jain

The Mumbai High Court on Friday upheld that any individual representing an agricultureconstituency whilst running for candidature must understand the meaning of being a memberof the committee. If the person’s primary source of income is not from agricultural processes,or if the person holds a trader’s/ commission agent’s or broker’s license, or even if the personhas a future interest in obtaining such a licence, then the person would automatically bedenied the right to partake in the elections for the same. A representative of a “firm” who votes in the APMC election does not have a stake in the “firm’s” operations because he is that “firm’s” representative.

FACTS

For the matter at hand, the facts pertain to the election for the Agriculture Produce MarketCommittee. In the constituency of agricultural credit societies and multipurpose cooperativesocieties in the APMC, Parola, the petitioner submitted his candidature in the OBC categoryand in the Open category. In the present case, the petitioner is a member of Parola Taluka

Cooperative Fruit Society. This society is registered to vote in the merchant’s constituencyand has a trader’s licence. The problem that arose was that according to Rule 10(2)(ii) of theMaharashtra Agricultural Produce Market Committee (Election to Committee) Rules, 2017,an individual associated with a trading licence is ineligible to run for office in an agriculturalseat. In furtherance of the same, several objections and appeals were raised which disqualified the petitioner from participating in the elections. The petitioner has accordinglyfiled a writ petition to clarify the matter once and for all.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that the petitioner is notdisqualified under Rule 10(2)(ii) of the Election Rules 2017 since he serves as a ParolaTaluka Cooperative Fruit Sale Society representative and does not have an individual license.According to the learned counsel, the petitioner cannot be declared ineligible under Rule10(2)(ii) of the Election Rules 2017 since they represent a society with a trader’s license.

JUDGEMENT

Upon giving due regard to the facts and the law in the above-mentioned case, it is contended by the Bombay High Court that it is patently illegal to have passed the orders as have beenpassed by the preceding authorities. The Hon’ble Court held that the petitioner was not disqualified from running for the elections, and thereby, the election authority has beeninstructed to include the name of the petitioner in the final list of nominated candidates. Moreover, as the inclusion of the petitioner’s name in the list of nominated candidates would not affect the election process at this stage, there was no harm in the same. the writ petition was therefore allowed.

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

-Report by Sejal Jethva

ZAFAR BADYARI VS. SANDEEP SINGH, in this matter, the appellant/defendant seeks to challenge the decision made by the learned, Tis Hazari Courts, Delhi, according to Order 43 Rule 1 read with Section 104 CPC.

FACTS

The respondent/plaintiff had brought the underlying lawsuit, CS No.461/2021, following Order 37 CPC, to collect possession, licence fees, and damages of Rs.13,30,000. It was said in the lawsuit that the suit property, a shop on the ground level (apart from the mezzanine floor), had been licenced to the appellant for 11 months at a rate of Rs. 1,33,000 per month, minus additional costs. The dishonoured checks that the appellant had given to the respondent to cover the arrears were the basis for the lawsuit. The contested order states that on September 17, 2021, the appellant received summonses in the suit and was deemed to have been served. Due to the appellant’s refusal to present and/or submit a leave to defend under Rules 3 and 5 of Order 37 CPC, respectively, the trial court issued the ex-parte decree by using Rule 6 of Order 37. A finding of respondent serving of process had been made by the Trial Court.

APPELLANT’S CONTENTION

Rather than using Order 37 Rule 4 as provided for in the CPC, an application was submitted for the setting aside of the ex-parte decree under Order 9 Rule 13 of the CPC. The impugned order makes it clear that the trial court did not suffer any harm as a result of this misunderstanding and treated the case exactly as if it had been submitted in accordance with Order 37 Rule 4 and made identical decisions as such. The appellant did not establish “exceptional circumstances,” as the trial court noted in the impugned ruling, and this suggests that the trial court decided the application in accordance with Rule 4 of Order 37 and not Order 9 and Rule 13.

The appellant attempted to make arguments regarding the case’s merits, but given that the maintainability of the case has been questioned, this Court will first address the maintainability problem because the merits of the case are not currently a factor that should be taken into account. The learned counsel for the appellant was unable to cite any CPC provisions under which the appeal would fall, but he argued that because the two provisions, which essentially deal with the court’s ability to overturn an ex-parte decree, are similar, the appeal may be deemed to be maintainable against the Order 37 Rule 4 order because it is maintainable against an Order 9 Rule 13 order.

RESPONDENT’S CONTENTION

The respondent’s knowledgeable attorney, Mr. Aaditya Vijay Kumar, raised a preliminary challenge to the appeal’s maintainability. He claimed that because the contested ruling was issued in accordance with Order 37 Rule 4 CPC, it is not subject to appeal under Order 43 Rule 1 CPC.

JUDGMENT

1. In order to speed up the resolution of commercial lawsuits, Order 37 CPC relates to the summary trial method. After being served, a defendant is obligated under sub-rule 2 to appear in court; otherwise, the averments in the plaint are deemed conceded, and the plaintiff is entitled to a decree. Within ten days of receiving the summons, the defendant must appear in court and submit a memo of appearance. The plaintiff must serve the defendant with a summons for judgment upon the defendant’s attendance, and the defendant must submit an application for leave to defend the action within ten days of receiving the summons. The Court then decides whether to grant unconditional leave to defend, conditional leave to defend with the conditions it may deem appropriate, or dismiss the leave to defend and pronounce the lawsuit. 

2. A challenge to the order issued in accordance with CPC Order 37 Rule 4 is not admissible under Order 43 Rule 1. As a result, the appeal is denied and the respondent’s initial objection is upheld. The appellant is free to look for a legal remedy if one is available. It is made clear that this Court has not addressed the arguments made by either party about the case’s merits.

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-Report by Utkarsh Kamal

In this case, we are going to discuss the rights of the prisoners, and also as the fundamental right ( right to privacy) of a prisoner and the right to live with dignity, in this case, the prisoner is an accused and he asked to be nude in front of the prison official while there are electronic gadgets available to check him whether he has anything under his clothes or not but still the prison officials asked him to be nude so they can check him. when the accused took this to the  Court where the court held that it was a clear violation of his rights.

FACTS:

An application had been submitted to the judge by Ahmed Kamal Shaikh, one of the defendants in the 1993 Bombay bombings case. The 1993 Bombay bombings trial is currently in its third round. The accused had stated that every time he is brought before the court and hauled back to jail, he is strip-searched at the jail’s entrance, which is humiliating and against his rights, in the motion submitted through counsel Farhana Shah. Shaikh asserted that he had objected to it, but the jail staff began abusing, humiliating, and threatening him with unparliamentary words. He approached the court in distress.

ISSUE:

Whether misbehaving with an accused person in jail is a violation of his rights or not. 

RELATED LAWS:

Article 21: Protection of life and personal liberty, no person shall be deprived of his liberty except according to the procedures established by law. 

This article also includes the right to privacy as well as the right to live life with dignity.

APPELLANT’S CONTENTION:

The applicant/accused Ahmed Kamal Shaikh is upset because after appearing before the court, he is returned to jail. He is made naked in front of other prisoners and staff members while being searched by the searching guard at the entry, which is humiliating and a violation of his right to privacy. When he objected to the same, the concerned searchers misbehaved with him, used unparliamentary words towards him, and humiliated him in front of other people. Threats were made to him as well as detainees. Therefore, he asks for instructions from the Superintendent or Jail Authorities not to misbehave, embarrass him, or speak to him in an offensive manner. He also asks for guidance on how to conduct his own search using a scanner or other technical devices.

Respondent contention: The superintendent of Mumbai Central Prison informed the court that the accused had not received any such degrading treatment. The superintendent contended that the current “false” application was only submitted to put pressure on the jail administration. Hence the court should reject the application.

Judgment: The claims made by the accused had some merit, according to the special judge. When conducting personal searches, the judge instructed the prisons’ superintendent and search guards to employ scanners and electronic tools. The judge further stated that the officers are not obligated to act inappropriately, humiliate the accused, use profane language, or strip them naked if such devices are not accessible and a physical search must be undertaken. The Court further highlighted that in addition to the current applicant, several prisoners who were awaiting trial had come before it with comparable grievances. The same judge had instructed the superintendent and search guards of Arthur Road Jail in February of this year after an accused

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-Report by Nehha Mishra

In the case of VIRENDRA SINGH VS THE ADDITIONAL COMMISSIONER, the appellant was disqualified under Sections 40 and 16(1)(i) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.

FACTS

The appellant was elected as a member of the Zilla Parishad, Chimthane Block, Taluq Shindkheda, District Dhule, as a candidate of a recognized party. He was, however, disqualified from this office by an order issued by the Divisional Commissioner, Nashik, in response to a plea made by the respondent, who had lost the Zilla Parishad election.

The respondent sought the appellant’s disqualification because the appellant had abused his elected position for personal financial advantage. This financial gain is said to have occurred due to the appellant’s role in adopting a resolution by which the Aarave Gramme Panchayat sanctioned the repairing and tarring of a road from Aarave Phata to Mauje Aarave.

Following that, the appellant’s Zilla Parishad, Dhule, granted administrative sanction to the project. This sanction order documents that the Zilla Parishad, Dhule, sanctioned the project for Rs. 15 lakhs by exercising its powers under Section 125 of the aforementioned Act.According to Sections 40 and 16(1)(i) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, the respondent filed the plea. 

An e-tender was floated by the Aarave Gram Panchayat upon the sanctioning. The appellant’s son was successful against the other two candidates who had applied. As a result, he got the tender and was assigned the work of repairing roads at Mauje Aarave for a sum of Rs 14,62,871/-  

The Divisional Commissioner observed that it was obvious the appellant would be able to influence the same because the Aarave Gram Panchayat was in the Chimthane Block, which was under the jurisdiction of Zilla Parishad, Dhule. Additionally, it was noted that there was no proof that the son of the appellant had received work orders from any other blocks under the jurisdiction of the Dhule Zilla Parishad, and as a result, there was a prima facie indication of misuse, which was sufficient to disqualify the appellant under Section 16(1)(i) of the aforementioned Act.

PETITIONER’S CONTENTION

The appellant’s main argument was that Zilla Parishad Dhule, not Gram Panchayat Aarave, had assigned his son work. The allocation was carried out using an electronic tendering procedure that was made public on the Maharashtra Government website. Although it was formally approved by the Zilla Parishad, the Gram Panchayat also paid the appellant’s son for the work. 

The second argument was that the appellant had no personal stake in his son’s business and that they didn’t even live in the same house.

Third, it was argued that in disqualifying the appellant, the Divisional Commissioner did not follow the rules of natural justice. It was urged that an elected official cannot be hastily dismissed from office without investigation.

RESPONDENT’S CONTENTION

Learned counsel for respondent no.3 attempted to emphasize the goal of Section 16 of the impugned Act, namely, to inject probity into the operation of the Zilla Parishads.

In this situation, the job was done on the instruction of the Zilla Parishad, and the payment was also made through the Zilla Parishad. As a result, it was argued that the facts fit fully within the purview of Section 16(1)(i) of the aforementioned Act, and the disqualification was obvious.

There were some controversial changes in the translated version of the Gram Panchayat Resolution, which has served the purpose of awarding benefit to the appellant’s son in one way or the other.

JUDGEMENT

It is undeniably true that elected officials should not be disqualified on frivolous grounds.However, we are also obligated by the statutory mandate, which states that activities that undermine the goal of transparency should not be tolerated.

The only contract he received was one in which funds were sent to the Gramme Panchayat from the Zilla Parishad, of which the appellant was a member. The appellant attempted to excuse the circumstance by arguing that his son was registered as a contractor shortly after the appellant’s election since he had just finished his studies. This fact, in our opinion, raises more questions regarding the appellant’s involvement in his son’s business.

The Zilla Parishad’s issuing of the work order dated 09.06.2020 demonstrates the Zilla Parishad’s supervisory and sanctioning role in the contract, which falls within the broad reach of Section 16(1)(i) of the aforementioned Act.

As a father, the appellant had a higher responsibility to ensure that his son did not sign into a contract that is sanctioned by the Zilla Parishad itself. We can see from the lower courts’ findings of fact that nothing had been put on record to demonstrate even a separation of residence between the son and the father, other than a ration card purporting to show that the son was living with his grandmother.

The appeal was accordingly dismissed. The consequential disqualification would take place from the date of the judgement.

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-Report by Mehul Jain

It was held by the Supreme Court of India in the case of GUJARAT URJA VIKAS NIGAM LIMITED & ORS VS RENEW WIND ENERGY (RAJKOT) PRIVATE LIMITED & ORS that on April 13, it held that the concurrent findings and orders of the State Commission and APTEL cannot be sustained. They are 51 accordingly set aside. The appeals are allowed, with costs payable to the appellants. It is the conclusion of the Supreme Court of India.

FACTS

The judgment is made by the learned Double Judge bench “Hon’ble Mr Justice S. Ravindra Bhat, Hon’ble Mr Justice Dipankar Datta” On 13 April 2023. The Judgment Is Given By “Hon’ble Mr Justice S. Ravindra Bhat”.

The current civil appeals,1 under Section 125 of the Electricity Act, 2003, challenge orders of the Appellate Tribunal for Electricity (hereafter, “APTEL”), dated 06.12.2018 (“first impugned order”) and order dated 24.07.2020 (“second impugned order”). The APTEL had, by those orders, rejected the appeals preferred by the present appellant, and the review petition, as well. Resultantly, the order of the Gujarat Electricity Regulatory Commission (hereafter “the State Commission”), dated 01.07.20154 was affirmed.

The first appellant – Gujarat Urja Vikas Nigam Limited (hereafter “Gujarat Urja”) had approached this court previously challenging the order of APTEL, which was disposed of by this court granting liberty to it, to seek review/rectification. Gujarat Urja then preferred a review petition, which was rejected by APTEL, by the second impugned order. When this appeal was taken up for hearing, on 14.10.2020, this court issued a notice and stayed the impugned order of APTEL.

Gujarat Urja procures power in bulk on behalf of distribution licensees in the state of Gujarat; it is an authorized licensee within the meaning of the term under the Act. The second, third, fourth and fifth appellants are distribution licensees in the State of Gujarat. The first respondent, Renew Wind Energy (Rajkot) Pvt Ltd (hereafter “RWE”) is a wind generator which had set up 25.2 MW Wind Turbine Generators at District Rajkot, Gujarat under the Renewable Energy Certification scheme notified by the Central Electricity Regulatory Commission (hereafter, “Central Commission”). The second respondent is the Wind Independent Power Producers Association (hereafter “Association”). Respondent No 3, Gujarat Electricity Regulatory Commission (hereinafter “theState Commission”) is the regulatory commission under the Act, for the State of Gujarat. The fourth respondent, Wish Wind Infrastructure LLP (“Wish Wind” hereafter) is a wind generator.

On 11.07.2013, Central Commission amended the REC Regulations 2010 (hereafter “Second Amendment”) and replaced “at a price not exceeding the pooled cost of the power purchase “with” at the pooled cost of power purchase”14 along with the relevant statement of reasons for the said amendment. It was clarified in the amendment that PPAs already executed before this amendment at a tariff lower than APCC would not be affected. The first two respondents were aggrieved by the order of the Central Commission. They filed a petition before the State Commission arguing that the terms of the PPA had to be changed because of the change in the REC regulations. This petition was allowed by the State Commission directing that the order of the Central Commission was general and was therefore applicable to all similarly situated wind power generators. Aggrieved by the order of the State Commission, Gujarat Urja had preferred an appeal16 before APTEL. This appeal was rejected by APTEL by order dated 06.12.2018. The appellants preferred a review petition against APTEL’s order rejecting their appeal against State Commission’s order; that too was dismissed by APTEL vide order dated 24.07.2020.

APPELLANT’S CONTENTION

The learned senior counsel for the appellant, Mr C.A. Sundaram submitted that governing regulations for the PPAs in question were the CERC Regulations 2010. Therefore, the State Commission had no jurisdiction to decide the tariff contrary to the agreement. Further, counsel argued that Central Commission itself has clarified by the Second Amendment that in respect of PPAs entered into before 11.07.2013, tariffs mutually agreed upon between the parties would be valid for the entire duration of the PPA (i.e.25 years) and they could not be substituted or re-determined by the State Commission. It was further argued that had the appellants known about the APPC on a year-on-year basis at the time of signing the agreement, they would not have adopted the REC mechanism but instead would have availed a different method whereby prices were fixed and appellants would have been entitled to RPO benefits as well. Reliance was placed on this court’s judgment in “Gujarat Urja Vikas Nigam Limited v. Solar Semi-Conductors Power Limited Company (India) Private Limited” to argue that if the State Commission re-determines the tariff amongst the parties, then the aggrieved party cannot be compelled to continue the said agreement or enter into a new agreement on such increased tariff.

It is further argued that there is no Regulation of the state or central commissions prohibiting a term being incorporated in PPA which permits an option to either party to switch from REC mechanism to Preferential Tariff Mechanism. The impugned order had not considered judgments referred to by the appellants on clauses granting power to one party to cancel the contract. Inthis regard, reliance is placed on “Central Bank of India v Hartford Fire Insurance Co. Ltd” and “Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel & Ors.”

RESPONDENT’S CONTENTION

Mr Shyam Divan and Mr Dhruv Mehta learned senior counsels appearing for the first two respondents urged that State Commission had jurisdiction in the present case. Reliance was placed on the definitional clause of the PPA (Article 1.1) to submit that commission meant ‘State Commission’. It was urged that in terms of the extant regulatory framework, (which provided for regulatory oversight by the appropriate commission), PPAs executed by generating companies and distribution licensees necessarily required approval by the appropriate commission. Firstly, Section 86(1)(b) of the Act specifically vests the State Commission with the power to regulate the electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies. Secondly, under the Multi-Year Tariff Regulations, 2011 (hereafter “GERC (Multi Year Tariff) Regulations”) notified by the State Commission, PPAs are to be mandatorily approved for them to be considered effective and enforceable. 

It was also submitted that Section 86(1)(b) of the Act empowers the state commission to modify, alter or vary the terms of the agreement of PPAs, to ensure their compliance following the regulatory framework established under the Act. It was further submitted that taking into consideration the definition of APPC, it is evident that floor price and forbearance price are dynamic and APPC is associated with the floor price and the forbearance price is also required to be determined on a year-to-year basis so that the guaranteed return to the generators is not affected.

JUDGEMENT

The crisis arising out of, and the enormous environmental cost involved in the continued use of fossil fuels has led governments, the world over, to promote alternative and renewable sources of energy. The rapid growth of renewable energy over the decade and a half has witnessed that solar and wind power are now the cheapest sources of energy in many countries in the world. Once green energy was an expensive alternative, however, it is now helping to reduce energy bills.

The rapidly changing economics of such sources has led, the Union government to realize that solar and other renewables can potentially transform the energy landscape, increase access and help India meet its climate change objectives. Grid transmission capacity has been a barrier; however, distributed and off-grid solar solutions provide a viable solution for increasing energy access. Being dependent primarily on cheap coal-based power generation, traditional thinking on energy has been that increase in renewable energy’s share of electricity generation would further impair local distribution companies’ poor financial situation.

In the present case, this salutary rule was thrown to the wind, by the State Commission. In this court’s opinion, APTEL, in the most cavalier fashion, virtually rubber-stamped the State Commission’s findings on coercion, regarding the entering into the PPA by the parties. There was no shred of evidence, nor any particularity of pleadings, beyond a bare allegation of coercion, alleged against Gujarat Urja. As a judicial tribunal, dealing with contracts and bargains, which are entered into by parties with equal bargaining power, APTEL is not expected to casually render findings of coercion, or fraud, without proper pleadings or proof, or without probing into evidence. The findings of coercion are, therefore, set aside.

Given the foregoing discussion, it is held that the concurrent findings and orders of the State Commission and APTEL cannot be sustained. They are accordingly set aside. The appeals are allowed, with costs payable to the appellants.

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